Against Libel Tourism ... Floyd Abrams in WSJ

It is time to stop letting English law allow wealthy Saudis and others to undermine the First Amendment. Floyd Abrams, the renowned First Amendment lawyer, calls for putting a stop to ‘libel tourism’ - by which Cambridge University Press and other supine publishers, under libel threat in England, not only pulp books without so much as a legal fight, but actually demand successfully that American libraries take them off the shelves. Floyd Abrams, “Foreign Law and the First Amendment,” Wall Street Journal, April 30, 2008.

Ian Fleming and the TLS

So Ian Fleming was a fan of the TLS? And even once wrote a review for it? See TLS editor Sir Peter Stothard’s blog note in advance of the new issue.

Peter Bernstein interview in WSJ on economic crisis

Peter Bernstein, the Wall Street investment banker turned historian, and the first editor of the Journal of Portfolio Management, has a very interesting interview in today’s WSJ (link via Moneyweb).

Bernstein, now 89, has written wonderful books on the nature of contemporary finance economics. I once reviewed his Against the Gods: The Remarkable Story of Risk, in the TLS back in the mid-1990s. I have the review posted as an open access download at SSRN; as the financial crisis has taken off, I note that it has been increasingly downloaded.

All of Bernstein’s books are worth reading, including the ones that deal with the new hedging and leveraging strategies in finance. But I think Against the Gods is his best book, a genuine classic in finance, one that succeeds wonderfully in offering a highly informed understanding of risk economics to the non-mathematical reader but, more importantly, succeeding in revealing it as a core cultural and historical competency of Western culture from the Renaissance forward, a crucial element in the growth of capitalism but an independent cultural and intellectual history all its own.

“Mr. Bernstein, whose books include "Against the Gods: The Remarkable Story of Risk," sees two culprits. One is the abuse of securitization -- the trend for banks to hold fewer loans on their books and instead turn them into securities that were sold to other investors. The other is simply years of overborrowing by financial institutions and consumers alike.”

Bernstein sees the crisis taking much longer to resolve than many analysts, used to the Fed waving its magic wand, seem to think, and thinks the resolution will be shallower with less upside. Strikingly, however, he sees an environment in which those with the capital to take risks will find opportunity. Why? Because the resolution of the crisis will entail a long term pull back in risk and credit. Opportunities will be available for those able to take risks - but the crisis will severely limit the credit available for such risks. Those with available resources will be able to take advantage.

Also, Bernstein suggests that although a recovery in real estate is crucial for the economy, it is too hard for regular investors to enter such areas easily - too much money is involved, and credit too tight. So he suggests - I was intrigued by this, because it struck me as counterintuitive - the stock market as offering a complete range of risk but with some level of liquidity unlike real estate.

(Unrelated: there is one other great book on finance as intellectual history, political theory, a whole bunch of intriguing things run together, well worth reading, and that is James MacDonald’s A Free Nation Deep in Debt.)

My own views on international law and the attempted shipment of Chinese arms to Zimbabwe

The background to the post below, urging the Nobel Peace Prize to the South African longshoremen’s union, is as follows. I’ve have moved it separately in order to not mix up that call with my own special views on broader topics of international law. So:

I was asked a few days ago by the Africa department of a major international philanthropy which, safe to say, is strongly pro-international organizations and global governance, as to whether I could think of any basis in international law to prevent the shipment of Chinese light weapons to Zimbabwe where chances seem pretty excellent they would be used to kill the political opposition to Mugabe.

I got my research assistants on it and, unsurprisingly, we couldn’t find any. After all, as I pointed out to the foundation, if you take the position that, in order to constrain the United States from wicked unilateralism by saying that things like embargoes and sanctions must be approved by the Security Council, the price will be that when you want to constrain China, you don’t have any easy international law mechanism to do so. That’s because you already decided that the Security Council would be not simply the political meeting ground of the great powers, but something much more ambitious, the supreme arbiter of a federalized global governance system in what Kofi Annan called, in one of his worse moments, our “fledgling collective security system.”

