Archive of posts for category
International Legal Theory and Teaching

Emerging Voices: A View from Early Modern Cultural Studies on Fragmentation and the Law of Nations

by Christopher Warren

[Christopher Warren is an Assistant Professor of English at Carnegie Mellon University]

Disciplinarily, as my title suggests, I come from elsewhere.  But having travelled here to the shores of international law from my home in early modern cultural studies, I come in part to praise the fragmented landscape.

“Fragmentation” in recent legal discussions usually refers to “traditional international law [being] pushed aside by a mosaic of particular rules and institutions, each following its embedded preferences.” “An everyday international occurrence such as the transport of hazardous chemicals at sea,” as Martti Koskenniemi explains, can now be “narrate[d] as part of a different set of human pursuits, values, and priorities,” including trade law, transport law, environmental law, law of the sea, or human rights.

Koskenniemi’s account of jurisdictional and normative fragmentation usefully captures two main insights, first, that narrative—story—plays a critical and maybe increasing role on what is notably called the “international stage”; and secondly, that the stories we tell and the ways that we tell them have legal, social, economic, and political consequences. Robert Cover’s foundational essay Nomos and Narrative” (pdf) powerfully articulates such insights as well.

Disciplinary Fragmentation

My first interest here, however, is not normative fragmentation but a different though related kind of fragmentation, namely disciplinary fragmentation, specifically the present disconnect between international law and humanistic disciplines like literature and history. Fortunately, disciplinary fragmentation has left rough, jagged edges, and while I’m visiting here I want to take the opportunity to celebrate the craggy coastlines where we can still find evidence of international law’s connections with the humanities.

The present distance between international law and literary and cultural studies might make my participation in this forum surprising, but it’s also, I’d suggest, a fruitful way to think historically and methodologically about international law. (more…)

Linos Book Symposium: Comments by Roger Alford

by Roger Alford

I commend Katerina Linos’ book to our readers and echo the many positive comments that others in this book symposium have shared. Her theory of bottom-up democratic diffusion of norms addresses many of the concerns that have been voiced regarding the democracy deficit that occurs when policy elites borrow from abroad.

I want to push Katerina a bit on the question of actors involved in the diffusion process. She notes that “many academics, judges and commentators emphasize how references to foreign law reflect elite predilections antithetical to the views of ordinary voters, especially ordinary Americans.” (p.26). The context of that criticism, of course, is constitutional comparativism by the Supreme Court in cases such as Roper v Simmons and Lawrence v. Texas.

Almost ten years ago I too expressed concern about the countermajoritarian difficulty of the Court adopting international and foreign norms that run counter to American majoritarian values. As I put it in this article, “the international countermajoriatian difficulty would suggest that international norms cannot be internalized within our Constitution unless such norms are first internalized by our people as our community standards…. To conclude otherwise would grant countermajoritarian international norms constitutional relevance as a community standard.” (p. 59).

Katerina does not address constitutional comparativism per se, but she clearly voices her support for the democratic diffusion of norms. Her book presumes that “international norms and democracy are mutually reinforcing” and that “democratic processes are an engine, not an obstacle, for the spread of policies across countries.” (p.2). The book also presumes political rather than judicial avenues for the diffusion of norms, with elected politicians constrained to borrow from and reference large, rich, and proximate countries and prominent international organizations to advance their own policy preferences.

So my question for Katerina Linos is whether her theory of democratic diffusion supports or undermines arguments for constitutional comparativism. She explains at length how democratic diffusion occurs, but does not clearly indicate her preference for this type of diffusion over alternatives. Does her convincing case for democratic diffusion undermine undemocratic diffusion by policy elites in the judiciary who are unresponsive to and unconstrained by majoritarian preferences?

In short, does her theory posit that policy diffusion is better when it occurs through democratic processes than when it is imposed by judicial elites? To take concrete examples, is it better with controversial questions such as juvenile death penalty (Roper v. Simmons) or gay marriage (United States v. Windsor) for policy preferences to be advanced through democratic diffusion or judicial diffusion?

