Symposia

Berman Book Symposium: Multiscalar Legal Pluralism and Justice

[Hari M. Osofsky is Associate Professor and 2011 Lampert Fesler Research Fellow, University of Minnesota Law School and Associate Director of Law, Geography & Environment, Consortium on Law and Values in Health, Environment & the Life Sciences] 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. It is an honor and a pleasure to have the opportunity to participate in this conversation about Paul Berman's exciting new book, "Global Legal Pluralism: A Jurisprudence of Law Beyond Borders.”  Like many of the commentators, I have had the privilege of watching this project evolve over several years.  The book is a tremendous contribution which reflects Paul's command of numerous interdisciplinary literatures and substantive areas of law.  It makes an articulate and compelling case for taking a cosmopolitan and pluralist approach to law in an era of globalization. My two primary interventions in this brief blog are not so much critiques of the book, as suggestions for directions Paul and others could go from here to explore these issues in additional ways.  First, as Paul and I have discussed for many years, I think his geographical analysis might be developed further by focusing on issues of scale more deeply.  Early on, I queried whether the book should be called "multiscalar legal pluralism" rather than "global legal pluralism."  I wondered whether Paul could fully capture the interactions and institutional hybridity through focusing on the "global" or "international" levels. Paul has done much to address that concern in the ways in which he has incorporated multiple levels of government, even using the term "multiscalar" in the context of discussing climate change federalism.  However, I would be excited to see him go even deeper in future explorations of scale in this context.  Specifically, I wonder what "global" or "international" means in a cosmopolitan and pluralist world.  To the extent that one accepts geographer Kevin Cox's theory that each level is constituted by core interactions at that level and by interactions across levels (a theory that I often draw from in my own work), multiple visions of the international scale might result.  These possibilities for pluralism in defining global scale might impact the hybrid forms that Paul explores so thoughtfully.

Berman Book Discussion: Beyond the Boundaries of Berman’s Global Legal Pluralism

[Janet K. Levit is Dean and Dean John Rogers Endowed Chair at the University of Tulsa College of Law] 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. In Global Legal Pluralism: A Jurisprudence of Law Beyond Borders, Paul Schiff Berman concludes that we live in a world of multiple norm-generating, but not necessarily territorially-based, communities, some sanctioned by the state and some not; these communities overlap in asserting norms and “adjudicating” law, creating hybrid legal spaces that are often “jurisgenerative.”  Berman argues that in an age of globalization, we should embrace this type of pluralism.  To the extent that the book is prescriptive, Berman looks to law, particularly procedural and conflicts law, to preserve and manage these hybrid legal spaces. Since 2005, I have joined Berman in multiple symposia and panels, and I have commented on many of the articles and book chapters that are the building blocks for Global Legal Pluralism.  The long “gestation” period paid off – Global Legal Pluralism is a brilliant and eloquent weaving of Berman’s various scholarly threads.  While the book concludes in part that law is “messy,” the book’s argument is quite neat, tight, and logical.  Berman addresses and redresses the dominant critiques lobbed at his work over the years, showcases agility with interdisciplinary research, and demonstrates the value of legal scholarship that does not end with heavy-handed prescriptions.  Like all books of this breadth, there is room for critique.  Instead, in this post, I offer some broader thoughts on ways to push Berman’s outstanding work beyond its own boundaries and borders.

Berman Book Discussion: Berman Agonistes

[Jeffrey Dunoff holds the Laura H. Carnell Chair at Temple University Law 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 has produced a terrific, and terrifically ambitious, work of scholarship.  The book presents a compelling case that the current legal order is marked by multiple and overlapping international, transnational, national, sub-national and non-state normative orders.  Paul argues that relations among these various orders should be managed through a “cosmopolitan pluralist” approach that pays due respect to the interests that various norm-generating communities have in any particular dispute.  The text’s central jurisprudential and normative claim is that cosmopolitan pluralism is superior to its two main rivals, namely (i) universalist approaches that elide important normative differences among diverse communities, and (ii) territorially-based sovereigntist approaches that inappropriately privilege the interests of one community by ignoring the legitimate interests of others. Although the “pluralist” strand of Paul’s argument promises to decenter the state as law-maker, ironically virtually all of the book’s examples of legal hybridity feature conflicts involving state law, such as competing claims for authority between two or more states (should the IP law of states A or B should govern the registration of internet domain names); between domestic and international institutions (such as the ICJ and US Supreme Court decisions in the Avena/Medellin line of cases); and between public and private actors (such as when religious and state law diverge on family law matters). Perhaps as a result, GLP devotes very limited attention to analysis of “conflicts” between and among different functional international legal regimes, even though this issue has preoccupied public international lawyers for the better part of a decade (see here and here).  While Paul graciously cites to my work on regime interaction in his discussion of this phenomena (pp. 182-86), I wonder if GLP’s brief analysis does justice to this form of legal hybridity.

