'The divided west': International lawyers in Europe and America

European Journal of International Law

Volumn 18, Issue 3, 2007, Pages 553-580

  Verdirame, Guglielmo ^a  

^a UNIVERSITY OF CAMBRIDGE   (United Kingdom)

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[No Author keywords available]

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EID: 35648947842     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chm032     Document Type: Article

References (161)

1. J. Habermas, The Divided West (2006), at 161.
2. It is no coincidence that the special issue on method of the American Journal of International Law (93 (1999)) considered for the most part approaches developed in the US (New Haven school, international legal process, critical legal studies, law and economics, international law and international relations), with the exception of positivism and feminist jurisprudence (on which the only articles by non-Americans were contributed, by Bruno Simma and Andreas Paulus, and by Hilary Charlesworth).
3. An illuminating analysis of American thinking about international law is Cot, 'Tableau de la Pensée Juridique Americaine', 110 Revue Générale de Droit International Public (2006) 537.
4. See also the special issue on French and American Perspectives on International Law of 58 Maine L Rev (2006) 282.
5. There is also a preliminary question of membership: '[w]ho qualifies to be a European or an American scholar?'. Like all questions of identity, on an individual basis this question is better left to the persons concerned, but on a general basis it complicates the question of the definition of the two scholarly communities.
6. See my 'The Sinews of Peace: International Law, Strategy and the Prevention of War', forthcoming in 77 British Year Book of International Law (2006).
7. F. Chabod, Storia dell'Idea d'Europa (1959).
8. T. Mann, The War and the Future (1944);
9. B. Croce, Considerazione sul Problema Morale del Nostro Tempo (1945). The notion of the self-constitution of society as the basis for the international legal order is at the heart of Philip Allott's philosophy.
10. See his two main works: Eunomia (1990) and The Health of Nations (2002).
11. It would not be correct to say that the US experienced no significant constitutional change at all because only six amendments to the Constitution have been passed since 1945, none of which can be described as momentous. As American constitutional scholars like Bruce Ackerman have shown, constitutional change in the US occurs primarily through the courts. The debate on constitutional change there is essentially a debate on constitutional interpretation. Despite this important qualification, it is still true that European countries have experienced more significant constitutional change since 1945, to a large extent dictated by the need to integrate the EU legal order into national constitutions.
12. See, e.g., Bork, 'The Limits of "International Law"', 18 National Interest (Winter 1989-90) 3
13. Bradley and Goldsmith, 'The Current Illegitimacy of International Human Rights Litigation', 66 Fordham L Rev (1997) 319 and 'Customary International Law as Federal Common Law: A Critique ofthe Modern Position', 110 Harvard L Rev (1997) 815
14. Bradley, Goldsmith, and Moore, 'Sosa, Customary International Law and the Continuing Relevance of Erie', 120 Harvard L Rev (2007) 870
15. J. Goldsmith and E. Posner, The Limits of International Law (2005)
16. Guzman, 'A Compliance-Based Theory of International Law', 90 California L Rev (2002) 1823;
17. Prakash and Ramsey, 'The Executive Power over Foreign Affairs', 111 Yale LJI (2001) 231;
18. Spiro, 'Globalisation and the (Foreign Affairs) Constitution', 63 Ohio State LJ (2002) 649;
19. J. Yoo, The Powers of War and Peace (2005) and, by the same author, 'Globalism and the Constitution: Treaties, Legislative Power, and the Original Understanding', 99 Columbia L Rev (1999) 1955.
20. For a debate on new American scholarship on international law see the symposium,'The Limits of International Law'in 34 Georgia J Int'l and Comp L (2006).
21. Vagts has pointed out that the emphasis on foreign relations law is a feature that 'distinguishes American scholarship and teaching on international law', and one that is 'by and large of no interest to foreign scholars and has produced no country to country dialogue': Vagts, 'American International Law: A Sonderweg?', in K. Dicke et al., Weltinnenrecht: Liber Arnicorum Jost Delbrück (2005), at 841.