My own sense is that the Supreme Court experimented with policy diffusion of global norms through constitutional adjudication ten years ago, but has since retreated from that approach, and that democratic diffusion of global norms is the new normal. Indeed, just yesterday in Windsor the Court expressed its sensitivity to the democratic diffusion of norms with respect to gay marriage:

In acting first to recognize and then to allow same-sex marriages, New York was responding ‘to the initiative of those who [sought] a voice in shaping the destiny of their own times’…. The dynamics of state government in the federal system are to allow the formation of consensus respecting the way the members of a discrete community treat each other in their daily contact and constant interaction with each other…. For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgement of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality. (pp. 19-20).

A Conference on the Role of Opinio Juris in Customary International Law

by Duncan Hollis

I usually defer to An and Jessica’s (excellent!) work in flagging international law-related conferences and events.  But, I wanted to call particular attention to a conference I just learned about that Duke Law School is co-hosting with the University of Geneva next month at the Duke-Geneva Institute of Transnational Law on the Role of Opinio Juris in Customary International Law.  The event is well located (and timed) given the International Law Commission’s current project on customary international law.  But unlike many conferences, where all those not in attendance can see is a schedule of attendees and/or paper topics, the Duke-Geneva schedule generously includes links to the papers themselves.  I’m working my way through them for my own research on the functions interpretation serves in international law.  And although I’d note they seem to be mostly of the short, discussion paper variety, if the first one by Curt Bradley is anything to go by (he identifies and critiques existing paradoxes in definitions of opinio juris and offers a new descriptive and normative thesis for identifying CIL based on state preferences), these papers will be well worth reading.  I’m also interested to here from anyone who attends the conference itself what reception these papers receive, and in particular, what the various ILC members who will be commenting on several of them have to say about customary international law itself.

Book Symposium on “Economic Foundations of International Law” by Eric Posner and Alan Sykes

by An Hertogen

This week we’re hosting a symposium on Economic Foundations of International Law, the new book by Eric Posner and Alan Sykes. Here is the abstract:

The ever-increasing exchange of goods and ideas among nations, as well as cross-border pollution, global warming, and international crime, pose urgent questions for international law. Here, two respected scholars provide an intellectual framework for assessing these pressing legal problems from a rational choice perspective.

The approach assumes that states are rational, forward-looking agents which use international law to address the actions of other states that may have consequences for their own citizens, and to obtain the benefits of international cooperation. It further assumes that in the absence of a central enforcement agency—that is, a world government—international law must be self-enforcing. States must believe that if they violate international agreements, other states will retaliate.

Consequently, Eric A. Posner and Alan O. Sykes devote considerable attention to the challenges of enforcing international law, which begin with the difficulties of determining what it is. In the absence of an international constitution, the sources for international law are vague. Lawyers must rely on statements contained in all manner of official documents and on simple observation of states’ behavior. This looseness leads international institutions such as the United Nations to deliver conflicting interpretations of the law’s most basic principles. The authors describe the conditions under which international law succeeds or fails, across a wide range of issues, including war crimes, human rights, international criminal law, principles of state responsibility, law of the sea, international trade regulation, and international investment law.

Andrew Guzman (Berkeley), Rachel Brewster (Duke), Steve Charnovitz (GW Law), Emilie Hafner-Burton (UC San Diego) and David Victor (UC San Diego) have kindly agreed to comment. As always, we welcome reader comments too.

Google Rankings of the Most-Cited International Law Journals

by Roger Alford

For those of you who are trying to decide where to publish your article during this submission cycle, my friend and former colleague Rob Anderson has identified an interesting Google metric for measuring the most-cited international law journals. As he notes:

“The rankings are based on Jorge Hirsch’s “h-index,” which is an alternative to impact factor as a measure of a journal’s importance. The new Google rankings will be yet another entrant for ranking law reviews alongside Washington and Lee’s rankings.”

Here’s the Google Scholar h-index ranking of international law journals:

1. American Journal of International Law
2. Human Rights Quarterly
3. European Journal of International Law
4. American Journal of Comparative Law
5. Virginia Journal of International Law
6. European Law Journal
7. Chicago Journal of International Law
8. Journal of International Economic Law
9. Global Governance: A Review of Multilateralism and International Organizations
10. Common market law review
11. Journal of International Criminal Justice
12. International Journal of Constitutional Law
13. Fordham International Law Journal
14. International Journal of Transitional Justice
15. German Law Journal
16. Vanderbilt Journal of Transnational Law
17. Human Rights Law Review
18. Cornell International Law Journal
19. Michigan Journal of International Law
20. New York University Journal of International Law & Policy

You can also see how international law journals rank relative to other journals here.

