Berman Book Discussion: International Law That Actually Matters

[David Zaring is Assistant Professor of Legal Studies and Business Ethics at the University of Pennsylvania’s Wharton School]

This post is part of our symposium on Dean Schiff Berman’s book Global Legal Pluralism. Other posts can be found in Related Posts below.

Paul Berman is rethinking the global legal system with reference to both the plurality and the narrowness of modern community. That is, although we are subjects of a state, international law is driven often by the relationships that have little to do with borders or the usual blood or soil delimitations of state citizenship. These relationships – the linkages that create Berman’s cosmopolitanism – need not be broad ones. Berman’s international law can be a technocratic exercise affected by various small communities of the not always predictable interests that care about it. Big innovations in criminal law might be driven not by state interest, but by the elites and NGOs who believe in internationalizing it, and the reactions of the small number of officials who then must evaluate whether they need to worry about what international criminal law has become. The process of delineating interests that matter can have larger implications when conflicts and the exercise of jurisdiction turn a philosophical exercise by those who care into something on which the world’s litigants may find that their interests turn.

There are many things that can be said about the book, almost all of them laudatory, so I will limit myself to talking about the form of international regulation that I know best, and how I see it fitting into Berman’s cosmopolitan vision. Financial regulation is in many ways a case study for cosmopolitanism. It features cooperation across international boundaries. But it is not traditional international law. And it would be inaccurate to understand what is going on in international financial regulation as a mere clash between the domestic interests of states (though admittedly, political scientists such as David Singer and Abe Newman believe it to be about exactly that). In my view, what international financial regulation tells us is that cooperation among elites and among Haasian-style epistemic communities can create quite a disciplined legal system that, while surely imperfect, is a good representation of international law that actually matters.

In fact, international financial regulation in many ways represents the very cosmopolitanism that Berman praises, where international borders are porous, where communities of fate, be they bankers, regulators or investors, cross boundaries and in many ways have more in common with each other than they do with their fellow citizens in Moline or Leipzig. To be sure, there is more than just a we feeling in international finance. There are standards, created by a committee of agencies, that result in winners and losers. Still, the fact that this sort of international obligation creator exists suggests that instead of the old forms of treaty or customary law there are other forms of international obligations that might better be understood as transnational relationships and governance. They really matter, as political scientists like Bob Keohane and Joseph Nye recognized, and as legal scholars following Anne-Marie Slaughter have gone on to develop.

I think Berman’s vision of cosmopolitanism is one way to think about these institutions. And since I believe that the institutions are drivers of international obligations, Berman’s vision, in taking account of these institutions thus does more for the real world of international law, and the real work of international lawyers than do many other broad visions about how international obligations need to be understood.