22. A similar view is taken by Rubenfeld, 'The Two World Orders', Wilson Quarterly (Autumn 2003) 22.
23. Recent decisions of the European Court of First Instance and the English Court of Appeal evince a worrying readiness to put international norms on collective security ahead of domestic ones on human rights (Case T-306/01 Yusuf and Al Barakaat International Foundation v. Council and Commission, Judgment of 21 Sept. 2005;
24. Case T-315/01 Kadi v. Council and Commission; R. (Al-Jedda) v. Secretary of State for Defence [2006] EWCA Civ 327).
25. Slaughter's work is a clear example, as is Goldsmith and Posner's recent book, supra note 8.
26. See also: Hathaway, 'Between Power and Principle: An Integrated Theory of International Law', 72 U Chicago L Rev (2005) 469,
27. and, by the same author, 'Do Human Rights Treaties Make a Difference?', 112 Yale LJ (2002) 1935;
28. Goodman and Jinks, 'How to Influence States: Socialization and International Human Rights Law', 54 Duke LJ (2004) 621 and,
29. by the same authors, 'Measuring the Effects of Human Rights Treaties', 14 EJIL (2003) 171.
30. P. Allot, Towards the International Rule of Law (2005), at 470, n. 17.
31. See also Dworkin's characterization of pragmatism as 'philosophically a dog's dinner': Dworkin, 'Pragmatism, Right Answers, and True Banality', in M. Brint and W. Weaver (eds.), Pragmatism in Law and Society (1991), at 360.
32. Habermas is one of the few European thinkers sometimes described as a pragmatist, although his Divided West, supra note 1, bears little sign of it.
33. J. M. Kelly, A Short History of Western Legal Theory (1992), at 332. There are some important differences between the scientific positivists andthe pragmatists that it is not necessary to explore here.
34. Nevertheless, it is correct to say that 'significant features of James's pragmatism and of Royce's idealism were completely consistent with Comtean positivism': G. Harp, Positivist Republic: Auguste Comte and the Reconstruction of American Liberalism 1865-1920 (1995), at 190.
35. K. Popper, The Logic of Scientific Discovery (1959).
36. In reality, the epistemology of pragmatism is not merely scientistic, leaving room for non-scientific forms of knowledge and attempting to reconcile religious experience with the advances of science, a path explored especially by William James.
37. Nowadays self-declared pragmatists include conservative scholars like Richard Posner (discussed below) and radical ones like Cornel West (see his America's Evasion of Philosophy (1989)).
38. James, 'Pragmatism', in W. James, Pragmatism and Other Writings (ed. G. Gunn, 2000), at 40.
39. Lane, 'Positivism: Reactions and Developments' in T. Ball and R. Bellamy, Twentieth-Century Political Thought (2003), at 340;
40. J. Dewey, The Public and Its Problems (1991), at 174,
41. and Freedom and Culture (1939), at 142-148. It could be argued that public debates on scientific research, on stem-cells in particular, suggest a less scientistic propensity in the US than in Europe. This observation, correct as it is, does not refute what has been said above. To say that American political scientists and legal scholars, including international lawyers, adopt a scientistic approach is not to say that the American public at large does the same.
42. Posner, supra note 25, at 5-6 (emphasis in original). The falsifiability of social sciences is, however, far from accepted by philosophers of science like Popper.
43. Farr, 'The New Science of Politics', in Ball and Bellamy, supra note 19, at 443.
44. In addition to the works of Merriam and Lasswell, D. Easton's The Political System: An Inquiry into the State of Political Science (1953) became a seminal study in the rise of the new movement.
45. Some of the opponents of behaviouralism disagreed with each other so fiercely that they could not even create a united front against it: Barber, 'The Politics of Political Science: "Value-Free" Theory and the Wolin-Strauss Dust Up of 1963', 100 Am Political Science Rev (2006) 539.
