Monday, September 07, 2009
Staying Squarely within the Law
Although I am not teaching it this year, I have regularly taught Public International Law, which in my opinion is one of the most interesting and important courses in the law school curriculum. (Kudos to those law schools that require students to take at least one international or trans-national course in law school.) One of the challenges of teaching the subject is getting some of the more resistant students to buy into the idea that international law (and particularly customary international law) is “law.”
Every year, some students in class ask this question: “Isn’t this course just all about politics and power? How can this be about law?” Those students (not all, mind you) simply have trouble getting past the horizontality of the system -- in their minds, there cannot be “law” without meaningful top-down enforcement. No judges + no legislature + no police = no law. It does not matter how many times we read Article 38 of the ICJ Statute or the section 102 of the Restatement (Third) of Foreign Relations Law of the United States; they just seem to have a permanent mental block.
This is by no means a unique problem, but it has bothered me. How, I have wondered, can I convey the material to those students in a way they can truly grasp? How can I get those students to at least understand the concept of international law, if not agree with it?
The answer came to me the other night while I was playing a game of four square in my driveway with my young kids: why not play four square in class? I am sure others have looked to the playground for examples of horizontality, but at least as far as I can tell (and I have searched) no one has discussed using four square as a means of demonstrating and teaching about the sources of international law, and about international law being more than politics and power. Often a simple example is the best way to drive difficult points home by putting them in a more understandable context. In a post later today or tomorrow I will discuss the game of four square as my kids play it, and then consider how it could be used in a Public International Law course.
TrackBack URL for this entry:
Listed below are links to weblogs that reference Staying Squarely within the Law:
You should have a look at Linda Hughes's essay, Beyond the Rules of the Game: Why Are Rooie Rules Nice?, available in the Rules of Play anthology. It's a look at how kids play foursquare, and particularly how they negotiate the rules and then negotiate their way out of them. I'm sure you'll pick up some nice parallels to law for discussion.
Posted by: James Grimmelmann | Sep 7, 2009 1:51:52 PM
Another idea is to distinguish between following rules and obeying laws and look at the former as more akin to the way international law may operate (perhaps you can do that to some extent with foursquare).
Is the notion of "soft law" at all congenial to you?
How about invoking distinctions between governance and government as well as Slaughter's notion of governing through (horizontal) government networks (in a New World Order, 2004)?
And I find thinking of the broader category of norms rather than law to be helpful as well (I don't teach this subject but have spent some time thinking about it). Very useful in this and other respects is Friedrich V. Kratocwil's Rules, Norms, and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (1989).
Yet another idea is to re-visit the question as to precisely WHY people obey (State/municipal and local) laws, in which case the top-down model, insofar as it relies on notions of coercion, sanction and punishment, can be downright irrelevant. On the other hand, one can readily demonstrate that international law, like domestic law, frequently resorts to sanctions for enforcement:
"Every rule of international law is in fact backed by a sanction; if not a specific one based in a treaty, then a general-purpose countermeasure. Austin was mistaken about the lack of sanctions in international law. What international law lacks is a compulsory system of dispute resolution, so that neutral decision-makers more consistently plaw a role in the application of sanctions. International law enforcement still functions to a significant degree through self-judging and self-help, but with the growth of courts and tribunals [from the WTO to the ICC] this problematic aspect of the law is diministhing." (Mary Ellen O'Connell, The Power and Purpose of International Law: Insights from the Theory and Practice of Enforcement, 2008--this book should go a long way in disabusing students--and not a few of their teachers--of the idea that international law is a fiction).
Lastly, I would think a careful approach to considering the sources of international law would help inasmuch as one can use historical examples of nation-states routinely relying on same (one then asks what reasons might motivate compliance outside of real or possible threats from other nations).
And all of this might be done while retaining a keen appreciation of the fact that international law is in fact, like law elsewhere, often about "politics and power" (as both China Mieville in Between Equal Rights: A Marxist Theory of International Law  and Martti Koskenniemi in From Apology to Utopia: The Structure of International Legal Argument [2005 ed], would be quick to remind us).
Posted by: Patrick S. O'Donnell | Sep 7, 2009 3:09:48 PM
So. are four square rules "law"?
