11 Jul Defending the American Way of Teaching International Law
In Jose Alvarez’s president’s column this month over at the ASIL website, Jeff Dunoff, Steve Ratner, and David Wippman defend their leading casebook against French charges that American approaches to international law are too realist, too interdisciplinary, and too US-centric. I think their arguments are pretty persuasive. US policy may not lately have had much to offer to the advancement of international law, but I think new American IL methodologies will make an important contribution to its long-term effectiveness.
Here’s how Jeff, Steve, and David put it, with respect to interdisciplinarity:
[W]e think that interdisciplinary materials, particularly the feminist and other critical materials that we include, can help students identify international law’s limitations, blind spots, and biases. An international law casebook should not be a polemic for the existence or efficacy of international law. Rather, it should empower students to enter the field with a sense of the discipline’s range and reach, its possibilities and limits. Whether in practice or the academy, whether working on particular legal issues or generating broad new proposals designed to transform the field as a whole, familiarity with interdisciplinary materials and approaches can help attorneys recognize the (often unacknowledged) assumptions that underlie certain arguments, texts and doctrines, and generate alternative arguments. In short, our book uses interdisciplinary materials because they can enhance an international lawyer’s understanding and effectiveness.
Perhaps a US-centric approach facilitates this critical perspective. The powerful anti-internationalist tradition here forces us to ground our explanations in a way that might not be necessary in more IL-friendly environments. Formalist premises just won’t do.
Europeans appear to be adopting those methodologies in their scholarship (though perhaps the French less than others), and replicating our community structures. I don’t know if American pedagogical approaches have also insinuated themselves, but I imagine Europe might profit from them as well.
Thanks for the post on this. I looked at the two links to the Europeans and did not find them particularly persuasive as regards the point of whether they are adopting the approach that is called “American”.
For my part, admittedly after 17 years in France where I touched on internatonal law issues in international commercial arbitration and only a few years here in academia, I find the American academy’s emphasis in international law on US foreign relations law quite bewildering – it is sort of as if everything ends with our Constitution. It seems that foreign relations law would be better treated in a Constitutional law casebook rather than in a casebook in a public international law survey course.
It sort of makes me think that the American way of teaching international law does not really teach international law to our students – it teaches a very large dose of US foreign relations law with a tip of the hat (that is more or less extensive) to external approaches. From this is derived the ignorance of our students.
I guess the students with money and elites can travel abroad and see more clearly the perspective but the average Jane or Joe law student here in exotic Toledo will rarely have that luxury.
I use Dunoff etc’s book and have used Henkin/Damrosch. Both are fine books in the American Way. I debate whether the problem approach runs the risk of the focus being on “solving the problem” more than “understanding the law”. I think Dunoff does more than the 2000 Henkin/Damrosch on the US law approach but Henkin/Damrosch uses more of the Restatement 3rd of Foreign Relations law which, of course, is U.S. foreign relations law.
Maybe there are two American approaches – one is U.S. foreign relations law and the other is international law. The proponents of one or the other talk passed each other.
I mean compare the analysis in the ASIL Centennial resolution and Mary-Ellen O’Connells ASIL Insight on it with the U.S. foreign relations law stuff that comes out. It’s like two different worlds.
Really, I have had to do a kind of dedoublement analytique or second vision approach I describe in a forthcoming article on the U.S. approach to the War on Terrorism; holding the two visions at the same time to help me make sense of what we are doing.
I think this split personality (David Sloss has spoken of schizophrenia in a piece I saw at Vancouver) is the more troubling aspect of the American way.
On the alternative approaches, I tend to think of them as different colored lenses that help us think about the content of international law, but are not really international law. I hope that persons do not feel that one or the other approach is “the way and the only way” to think about this subject. I tend to think of them as “ways in” that bright people have come up with that might be helpful but are no more or less than that – “ways in”.
I am happy that there is a questioning of our approaches in teaching and writing such as happened at Vancouver. It might help us and our students avoid doing stupid memos like, alas, many of the ones we have seen.
Maybe we feel the need to “sell” international law because we do not have a language of speaking of international law in our country. I remember at the ASIL Annual Meeting this year a judge from Brazil saying that folks in the favelas knew exactly about human rights in a way that I think is simply not part of what we understand in the United States. Some of the hostility here by highly educated people really seems to me like these persons are seeking to make a virtue of their ignorance due to the lacunae (now did I get that right? Latin is a lacunae in my education that each year I come to regret – refluat stercus!) in their education.
Best,
Ben