46. I do not deal with Strauss in this article because, despite his significance in post-War American political theory, his influence on legal academia can be described at best as marginal (when searching Harvard Law Review, the Yale Law Journal, the Stanford Law Review and the University of Chicago Law Review, only 24 citations of works by Strauss come up, most of them references to History of Political Philosophy, which he edited with Joseph Cropsey, or to his writings on curricula in higher education).
47. See, e.g., Goldsmith and Posner, supra note 8, at 170.
48. Morgenthau criticized the tendency to resolve complex political problems with a quest for 'more facts': H. J. Morgenthau, Scientific Man vs Power Politics (1946), at p. vi.
49. He would probably have agreed with Ian Shapiro that the method-driven approach to research leads, paradoxically, to a flight from that reality which it purports to study with ever more refined instruments: I. Shapiro, The Flight from Reality in the Human Sciences (2005).
50. 56 Yale LJ (1946-47) 1348.
51. See, e.g., R. Posner, Overcoming Law (1995), at 4ff.
52. They prefer general law reviews for another reason: Publication in international law journals, including very prestigious ones like the American Journal of International Law or the European Journal or the British Year Book, is not ranked as highly for hiring or tenure purposes as publication in a second-tier general law review - a worrying sign of provincialism which shows little sign of abating.
53. See, e.g., the works of Hathaway, Jinks, and Goodman, cited supra note 11,
54. and also Goodman and Jinks, 'How to Influence States: Socialisation and International Human Rights Law', 54 Duke LJ (2004) 621;
55. Hafner-Burton and Kiyoteru, 'Human Rights in a Globalising World: The Paradox of Empty Promises', 110 Am J Sociology (2005) 1373;
56. Helfer, 'Overlegalising Human Rights: International Relations Theory and the Commonwealth Caribbean Backlash against Human Rights Regimes', 102 Columbia L Rev (2002) 1832.
57. For a review of the main theories, and for one of the latest theories of state behaviour, see Kreps and Arend, 'Why States Follow the Rules: Towards a Positional Theory of Adherence to International Rules', 16 Duke J Comp and Int'l L (2006) 31.
58. See, e.g., Yoo, 'Use of Force', 71 U Chicago L Rev (2004) 729;
59. Hathaway, 'Do Human Rights Treaties Make a Difference?', supra note 11;
60. Goodman and Jinks, 'Measuring the Effects of Human Rights Treaties', supra note 11;
61. Goldsmith and Posner, supra note 8.
62. The 'old guard' of American international law is similarly sceptical: see, e.g., Vagts, supra note 9, at 846.
63. Hafner-Burton and Kiyoteru, supra note 27.
64. R. Aron, Peace and War: A Theory of International Relations (1966), at 768.
65. In some circumstances systematic disobedience can however lead to desuetude: Glennon, 'How International Rules Die', 93 Georgetown LJ (2005) 939.
66. Harvard L Rev (1897) 457.
67. D. Hume, Treatise of Human Nature (173 9-1740), Bk III, Pt I, Sect I.
68. For the natural lawyer that principle derives from a reductio to the state of nature or from other rationalist arguments; for others the passage from an 'is'to an 'ought'is explained as a 'speech act' process: Searle, 'How To Derive an "Ought" from an "Is"', 73 Philosophical Rev (1964) 43.
69. This is the normative assumption that underlies the law and economics movement, as argued by Owen Fiss in one of the sharpest critical responses to the rule-scepticism and scientism of both law and economics and critical legal studies: Fiss, 'The Death of the Law', 72 Cornell L Rev (1986) 5.
70. Goldsmith and Posner purport to make the normative argument that states have no moral obligation to comply with international law, reasoning that since the philosophical disagreements on domestic political obligations show that 'there is little reason to believe that citizens have moral obligations to their governments, there should be no strong expectation that states have obligations to the "international system"': supra note 8, at 200. This is not a normative argument; this is a weak argument for not making one.
