12 Mar 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.
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… Read more »
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.