Thanks to Peter Spiro, David Zaring, and the folks at Temple University

I just wanted to take a moment publicly to thank everyone at Temple University for the lovely conversation about my early draft paper on politics and method in public international law, which I offered yesterday at an international law seminar there.  The redoubtable Peter Spiro, whose new book, Beyond Citizenship, is out from OUP and highly recommended even from a skeptic like me (I don't think you can really take part in that debate without reading Peter's book), organized things, and it was terrific.  David Zaring, from Wharton, commented and was very patient and generous with comments on a very early stage, development stage paper.  (You can see the gist of it in the post preceding this one.)  I prefer to present very early stage papers where possible - meaning the point is not to show off something already done, but to develop it - precisely because I prefer getting comments at a point when the ideas are still being shaped.  Once too far along, the ideas are a bit set in concrete and it feels like defending a completed paper, rather than getting help in developing a new one.  David's comments were extraordinarily useful.  Likewise comments from the rest of the international law faculty and numbers of very thoughtful students.  My thanks to everyone.

**

ps.  A quick note to myself, so I don't forget it when I get past the current crisis deadline and start working on this again.  The broad background for this discussion, at least in matters of method, is the general decline of the humanities and the rise of social science as the way of explaining things.  David was quite right to point to the method axis and suggest that it might better be labeled not prescriptivist and descriptivist, but humanities and social science.  The subtext for the discussion of international law method might be the decline of Kant and the rise of Bentham.  But it seems to me that a big part of this method issue in law is the role of quantitative modeling - and it is echoed across the academy as, for examples, business schools dump the marketing and motivational and leadership stuff and recast themselves as applied economics, etc.  The humanities have themselves to blame for their loss of status, having embraced postmodernist theories that deprived them of any claim to authority, much less truth.  No one looks to humanities, from novels to the essay to art to you-name-it, as a source of revelation.  Social sciences, preferably with a statistical edge, have taken pride of place.  The difficulty is that it is hard, at least in large swathes of law, to see that the new methods are as yet set to deliver.  Mathematics in many of the new fields appears to be less a means of revelation than of a way of establishing an intellectual pecking order: the more math, the smarter you must be:  but the relationship to truth in the real world appears murkier.  Maybe one day the methods will pay off in unambiguous ways - I am no postmodernist, and I would like to hold out for ways of coming at complex social truth, including statistically.  But much of it seems more promising as yet than able to deliver.  How much of the stuff that I see in political science, IR, and international law in these new fields depends, for example, on survey research that cannot be made better than it is by any amount of statistical massage.  Here is a moment for the humanities and its traditional emphasis on the interpretation of texts: consider the Pew survey questions for worldwide attitudes toward Americans, or about religions, etc., and consider the ambiguities that many of those polled might :  when American pollsters are able to show a vastly better track record just for exit polls for national elections, then we might turn to consider the same issues on a worldwide cross cultural basis.  But at the moment, it is more the promise of a method than a method.  In that sense, the new quantitative methods of social science in the traditional humanities and law appear to be more exercises in post modernism than science.  Sorry this is cryptic; it is really scattered notes to myself. 

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

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

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

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

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

***

February 26, 2008

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

Summary

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

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

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

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

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

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

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

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

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

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

The Horizontal X Axis:

Political Commitments:

Sovereignty and Liberal Internationalism

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

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

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

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

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

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

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

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

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

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

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

The Vertical Y Axis:

Method in International Law Scholarship:

Prescriptivism and Descriptivism

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

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

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

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

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

Upper y axis: Prescriptivism

• Normative methods; Kantian moralizing.

Lower y axis: Descriptivism

• Rational choice theory
• Game theory
• Empiricism

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

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

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

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

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

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

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

Upper left quadrant:

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

Upper right quadrant:

• Anderson

Lower right quadrant:

• Goldsmith
• Posner

Lower left quadrant:

• Raustiala
• Guzman
• Hathaway
• Slaughter

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

Independent and Dependent Variables:

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

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

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

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

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

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

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

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

The Spatial Z Axis:

Modes of Explanation in International Law Scholarship:

Endogenous or Exogenous Explanatory Theories

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

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

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

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

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

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

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

***

Conclusion: Have We Learned Anything?  Maybe

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

---

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

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

Very successful National Security Court conference, thanks to everyone

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

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

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

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

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

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

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

Julian Ku brief note on Brooklyn conference on corporate liability in international law and ATS cases

Julian Ku, over at Opinio Juris, here, mentions a conference at Brooklyn Law School on corporate liability in international law. I share much of Julian's view, briefly expressed in this post. I'd add that in informal discussions with non-US international lawyers, they not infrequently express discomfort at the way in which ATS law in the US is evolving and going its own way - a kind of specialized US version of international law for purposes of ATS litigation. It puts them in a difficult situation, because they frequently like the results but dislike the process and what it suggests for the fragmentation of international law as US courts do their own thing with it. Hence the frequent hesitation to pronounce publicly on the issue.

I do hope the Brooklyn conference will publish something, however; the problem, of course, is that there are lots and lots and lots and lots of academic conferences on this topic, not infrequently organized by my school, consisting of academics and politically committed students announcing a political agenda in the hushed tones of academic international law, and never giving a thought to actual arguments on the other side. Whereas, in these areas, it's not just policy arguments on the other side, there are lots of doctrinal ones, textual ones under international law.