71. As Owen Fiss has remarked, '[c]ritical studies scholars do not try to transcend the uncertainty - they revel in it': supra note 37, at 9. Critical studies in the field of international law are not an exclusively American domain. Leading critical theorists like Antony Carty, Marti Koskenniemmi, and Susan Marks are based in Europe.
72. Goldsmith and Posner, supra note 8, at 3-4;
73. Hathaway, supra note 11. This failure to pay regard to theorists that preceded them sometimes produces generalizations that are plainly wrong. Goldsmith and Posner, e.g., argue that international law scholarship rests on the assumption that 'states comply with international law for non-instrumental reasons' (at 14).
74. Such assumption, far from being widespread, would not have been shared in these terms even by Grotius (see, e.g., his Prolegomena in De Jure Belli ac Pacis (1625), trans. by R. Tuck for Liberty Fund (2005)).
75. Hart, 'American Jurisprudence through English Eyes: The Nightmare and the Noble Dream', 11 Georgia L Rev (1977) 969. Rule-scepticism jars, at some level, with the perception of the US as a country where ordinary laws (from tax to road traffic) are often enforced rigorously, and where lawyers wield enormous power and influence. It is true that rule-scepticism has not penetrated the masses and various layers of government; yet it is the preferred intellectual disposition of American legal scholars and of judges, especially those sitting in the highest courts more closely in contact with scholarly debates.
76. Holmes, 'The Path of the Law', 10 Harvard L Rev (1897) 457.
77. Dewey, 'Logical Method and Law', 10 Cornell L Quarterly (1924) 17.
78. Kennedy, 'The Structure of Blackstone's Commentary', 28 Buffalo L Rev (1979) 205.
79. Although the critical legal studies movement has offered an important political counterbalance to law and economics and other behaviouralist approaches to the law, it too has normally been 'sceptical about or relatively uninterested in any overt engagement with ethical questions': N. Lacey, Unspeakable Subjects (1998), at 224.
80. Lacey rightly distinguishes feminist analysis from critical legal studies, the former still undergirded by a strong normative outlook - an observation that would certainly hold true for the leading feminist analysis of international law: H. Charlesworth and C. Chinkin, The Boundaries of International Law (2000).
81. On the normative ethos of American feminist theorists see also S. M. Feldman, American Legal Thought from Premodernism to Postmodernism (2000), at 160ff.
82. Lacey has called for a 'normative reconstruction' of socio-legal and critical legal studies: ibid., at 223.
83. See R. Posner, Economic Analysis of the Law (1977),
84. and R. Dworkin's criticism of this approach in A Matter of Principle (1985), at 237-266.
85. Hart, supra note 41, at 136.
86. More recently, Jean-Pierre Cot has mapped American ideas about the law and examined their impact on international law scholarship (supra note 2).
87. F. Roddell, Woe Unto You, Lawyers! (1939).
88. Hart, supra note 41, at 974.
89. See J. Frank, Law and the Modern Mind (1930).
90. Posner, supra note 25, at 11ff.
91. Dewey, supra note 43.
92. Cot, supra note 2, at 553-554.
93. It is not clear to me why the eminent non-pragmatist legal philosophers that the US had, Ronald Dworkin or John Rawls, e.g., have not been as influential in shaping mainstream argument about the law. I suspect this may have to do with the marginal position that legal philosophy has in the law curriculum in most law schools.
94. H. L. A. Hart, The Concept of Law (2nd edn., 1994), at 123ff and 259ff('Postscript').
95. Dworkin's famous criticism that Hart neglected the importance of general principles in his theory was not premised on normative relativism: Dworkin, 'Is Law a System of Rules?', in R. Dworkin (ed.), The Philosophy of Law (1977), at 38.
96. I have attempted to do so in the most succinct form, and invite readers to read Cot's lucid exposition (Cot, supra note 2),
97. D. Kennedy and D. Fisher, Canon of American Legal Thought (2006),
98. or, for those in search of an intellectual history, N. Duxbury, Patterns of American Jurisprudence (1995).