It is worth emphasizing that not every international journal is in the Google Scholar database, so one should take these rankings with a grain of salt. For example, neither the Harvard International Law Journal nor the Yale Journal of International Law is in the Google Scholar database. But at least for those journals that are in the database, it gives one a good sense of the relative influence of each journal.

If you are trying to compare the rankings of each journal where your article has been accepted, you can type the name of the journal into the Google Scholar search engine to get the h-index for that journal. The higher the h-index score, the more cited the journal.

A Broken Windows Theory of International Corruption

by Roger Alford

I have just posted on SSRN my latest article published in the Ohio State Law Journal. Through the lens of the broken windows theory of community policing, the Article examines the connection between corruption and other social goods in society, as well as the relationship between U.S. enforcement efforts and those of other OECD countries.

It is incredible how much empirical research has been done on international corruption in other disciplines, and yet the legal community largely ignores this data. It’s also incredible how rare it is for social science empiricists to make policy arguments that flow from their research. The Article tries to bring these two worlds together by digesting the mountain of empirical evidence regarding international corruption, and then making specific policy recommendations. Here’s the abstract:

The Article re-conceptualizes corruption through the lens of the broken windows theory of community policing, focusing on the root consequences of corruption as well as its secondary effects.

Part II of the Article posits that corruption is a broken window that signals the breakdown of community controls necessary for the maintenance of social order. A government that abuses its power for private gain is a government that cannot be trusted to pursue the general welfare. Empirical evidence finds ample support for this claim, confirming that corruption negatively alters the public’s perception of government and society.

Part III of the Article illuminates how corruption is associated with other matters of grave public concern, such that the struggle against corruption is the struggle to promote a variety of public benefits. Corruption is inextricably linked to many other public concerns. Empirical evidence finds a positive relationship between a country’s corruption ranking and its ranking on other major indices measuring public welfare. Communities that are perceived to take corruption seriously score well on their commitment to other social goods, such as global competitiveness and productivity, increased standards of living, enhanced children’s health, protection of civil liberties, and the safeguarding of political freedom. These corruption correlations provide an evocative snapshot of the connection between corruption and social order.

Part IV of the Article analyzes the legal efforts to combat corruption, with particular focus on the utility of cooperative efforts to regulate and prosecute corruption. Empirical studies show that coordination strategies between OECD enforcement authorities alter the behavior of corporations, foreign officials requesting bribes, and government officials prosecuting the payment of bribes.

Part V of the Article discusses how these findings have important implications when considered from the perspective of a “broken windows” theory of international corruption. How would a broken windows theory of corruption alter the legal landscape of anti-bribery laws? I offer three suggestions. First, a broken windows approach would redefine and reframe corruption as distrust and disorder. Conceptualizing corruption as a matter of public trust heightens its importance. Public trust is essential to the rule of law. Second, a broken windows approach would augment the battle against corruption with a greater emphasis on petty bribery. Thus far the legal enforcement strategies have focused on high-profile, large-scale corruption. A broken windows strategy would not ignore those cases, but would also focus on low-profile, petty corruption that alters quality of life and undermines public trust. Third, a broken windows theory would place greater emphasis on a partnership between the public and private sectors to combat corruption. This approach would mean that corruption should be considered in the local context, with a focus on its destabilizing effects in specific countries and communities.

Why is Academic Writing So Bad?

by Roger Alford

Scholarship

There is an interesting discussion by Stephen Walt over at Foreign Policy on why academic writing is so bad. It is a subject academics are reluctant to discuss, yet there is no doubt that much of what passes as legal scholarship is dull, disagreeable, undigestable. Here’s Walt’s take:

The first problem is that many academics (and especially younger ones) tend to confuse incomprehensibility with profundity. If they write long and ponderous sentences and throw in lots of jargon, they assume that readers will be dazzled by their erudition and more likely to accept whatever it is they are saying uncritically. Moreover, jargon is a way for professional academics to remind ordinary people that they are part of a guild with specialized knowledge that outsiders lack, and younger scholars often fear that if they don’t sound like a professional scholar, then readers won’t believe what they are saying no matter how solid their arguments and evidence are.