Hence things like ‘responsibility to protect’ (probably not applicable because, horrendous at the situation is, it probably is not at the level contemplated by R2P, but maybe I’m wrong about that, if you count starvation) under the UN 2005 General Assembly reform document require that the Security Council approve action. I am willing to contemplate a different interpretation of that language, as is the US State Department, and read it to permit unilateral or ad hoc coalition action such as NATO action. But that’s not how most countries understood it when they drafted it - they intended it as a constraint upon the US and NATO following the Kosovo war - and to claim otherwise is thereby just more US wicked unilateralism.

That’s not even mentioning the fact that Zimbabwe - at the United Nations General Assembly, the UN Human Rights Council, any of the UN organs that supposedly truck in the ‘values’ of the international community - is in jolly good standing.

You can come up with all sorts of very, very, very soft law that can usefully be cited in press releases. You can talk about actions that need to match the aspirations of human rights documents such as the ICCPR. But of course it’s aspirational values talk. So what?

And anyway, a lot of the idealist value of those documents on light weapons and small arms - the value that might have existed to deal with a government importing arms to mow down its own citizens in order to override an election it lost - has been frittered away because the global civil society activist community thought it more important to use what started as a generally laudable campaign against promiscuous shipment of small arms into various conflicts in Africa, and into the hands of ten year old militiamen, into a frivolous campaign for gun control in the United States. Not surprisingly, the language of those documents doesn’t have quite the same moral force against Mugabe when language quite appropriate against a dictator shooting his own people is profligately employed against lawful gun ownership in the US.

Look, I’m not a gun owner - I strongly favor Second Amendment rights along the lines that, say, Glenn Reynolds does, and I have come to agree on the evidence that to a considerable extent I and my family are free-riders on the security provided by gun owners - but I don’t personally much care about guns as such.

I have lots of experience, though, in how activists cheapen and exhaust their own rhetoric, by taking it from one context and promiscuously applying it to another. Beware easy political analogies. The entire light weapons and small arms campaign went from serious concern about flooding Africa with weapons to a fantasist’s view of gun control in the US. The activists might continue to believe that there is a simple continuum from Mugabe to concealed-carry laws in the US, but that way lies madness, and many in the international community have gone there. Leaving them with far fewer tools of rhetorical seriousness by which to confront the Mugabe’s of the world - if that, rather than railing against the United States, was ever their first priority.

Real action requires democratic sovereign states to stand up, not just to Zimbabwe, but even more importantly to the country that - forget the US - genuinely embodies pure amoral self-interest and unilateralism, China. Hard as it may be for the American or European progressive left to understand, there are indeed worse things - and quite possibly worse things to come - than American hegemony. And give some credit where credit is due - the strongest force in the international community against the Chinese arms shipment has been the US State Department. Not international law in the supposed fora of international law - plain old diplomatic pressure by a democratic sovereign. But even at that, the US did not have serious international support and it appeared quite likely that the shipment would go ahead.

Luckily, the South African longshoremen’s union stepped into the gap - physically and not just diplomatically. By refusing to unload the small arms off the Chinese freighter, and sending it back out to sea, they sent a message worldwide that no one else had sent.

Nominate the South African longshoremen's union for the Nobel Peace Prize

In the past few days, the South Africa longshoremen’s union refused to unload small arms from a Chinese freighter being sold by a Chinese company to Zimbabwe, where chances are excellent the arms would be used against Mugabe’s political opposition. By their own refusal to offload the weapons, and by encouraging their union fellows in other southern Africa countries to follow suit, they have done more than anyone else to stir up public moral outrage that has enabled the pressure of democratic sovereigns - the US and others - to have bite with China. They gave local moral cover to regional African organizations, whose individual countries have not been critical of Mugabe, to make statements against the arms shipments.

Judges in South Africa have also been very courageous in issuing orders against transshipment across South African territory. They have special tools in that the South African constitution incorporates international human rights standards into the local law in a way that is not true in other places, including the US. I think it is fine that South Africa’s constitution does so, under the historical development and circumstances of that country, in a way that I would not think right for, say, the United States. But it meant that judges were able to issue orders that, within that country’s constitutional order, were not exercises of judicial overreaching.

