Remembering Tom Franck: The Challenge of the Engaged Life

by Chris Borgen

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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.

http://opiniojuris.org/2009/05/28/remembering-tom-franck-the-challenge-of-the-engaged-life/

15 Responses

  1. Chris – Thank you for that wonderful and moving post.  I was an LL.M. student of Prof Franck’s in 91-92 and participated in the fellows program then, which focused on election monitoring and democratic governance.  That was an incredible year.  He was a real giant.  

  2. Chris thanks for this wonderful post which I am reading while in Cambodia – fitting perhaps.  – Noah Novogrodsky

  3. I cannot claim to have known Tom Franck personally, more is the pity.  I was at the panel in which he participated at ASIL just a few short weeks ago – as you said, the manner of one’s death says much about one’s life.  Just a few days ago a piece I wrote on the jus ad bellum consequences of NATO’s action over Kosovo was published by Chatham House.  This morning on hearing of Professor Franck’s death I was especially pleased that I decided to include a quote from him in the penultimate paragraph.  It was a typical Franck comment, on this occasion about humanitarian intervention: “Law is strengthened when it avoids  absurdly rigid absolutes – for example, requiring passivity in the face of destruction of entire populations – but only if exceptions intended to prevent such reductio ad absurdam are clearly understood and applied in a manner consonant with agreed notions of procedural and evidentiary fairness”.  I have only read a fraction of his voluminous output; I look forward to reading more such wise and pithy comment in the years to come.  I thank him.

  4. Thanks, Chris, for such an eloquent remembrance, particularly of Tom’s teaching style.  The ‘teaching moment’ you describe has stuck with me as well, although my recollection of Tom’s descriptors of our hard work includes less pith and more bluntness (phrases like “worst set of papers I’ve seen” echo back to me . . .).  We as a group had put enormous effort into those drafts, but Tom demanded and got better.   He separated product from person - brutally frank in assessment, but genuinely kind in delivery and remediation.   A simple teaching formula, if difficult to implement.

    He will be missed.

  5. A very moving post that, I believe, does justice to Tom Franck’s impressive persona and the enormous influence he had on so many of us. This is a very sad moment not only for those who had the privilege to get to know Professor Franck personally at some point of their career (as I did during my time as Visiting Fellow at NYU) but also for the – I’m tempted to say ‘global’ – international legal academia in general.  Paradoxically, I hear of his passing while working on a piece dealing with the continuing puzzle surrounding international law’s increasing embrace of democracy at the domestic level, one of the many debates that Tom Franck has so decisively influenced and, as in this case, indeed shaped. Though it is hard to accept that he is no longer among us, it is at least in some way relieving to know that Thomas Franck will go down in the history of 20th century international legal scholarship as one of its most devoted, most productive and most respected representatives.

  6. Response…

    Chris
     
    Thanks for the great post-all the more remarkable given how little time you had to write it. The world of international law has suffered an immeasurable loss. At a personal level, I’ll always be grateful for Tom’s extraordinary generosity in taking an interest in my career and my work, which he viewed, I think, with a benevolent and supportive skepticism. He seemed to make a special point of being kind and sympathetic to those of us who were outside the more traditional approaches to the discipline, and he was unfailingly encouraging to many of us. He also played a special role in welcoming us to the work of the ASIL.
     
    I was always astonished by the range and depth of his knowledge, the countries he had visited and the people he had met.  For instance, he knew a great deal about Sri Lankan history and the problems it faced –still tragically unresolved-after independence. When I expressed my surprise he told me that one of his  SJD supervisors was the prominent British constitutional law scholar, Sir Ivor Jennings, who had founded the University of Ceylon. There are many reasons why he will be deeply missed. But I think I will particularly miss what I can only term his `wisdom’ which seemed to come from a profound understanding of international law and the role it had played in the affairs of the world over many centuries. And so, as W.H.Auden put it in his great poem, Tom has become his admirers.
     
                In the nightmare of the dark
              All the dogs of Europe bark,
              And the living nations wait,
              Each sequestered in its hate;
     
              Intellectual disgrace
              Stares from every human face,
              And the seas of pity lie
              Locked and frozen in each eye.
     
              Follow, poet, follow right
              To the bottom of the night,
              With your unconstraining voice
              Still persuade us to rejoice;
     
              With the farming of a verse
              Make a vineyard of the curse,
              Sing of human unsuccess
              In a rapture of distress;
     
              In the deserts of the heart
              Let the healing fountain start,
              In the prison of his days
              Teach the free man how to praise

  7. Chris,  Thanks for the post and the recollections.

  8. Thomas Franck was my first introduction into the world of international law, and what an introduction it was!  He was incredibly committed and passionate about the law, and equally committed to his students.  Long after I graduated from NYU, I would call on Professor Franck for advice and encouragement.  And I’ve never forgotten the verve he brought to the profession–his enthusiasm was contangious.  He will be sorely missed.

  9. I recall Thomas Franck as a true teacher at NYU.  In a law school of big personalities, his quiet dedication stood out. He was an inspiring professor and a lovely man.

    Susan, NYU class of ’85

  10. Chris, thank you for this. I was Professor Franck’s student and research assistant in 2005-06, and everything you say resonates so well, especially his unflailing kindness, generosity, and his continued interest in his students long after they had graduated and moved out of New York. It is hard to believe that he is no longer sitting in his room in Van Hall.

  11. Thanks for posting this, Chris – I recall a wonderful lunch about a year ago with Tom when he was working on his proportionality essay for AJIL.  I will greatly miss him.

  12. Chris — thanks for this wonderful tribute.  I was a “Franck Fellow” in 1998-9; it was one of the most intellectually engaging years of my academic life.  Tom’s rigour and courage as an academic became a benchmark as I charted my own professional course.  Tom and I both came from British Columbia to New York, and we often spoke of our Canadian connection.  I will miss him greatly.

  13. I will never cease to appreciate Tom Franck’s unfailing generosity to me, despite the fact that so much of my early writing was directed against his work on “the emerging right to democratic governance.”   Although in the literal sense, I was never a student of Tom’s, in the larger sense, I certainly was.   Thanks to Chris and others above for expressing so eloquently how important Tom has been — and will continue to be — to so many of us.

Trackbacks and Pingbacks

  1. [...] In memoriam: Thomas M Franck Posted on May 29, 2009 by Dominik Zimmermann International legal scholarship on 27. May lost one of its leading figures: Thomas M Franck passed away after a long struggle against cancer. At his last scholarly position he was Murry and Ida Becker Professor of Law Emeritus at NYU. Professor Franck was the author of more than thirty books and numerous articles in the field of international law. NYU law school has a page in memoriam and Opinio Juris features a good post by Chris Borgen remembering Professor Franck. [...]

  2. [...] Further reading: NYU’s in memoriam, Chris Borgan at Opinio Juris. [...]