Posted by: Orin Kerr | Sep 7, 2009 4:36:35 PM
It shows that the lessons of Macaulay's legendary 1963 article are still being ignored. (Stewart Macaulay, Non-contractual relations in business: a preliminary study, American Sociological Review, Vol. 28, No. 1, p. 55-67.) His conclusion was that only a small part of contractual disputes are actually resolved using the law. Generally, businessmen prefer to negotiate their way out of a dispute, rather than get the lawyers involved and ruin the relationship forever. Instead, the law functions as an outside-option, against which these negotiations are conducted. International law functions much the same way.
Posted by: Martin Holterman | Sep 7, 2009 5:18:58 PM
Other than to jurisprudential theorists, in what context does it matter that one has demarcated international law, particularly "customary" law, as law? (I guess it might make a difference if you had a compliance with law section in an agreement, and then there was an issue later whether a particular international custom was "law" so as to fall within the provision.) Why do students have to buy into the idea that it is law? And what's wrong with being resistant to the idea that it is - at least as to those aspects in which there is no governmental enforcement even of a private or customary expectation?
Posted by: Jeff Lipshaw | Sep 7, 2009 6:18:25 PM
If I may, and by way of a brief relpy to your question, please see Philippe Sands' Lawless World: America and the Making and Breaking of Global Rules from FDR's Atlantic Charter to George W. Bush's Illegal War (2005) for a host of reasons why we might want to teach students how to identify (or 'demarcate') international law.
And as to how the nature and function of international law, at bottom, or in its essentials, is no different from municipal law (that is, insofar as it is a 'normative system harnessed to the achievement of common values'), please see Rosalyn Higgins's Problems and Process: International Law and How We Use It (1994).
Lastly, if we care about democratic governance and believe democracy and human rights are universifiable, then we will care about understanding just what international law is (i.e., how does this authoritative system of decision-making work, who are the authorized decision-makers, and how is the system and its process(es) relevant to the rest of us) and to what extent it in fact does, or to what it extent possesses the capacity or potential to, serve--and thus realize--(or impede) values or principles we all deeply cherish (even if take them for granted).
Posted by: Patrick S. O'Donnell | Sep 7, 2009 7:19:47 PM
Good comments, all. Thanks for the feedback.
To me, the comments emphasize that we ourselves are comfortable talking about the subject at a fairly rarified level. Some of our students are not. How do we reach across that gap of conceptual condensation to approach the subject from the perspective of a struggling neophyte student? In my experience, discussion of (a) historical examples, (b) cost-benefit considerations, and (c) why people obey domestic laws will not break the impasse for all students, and discussion of soft law or horizontal networks is relatively fruitless until the “Yes, but” knee-jerk reactions are overcome.
Patrick O’ Donnell aptly points out in a comment to my second post that my approach is "both cognitively and pedagogically parsimonious, unlike, say, contemporary academic game theory." That is entirely the intent -- to strip the point down to its essence. It then can be built upon for further discussion.
A final point worth making (again building on O'Donnell's comment) is that the approach might not be appropriate at all law schools. At a regional school with a regional student body, however, I think it could be quite effective.
Posted by: gregory bowman | Sep 8, 2009 10:28:09 AM
Gregory- can you say more about why you think it matters if students think international law is "really law" or not? One thing that struck me when I went and actually read John Austin (who thinks international law is law in a somewhat degenerate sense, as you know) is that very little turns, on his account, on whether something is "law" or not. His isn't a normative enterprise for the most part. (It's possible to think he's confused and has a normative enterprise, even if he doesn't know it. I'm actually somewhat sympathetic to that view myself.) But if we are just considering they analytic jurisprudence question, does the answer matter very much? (It's interesting to the analytic jurisprude, of course, but should others care?) I can think of a lot of things to say here, but I'm interested in your take. I'm also curious if your students think that no international law is law, or just some of what's called that isn't. There seems to be a lot of ground for making distinctions between, say, the WTO anti-dumping agreement, and what some people somewhere say about a supposed "emerging consensus" about state practice. Do we want to say we must think all of this is law or none is? That seems a path to darkness to me. Finally, a question for Patrick, does Higgins claim that any 'normative system harnessed to the achievement of common values' is law? That seems deeply implausible because so wildly over-inclusive. I assume there's some more nuance there, but if that's what domestic and international law have in common it can't be what makes them both law, as they both have it in common with lots of things we would call law only at the risk of serious confusion (various norms about what to do w/ trash, all sorts of rules of organizations, the rules of four-square, etc.)