Reaching the conclusions reached by the ATS courts on things like civil liability for corporations in these cases requires unabashedly heroic assumptions. Or else it requires what Judge Weinstein did in his last Agent Orange case: simply a lofty assertion that it would be inconceivable that a US court would avoid imposing tort liability because of the corporate form, but thereby negating the altogether quite conceivable implication, however, because that is the plainest reading of the treaty law, that international law (at least if you get away from what American professors and their students think) does not actually conceive of either corporate liability as such or civil liability for corporations as such. It is an interesting form of the sucker's bet, really: ATS litigation today consists of wanting to have (and mostly getting) all the goodies and none of the burdens of US domestic law in international human rights litigation, while wanting to have all the of the goodies and none of the burdens of international law.

Kelsen, my one paragraph untheoretical take

I have been reading, albeit not too attentively, the discussion on the legacy of the German law theorist Hans Kelsen at Larry Solum's legal theory blog and the links there to Brian Leiter and Michael Green. I am no Kelsen expert; once upon a time, when my German reading skills were much better, I read some bits of him, and back as a philosophy student, I read quite a lot of Kelsen in translation - some of my professors had connections to him at Berkeley (Larry and I were at UCLA). Later on, while involved with the critical theory journal Telos in the 1980s, I had numbers of long discussions that referred to Kelsen and the European literature that arose out of his stuff. And Charles Fried at Harvard had some very interesting comments on Kelsen in the philosophy of law course he gave in the mid 1980s. I agree with Larry that Kelsen can be read in translation, and I also agree with Larry, for whatever it is worth, that his neo-Kantian commitments require pretty heroic assumptions to make it all work. That said, and not being a professional philosopher or a jurisprudentialist, I have found, in my own comparative work, that it is pretty hard to understand where important parts of the mind-set of European law comes from without understanding Kelsen. I wouldn't suggest that it is actually derived from Kelsen, although parts surely are, but that the approach that Kelsen brought to law are very much present in the fundamental structure of the Continental and especially, of course, German approach to law. That seems to me true, for example, when reading this very fine article on German-American comparativism, that Larry also cites in another post. Whatever might or might not be true of Kelsen's work as a jurisprudential project, there is an intellectual history reason to read him, a matter of comparative intellectual history in law. I'm not sure how much that urges one to read of Kelsen, however.

Alan Kaufman responding to my solicitation of views on civil military relations and the JAG

Alan Kaufman, a friend, colleague, and former student of mine way back in the old days at Harvard, and nowadays a senior Navy JAG lawyer who knows way, way more than me on many of these topics, has graciously given a detailed, thoughtful response to the issues raised in my blog post on Glenn Sulmasy and John Yoo's new UCLA article on civilian-military relations. It is in the comments, but I think I will pull up some of the more expert and detailed responses into the main blog as posts so it all doesn't get too long. I'll put a new tag, "civilian-military relations" as well. (I much agree with Alan, by the way, as he says below that Professor David Kennedy's book Of Law and War is well worth reading, likewise, as I've said before on this blog, Jack Goldsmith's The Terror Presidency.) Here is Alan, with my thanks and best wishes as ever:

***
Alan G. Kaufman said...

Ken –

I appreciate your invitation to comment. I haven’t read the article yet, only your blog entry, but here are some initial impressions and musings:

I am amazed that Professors Yoo and Sulmasy make the argument that the role of JAG Corps lawyers in providing legal advice to military commanders is evidence of some sort of a breach in civil military relations. Just amazed.

All military officers, including judge advocates, take an oath to support and defend the Constitution of the United States against all enemies, foreign and domestic, and to bear true faith and allegiance to the same.

Enlisted personnel take that oath as well, and at least in the Navy, also swear to obey the orders of the officers appointed over them ( to quote: “that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice.”).

That last part isn’t in the officer’s oath.

So officers - all officers, not just JAGs -- take an oath not to a person or a to a leader; but rather to the rule of law – the Constitution. Not in the sense of the “rules,” but that in the U.S. the law rules us, not a person.

But the Constitution does set out who is the Commander in Chief, and the culture is to give advice, and then to execute the decision of the Commander, even if contrary to the advice given. Unless the decision is to commit a crime – because to obey an unlawful order is itself a crime. That’s when moral dilemmas can arise . . . but I digress from where I want to go with this.

My impression is that perhaps Professor Yoo’s and Sulmasy’s arguments are part of a general sense among some that Commanders are finding themselves hamstrung by lawyers and legal advice in the headquarters. Professor Jack Goldsmith attempts to get at this in his new book, in which he suggests that law and lawyers restrain too much and too greatly the operational and command discretion of the Commander in Chief and his subordinates – that there are hamstrung by “lawfare.”

I would suggest that they do not understand too well the dynamics that occur between a judge advocate and an operational commander and his battle staff in operations. Their views do not comport with my personal experiences, nor I suspect, with the experiences of most others that have served in that role.

One Commander, a 4 star, whom I served, was fond of making the point that “Lawyers advise, and Commanders decide.” And they don’t always take the lawyers’ advice –but they do use it to understand and assess risk, to decide how much risk to accept, and often to develop strategies to mitigate risk or develop alternative courses of action –just as they do with input from across their staffs (from the intelligence officer, the logistics officer, the operations officer, the policy and strategies officer and others).