99. Some American international lawyers have tried to infuse their process-based approach to international law with the normative. Cot singles out O'Connell and Koh. Glennon is an interesting case: He is frequently associated with radical critiques of specific rules of international law, but, as far as I can see, he never grounds them in a wholesale rejection of the normative (see, e.g., his article on desuetude, supra note 33).
100. It would also be necessary to ascertain the precise idea of liberalism behind those professions. As Sheldon Wolin has acutely observed, 'our present age for a variety of reasons lost touch with the original temper and outlook of liberalism and hence is willing to accept at face value the vulgar caricature of liberalism offered by Marxists, romantic conservatives, "realists", and neo-orthodox theologians': S. Wolin, Politics and Vision (2004), at 263.
101. Tarello concluded his study of American legal realism noting that the attack on the idea of independent adjudication by American realists was parallel to another attack on that idea, 'by legal theorists in Europe at the service of Fascist dictatorships', adding however that for American realists independent adjudication was synonymous with conservatism, not with the liberal state: Il Realismo Giuridico Americano (1962), at 245-246.
102. New World Order, at 1.
103. Ibid., at 4-5.
104. Ibid., at 5.
105. Ibid., at 51-61.
106. Ibid., at 66.
107. Ibid., at 100.
108. Ibid., at 41.
109. Ibid., at 17-18.
110. The MacCormick quotation is taken from his 'Beyond the Sovereign State', 56 MLR (1993) 1. That article, largely devoted to the philosophical implications of the Factortame decisions, concluded with a defence of the idea of law as a system of rules, a 'regulative idea' which, according to MacCormick, will be needed even 'beyond the sovereign state' (at 18).
111. New World Order, at 166-215.
112. A natural lawyer would probably object to a distinction between positive and aspirational normativity.
113. Slaughter, 'International Law in a World of Liberal States', 6 EJIL (1995) 503;
114. 'Law Among Liberal States: Liberal Internationalism and the Act of State Doctrine', 92 Columbia L Rev (1992) 1907;
115. and 'Toward an Age of Liberal Nations', 33 Harvard J Int'l L (1992) 393. By liberalism Slaughter means 'liberal international relations theory: 'International Law in a World of Liberal States', at 507, n. 5.
116. Slaughter, 'International Law in a World..., supra note 67, at 508.
117. She argues that '[n]either law nor politics may be a science, but international relations theorists have a comparative advantage in formulating generalizable hypotheses about State behaviour and in conceptualising the basic architecture of the international system': ibid., at 504.
118. She also maintains that '[t]he positive model cannot itself give rise to normative propositions. Yet to the extent that the positive model gives rise to a different conceptualization of the principal actors engaged in legal relations and the nature of the relations between them, it will define the subjects of new norms and the type of activity such norms are designed to regulate': ibid., at 515.
119. The space for the normative in her theory is therefore limited to mainly functionalist prescriptions. Alvarez has criticized both the descriptive and prescriptive components of Slaughter's liberal theory from what could be described as a Grotian perspective: Alvarez, 'Do Liberal States Behave Better? A Critique of Slaughter's Liberal Theory', 12 EJIL (2001) 183.
120. Examples of normative liberal theory of international law, grounded in the older intellectual tradition of liberal political philosophy, are Teson, 'The Kantian Theory of International Law', 92 Columbia L Rev (1992) 53 and, of course, J. Rawls, The Law of Peoples (1999).
121. For an illustration of the former see New World Order, at 198ff;
122. for the latter position see Goldsmith and Posner, supra note 8.
123. A work cited by Slaughter and often referred to in the literature on socialization is Robert Ellickson's Order Without Law (1994), a study of customs and practices, often dissonant with the law, followed by a community of cattle-ranchers in Sasha County, California, for settling their disputes. This study purports to show that law matters less than we think. There is something deeply unempirical about seeking to explain reality through such improbable analogies or, to use Shapiro's potent language, 'a flight from reality' rather than a better explanation of it: Shapiro, supra note 23.