Posted by: Matt | Sep 8, 2009 11:25:06 AM
Following up on James's point, as I recall "Rooie Rules" turned out not to be enforceable, partly due to their standards-based vagueness, and broke down.
Posted by: Bruce Boyden | Sep 8, 2009 11:35:36 AM
The citation of Higgins was meant merely to suggest we attempt to better look at what international law and municipal law have in common rather than tendentiously focus on their obvious differences (or relying on the latter as a paradigm for what the former 'should' look like; as Hart reminds us, doubts about the legal character of international law 'arise from an adverse comparison of international law with municipal law, which is taken as the clear, standard example of what law is'). The quote was one example of how she begins to do this and there is indeed a bit more nuance there. And although her book is not about this question as such, she does aim to clear away various prejudices against international law (e.g., that it's a shadow of 'real law,' that there's very little that falls under this rubric of any importance, etc., etc., including the sorts of misconceptions that afflict Gregory's students). Of course I did not go into any detail about her conception of international law or law in general, which happens to be "process-oriented" (Higgins is the former President of the International Court of Justice: http://www.icj-cij.org/court/index.php?p1=1&p2=2&p3=1&judge=6). You should read her book if you want to better understand her views on international law and the myriad ways it is similar to and different from domestic legal systems.
Incidentally, I think Austin's "command theory" of law, whatever its positivist or analytical virtues (especially as a methodological inspiration for what followed) is of little use in attemtping to understand (descriptively or otherwise) international law, as many (including H.L.A. Hart: 'Yet once we free ourselves from the predictive analysis and its parent conception of law as essentially an order backed by threats, there seems no good reason for limiting the normative idea of obligation to rules supported by organized sanctions.') have ably argued.
I like Hart's closing remarks on international law from his chapter on same in The Concept of Law (2nd. ed., 1994):
"Bentham, the inventor of the expression 'international law' [of course the idea of jus gentium, a law of nations or a law of peoples long predates it], defended it simply by saying that is was 'sufficiently analogous' to municipal law. To this, two comments are perhaps worth adding. First, that the analogy is one of content not of form; secondly, that, in this analogy of content, no other social rules are so close to municipal law as those of international law." (237)
Posted by: Patrick S. O'Donnell | Sep 8, 2009 2:04:01 PM
Thanks for the further clarification, Patrick. As to Austin, I don't think he's right, at least completely, on much of anything. (Though I think, as many others have lately, too, that many of Hart's criticisms of him don't stand up in the end.) My point in mentioning Austin was only that it's often not clear what turns on whether we call something "law" or not, or law in the fully proper sense, and that those who think it's quite important that international law (or all things called that) should be called that owe us some account as to why it matters. My impression is that, often enough, what is at stake is the rhetorical force of calling something "law". We think that if something is law, we should follow it, even if we don't really want to. This seems confused to me. We can have good, even compelling, reasons to do something even though it's not required by law, and may have good reasons to violate established law. I'm afraid I won't get to the bottom of the question in a blog comment, but I do think it's very much worth thinking about, for all people involved in the debate, why they think it's important that some bit of international law is properly called law or not, and if it's important at all, for any particular instance. This is in particular what I'm interesting in knowing from Gregory.
Posted by: Matt | Sep 8, 2009 4:41:19 PM
In response to Matt, I think it matters that students at least understand why international law CAN be considered law. I am not convinced that all of them do. If they do not understand that, then any legal analysis they may engage in during the course is largely (if not entirely) rote, and their learning experience is diminished. There is, in other words, an important distinction to be made between thoughtful refutation of traditional international law definitions and a lack of understanding of them.
I have used classroom exercises not unlike this one in other classes (most notably Administrative Law), and in those classes the exercises have sometimes been simplistic as well. But the exercises have driven the desired point home and have provided a baseline for classroom discussion. They also have the advantage of employing different teaching methods (active learning, visual learning) that can aid learning.
So in other words, implicit in my posts is the question of how to teach to the entire public international law class, and not just a portion of it. While it is not my job to dumb the material down or to spoon feed, it is my responsibility to reach out to the students I have.
Posted by: gregory bowman | Sep 8, 2009 11:17:03 PM
The comments to this entry are closed.