There is more, of course, too much to put into a comment on a blog, so of course all of this is a topic that is certainly worth exploring. I don’t think I can agree with Yoo and Sulmasy, either about the breach, or about the role judge advocates play.

I think Goldsmith gets at the issue in his book when he suggests that the President’s decision to go it alone in “making law” for this long war on terror has been a tactical mistake with profoundly negative strategic consequences, both for the power of the presidency, and for success in this fight. We lost legitimacy, and that was strategically unhelpful, both domestically and internationally.

I suggest interested people read Professor David Kennedy’s book, “Of Law and War,” for a different perspective (maybe even read it against Joseph Nye’s discussions of “soft power” to provoke some more thought). Kennedy makes some perceptive points about war, law, strategy and legitimacy.

Law, he suggests, is part of the “geography” in which a Commander must fight. He must understand this landscape, and if possible, shape it for the optimum strategic, tactical and operational advantage.

For example:

“ .. .law is relevant to war . . .The military, like other public and private bureaucracies today, operates in war and peace against the backdrop of innumerable local, national, and international rules regarding the use of me, the financing of arms and logistics and the deployment of force. Taken together, these laws can shape the institutional, logistical, even physical landscape on which military operations occur. Today’s military is also itself a complex bureaucracy whose managers discipline their forces and organize their operations with rules. . . .”

“…. When corporate lawyers assesses the significance of all these laws for a business client, they look not only at the formal jurisdictional validity of the rules. They also assess their likely sociological effect – their likely impact on the client’s business strategy. Who will want to regulate the transaction? Who will be able to do so? What rules will influence the transaction even absent enforcement? And they assess opportunities for the corporation to influence the rules, or to use them in new ways to achieve their strategic objective.”

“ . . . The practice of military and humanitarian law requires complex and shifting predictions about law and fact. Whose interpretation of the law will, in fact, prevail, and before what audience?”

“Law has become more than the sum of the rules; it has become a vocabulary for judgment, for action, for communication. Most importantly, law has become a mark of legitimacy –and legitimacy has become the currency of power.”

“ . . .the laws in force are not necessarily the laws that are valid, in some technical sense, but the rules that are persuasive to relevant political constituencies. Whether a norm is or is not legal is a function not of its pedigree, but of its effects. Law has a effect – is law – when it persuades and audience with political clout that something someone else did, or plans to do, to or is not legitimate. The point is no longer the validity of the distinctions, but the persuasiveness of arguments.”

Sets up some interesting debate, I would guess.

Now let me follow one last tangent. How do Commander’s view their judge advocates, how can we serve them better?

A few years ago, an “Independent Review Panel to Study the Relationships between Military Department General Counsels and Judge Advocates General of September 15, 2004, established in compliance with Section 574 of the FY 2005 Defense Authorization Act,” included the following relevant observations:

• Lawyers at Headquarters and in the field play an important role in the DoD’s combat operations, and commanders increasingly turn to their assigned legal counsel for advice on a wide range of issues.

• Since 9/11 there has been a significant increase in the number and complexity of legal issues arising in joint commands, and in the speed with which those issues must be addressed.

• It is clear from the Commanders who testified that legal advice is essential to effective combat operations – “legal advice is now part of the ‘tooth,’ not the tail.’”

• Operational commanders testified that the rule of law has never been more important and that lawyers are an integral part of their staffs and missions.

• The Commander’s lawyer, sometimes in coordination with Pentagon legal offices, is of particular value in operations occurring outside of familiar legal frameworks, such as those associated with the war on terrorism.

• Every commander who testified stressed the importance, indeed the criticality of having the SJA at his side as part of his leadership team during operations.

• The joint commander’s staff judge advocate is the focal point for all legal issues within the command. • The DoD General Counsel is responsible for providing guidance and resolution when legal issues are elevated above the Unified command level.

• The Chairman’s Legal Counsel plays a pivotal role in facilitating legal support for the joint commands, to include acting as a liaison for the DoD General Counsel.

• Civilian and military lawyers are most effective when engaged early in the process and made a part of the organization’s senior management team.

No doubt people will want to debate whether these observations are true as well as whether, if true, this is good or bad. My concern is a little different. Indeed, I would argue to the contrary of Yoo and Sulmasy, and in light of some of Kennedy’s points, the following –the problem isn’t really about lawyers in headquarters generally, it’s more about having the right, appropriately trained, experienced and educated lawyers, in the right place to b ring influence to bear – as you suggest. We don’t have that now, in my opinion. I argue as follows:

The requirement for judge advocates in joint warfighting commands and on the joint staff to give sound advice in the planning and execution of complex joint operations is extensive and the number of experienced judge advocates needed for current operations in joint missions is growing. Legal support is an integral part of the command and control capability for an operational commander. Moreover, “rule of law” is a national security capability that can produce strategic and operational effects. Operational commanders must have a high level of legal support to fully leverage these capabilities.

One aspect of effective support is having experienced and qualified officers of sufficient rank to integrate effectively with operational staffs and other stakeholders at the highest levels of leadership. While in some cases, force of personality and talent can overcome the challenges associated with a lower than appropriate rank, the fact is that rank matters in the military, and effective performance in critical positions should not be left unnecessarily subject to vagaries associated with personality.