***
So my proposal is that the next Nobel Peace Prize be awarded to the South African longshoremen’s union for its contributions to world peace by standing up against arms shipments by an amoral, rising power, China, concerned only with commercial advantage and currying favor its fellow dictators worldwide, and standing up for the population of Zimbabwe when damned few in the rest of the world are willing to do so.

Give the 2008 Nobel Peace Prize to the South African longshoremen’s union.

John Bellinger on ATS litigation and KA on opinio juris

John Bellinger, State Department Legal Advisor, made a very important speech at Vanderbilt Law School on Alien Tort Statute litigation. I am not a fan of the ATS, and believe moreover that Sosa did virtually nothing to rein it in - all it did was give a judge inclined to go forward a formal checklist for going forward, and a judge inclined not to go forward a formal checklist for not going forward. That’s a long discussion. (I see Roger Alford has a very useful, detailed post at Opinio Juris.)

However, even beyond the question of the ATS, there is something that I regard as an even larger - and more intractable problem, of which the ATS is only a part - the inability of the US government to give out consistent opinio juris and coordinate it through the various executive departments. In particular, there seems to be no mechanism by which State, Defense, and Justice can put themselves on the same page and consistently present the same position whether to foreign governments, international organizations, and courts.

I realize that as a professor, I don’t really understand how hard it is to make policy and act on it, let alone have it be coordinated with other departments of government. I also have a vague, outsider’s idea that different parts of the government probably think that there already is okay coordination and broadcasting of US views - despite perceptions of people like me that the US does nowhere near enough to plainly state it and declare it to be opinio juris. So it is without any idea at all of how government works on the inside that I suggest some kind of coordinating, uh, something to establish and publicize consistent opinio juris. The task the US faces is to assert in a systematic way its state practice as its view of international rules of law. It needs to do so in an environment that is increasingly hostile to the idea of state practice as establishing international law, but also an environment that, being increasingly judicialized, has difficulty recognizing - because of its own rhetorical methods - anything that does not involve written pronouncements of one kind or another.

The government has not understood this fundamental shift - that courts find it much easier to look at something like the ICRC’s not-so-good customary law treatise rather than facts of US state practice. In part this is because something like the customary law study is easy to use - it looks, to a US judge, like a Restatement, with a bunch of reasonable sounding rules, and a judge can simply find a rule, apply it and cite it. State practice is often not very reasonable or rational from the standpoint of how a judge might reasonably see things - state practice is political. Indeed I doubt that very many ATS courts even understand that state practice does constitute a source of international law in any real way - it is so alien their domestic sense that law is a rational and rationally established set of norms. So they look instead for materials that conform to their domestic law sense of what law is supposed to be and how it is established. The US government needs to learn how to put forth its views consistently, in support of its state practice, and in a way that puts it forth as opinio juris. For that, government needs to be on the same page and say so publicly.

***

Let me make several observations regarding the ATS at the outset. The first is that ATS litigation continues largely unabated, despite the Supreme Court’s attempt in Sosa to rein it in. Second, the ATS has given rise to friction, sometimes considerable, in our relations with foreign governments, who understandably object to their officials, or their domestic corporations, being subjected to U.S. jurisdiction for activities taking place in foreign countries and having nothing to do with the United States. Third, the development of the scope of the ATS has largely been left to litigants and the courts, without formal involvement from Congress and largely contrary to the views of the Executive. This has been a problem, not least because many recent ATS suits have tended to implicate important aspects of U.S. foreign policy. In the end, there are good reasons for limits on the scope of the ATS – through courts exercising restraint, or if necessary, through legislation. We need to ensure the ATS does not complicate international efforts by the political branches to promote human rights abroad, a cause to which the United States is deeply committed.
***
[T]he Court [in Sosa] identified a number of factors that counseled special “judicial caution” and a “restrained conception of the discretion a federal court should exercise in considering a new cause of action” under the ATS. Among other things, the Court recognized the “potential implications for the foreign relations of the United States” that “should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.” Accordingly, the Court stressed that devising new federal common law causes of action based on international law “should be undertaken, if at all, with great caution.” Justice Souter’s opinion summed up the situation: the door for ATS litigation was “still ajar subject to vigilant doorkeeping.”

