Remembering Tom Franck: The Challenge of the Engaged Life

Professor Thomas M. Franck of NYU passed away on Wednesday afternoon.  (NYU has a page in memoriam, here.) I assume his name is well-known to most, if not all, of the regular readers of Opinio Juris. Suffice it to say that his contributions to the field of international law are staggering, as can be glimpsed from his bio on his faculty page. But a faculty bio is a poor measure of one’s life.  Tom was a great scholar, an outstanding teacher, an incisive lawyer, and a devoted friend. No blog post could do him justice but it would be an injustice not to at least try. 

Tom was my teacher when I was a law student at NYU but, more accurately, I have been learning from Tom since before I stepped into NYU Law (having watched him in congressional testimony on C-SPAN), through my time as a student there, and in my years since graduation. And I will keep learning from his scholarship and by the example of his life in days and years hence.

For anyone who is unfamiliar with the breadth ot Tom’s writing, David Kennedy has written a wonderful overview called Tom Franck and the Manhattan School (link to .pdf), that was part of a special issue of the NYU Journal of International Law and Politics commemorating Tom’s career and contributions to international law (35 NYU JILP 291, 397 (2003)). (The whole issue is excellent, with contributions from Harold Koh, Philip Allott, Nathaniel Berman, David Golove, and Martti Koskenniemi, among others.)

International lawyers who entered law school around the time I did (1992) are probably most familiar with Tom’s work on the roles of legitimacy and fairness in international rulemaking and legal compliance.  But this was only one of his most recent (and not his last) innovation. He also has substantial writing in development and the law, foreign relations law (including one of the first–if not the first–casebook in the area), jurisprudence, the law of international organizations, the role of international tribunals, to name but a few.  And he addressed these subjects using a wide palette of methodologies. Kennedy wrote:

His appetite for new interdisciplinary fashions is legendary. In the 1950s, Tom is busy with sociology, empirical opinion polling, functionalism. In the 1960s, it’s psychology, political science, and game theory modeling. In the 1970s, Tom turns to language, to Word Politics, to study of the profession.The 1980s find Tom in philosophy, ethics, jurisprudence. In the 1990s, Tom turns to intellectual history—and religion. [p.408]

But he came at each of these approaches not with a magpie’s fleeting interest in a new and shiny thing, but rather carefully building a complex and nuanced world-view.  Added to this intellectual curiosity and sensitivity to nuance was the fact that Tom was a gifted writer. Tom’s voice as a writer was like his speaking voice: full of verve and wit, erudition and anecdote, and imbued with a sense that there are such things as right and wrong. It is a joy to read his scholarship and I cannot say that about much legal writing.

David Kennedy has written that Tom opened his articles and books as if he was pitching aphorisms. I agree: Tom had an almost musical sense of the rhythm and pitch of the written word. Consider the opening paragraph of Fairness in International Law and Institutions (1995):

Sovereignty has historically been a factor greatly overrated in international relations. Among the overraters have been priominent practitioners of international law, dazzled by their status as, or aspiration to be, high officilas of their national foreign offices. Never, however, have notions of sovereignty demanded as much cautious rethinking as now.

He then goes on to contrast the treatment of the Yugolsavia by the IMF in 1992 to the Island of Palmas arbitration of 1928. And you know what you’re in for: a quick-witted guide who will take you through the breadth and depth of international law as it is actually practiced to try to understand the idea of what is, and is not, fair (and why this matters).

If this was the only book a jurist had produced, he or she would have been remembered for their contribution to the field. But, according to David Kennedy’ s calculations, as of 2003 Tom had written:

A book every 17.8 months for 43 years. Or 6.34 publications a year—one every 8.2 weeks—for more than four decades.

But more important than the sheer volume, is the fact that it was delivered with such keen intelligence, insight, and style.

