Cheng Book Roundtable: Should International Legal Theory Predict? (A Response to Professor Ku)

by Tai-Heng Cheng

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.

2 Responses

  1. The message conveyed by the “short bloggish description” seems to me problematic:

    “We should follow formal, positive international law most of time, except when we shouldn’t. In those cases, we should find a way to do the right thing without undermining the overall international legal system, which has an inherent moral value in maintaining minimum world order.”

    It puts the U.S. on three chairs at the same time: the lawmaker, the judge and the executioner. When the U.S. violates the IL and claims that she did the right thing and at the same time tries to avoid binding decistions of international courts, she creates a much bigger problem than she solves. She creates a dictatorship. Let me illustrate that with a thought experiment:

    Imagine that a cataclysmic catastrophe destroys much of the Earth. Most of the continents sink beneath the waters and a new continent arises from the ocean. You and a group of people from all over the world survive the catastrophe and colonize the new continent.

    For a while, there is no state, there are no laws, no judges and no courts. People divide the land into farms and try to rebuild their lives as best as they can. We could call this the state of nature.

    In this state of nature, a conflict arises between you and your neighbor. You notice that the fence between your farms is frequently moved, to your disadvantage, making your territory smaller and your neighbor’s larger. Mister S. Mart, hereinafter referred to as Smart, your neighbor, denies that he has anything to do with it, or, indeed, that it even happens. After a while, your stock starts dying out since there is not enough grass and hunger leads to the death of some of your children.

    Then a new incident occurs. Mister Smart kills your twelve year old daughter and sells her organs; at least, this is what you are pretty firmly convinced is the case, especially since you have seen it yourself, together with several witnesses.

    By chance, it was filmed from different angles. You also have similarly compelling evidence that he has sold her organs. You confront Smart with your argument, but he denies that he has committed a crime.

    Confronted with your accusation, he replies using one or more of the following arguments:

    1. “You are a little bit short-sighted, your cameras are flawed and all your witnesses are unreliable junkies who cannot discern the difference between a human and a cow.”

    2. “Yes, indeed, I took her life, and I feel the pain very deeply, I feel compassion and I am empathic with you, but I could not do otherwise”. He then adds one of the following:
    o “She attacked me with a weapon and I had to defend myself.”
    o “I have suffered terribly unfortunate brain damage and lose control of myself sometimes.”
    o “I didn’t sell her organs, but used them for seminal scientific research and have discovered a cure for a sickness that will save the lives of billions of children in the future, children who would otherwise die before they were ten. It is the same sickness that your other two children have, and thus I could save them.”

    3. “The whole story is a mendacity intended only to destroy my magnificent self. You are just jealous of my freedom, my money, and my moral and intellectual superiority.”

    Given the situation, and as the reasonable person you are, you try to remain tranquil. You propose to Smart that you take the matter to a competent, neutral and detached, third party with as few interests at stake as is possible; namely, to a judge or some kind of a court. This new, first-enacted judge should look at the evidence and decide who is right and what should be done. Her decision should be binding on both of you. If the judge decides that the fence should be moved to the old location, Smart should abide without reservations. The same should happen if the judge finds him guilty of the killing; he should accept the punishment and/or the payment of compensation.

    It goes without saying that you pledge to resign yourself to any decision unfavorable to you.

    Smart reacts with indignation at the accusation leveled against him and at the waste of his valuable time and says that he is not going to let a judge make the final decision, since he is good and certain that his argument is more than solid.

    In short, he demands the freedom to be the sole arbiter in respect of his guilt.

    This is precisely what U.S. does when ‘doing the right thing’: she claims to be the sole judge of her actions. This is dictatorship to me.

  2. If I may ask, what is a ‘national interest’? I see it a lot on this blog, I see it in the international law literature, but I have never seen a definition of it. Is that an interest that every state is free to choose? For instance let’s say that the government of Lichtenstein decides that it is in the national interest to kill ever person in Saudi Arabia and take control of its oil. Is Lichtenstein free to do that if it can get away with it? Or is this ‘national interest’ only an interest as long as it is a legitimate interest? For instance Lichtenstein might have a legitimate interest to defend herself when attacked by her neighbors.

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