Notwithstanding the Court’s directive for restraint, almost four years later, litigation has showed no signs of slowing down. Plaintiffs continue to push against the door the Court left “ajar,” arguing for expansive applications of customary international law. Among the suits courts have heard are a suit against an American company for selling Israel bulldozers under a U.S. military assistance program that were eventually used to demolish Palestinian homes; a suit against U.S. chemical companies that manufactured Agent Orange used by the U.S. military as a defoliant during the Vietnam War; a suit against two high-ranking government officials of the United Arab Emirates alleging involvement in abuses of underage camel jockeys; and a suit against a Canadian energy company for aiding and abetting human rights abuses by investing in Sudan. The Second and Ninth Circuits, in particular, have proceeded as before. One post-Sosa federal court has frankly conceived of its role as that of a “quasi international tribunal[ ],” dispensing an international law that “supersed[es] and suppl[ies] the deficiencies of national constitutions and laws.”[1]

***
As it happens, I served as an expert defense witness in the Agent Orange litigation mentioned above. I was astonished in the hearing in front of Judge Weinstein that he referred at the beginning of the arguments to him sitting as a sort of international tribunal. The very young lawyer for the government plucked up his courage and told the judge that it was not an international tribunal but a district court of the United States under the laws and Constitution of the United States. Judge Weinstein took it all in good humor and rather admired the young man’s chutzpah. But it was obvious to me, watching, that Judge Weinstein was quite in love with the idea that he was a sitting international tribunal.

I would also add that although the Bellinger address focuses mostly on human rights issues as a foreign policy matter for the executive, the trend in ATS cases is actually more centrally about environmental and resource extraction issues, even if they are wrapped, for strategic post-Sosa reasons, into some version of human rights arguments. One important reason why ATS cases need new limitations is that US district courts are in effect creating a sort of US-centric “international law” that recognizes corporate and entity liability, and indeed civil liability, an international law of civil liability of corporations in environmental matters despite the absence of any treaty recognition of such. It is not merely US conservatives who have concerns about that - it is also international lawyers outside the US who are fully aware of the general refusal of the international order to establish either civil liability in international law or entity liability, and are also aware of the risks of creating different species of international law, one in US district courts, cross-citing each other endlessly to inflate a little jurisprudential, self-referential body of “international law,” and what others in the world do. I myself am not disturbed by the fragmentation of international law in this way, but I certainly would imagine that others might feel quite differently. But certainly in my world of the international law academy in the US, the ATS is more or less sacred ground, and virtually all the academic commentary little more - from my perspective - than an activist echo chamber.

***

[F]oreign governments do not see the ATS as an instance of the United States constructively engaging with international law. Quite the opposite: we are regarded as something of a rogue actor. We are perceived, accurately, as having in effect established an International Civil Court – a court with jurisdiction to decide cases brought by foreigners arising anywhere in the world, by the light only of its own divination of universal law, and through the extraterritorial application of U.S. law concerning rights and remedies. By itself, this can be grating enough to foreign governments. But it is especially so when taken together with both the fact that the U.S. often argues vigorously against the assertion by foreign courts of universal jurisdiction to hear cases involving U.S. officials, and the fact that the U.S. has declined to join the International Criminal Court because of concerns about that tribunal’s jurisdiction.

In letters to the State Department or in amicus filings in federal courts, foreign governments consistently argue that the assertion of U.S. court jurisdiction over cases that have little connection to the United States is inconsistent with customary international law principles and interferes with national sovereignty. Canada, for example – internationally, a strong promoter of human rights and accountability for human rights violations –strongly objected to a case in the Second Circuit against a Canadian energy company for allegedly aiding and abetting human rights abuses in Sudan. The U.K. and Australia – also leading human rights advocates – have similarly argued that the scope of ATS jurisdiction is inconsistent with principles of international law.