124. Can we really learn any lesson on the international political order from how cattle-ranchers settle their disputes, or from how corporate governance works (another source of analogical application)? We have always known that some types of order can function through social rather than legal norms, but there is no complex socio-political order under which any liberal thinker could wish to live that functions without some legal norms.
125. New World Order, at 217.
126. Wolin, supra note 56, at 263.
127. New World Order, at 166.
128. Ibid., at 9.
129. The first legal articulation of corporativism was the Carta del Carnaro, the Constitution adopted by the group of Italian nationalists ledby Gabriele D'Annunzio who took over the disputed city of Fiume in 1919 proclaiming the'ltalian Regency ofFiume'. Under Arts. 13 and 14 of the Carta del Carnaro all'productive' citizens were members of'fully autonomous corporations'.
130. New World Order, at 213-214.
131. Ibid., at 245.
132. Brierly, 'The Basis of Obligation in International Law', first delivered at the Hague Academy in 1928 and reprinted in J. L. Brierly, The Basis of Obligation in International Law and Other Papers (1977), at 1.
133. New World Order, at 260.
134. The proposals of the Princeton Project on National Security, which Slaughter co-ordinated with John Ikenberry, suffer from the same shortcomings: J. Ikenberry and A-M. Slaughter (as Project Directors), Princeton Project on National Security: Forging a World of Liberty Under Law, U.S. National Security In The 21st Century, available at www.wws.princeton.edu/ppns/report.html. For a more detailed discussion of the Princeton Project see my article, supra note 4.
135. New World Order, at 278.
136. Ibid., at 260.
137. Ibid., at 270.
138. Lawless World, at pp. xvii-xviii.
139. Ibid., at p. xviii.
140. Ibid., at p. xi.
141. Ibid., at 8-9.
142. Ibid., at 23-45.
143. Ibid., at 14.
144. Ibid., at 21.
145. Sands, 'International Law: Alive and Kicking', The Guardian, 17 May 2005.
146. Lawless World, at 230.
147. Ibid., at 230 and 308.
148. A similar letter written by British academics was published by The Guardian and even gained headlines: 'War Would be Illegal', The Guardian, 7 Mar. 2003.
149. 'At the present time the most absolute monarchs in Europe cannot prevent certain opinions hostile to their authority from circulating in secret through their dominions and even in their courts. It is not so in America; as long as the majority is still undecided, discussion is carried on; but as soon as its decision is irrevocably pronounced, everyone is silent, and the friends as well as the opponents of the measure unite in assenting to its propriety... I know of no country in which there is so little independence of mind and real freedom of discussion as in America... In America the majority raises formidable barriers around the liberty of opinion; within these barriers an author may write what he pleases, but woe to him if he goes beyond them': A. de Tocqueville, Democracy in America (ed. and trans. H. Reeve, rev. F. Bowen, 1998), at 103-104.
150. K.J. Greenberg and J. L. Dratel (eds.), The Torture Papers (2005).
151. Lawless World, at 229.
152. Ibid.
153. '"I Did What I Thought Was Right"', The Guardian, 11 May 2007.
154. 'US Offered Military Action to Free Hostages', The Guardian, 7 Apr. 2007.
155. J. Colman, A 'Special Relationship'? Harold Wilson, Lyndon B. Johnson and Anglo-American Relations 'at the Summit', 1964-68 (2004).
156. See, for example, Weil, 'Towards Relative Normativity in International Law?', 77 AJIL (1983) 413.
157. Podhoretz, 'The Case for Bombing Iran', Commentary, June 2007, available at: www.commentarymagazine.com/cm/main/ viewArticle.aip?id=10882&page=all.
158. 'EU Should Fill Leadership Void on Human Rights', available at: http://hrw.org/englishwr2k7/docs/2007/01/10/global15039.htm.
159. Kelsen, cited in C. J. Friedrich, The Philosophy of Law in Historical Perspective (1963), at 177.
160. Lawless World, at 239.
161. See Wolin, supra note 71.