Judge Advocates operating in support of 4 star Combatant Commanders in operational command of joint operations, and in support of the Chairman of the Joint Chiefs of Staff, who is the primary military advisor to the Secretary of Defense and to the Commander in Chief, should hold rank commensurate with these responsibilities. The Military Department Judge Advocates General, who currently hold two star rank, and have great influence through their role as legal advisors to Secretaries of the Military Departments and to the Army and Air Force Chiefs of Staff, and to the Chief of Naval Operations, are nevertheless not in the operational chain of command to which the above findings refer, and so play only an indirect advisory role in the provision of legal advice to the Chairman, Joint Chiefs of Staff, to Combatant Commanders, to the Secretary of Defense, and ultimately to the President in his capacity as Commander in Chief.

In fact, although the Military Department Judge Advocates General have played an increasingly important role in legal policy making in the matter of military tribunals or commissions for unlawful combatants detained in ongoing long war operations, in matters of direct legal support to ongoing operations since 9/11, it is Combatant Command and Joint Force Commander SJAs, and not Military Department Judge Advocates General who have been called upon to brief the President, to testify to Congress, and have been subject to media attention for advice given during the conduct of highly visible combat operations. To be most effective, the Combatant Command (COCOM) Staff Judge Advocate (SJA) and the Legal Counsel (LC) to the Chairman of the Joint Chiefs of Staff (CJCS) should, in my opinion, hold the rank of a general or flag officer.

Currently, outside of the reserve forces, there exist eight one star judge advocates in all of the military departments. None are assigned to combatant command or joint staff billets. The Navy has no judge advocates holding active duty one star rank. The SJA to the Commandant of the Marine Corps is by law a Brigadier General, and is the only Marine judge advocate holding one star rank. In some cases, one star judge advocates are assigned to service component headquarters subordinate to a Combatant Commander even though the Combatant Commander’s SJA is of lower rank. For example, Air Mobility Command, a service headquarters component subordinate to Commander Transportation Command, has a one star staff judge advocate although Commander Transportation Command has a Colonel. This reflects an arguably inappropriate misalignment of judge advocate resources with the operational chain of command.

Similarly, the Chairman of the Joint Chiefs of Staff, who is the principal military advisor to the President and Secretary of Defense, and a member of the National Security Council, has a Colonel serving as his Legal Counsel, while subordinate Army, Navy and Air Force members of the Joint Chiefs of Staff benefit from the direct support of Military Department Judge Advocates General, all of whom currently hold two star rank. The Commandant of the Marine Corps, also a member of the Joint Chiefs, and in that capacity subordinate to the Chairman, has by law a Brigadier General assigned as his SJA, as well as a Senior Executive Service civilian general counsel assigned from the Navy Department’s Office of General Counsel. All of this reflects a misallocation of legal resources at the expense of operational commanders and the operational chain of command.

Some will suggest that this misallocation occurs because neither Combatant Commanders nor the Chairman of the Joint Chiefs of Staff have requested flag or general officer legal support in their manning documents, over which they have complete control. In fact, however, quotas on numbers of flag and general officers who may be assigned to these staffs force Combatant Commanders and the Chairman into a “Hobson’s Choice” requiring the sacrifice of flag or general officer staff support in some other critical staff billet in order to make room for a one or two star SJA or LC.

Instead of passing on this irresolvable resource allocation problem to Combatant Commanders and to the Chairman, a better approach is to require by law that the SJA or LC billet be filled by at least a one star judge advocate (as has been done for the benefit of the Commandant on the Marine Corps, who has by law a Brigadier General assigned as his SJA (see Title 10 section 5046)) and then look to the Military Departments to utilize judge advocate resources more appropriately in support of operational joint commanders and the operational chain of command

.……………….There’s some grist for debate. I stand by for the clobbering I expect if anybody reads this.

AG Kaufmanwho was, and remains, your student

Meeting on national security court and administrative detention policy - planning but no date set yet!

I have been gratified but also slightly frightened by the overwhelmingly positive comments people have made when I mentioned a while back that I was thinking of organizing a meeting or some kind of conference on the idea of a national security court and a policy of civilianized administrative detention to replace the current military commissions arrangement. As far as I can tell, Jack Goldsmith and Neal Katyal's NYT op ed galvanized discussion on the idea, both for and against. It has been under discussion in several places for some time preceding that op ed - if you go back in this blog, I think I list some of the authors and articles, including Ben Wittes and me.

It has also raised discussion about why it would be a bad idea, with the primary objection being the question - largely raised by the rights advocacy groups and academics - why go that direction rather than the regular criminal justice system. Create more crimes to deal with terrorism - I think this is the current version of this view - primarily in the "inchoate" crimes area, versions of conspiracy, material support, etc., and it should be possible to obtain criminal convictions without having to go the route of a special court and scheme of administrative detention outside of "regular"criminal law.

Ben Wittes of the Brookings Institution and I indeed have a goal of organizing something on these topics. (Read Ben's Policy Review piece here.) We are hoping but - don't put this in your calendars yet, please! - to aim for a date in late January or early February in DC at my law school. It would be a one day event, morning into early afternoon, with a couple of panels. We have no money, so have no ability to offer travel etc. to anyone. If we offered it for CLE credit and opened it to the public, we might be able to come up with money for sandwiches for lunch. We would certainly hope to get Jack and Neal to participate and indeed lead off - they don't know about this idea yet, however.