When you consider the Sudan case, or the Apartheid case, from other countries’ perspective – a good thing to do generally in international law and relations – there is considerable force to these criticisms. Imagine, for example, what the U.S. reaction would be if a Swiss court sought to adjudicate claims brought against U.S. government officials or businesses for Jim Crow-era racial restrictions, or – since (without a statute of limitations) ATS suits can reach far into the past – even for slavery. As much as we might denounce past injustices, most of us would probably take offense at the notion that a Swiss court could hear such a suit and decide it based on the court’s own articulation of international law. The United States, after all, has come to terms with and sought to remedy the effects of slavery and Jim Crow laws through domestic measures under Acts of Congress and state laws resting on a strong moral consensus of our people – and according to the principles, procedures, and norms of our legal system. From the South African perspective, the Apartheid case must look very similar, and it is no wonder that the South African government has asked that the case be dismissed.

***

And then the conclusion of the address:

The problem that human rights enforcement must ultimately address – and for which the ATS is of little avail – is the failure of foreign countries’ own domestic rule-of-law institutions to prevent and provide redress for abuses. These failures cannot be fixed by any single policy program or lawsuit, and certainly not by making U.S. courts ad hoc claims tribunals. Rather, inculcating a respect for law and human rights takes a sustained and careful effort focused on strengthening legal institutions in foreign States, not necessarily expanding the reach of our own.

***

Also over at Opinio Juris, Dave Glazier, whose work I admire but often, alas, disagree with, makes the

following observations in the comments. I think these observations are astute, although my general agreement with what Dave thinks is the result perhaps overly persuades me:

[F]rom a legal and historical perspective, I have to conclude that a narrow reading of the ATS makes far more sense. The original language from the Judiciary Act of 1789 is still recognizable in the current statute, but the original contains a couple of nuances I believe are key to understanding the intended scope of the law. The full 1789 text reads:

[district courts] shall also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.

Points I take from this are:
(1) If federal ATS jurisdiction was to be concurrent with State courts, then the conduct envisioned to be actionable seems logically limited to acts taking hich takes place within the United States. Once admiralty and maritime jurisdiction was committed exclusively to the federal courts, it seems unlikely that State courts were considered to have any extra-territorial jurisdiction in the 18th century

(2) Don't the language's location in Art. 9 of the 1789 Act, which deals simply with federal jurisdiction, the reference to "tort," and the mention of concurrent State jurisdiction all suggest that the statute is purely jurisdictional and that a separate recognized cause of action is required to bring suit?

(3) Since it isn't until the 20th century that international law was considered capable of regulating a nation's internal conduct towards its own citizens, it seems wholly implausible to think that the Framers were intending to open U.S. courts to foreign citizens to sue other foreign parties for conduct that wasn't regulated by international law at the time. It is much more realistic to conclude that the ATS was simply intended to ensure that a foreigner whose diplomatic status or safe passage rights were violated while they were in the United States could have their case heard in a federal court. This interpretation seems entirely consistent with concerns expressed by leading figures during the Articles of Confederation period and several comments in the Federalist Papers.

While I personally wouldn't mind federal courts having a broad power to adjudicate egregioius human rights abuses regardless of where they take place, as a matter of law I just don't think that view of the ATS is persuasive. If the ATS creates actual causes of action to sue for violations of international law, that would mean that aliens had greater rights in U.S. courts than U.S. citizens, who would have to find a separate cause of action before they could sue. Surely neither the Framers nor any subsequent Congress intended that result!

Thanks to John Witt and all the folks at Columbia for the law of war conference

I just got out of a wonderful conference co-put on by Columbia Law School and Columbia History Department on the law of war, and the history of the law of war. It was great. I was in the splendid position of having been invited to attend - but without any obligations to present something. (My thanks to Matt Waxman and Philip Bobbitt for getting me invited!) I just sat and annoyed everyone around me by furiously typing notes. Which is what happens when you have Michael Howard, Philip Bobbitt, Ryan Goodman, and more on the panels. Really thoughtful presentations, comments, and all.

