25 May IL and “The Death of Doctrinalism”
Interesting exchange kicked off by Einer Elhauge over at VC (here), with responses from Larry Tribe, Jack Balkin, and Orin Kerr (here, here, and here), among others, the basic line of which is that doctrinalism will get you nowhere in the legal academy these days. The disagreement has been mostly about what qualifies as doctrinalism, and whether this isn’t a very old line of generational attack.
But what caught my eye was Balkin’s assertion in the end that everything comes back to doctrine, in the sense that:
[n]o matter how interdisciplinary legal scholarship becomes, most legal scholarship will still pay a lot of attention to cases, statutes, and other legal materials, and will offer normative prescriptions about their reform and interpretation.
That’s true, except perhaps it’s less true in international law than in any other field. We pay very little attention to cases, because there are so few of them. Treaties, yes, but not nearly to the extent of statutes, and so many of them are essentially constitutional in any case. Doctrinalism and positivism aren’t coextensive — there is a doctrine surrounding customary international law, of course. But because legal instruments are so much less prominent in IL than in other fields, it is almost impossible to be a doctrinalist in anything other than a broad sense. Doctrinalism in IL has been six-feet-under for a very long time.
Might that provide a partial explanation to the rise of IL in the legal academy? In a sense, it turns the “is it law” challenge to the field’s advantage, because it requires resort to something other than doctrine. We have all sorts of developments on the ground pointing in the same direction, but the ascendant methodological orientation of IL away from doctrinalism surely has helped.
Then again, I may just be engaging in the sort of exercise Jack describes here:
*You* are the narrow doctrinalist, the intellectually uninteresting person. In the bad old days, you got all the good jobs. But we are past that now, or soon will be. Your day is finished. A new breed of vibrant, sophisticated [fill in the blank] legal scholars has arisen, and we are here to take your place!
Okay, so I’ve been filling in the blank.
I think you’ve identified one variable relevant to the rise of IL in the academy but might we not more mundanely if not plausibly simply see it another effect of the myriad forms (but especially economic) of globalization (including a whole new generation of immigrants in the academy all that more sensitized–personally, economically, and politically–to the benefits and burdens of globalization)? (And does ‘the academy’ refer here outside North America?)
(Perhaps like Patrick,) I have a feeling your observations may be much more true of international law scholarship in the United States than of the IL community elsewhere. I have noticed for some time that US journals tend to be full of articles that, by and large, you would not find in European IL journals, or at any rate not written by European authors. US scholarship seems to concentrate much more on all sorts of theoretical, philosophical, sociological, CLS (etc.) issues than European scholarship does.
In a separate – and rather older – development, US scholarship even in IL is sometimes beset by a worrying insularism, in the sense that non-US cases and events, journals and even authors are relatively rarely mentioned in works by American authors in American publications. Somewhat understandably, this applies more to foreign material in a foreign language.
Quite what the drift apart in content will do to the decline in mutual attention seems all too easy to predict.
I can only hope I am completely wrong. Am I?
Tobias,
Insularity of US international law scholarship is a legitimate beef. But I resist your suggestion that Peter’s observation is more true of IL scholarship in the US. My sense is that European academics do have greater confidence than their US counterparts in “publicist” doctrinalism, but that is not necessarily moored in positive law of the kind Peter was mentioning. And I think that European scholarship takes a back seat to no one in theorizing international law — see, e.g., the average issue of the Leiden Journal of International Law.
I think Tobias is right, in one sense at least, in saying that there is a lot of academic international law writing in United States journals that would not be found in journals published elsewhere in the world. On a less than particularly analytical basis, I would suggest that there are two differences: – first, much of the United States theory work is, as Edward says, insularist – even in relation to other United States-based scholars – for example, the Posner/Goldsmith/Setear etc reductionists might mention Franck, but only in passing, and not, for example, Benedict Kingsbury, let alone the significant work of non-US scholars. – second, I think the ideological contention over international law – both at the pseudo-theoretical level attempted by P&G and in the controversy over Supreme Court citations – and also the greater tendency of US journals to publish IL work by students who have done one or two IL courses – tends to mean that substantive IL scholarship is often poorly grounded. There is also, I think, an enduring sense about much US-published IL writing that the field is much more indeterminate than is in fact the case in practice. Articles that actually engage with existing… Read more »