We'll keep you posted on whether we are able to pull something together on this. It's certainly our intention to do so.

Jack Goldsmith, The Terror Presidency - Instapundit Podcast Interview

I have just finished Jack Goldsmith's very, very compelling new book, The Terror Presidency: Law and Judgment Inside the Bush Administration. More to follow on the book, but I strongly recommend Jack's podcast interview on the Glenn and Helen Show over at Instapundit, here.

I regard the book as must reading for anyone trying to understand the Bush administration and the war on terror; I think it will be one of the few "insider" books that will be around as a permanent record of the Bush administration. It is a deceptively easy read - Jack turns out to have a genuine talent for narrative and wears his immense legal erudition lightly - rare among law professors, and I include myself in that - but underlying the narrative is a strong analytic core that is not, as Glenn Reynolds points out, exactly what the media coverage of the book suggests.

New - International Law Observer blog

I'm delighted to report that Dominik Zimmermann, of the Max Planck Institute, and some friends have created a new blog on international law, the International Law Observer. I've checked it out and find it informative and interesting. I'm adding it to my blog roll, and I encourage you to check it out. Here's a bit from Dominik's email describing it:

May I draw your attention to a new Weblog on international law, the International Law Observer:

A couple of weeks ago I created this Blog with some friends, who are all researchers in the fields of public international law or EU/EC-Law and active at various European universities or research institutions. It is our aspiration that this Blog will in some way promote the critical debate on up-to-date legal developments in international law, by reporting on recent developments in the academic field(s), informing on influential case-law of (inter-)national tribunals and courts and presenting international custom and important legislation by international organizations.

We hope that this Blog will contribute to the constructive exchange of ideas between scholars, practitioners and other active users and visitors of Legal-Weblogs. Moreover, the Blog attempts to function as a useful addition to the already existing line of Blogs on topical issues of international law. In order to enhance the interactivity between the pertinent Weblogs and to provide a complete as possible coverage of topical issues for the readers, we added a link to your Weblog in our link section. We would be very grateful if you would do the same.

Of course, comments and suggestions on our Weblog (design/shape as well as contents) are much appreciated.

By all means check it out, and a warm welcome to Dominik and friends to the blogosphere!

Duncan Hollis at Opinio Juris on the future of the EU

Duncan Hollis, over at Opinio Juris blog, here, has a very interesting, thoughtful, and informative discussion of the negotiations over the future of the European Union. (I wonder what my WCL colleague Fernanda Nicola - our EU-law star - thinks the EU future holds?)

Steyn on the disappearance of 'Alms for Jihad'

Creeping one way multiculturalism is so normal today that one hardly notices. But Cambridge University Press's ignoble decision to pulp Alms for Jihad and take the extraordinary step of asking libraries around the world to remove it from their shelves, without so much as an effort to defend against libel charges threatened by someone who, on pretty good evidence, is a solid part of the wealthy Saudi funders of jihad and virulent Islamism around the world - well, that is important.

One thing CUP's unseemly-eager surrender especially signals is the direction that this kind of one way multiculturalism takes Britain. An ever more illiberal Britain, gradually shutting down its own liberal institutions through the manipulation by illiberals of the very mechanisms of its liberalism - yet loudly announcing how liberal it is and, as supposed evidence of that liberalism, pointing to the use of its liberal institutions to stifle dissent from its multiculturalism. Remarkable. It really is one's social and cultural constitution-as-suicide pact.

Yet, to be fair to Cambridge University Press, English libel law makes it nearly impossible to fight off a determined billionaire. Each defendent can be picked off separately. On the other hand, there is no evidence that Cambridge UP would have fought back in any case.

Mark Steyn (the full article is worth reading because it gives essential background to the story of jihadist funding.) Here.

***
from:

Mark Steyn
Orange County Register
August 5, 2007

The Vanishing Jihad Exposes

... So why would the Cambridge University Press, one of the most respected publishers on the planet, absolve Khalid bin Mahfouz, his family, his businesses and his charities to a degree that neither (to pluck at random) the U.S., French, Albanian, Swiss and Pakistani governments would be prepared to do?

Because English libel law overwhelmingly favors the plaintiff. And like many other big-shot Saudis, Sheikh Mahfouz has become very adept at using foreign courts to silence American authors – in effect, using distant jurisdictions to nullify the First Amendment. He may be a wronged man, but his use of what the British call "libel chill" is designed not to vindicate his good name but to shut down the discussion, which is why Cambridge University Press made no serious attempt to mount a defense. He's one of the richest men on the planet, and they're an academic publisher with very small profit margins. But, even if you've got a bestseller, your pockets are unlikely to be deep enough: "House Of Saud, House Of Bush" did boffo biz with the anti-Bush crowd in America, but there's no British edition – because Sheikh Mahfouz had indicated he was prepared to spend what it takes to challenge it in court, and Random House decided it wasn't worth it.

We've gotten used to one-way multiculturalism: The world accepts that you can't open an Episcopal or Congregational church in Jeddah or Riyadh, but every week the Saudis can open radical mosques and madrassahs and pro-Saudi think-tanks in London and Toronto and Dearborn, Mich., and Falls Church, Va. And their global reach extends a little further day by day, inch by inch, in the lengthening shadows, as the lights go out one by one around the world.
Suppose you've got a manuscript about the Saudis. Where are you going to shop it? Think Cambridge University Press will be publishing anything anytime soon?