Berman Book Discussion: Paul Berman on Global Legal Pluralism

[Paul Schiff Berman is Dean and Robert Kramer Research Professor at George Washington University Law School.] Thanks to Peter and all the other bloggers for providing an opportunity to explore the ideas in my recent book, Global Legal Pluralism. I start from the premise that we live in a world of legal pluralism, where a single act or actor is potentially regulated...

Targeted Killings Symposium: Fernando Tesón Responds to Andrew Altman

[Fernando Tesón is Tobias Simon Eminent Scholar and Professor of Law at Florida State University College of Law.] This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below. Andy Altman offers what I see as a friendly amendment to my piece on targeted killings. There I make a few...

Targeted Killings Symposium: Andrew Altman Comments on Fernando Tesón’s “Targeted Killing in War and Peace: A Philosophical Analysis”

[Andrew Altman is Professor of Philosophy, and Director of Research for the Jean Beer Blumenfeld Center for Ethics, at George State University.] This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below. In his contribution to Targeted Killings, Fernando Tesón argues that the threat posed by terrorism is sui generis and cannot be adequately addressed by either a pure law-enforcement or a pure armed-conflict model.  The law-enforcement model is inadequate “[b]ecause the terrorist threat is ubiquitous, the threatened harm is great, and the terrorist is committed as a matter of principle to perpetrating the harm (424).” Yet, Tesón resists the idea that liberal states are in global war with terrorists and rejects the armed-conflict model, because it entails the conclusion that “terrorists are enemy combatants who can be killed on sight regardless of the threat they actually pose” (424).  The conclusion is unacceptable for Tesón, because it fails adequately to reflect the liberal commitment to due process of law.  His solution is an effort to split the difference between the two models. Terrorists who are to be found in a “wartime setting” (420), such as exists Afghanistan and Somalia, are in a state of war with liberal states, according to Tesón, and are permissibly targeted with lethal force.  But a terrorist in Paris or New York is in a “peacetime setting,” it is morally prohibited to kill him on sight, unless the killing is “necessary to prevent the death of a substantial number of innocents,” the killing is carried out for a “just cause,” the terrorist is culpable, and capture is “impossible or prohibitive” (423).  Tesón acknowledges that the line between a peacetime and wartime setting “is often difficult to draw,” (421) but he argues that the idea of a wartime setting “should be interpreted narrowly” and is even prepared to accept that Osama bin Laden’s killing took place in a peacetime setting (430).  In a wartime setting, “the ordinary tools of crime control cannot operate” (420)  because the condition is essentially a state of nature, in contrast to a peacetime setting in which “there is an actual sovereign ... who ... can use the standard tools of crime control” (420).  Because states are prone to mistake in determining when a killing is necessary and because, regardless of its possible good consequence, the practice of targeted killing in a peacetime setting amounts to a violation of the liberal rule of law, Tesón argues that there should be a legal ban on such killing, unless the highest executive authority publicly waives the ban and, at least after the killing has been carried out, “fully explain[s] to the citizenry” (433) its reasons for doing so.

Targeted Killings Symposium: John C. Dehn on Richard Meyer and Col. Maxwell on Status-Based Targeting

[John C. Dehn is a nonresident senior fellow in West Point's Center for the Rule of Law. The views presented here are his personal views.] This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below. Let me first congratulate Claire Finkelstein, Jens Ohlin, and Andy Altman for compiling wonderfully...

Targeted Killings Symposium: Richard Meyer Comments on Col. Maxwell’s “Rebutting the Civilian Presumption: Playing Whack-A-Mole Without a Mallet?”

