Cheng Book Roundtable: Should International Legal Theory Predict? (A Response to Professor Ku)
Professor Ku’s review of When International Law Works is most insightful. I thank him for it.
His “short bloggish description” of its thesis is as clear a summary of my book as I’ve been able to muster in two sentences. I confess I will probably appropriate it when I present the book at Temple Law School later this week.
Professor Ku raises a good question about how predictive my “theory” is. Certainly theory in the hard sciences is often predictive. Many such theories are expressed as falsifiable hypotheses.
In contrast, law is a social phenomenon, and human beings that are involved in legal problems are autonomous decisionmakers. It may be possible to anticipate what others may do. But it is probably impossible to fully predict outcomes in international problems.
My goal is not thus to predict. My goals are to explain how the international legal system works and to help decisionmakers make decisions in international problems, in order to justify international law’s claim to regulate international matters. For scholars of jurisprudence, my “theory” seeks to guide decisionmakers in deciding, just as Dworkin’s theory in Law’s Empire seeks to guide judges in judging.
Professor Ku wonders, quite reasonably, whether my theory would have made any difference to the Bush administration policies on waterboarding. Without being a fly on the Oval Office walls, I cannot know how much room the administration lawyers had to influence policy, or what policy choices were realistically available to the President based on the information he received from his technical and political advisors.
But my theory would have helped the different decisionmakers assess more comprehensively the competing goals, including respect for the rule of law, national security, and human dignity, to come to a decision.
One might bemoan the lack of greater coercive force in international law. In many (but not all) international problems, such an aspiration would be unrealistic, given the absence of centralized global authority. Arguably, in many (but not all) international problems, it would also be normatively undesirable to remove the discretion of decisionmakers, given the lack of global consensus on values.
Providing a framework of analysis to address international problems, to guide but not control, is perhaps the best that can be done. It may also be the most that ought to be done.
I’ll end with a personal observation. Professor Ku has suggested that I am a “moderate proponent” of the New Haven School. I’m not sure I know what an immoderate proponent of policy-oriented jurisprudence looks like, if one exists.
What I do know is that the panorama when one stands on the shoulders of giants of the New Haven School is breathtaking. I hope through my book to share with the view with you.