The second problem is the fear of being wrong. If your prose is clear and your arguments are easy to follow, then readers can figure out what you are saying and they can hold you to account. If you are making forecasts (or if the theory you are advancing has implications for the future), then you will look bad if your predictions are clearly stated and then fail. If your argument has obvious testable implications, others can run the tests and see how well your claims stand up.

But if your prose is muddy and obscure or your arguments are hedged in every conceivable direction, then readers may not be able to figure out what you’re really saying and you can always dodge criticism by claiming to have been misunderstood. (Of course, sometimes critics do deliberately misrepresent a scholarly argument, but that’s another matter). Bad writing thus becomes a form of academic camouflage designed to shield the author from criticism.

My own sense is that legal scholarship is better than most academic writing because we are trained at law school and in law firms to be convincing and comprehensible. Once in the academy, we are further trained to reach two audiences: our academic peers and our student gatekeepers who hold the keys to the kingdom. Obscurity may be appropriate for one audience, but not the other. Our law student underlords save us from the trap of most other academics.

So why does legal scholarship still miss the mark?

First, legal scholarship is formulaic. There is an order and predictability to legal writing that stifles creativity. You know the recipe: (1) Introduction with obligatory road map; (2) Background section for the neophyte; (3) Excruciating description of the problem; (4) Unrealistic normative solution; (5) Standard conclusion. This formula rules the day. Add ingredients, mix hastily, half-bake to 25,000 words, and then publish.

Second, legal scholarship is prosaic. Many legal scholars are more interested in arguments than words. We love the research, but not the writing. We are “ideasmiths” rather than wordsmiths. I recently read a draft article on financial regulation that had profoundly good ideas expressed in profoundly bad ways. At some point in the writing process, an entire draft should be devoted to simple wordsmithing. Every word, sentence, and paragraph should matter. When the manuscript is nearing completion we should be spending days wordsmithing, polishing rough edges, adding color and texture, altering the draft so that it is elegant and interesting.

Third, legal scholarship has a footnote fetish. Years of experience responding to law review editors has made original thought suspect. Today articles often have 500, even 600 footnotes. Student editors routinely demand supporting citations for original thought to the point of farce. The fruit of creativity struggles to survive with such aggressive pruning.

Fourth, legal scholarship is technical. Let’s face it, many of the subjects we write about are arid and lifeless. The devil is in the details, and those details are devilishly difficult to disseminate. It is not easy to make Rule 26(b) sound snappy. Maritime delimitation is not exactly the pearl of great worth. Okay, maybe it is, but writing about it is not. The trick is to make a technical subject sound as interesting as possible. Great legal writing often is about taking dry and tedious ingredients and transforming them into agreeable fare. It will not keep your teenager from rolling her eyes when you explain what you did at work today, but it should keep your colleagues and students from giving up in frustration.

The Role of Intellectuals in Society

by Roger Alford

In doing research on Aung San Suu Kyi, I recently came across this wonderful discussion from 2005 on the role of the intellectual in society. It comes in the form of a dialogue with Alan Clements in his book, The Voice of Hope: Aung San Suu Kyi: Conversations with Alan Clements.

Clements: I brought with me a quote from Václav Havel in which he explains the role of the intellectual within society. When I first read it, I instantly thought of you. He writes, “The intellectual should constantly disturb, should bear witness to the misery of the world, should be provocative by being independent, should rebel against all hidden and open pressures and manipulations, should be the chief doubter of systems … and for this reason, an intellectual cannot fit into any role that might be assigned to him … and essentially doesn’t belong anywhere: he stands out as an irritant wherever he is.”

Suu Kyi: I would agree with everything that Václav Havel says. I would say that basically, in order to become an intellectual you’ve got to have a questioning mind…. Intellectuals are very important in any society. Because they are the ones who, like in the quotation, are provoking people, opening them to new ideas, pushing them along to new heights. This is one of the tragedies of Burma–the intellectual is not allowed any place within the society. And the real intellectual, of the kind described by Václav Havel, would not be allowed to survive in Burma.

Clements: Why?