I was struck in this by the turning of historians’ attention to the law of war itself, and the discussion of the current debates within the moral philosophy community of just war theory and its history. John Witt, for example, one of the conference organizers, is working on Francis Lieber and the development of his Civil War era Lieber Code. It does seem to me a very rich area for work. Moreover, since one of my concerns about post-Walzer just war theory (which inevitably has a large cascading effect on law of war, at least in the US) is its general ahistoricism, the entry of legal historians and, I hope, intellectual historians into this area brings a welcome perspective to the discussion.

But it was a great, great pleasure to listen to the presentations, make more comments than I was really entitled to, and get a chance to meet some wonderful people. John, and everyone else who organized this thing, my thanks. And it was loads of fun to have a drink with Philip, John, Matt, and Ruti Teitel afterwards.

***
One of the pleasures of this short trip to NYC has been the chance to stay on the upper west side - meetings at Columbia, hotel at 77th and Broadway. Matt Waxman, Philip Bobbitt, and I walked down from Columbia after the meetings, straight through my old neighborhood at 93rd and Broadway. I walked back there this morning and took some camera photos of our old street, the great Hippo Park where Renee spent so many, many hours playing. All on a glorious spring day, everything in bloom.

It’s Saturday noon, and I’m sitting in a Cosi with free wifi before going to the train, at 78 and Broadway, looking out at everyone passing by. I sure do miss it. When I come to New York these days, it’s usually quick trips to Chelsea, and I rarely get up here to the neighborhood where Renee was born and Jean-Marie and Renee and I spent many happy years. The Cosi is filled with families with kids, going to the park, coming back, and they all look like us from ten years ago. Passover weekend, Fairway and Zabar’s jammed.

The Little Matchstick Girl Passion by David Lang

The winner of the 2008 Pulitzer Prize in music is David Lang’s The Little Matchstick Girl Passion. I’ve listened to it several times, and have been very taken with it. The structural parallels to the Bach St Matthew Passion are striking. And the Hans Christian Andersen story has always seemed to me genuinely shocking. It can be heard at the Carnegie commissioned music site.

Book blogging

Something I will do occasionally even on this semi-hiatused blog is post about books I think worth reading. And music too. Partly it is to keep them as a reference for me, but partly because I would like a larger audience - dozens and dozens at its heyday! - to be aware of these books.

Philip Bobbitt's Terror and Consent reviewed by Niall Ferguson

I will be reviewing Philip Bobbitt’s Terror and Consent for a major book review in a couple of weeks, so I will refrain from saying anything about this book now. However, I strongly recommend reading Niall Ferguson’s review of it in today’s New York Times Book Review (Sunday, April 13, 2008). Strongly recommend. Ferguson says:

This is quite simply the most profound book to have been written on the subject of American foreign policy since the attacks of 9/11 — indeed, since the end of the cold war. I have no doubt it will be garlanded with prizes. It deserves to be. It is more important that it should be read, marked and inwardly digested by all three of the remaining candidates to succeed George W. Bush as president of the United States.

Bobbitt’s originality lies in his almost unique ability to synthesize three quite different traditions of scholarship. The first is history. The second is law, particularly constitutional law. The third is military strategy. This synthesis owes as much to the corridors of power as to the sequestered groves of academe. Bobbitt was an associate counsel to President Carter, legal counsel to the Senate’s Iran-Contra committee and a senior director on the National Security Council under President Clinton.

My TLS editor on writing - an editor's email to an author

Ben Wittes and I were on a panel on Thursday at the meetings of the American Society of International Law, called writing for the mass media.  Advice to law professors on how to place things in the mass media; I'm a bit of a fraud on that, as I don't really write that much for mass venues.  Ben, on the other hand, is a real journalist.  However, I did read to the audience the following email, received from my TLS editor in the midst of editing something years ago.  I keep a copy up on my wall, although I can't really say I am good about following it.  It's very good advice:

***

Ken, you really think this is short?  May I enjoin you further on the virtues of concision.  There are too many long quotes from the book, for a start.  And I fear you risk partaking of the book's clearly leisurely pace and alleviatedly theoretical tone.  Unalleviatedly theoretical!  You!  Que pasa?