Larry Solum's Legal Theory Lexicon on 'legitimacy'

Larry Solum (that's Lawrence B. Solum, John E. Cribbet Professor at the University of Illinois College of Law, Champaign and Professor of Philosophy, University of Illinois, to you, thank you very much - one of our leading jurisprudentialists and, I'm pleased to say, a dear friend over several decades) publishes, as part of the well-known Legal Theory Blog, a gradually expanding dictionary of basic concepts in legal theory called the Legal Theory Lexicon. It is of immense value not just to students - it is aimed at first year law students with an interest in theory - but also to professors and others looking for a short but always intelligent and straightforward account of key concepts and terms, ranging from legal philosophy to law and economics and so on.

In his most recent post, Larry takes up that question so vital in discussions of international law - certainly it is at the center of much of my own work whether in law narrowly or such broader areas as international organizations, global civil society, the UN, etc. - what is legitimacy?

As Larry himself would say on the Legal Theory Blog, highly recommended! Here is a bit to give you the flavor:

Normative and Sociological Legitimacy

Let’s begin with the distinction between normative legitimacy and sociological legitimacy. On the one hand, we talk about legitimacy as a normative concept. When we use “legitimacy” in the normative sense, we are making assertions about some aspect of the rightness or wrongness of some action or institution. On the other hand, legitimacy is also a sociological concept. When we use legitimacy in the sociological sense, we are making assertions about legitimacy beliefs--about what attitudes people have. Although these two senses of legitimacy are related to one another, they are not the same. That’s because an institution could be perceived as legitimate on the basis of false empirical beliefs or incorrect value premises. The opposite can be true as well: a controversial court decision (Roe, Bush v. Gore, etc.) could have been perceived as illegitimate, even if it had been a legitimate decision.

Conceptions of Legitimacy

Concepts and Conceptions

The distinction between normative and sociological legitimacy is important, but, by itself, it doesn’t get us very far. What does “legitimacy” mean? How is “legitimacy” different from “justice” or “correctness”? Those are deep questions—deserving of a book-length answer. My general policy in the Lexicon series is to steer a neutral course—avoiding controversial assertions about debatable matters of legal theory. But when it comes to legitimacy, it is difficult to stick to this plan. The difficulty is not so much that legitimacy is the subject of a well-defined debate; rather, the problem is that the concept of legitimacy is usually ill-defined and undertheorized.

So here is the strategy we will use. Let’s borrow the concept/conception distinction for a starting point. Let’s hypothesize that there is a general concept of legitimacy but that this concept is contested—different theorists have different views about what legitimacy consists in. Some theorists think that legitimacy is conferred by democratic procedures; others may think that legitimacy is a function of legal authorization. Let’s take a look at four different notions of legitimacy ....

The petition against the Israel academic boycott

The boycott against Israeli academics and academic institutions is as morally appalling as it is counterproductive to the cause of long term peace, and I am certainly pleased to join the petition below, and encourage other academics to do the same. Follow the links to the sign-up page:

***
An International Call To Academics and Professionals From Nobel Laureates and University Presidents To Stand In Solidarity With Our Israeli Academic and Professional Colleagues

To: To Academic and Professional Colleagues

Please Join Us By Signing and Circulating The Following Solidarity Statement With Our Israeli Academic and Professional ColleaguesAs we approach 8000 signatures, please help us raise 10,000 signatures by signing and circulating it. Thank you.

We are academics, scholars, researchers and professionals of differing religious and political perspectives. We all agree that singling out Israelis for an academic boycott is wrong. To show our solidarity with our Israeli academics in this matter, we, the undersigned, hereby declare ourselves to be Israeli academics for purposes of any academic boycott. We will regard ourselves as Israeli academics and decline to participate in any activity from which Israeli academics are excluded.

To Sign This Statement:

Click Here http://www.spme.net/cgi-bin/display_petitions.cgi?ID=9&Action=Sign

Please sign with both first and last names, as well as identify your professional title and institutional affiliation. Incomplete signatures may be deleted. )

To View All Signatories:

Click Here http://www.spme.net/cgi-bin/display_petitions.cgi?ID=9&Action=View

My new Fordham International Law Journal speech-essay, US Counterterrorism Policy and Superpower Compliance with International Human Rights Norms

My speech/essay, US Counterterrorism Policy and Superpower Compliance With International Human Rights Norms, has just appeared in 30 Fordham International Law Journal 455 (February 2007).

I have posted a copy to SSRN, and it can be downloaded (free), here.

The piece has some copyediting mistakes in it - most significant is where William Wilberforce appears instead as Wilbur Luce, ouch! and Ben Wittes' name is misspelled, ouch ouch! - but those problems are my doing, not the journal editors, as I was unconscionably late getting them final handmarked changes and there was not time for me to review final proofs. It is a speech and deliberately left as a speech in essay format, not reworked as an article, so it is quite informal and perhaps quite unjustifiably provocative. It is also sweeping in its scope - I wanted to take in the big picture, the grand picture in a short space.

Earlier I posted some lengthy excerpts from the piece below as blog entries. I'm now deleting those entries, as they are distractingly long, and anyone who wants to read it can download the pdf from SSRN at the link above.