Suu Kyi: He would either have to repress his instincts as an intellectual, or he would have to leave Burma, or he would have to go and sit in prison. He’s got to choose between those three.

Clements: So by function, a totalitarian regime attempts to create a mindless, featureless society by crushing the intellectual?

Suu Kyi: The intellectual with his questioning mind threatens the totalitarian mind which expects orders to be carried out and decrees to be accepted without question. There will always be clashes between the authoritarian mind and the questioning mind. They just cannot go together.

I think it is easy in a free society to forget how important an intellectual is to the welfare of a country. The right to question and doubt is taken for granted. Freedom of thought and expression are a given. Skepticism of the system is encouraged. Intellectuals are often discouraged because they too are taken for granted. “I’m just an intellectual,” we sometimes think.

As you go about your work today give thanks that you are an intellectual in a free society. As you watch the Commander-in-Chief tonight propose his agenda for his Second Term, marvel not with what he says, but that he is accountable for every word and deed to the intellectuals–the Doubters-in-Chief.

The same cannot be said of much of the world. Over one-half of the world’s population live in closed societies. Burma, of course, is rising. It no longer is among the worst of the worst. That dishonor goes to the forlorn citizens of these fifteen Asian and African authoritarian regimes: Belarus, Chad, China, Cuba, Eritrea, Equatorial Guinea, Laos, North Korea, Saudi Arabia, Somalia, South Ossetia, Sudan, Syria, Turkmenistan, and Uzbekistan.

In a free society intellectuals are encouraged to speak their minds with reason and integrity. Our colleagues living under authoritarian regimes must speak with equal measures of insight and courage.

Eyal Benvenisti and Amichai Cohen on ‘War as Governance’

by Kenneth Anderson

Perhaps some OJ readers caught this abstract from the SSRN public international law postings this week, but if you didn’t, I want to commend it to you:  Eyal Benvenisti and Amichai Cohen, “War as Governance: Explaining the Logic of the Laws of War from a Principal-Agent Perspective.” I have read it once, and plan to re-read it; I’ve long followed both authors’ work with considerable respect (and have been pleased to have Amichai as a friend ever since he visited at my law school years ago).  I don’t know yet whether I agree fundamentally or not; I want to consider this carefully.  But I thought it was one of the most interesting methodological approaches to the laws of war that I’ve read in quite a long time and believe it should get substantial attention (though I admit I teach law and economics, as well as the law of agent and principal in corporations classes, so I might have some prior methodological biases here).  SSRN abstract:

What is the purpose of the international law on armed conflict, and why would opponents bent on destroying each other’s capabilities commit to and obey rules designed to limit their choice of targets, weapons and tactics? Traditionally, answers to this question have been offered on the one hand by moralists who regard the law as being inspired by morality, and on the other by realists who explain this branch of law on the basis of reciprocity. Neither side’s answers withstand close scrutiny. In this Article we develop an alternative explanation which is based on the principal-agent model of domestic governance. We pry open the black box of “the state,” and examine the complex interaction between the civilian and military apparatuses seething beneath the veil of sovereignty. Our point of departure is that military conflicts raise significant intra-state conflicts of interest that result from the delegation of authority to engage in combat: between civil society and elected officials, between elected officials and military commanders, and within the military chain of command. We submit that the most effective way to reduce domestic agency costs prevalent in war is by relying on external resources to monitor and discipline the agents. Even though it may be costly, and reciprocity is not assured, principals who worry that agency slack may harm them or their nations’ interests are likely to prefer that warfare be regulated by international norms. The Article expounds the theory and uses it to explain the evolution of the law and its specific doctrines, and outlines the normative implications of this new understanding of the purpose of the law. Ultimately, our analysis suggests that, as a practical matter, international law enhances the ability of states to amass huge armies, because it lowers the costs of controlling them. Therefore, although at times compliance with the law may prove costly in the short run, in the long run it strengthens the state against its enemies.

