Reading a Couple of Books on Legal History, and a Comment on Fragmenting International Law

Flying around on various airplanes, I’ve been reading a couple of books on topics in legal history that I’ve found enjoyable and intellectually profitable.  One is Stephen Neff’s Justice in Blue and Gray: A Legal History of the Civil War. I have benefitted greatly from Professor Neff’s earlier books in international law history, War and the Law of Nations and The Rights and Duties of Neutrals, and the Civil War book is no exception.  Professor Neff (whom I had the pleasure of meeting earlier this summer as he is visiting at George Washington this term) is one of the most graceful writers in the field – he reads much less like a law professor; he writes as a sophisticated historian writing for a sophisticated but not specialized audience.  He wears his vast learning lightly and without pedantry.

The second book is one that arrived as a review copy from Oxford, Mark Weston Janis’ America and the Law of Nations 1776-1939.  Professor Janis is likewise an elegant and fluid writer, and, just having finished this not-too-long book, I’m enthusiastic.  (It is usefully accompanied by his earlier book, which I read back when it came out in 2004, The American Tradition in International Law: Great Expectations, which ran up through 1914.)

I am not an expert in US foreign relations law, let alone its history, and both of Professor Janis’ books opened my eyes to a great deal of background.  The new volume helps frame the history, finally, as it leads up to the era of the United Nations.  It does so by ranging from international law’s place in US 19th century legal opinions and diplomatic writing to the role of incipient Wilsonian international organizations – rise and collapse – up through WWII.  Excellent book, congratulations to Professor Janis.

One reason – to add an otherwise separate editorial comment to these book recommendations – that I find myself more interested than I had been in the past in US foreign relations law and its history is that what I have sometimes described as the “fragmenting communities” of international law, fragmenting and gradually moving apart, ioncreasingly distinct communities of authority and interpretation of international law, means that there is less ability to speak as between traditions and communities.  It’s not completely incoherent, of course.  Still, when it comes to large, contested and yet specific issues in my own work in international law these days – the law governing targeted killing and drones, for example, or the legality of covert uses of force as such – I find that the legal answers turn fundamentally on one’s starting points, the really deep fundamentals, the church at which one worships among the sects of the law of nations.  It impedes my own sense that there is a sufficient common ground to debate particular matters, such as drone warfare, from a general international law standpoint.

Thus, I find myself addressing such practical questions much more narrowly, starting with a preface, well, if you are talking from this fundamental viewpoint – e.g., the traditional US government standpoint concerning this or that, or the jurisprudence of the European human rights bodies, etc. – one can have a conversation that means something.  Otherwise, people are just talking past each other.   When at the Naval War College conference in the last few days, as well as earlier at a Hoover workshop, in each case I presented on targeted killing and drones – but sought to offer, as fairly and sympathetically as I could, six or seven leading alternative legal frameworks.  I’m drafting up the paper now, Contending Legal Frameworks for Targeted Killing and Drone Warfare.

But I am starting to doubt that the title is actually quite what I mean.  In one sense these different approaches are vying to be “the” way of answering the questions, but in another sense they aren’t “contending” with each other at all.  They don’t necessarily share enough ground to engage one another. Because to a considerable extent, they start from deeply different legal assumptions (is armed conflict geographically limited? Are all uses of force exhausted by law enforcement and armed conflict? etc.) and even more from differences in what counts as legal authority by which to answer the questions (of what importance, if any, is the long-standing internal legal view of the US DOS, for example? Or how seriously should we take an obviously politically driven ICJ opinion such as the Wall decision?).

I can understand how one might answer these questions within one or another school of thought; I have doubts that these days they are really able to address each other any longer.  My own inclination – given the audience I seek mostly to address, which is broadly a legal-policy audience in the US, the US government, the various military and national security agencies and their lawyers – is to seek to answer these questions within what I, at least, would regard broadly as the traditional ways in which the United States has approached international law at least since WWII.  That is, it is seen pragmatically – neither radical skepticism about the category as such and a certain amount of independent “pull,” but always reining in the supposed independence by connecting it to realism, great power realities, and deep skepticism and indeed outright rejection of non-traditional “sources” of international law and things that move away from the anchoring stability of explicit state consent.

The United States has traditionally been protective of international law – seeking to protect it, but seeking to protect it mostly from … itself.  Like many rhetorics, international law always risks the positive feedback loop introduced by its experts and enthusiasts.  Any language perceived to be possessed of independent force for political mobilization is liable to takeover by many different parties; occasionally the effort is successful, more often not because rhetoric alone cannot overcome material realities.  But often, too, the process of seizure by high-minded, but politically weak, parties serves merely to drain the rhetorical form of whatever power it had while still reasonably tethered to the realities of power.  If this seems trivial – sure, everyone accepts this, big deal – well, I think it turns out not to be trivial as soon as one seeks to argue particular issues, such as targeted killing.  One starts out thinking that there are disagreements that are functionally still on the same page, but then, the intractabilities of disagreement lead one back to differences in how – whether – one sees the independent weight, for example, of how large and powerful states see the law.

The fundamental problem of the “doctrine of sources” in the law of nations looms larger these days, not smaller.  One of the effects of this is to raise uncertainties as to these most basic assumptions about the nature and authoritative sources of law – and that raises the costs of using international law as a means to try and settle things, because the fragmentation of authority means there is no “institutional settlement” by means of the law and its mechanisms.  Or, more precisely, there are too many institutional settlements, each shifting the goal-posts of any other.

I think I saw this as an undercurrent at the Naval War College meetings this past week, and the unease expressed by many speakers on a variety of topics ranging from targeted killing and drone warfare to direct participation in hostilities to asymmetric warfare.  Their unease, as I interpolate it anyway, arises from the conjunction of two phenomena – the ability of increasing varieties of actors, if not to be able to impose their preferred settlements in international law, then at least to be able to disrupt an imposition by anyone else; and then a track-through of this uncertainty, in the laws of war in particular, to individual liability.  (That’s quite apart from the de facto asymmetric application of these mechanisms in many situations, so that the legal liabilities are functionally faced by one side and not the other.)

The result is an increase in uncertainty and, from an individual standpoint, a drastic increase – but also highly uncertain increase, in the sense of “unknown” increase – in the possible costs.  All of which leads to the increased costs of uncertainty with heightened stakes – higher stakes for individuals, however, while their states are left peculiarly unscathed, because of the nature of international criminal liability.  It is a remarkable system, in that it seeks to force individuals, as officers and officials and yet as individuals, to internalize the full costs of their state’s calculus of costs and benefits.  In standard law and economics terms, then – the effect of this fragmentation is to increase both uncertainty and, at least to individuals involved, risk.  That’s all very abstract, sorry – but in less abstract terms, as someone put it to me during a break following discussion of the direct participation in hostilities study, “Well, if even the ICRC is now moving the goalposts!”  Which of course some, starting with the ICRC itself, might see as unfair but, as touching important parts of the DPH study, certainly I don’t.

(Aside: The situation today seems a little bit parallel to the situation of constitutional law a few years ago, when Professor Tribe announced that he was not producing a new edition of his famous treatise because, he said (I paraphrase from memory), he believed that the rise of contending schools of thought had made the enterprise of a single treatise no longer tenable.  I have always thought that one of Professor Tribe’s finest and most honest intellectual moments.  Many others in that position – probably me included – would have seen a new edition of something as influential as that as a way of asserting one’s view, and most of all by asserting one’s position while refusing to acknowledge that one’s own tradition was the only one out there of any real legitimacy.)