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One short note about what is in this speech-essay. I call for Guantanamo to be closed in this piece. But I make it conditional on very specific and frankly unlikely events - viz., the legislative creation of a special counterterrorism/national security system that, while 'civilianized', does not put everyone into the regular US court system. We need a system of civilian administrative detention with processes for regular review, and we need a system for trying terrorist offenses, narrowly defined as a matter of substance and not applicable outside of terrorism thus narrowly defined (ie, no using the Patriot Act to prosecute (unrelated crimes of, say) child pornography - but which has its own set of more permissive procedural and evidentiary rules. If you can get that, then moving away from the miltiary tribunal system, closing Guantanamo and moving those not released to the US, etc., makes good sense. If not, well, then not.

People need to be clear that not everyone at Guantanamo - even beyond the undisputed "high value detainees" - is merely the innocent shepherd sold by the Northern Alliance. Hamdan was not, on his own admissions. Guantanamo contains people who were detained for regular war crimes on ordinary Afghan battlefields - including the murder of US military personnel - under circumstances which have always warranted military justice. Pure political expediency, not justice, argues for letting them go - and moreover, we already know that released detainees have returned to the battlefield, and more would do so if released - the people they will kill, however, are more likely to be Afghans, or people in Asia, than Americans.

Looking to the future, merely closing Guantanamo does not change the fact that we will pick up people whom we will want to detain for potentially years and yet will not be able to try in a regular court under regular domestic court rules. Either we find conditions of administrative detention, or ... well, what? We might find that we have thereby created an incentive not to detain, but instead to engage in assassination. Or we might look to sponsor proxy forces - eg Ethiopia in Somalia - somewhat in the way that Reagan policy used proxies and surrogates in Central America. Or we might rely on the French and Spaniards and other European countries and the fact that, despite the Western European human rights protection, structurally Continental legal systems provide nowhere near the legal protections of the US constitution in criminal investigation and prosecution, as a structural feature of an inquisitorial, rather than adversarial, system. Or perhaps we simply won't do much of anything at all - caught in stasis between clashes of different policies and different legal standards and different decisionmakers, frozen and immobile - the disaggregated state unable to be proactive in the protection of its citizenry - and so make a very different kind of bet about our safety.

It is easy for the Democrats and Congress to pretend that it is all otherwise and that we can just go back to Sept 10 criminal law paradigms, with some modest increases in homeland security, with targets that won't complain about discrimination - inanimate cargo containers, for example. Possibly the Democratic party would even enact that preference if in charge of the presidency and Congress. But I doubt it. We live at this moment in a period of Republican-facilitated Democratic kibbbutzing - facilitated and enabled by the Cheney policy of pure executive power - sniping without having to take proactive responsibilty and ownership of what protecting against terrorist attacks should mean as a going-forward policy of the United States. That condition is unlikely to last forever and, at the end of the day (if for no other reason than the fact of a new attack), the electorate will know where their leaders stand on counterterrorism and the legal regime shaping it, the necessary and inevitable tradeoffs between security and liberties that define counterterrorism in a liberal democracy.

So by all means let us avoid a police state - although what numbers of my colleagues in the legal academy seem to regard as the police state we supposedly already have seems to me a dangerous case of boy-crying-wolf - but let us also strive to avoid piles of body parts in American cities. The truism that there are necessarily trade-offs between these two is increasingly something denied by a significant part of elite opinion. The academics act as the high-intellectual end of a narrative that an increasing part of the electorate is eager to hear and absorb - there is no real terrorism danger, it stems from our own policies and attitudes, the problem is not terrorism but the invasion of civil liberties, talking about terrorism is simply a way of justifying the police state. Terrorism is not therefore the issue; counterterrorism is. 'They' are not the issue, 'we' are - and ignoring 'them' and focusing on 'us' promises a way back to the blessed land of nostalgia, a way of going back to live in the time of lovely ignorance, otherwise known as September 10, the quiet life, the morally unstrenous time of Before-Bush.

The intellectuals' attitude is not explainable, it seems to me, except on the assumption - which I wearily hear repeated without dissent at many, many academic conferences - that really there is no terrorism problem, except the one that the Bush administration created by invading Iraq or - the more intellectually grand alternative - the one that the West created for itself by being so intolerant of Muslims and Islam and, of course, Israel. But anyway, on either narrative, the problem turns out miraculously not to be terrorism, but instead our own viciously overreactive counterterrorism, which simultaneously creates a police state and promotes a cycle of Muslim radicalization.

Terrorism, on this account, is merely a second order problem. But it's not.

My apologies for missing the Vancouver ASIL/AALS meeting

I owe Jose Alvarez and the other planners and conferees of the international law teaching and scholarship panel at the Vancouver ASIL/AALS meetings taking place in the last couple of days a big apology for canceling late and not being able to attend. There was an important and overriding personal reason for not being able to be there and remaining to teach in Europe longer than originally intended, but I know it inconvenienced everyone and created distinct problems of balance on the panel I was supposed to be on. It is an area that interests me a huge amount - the way in which we as international law academics do both scholarship and teaching - and I earlier posted my initial thoughts about this. It's something I am slowly writing about, and I had looked forward, from my own personal perpective, to getting feedback and ideas from others about this area, and I very, very much regret not being able to be at the meetings.