Although Tom had periodically caricatured himself as a tweedy academic, he was anything but. Rather, Tom Franck was the epitome of the engaged scholar. According to his faculty bio, he advised foreign governments including Tanganyika, Kenya, Zanzibar, Mauritius, Solomon Islands, El Salvador, Bosnia and Herzegovina, and Chad. He represented Bosnia and Chad before the International Court of Justice and he subsequently served as a judge ad hocon the ICJ for the Indonesia/Malaysia case. (See Nathanial Berman’s analysis of Tom’s writings here in Nathaniel Berman, The Quest for Rationality: The Recent Writings of Tom Franck, 35 NYU JILP 339 (2003)). He was also a member of the Tribunal constituted under the Law of the Sea Treaty to hear the boundary dispute between Guyana and Suriname.

As a student, I immediately learned from Tom that international law professors should act, not just talk. They should do what they could in their own area to make the world a better place. I had the opportunity to be one of many students who assisted him in his work on Bosnia’s legal team for the Genocide Case. No abstract theoretician, he was an object lesson in how to think through a case, build a file, and construct an argument.

I saw another aspect of Tom as the engaged scholar when I joined the staff of the American Society of International Law as the Director of Research and Outreach in 1999. Tom was the President of the Society at the time and wanted to increase the ASIL’s outreach to the U.S. judiciary, to Congress, to the media, and to the public as a whole. He impressed upon me the importance of taking discussions of international law out of the ivory tower and into the venues where it should matter most: the courts, the halls of Congress, and even the dinner tables around America.  It is a lesson I took to heart and one of the direct inspirations that pushed me to call Peggy and Julian a few years ago and ask them if they felt like starting a blog to get some broader discussion going about international law.

Tom remained engaged until the end. I understand that recently he rallied himself to attend meetings for a case on which he was working. A close friend of mine had once told me, in regards to my father’s passing, that parents can basically do two things: first, show us how to live a good life, and then show us how to die with dignity. I think that is true not just for parents, but anyone we care about.

But I don’t want to close this with the “how to die well” bit. Way too maudlin and Tom would not have approved in the least.

Instead, I want to emphasize Tom as a teacher–the part that I have not really discussed as of yet.  For all my affection for him, make no mistake: at times he scared the hell out of me when I was a student. One instance immediately comes to mind.  I was part of a fellowship program in NYU’s Center for International Studies, which Tom directed, and as part of our program all the fellows would present papers before an international conference that Tom convened each year. Let’s pause for a moment and consider how incredible this is. Tom put together his main program to showcase student work and let the experts comment.  There were about 50 commentators, including a who’s who of international law professors from Europe, the U.S., South America, and Asia, as well as Ambassadors, UN officials (at the Under-Secretary-General level), and U.S. government representatives.

However, there was the issue of our papers. And, international conference of leading lights or not, they needed work. Here’s what Tom said after he read our first drafts: “As banter over aperitifs, these would work quite well. As legal scholarship before a group of experts, they do not.”  Luckily, we had months before the conference. He then helped each of us as we rethought, refined, and rewrote.

Tom’s teaching and mentorship has had a profound influence on me and on my career. I think many of Tom’s students would probably say the same. Consider the number of us from around my class-year who have followed Tom into academia: Kristen Boon, Marjorie Florestal, Greg Fox, Suzette Malveaux, and Virgil Wiebe immediately come to mind.  Many others have gone into public service: Michael Mattler (after a long career at the State Department) is the Minority Chief Counsel of the Senate Foreign Relations Committee, Miriam Sapiro is the Deputy Trade Representative-designate, to pick two examples of people who graduated either with me or near my class year. And this does not even go back through Tom’s 40-plus years of teaching. Tom was extraordinary and anyone who had the pleasure of knowing him found that their lives became less ordinary.

To close, though, let me take from an oft-quoted passage  from Fairness in International Law:

Like any maturing legal system, international law has entered its post-ontological era. Its lawyers need no longer defend the very existence of international law. Thus emancipated from the constraints of defensive ontology, international lawyers are now free to undertake a critical assessment of its content.

This has the nuance I mentioned before. International law is not a mature legal system but neither is its existence reasonably refuted: it is, rather a maturing legal system. Not quite there yet (wherever “there” is), but changing and evolving. So, he says, quit staring at your navels. Get to work figuring out what works in international law and what does not. As he put it, we are “free” to work. We have the freedom to choose to be engaged and to make a difference.

That is what he did and what his life challenges us to do.