One reason I don’t want to offer a view yet is that I am still completing the fine new book applying standard rational choice theory to international law, Eric Posner and Alan Sykes, Economic Foundations of International Law (Harvard UP 2012); its account has bearing on Benvenisti and Cohen’s quite interesting take.  Posner and Sykes is a very straightforward, descriptive account of how rational choice applied to public international law would look, by comparison to other methodological approaches.  Benvenisti and Cohen are not engaged in rational choice theory as such, however; at first pass, it seems to me that the work done in their account is much more dependent upon the political and social theory attached to looking inside the state to see its intra-state arguments over war and its conduct.  But now I’m tempting myself to say more than I’m prepared to say at this point.  Here, by the way, is Jack Goldsmith’s Lawfare comment on Posner and Sykes:

Eric Posner and Alan Sykes have a new book entitled Economic Foundations of International LawThe book does what its title suggests: gives a comprehensive rational choice account of public international law.  It distinguishes itself from other books in this genre in (among other things) its scope.  For it covers all of the major elements of public international law, from general issues (such as treaties, custom, sovereignty, and state responsibility) to various fields (jus in bello and jus ad bellum, human rights, environmental law, law of the sea, international trade and investment, and more). Economic Foundations does not engage theoretical debate about the virtues and vices of rational choice accounts of international law as opposed to other accounts.  It simply sets out basic rational choice principles and applies them to the various fields and topics.  The book is clear, insightful, and accessible, and I highly recommend it.

The Legal Systems of the World

by Roger Alford

Legal Systems of the World

In case you ever wanted a snapshot of the legal systems of the world, this handy chart is worth a look. If you follow the link you can get a brief explanation of the legal system of each country, including the historical roots. The orange is common law, the blue civil law, the green mixed, and the red Muslim law.

The biggest surprise from this chart is how many countries are identified as mixed systems. I would have thought that most former British colonies would be identified as common law countries, that most former French, Spanish or Dutch colonies would be identified as civil law, and that most Middle Eastern countries would be identified as Muslim. Not so. The overwhelming majority of nations in Africa, the Middle East, and Asia are mixed systems.

UPDATE: In light of the comments, I have posted a new set of charts that more accurately depicts the legal systems of the world.

David Caron Appointed New Dean at King’s College London Law School

by Roger Alford

Dean CaronMy friend and colleague David Caron, C. William Maxeiner Distinguished Professor of Law at the University of California, Berkeley, has been named the new Dean at the Dickson Poon School of Law at King’s College London. The press release is here.

I have known David Caron for over twenty years and always thought he would make an excellent Dean or Judge. He has tremendous administrative experience, having served at the highest levels at ASIL, the ABA’s Section on International Law, the Law of Sea Institute, and the Institute for Transnational Arbitration.

He also brings a wealth of international law knowledge to the subject, including public and private dispute resolution, international courts and tribunals, the United Nations, the law of the sea, and international environmental law. On top of his academic chops, he remains seriously engaged with the legal profession. He served at Pillsbury Madison & Sutro before joining the academy, regularly consults with law firms around the world, and serves as an arbitrator in various commercial and investment matters.

David not only has a great head he also has a great heart. His enthusiasm is infectious, his laughter contagious, and his genuine warmth toward students and colleagues a model for us all. When I was starting my career twenty years ago in The Hague, he’s the kind of person that I looked to and thought to myself, “I want to be like that some day.”

He will be a great Dean, and will substantially contribute to the global reputation of King’s College.

The Growth of International Law Scholarship

by Roger Alford

There are a variety of ways one can measure the growing importance of international law scholarship. One metric that I have never seen discussed is simple: how often has the term “international law” been used in academic scholarship? Using Westlaw’s JLR library I calculated how often “international law” was referenced from 1987 to 2011. The results are impressive. Twenty-five years ago there were only 706 articles that included that term, compared with 4,300 today. That’s an annual growth rate of 7.5 percent. At that pace, in ten years there will be over 8,800 references to international law, and over 26,000 references in a quarter century.

Growth of International Law

It’s also noteworthy that today’s academic scholarship references “international law” more often than other core terms. Based on a Westlaw JLR search for 2011, “international law” (4,300 references) appears more often than “criminal law” (3,918 references), “intellectual property” (3,233 references), “constitutional law” (3,198 references), “torts” (2,709 references), and “professional responsibility” (1,092 references).

I knew that international law scholarship was popular, but I would not have guessed it has shown such sustained growth across the decades.

UPDATE: Further to Stuart Ford’s comments on January 9, I thought I would post the graph he is discussing. Very interesting as a point of comparison.

Google NGram2