24 hours in DC, then back to Paris

This is somewhat mad, I agree, a twenty four hour detour from London to DC and back to Paris. I have been teaching in my law school's Europe program this summer, just having spent a very lovely week in London. The students in this year's program are excellent, attentive despite the obvious distractions of London. I'm here with my wife, daughter, and our niece, a student at BYU who has just announced her engagement. We've done some plays, some museums, all the usual tourist stuff.

In addition, my younger brother is a seventh or so year associate in tax and private equity in London at Debevoise and Plimpton, and we have had a rare chance to hang out with him and his filmmaker wife, in between her filmmaking (and filmmaking money raising trips) to her native Hong Kong. We spent a nice evening at their Islington apartment eating Kit's fabulous duck, a marvelous chocolate-pear tart and listening to the trubo-charged folk-rock of their ukelele band, in which Kit plays one of eight ukeleles and John plays fretless bass guitar and also serves as producer and mixer and recording engineer. The band has been playing weddings and some arts festivals. If you think that ukeleles are just these little twangy things - like I did - you - we - are greatly misinformed.

I also had a chance to have coffee with Anthony Dworkin, an old friend and editor of the Crimes of War Project website. I was legal editor of the original Crimes of War book, under the general editors Roy Gutman and David Rieff, and Anthony, a journalist and writer who has gradually emerged as a leading expert in these areas, is bringing out a second edition of that book in August 2007. A lot has changed - the important areas of emphasis have changed - of course since the first edition in 1998. If you have the first edition, you need the second edition, and if you haven't seen it at all, you should check it out at the end of the summer - it is one of the most handsome books in the area, well written and expertly edited, and with fabulous illustration and design. Anthony is one of the smartest writers in the general area of security, laws of war, etc., and I hope that he puts all the work he has done over the past decade into a book on the general question of American policy and international law.

Alas, John Ryle was in Sudan this week, not London, and Philip Bobbitt was traveling someplace else too.

Meanwhile, I am actually in DC as I write this, not London. Family went on to Paris, and the students went on to Brussels, where I am not teaching. I have returned to DC for a meeting with folks from the Hoover Institution on counterterrorism policy. I then get on a plane and return to Paris tonight, in time to teach on Tuesday. Crazy schedule, yes, but I thought the meeting was a very important one for my work and writing. In Paris - besides the usual tourist things - I plan to go on a special search for French chocolate, admire in the bookstores first editions I can't afford of Blaise Cendrars and Rene Char, and see the exhibit at the National Library on the centenary of the birth of Rene Char. And purchase another copy in French of Leaves of Hypnos, which has somehow disappeared.

On the airplane back to DC, I read and finished a really funny, viciously sweet, British novel by the London writer AA Gill, Starcrossed. It is explicitly a rewrite - a very, very explicit rewrite - of that sappy 90s Julia Roberts-Hugh Grant romantic comedy, Notting Hill, complete with the American superstar Lee Montana ("rear of the year in fourteen countries, darling") and a London bookshop clerk and aspiring poet, John Dart. It is sexually punchy - I'd love to give it to my fourteen year old to show her that I can like chick-lit if done properly (well, in some alternate universe, maybe), but the sex is too lurid and nasty for her, or at least for Daddy to give to her, although not as much so as in AA Gill's also wonderful earlier London comedy of manners, Sap Rising. It's vicious and tellingly bitchy in many of its asides and social observations; Gill is an expert, so far as I can tell as a non-English outsider, at English comedy of manners. Yet in the end, though, despite all Gill's efforts, and the efforts of the reviewers, to show that he is a nasty prick and misanthropic, even misogynist novelist (this novel did win the bad sex award, and with good reason), he is a romantic, indeed a sentimentalist, who can't resist a sweet and happy ending - think The Red and the Black as farce with a happy, Hollywood ending to the battles between Julian and Mathilde. I thought it was both hysterically funny as well as rather wise on the question of romance and celebrity. I was actually moved, to my own surprise, by the way in which Gill wrapped the last third of the novel into a sort of take on Antigone, and ended the book with a speech by the Chorus - maybe it was just too long a plane ride, but I found myself thinking back to that fabulous production of Oedipus Rex at the ART at Harvard a couple of years ago that I saw by accident on a free evening passing through Cambridge MA in 2004. (Ms. Montana is in London because she has rather unwisely decided to show the world that she can do serious, RSC theatre, even cast as Antigone, with interesting results.) I was also taken with the fact that, against considerable odds, Gill himself is still quite in love with the idea of poetry, even contemporary poetry, and literature as actually revelatory of something in the human condition. Anyway, I liked it (interesting - I find myself saying that rather defensively), whereas Notting Hill made me cringe with embarrassment, it was so sappy.

(The earlier book, Sap Rising, elicited squeals of delight in some quarters and howls of protest in others, which made for a remarkable set of jacket reviewer quotes. The Guardian: "Do not buy this book." Evening Standard: "He writes so brilliantly." AN Wilson: "Extremely badly written, hideously and unamusingly obscene." Marie Claire: "A clever, sexy story." New Statesman: "Frightful pile of garbage." ... Well, perhaps the TLS got it exactly right: "This is a dirty book.")

Okay. Off to my meeting and then back to Paris.

(Ps so here's more about Gill, from a Guardian interview, here.)