[Richard Meyer is Director, LLM Program, at the Mississippi College School of Law.] This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below. In his chapter in Targeted Killings, Col. Mark “Max” Maxwell sets out to solve the gaps left by the ICRC guidance concerning continuous combat function.  His proposal attempts to analogize the terrorist organization to the traditional state and, as a result, find that members of their military arm be treated just like those of the uniformed member of a state’s military.  Maxwell argues that the true message of the ICRC guidance is a return to status based rather than mere conduct based targeting of certain civilians.  Just like the uniformed military, if they are a member of the armed group engaging in hostilities, they can be targeted based on their membership in that group without ever having engaged in hostilities personally.  His three pronged test can be summed up as:  1) determine if a armed group that is engaging in hostilities exists; 2) Using a “totality of the circumstances” analysis, determine if the intended target is a member of this group; 3) Attacks must minimize civilian casualties.  This is certainly a more workable and pragmatic paradigm for the uniformed military than Melzer’s argument that only after an individual has engaged in hostilities (on multiple occasions?) can his continuous targetability be determined.  Further, Maxwell’s chapter serves as an excellent primer on the current confusing paradigm of targeted killing caused by the conflation of human rights law and international humanitarian law.  His desire to evolve IHL is certainly a step in the right direction.  I have one objection to his proposal. Following the bad example of the AUMF, Maxwell’s proposal conflates the entirely segregable legal realms of jus ad bellum and jus in bello.  During WWII, the US declared war on Germany, Japan & Italy.  Thus the armed forces of those three countries, and only those three countries, were targetable on sight by American military forces.  Hypothetically, even if Spanish uniformed military forces were actively providing combat support services to the German military or were proven to have actually sent planes and participated in the attack on Pearl Harbor, the American Soldier, from Private Smith to General Eisenhower did not have legal authority to engage those forces except in self-defense.  Thus, only after the state’s jus ad bellum decision identifies the macro enemy can the combatant’s jus in bello determination identify the individual target.  This is a corollary to the long held principle of the law of war that the merits of a jus ad bellum decision do not alter the legal culpability of a jus in bello act in compliance with that decision.  Said another way, the otherwise eviscerated “following orders” defense is alive and well as it relates to the decision to go to war.  This is necessary, lest the members of a state’s military individually bear the legal culpability for a collective political decision. In an effort to facilitate a conflict with a nontraditional opponent, the AUMF did not identify a status based macro enemy, (e.g. the State of Germany) but instead identified a conduct based “…nations, organizations or persons the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11,2001.”  This declaration delegates to the President, in his role as the Commander-in-Chief and (by potential further delegation) the military commander the power and responsibility to make both the jus ad bellum and jus in bello decisions.  Constitutional separation of powers issues aside, if the soldier has any role (other than as a voter or advisor) in the jus ad bellum decision, this severely undercuts the legal and moral justification that soldiers should not be held accountable for collective jus ad bellum decisions.  The soldier is protected from liability because the choice to go to war was not his to make… until now.  Paralleling this error, Maxwell creates a three-pronged analysis that also intermixes jus ad bellum and jus in bello decisions.  The first prong of Maxwell’s analysis requires the finding that there is an organized armed group engaging in combat with the state.  At first blush, it appears that Maxwell presupposes the existence of an armed conflict.  Armed conflicts however, currently require two competing macro entities (be they states or non state groups).  Thus, if the first prong is answered in the negative and there is no such armed and organized group “combating the state,” then there is no armed conflict; IHL does not apply and we are locked into the law enforcement paradigm.  Conversely, if there is such a group, the state might have the option of engaging that group under IHL.  Thus, prong one appears to be within the legal realm of jus ad bellum.  Prongs two and three, however, are both the jus in bello determinations of verification of status (for a status-based attack) and minimizing collateral damage/deaths.  Maxwell could argue that this is parallel to the traditional paradigm.  As noted, in that, the state makes the jus ad bellum decision and individuals make the jus in bello decisions, providing the latter with protection from legal responsibility for the former.  However, Maxwell assigns all three decisions to the collective state and none to the individual combatant.  In theory, this would place the legal culpability for all three decisions on the collective state and none on the individual, which would be a return to a near full-fledged following orders defense. At first blush, this appears to be semantics… Perhaps Maxwell used the term “state” to refer to both the collective and to the individual determinations of its military.  This does not actually solve the conflation issue however, because the first prong also involves currently simultaneous jus ad bellum and  jus in bello determinations.  To illustrate this point, I will divide his first prong into what I believe are the appropriate four steps contained within it.