Maybe you haven't quite come down from your sojourn in the jungle of tenure-grabbing, publish-or-perish academic vanity publishing.  This is journalism, albeit the higher journalism. People don't have too much time.

The piece reads airlessly for the first half.  Look, there's nothing here that can't be said in half - no, a third - the space.

(Email to Ken, June 2001.)

Jeffrey Toobin's New Yorker article on the future of Guantanamo

The New Yorker's Jeffrey Toobin has a new article on the future of Guantanamo.  It features a visit to Guantanamo by Toobin, but also summarizes data developed by Ben Wittes on the characteristics of the detainees - any way to tell who is a continuing threat and who is not? - as part of his forthcoming book.  It also has a very interesting discussion on the idea of a national security court, and is nice enough to mention a conference that Steve Vladeck, Dan Marcus, Ben Wittes and I put on at Washington College of Law, American University, this past February 1, on the idea of a national security court.  Toobin attended that conference, which had an all star cast.  

The article has some interesting commentary from Jack Goldsmith and others on the possibility that the Bush administration will go back to Congress with some kind of proposal for a civilian national security court, in time for the November election.  One striking feature of the current presidential campaigns, of course, is that although everyone favors closing Guantanamo, no one wants to get very specific about what happens next.  So far as I can tell, McCain favors closing Guantanamo but continuing the military commission trials under current law.  Obama seems to favor closing Guantanamo and turning the detainees over for trial in regular federal court.  Clinton seems to favor closing Guantanamo and turning the detainees over to some kind of regular federal court trial but with perhaps some national security modifications.  I have my intrepid research assistants tracking down the candidates' statements, and perhaps will write up something for the Weekly Standard, but what seems currently to be out there is noteworthy for what it does not want to say.  

Jack G's point, says Toobin, is that the Bush administration may decide to put everyone - the candidates, the Congress, everyone - on the spot in time for the election.  That is fine with me; I have always opposed the Bush administration's assertions of executive power in this area, with the consequence of letting everyone else off the hook of accountability, and have always favored forcing everyone to raise their hands and vote on exactly and plainly US policy in so important a matter ought to be.  Toobin  implies that the Bush administration forcing that to happen with the Military Commissions Act at the moment of the fall midterm elections was a sort of cheap electoral advantage - no doubt it was entirely calculated.  But it also seems to me quite right; an election and an election campaign seems to me exactly the right moment when candidates and officeholders should be forced to stand up and be counted, whatever their views.  What better moment for accountability to the voters than in an ... election?

Thanks to Peter Spiro, David Zaring, and the folks at Temple University

I just wanted to take a moment publicly to thank everyone at Temple University for the lovely conversation about my early draft paper on politics and method in public international law, which I offered yesterday at an international law seminar there.  The redoubtable Peter Spiro, whose new book, Beyond Citizenship, is out from OUP and highly recommended even from a skeptic like me (I don't think you can really take part in that debate without reading Peter's book), organized things, and it was terrific.  David Zaring, from Wharton, commented and was very patient and generous with comments on a very early stage, development stage paper.  (You can see the gist of it in the post preceding this one.)  I prefer to present very early stage papers where possible - meaning the point is not to show off something already done, but to develop it - precisely because I prefer getting comments at a point when the ideas are still being shaped.  Once too far along, the ideas are a bit set in concrete and it feels like defending a completed paper, rather than getting help in developing a new one.  David's comments were extraordinarily useful.  Likewise comments from the rest of the international law faculty and numbers of very thoughtful students.  My thanks to everyone.

**

ps.  A quick note to myself, so I don't forget it when I get past the current crisis deadline and start working on this again.  The broad background for this discussion, at least in matters of method, is the general decline of the humanities and the rise of social science as the way of explaining things.  David was quite right to point to the method axis and suggest that it might better be labeled not prescriptivist and descriptivist, but humanities and social science.  The subtext for the discussion of international law method might be the decline of Kant and the rise of Bentham.  But it seems to me that a big part of this method issue in law is the role of quantitative modeling - and it is echoed across the academy as, for examples, business schools dump the marketing and motivational and leadership stuff and recast themselves as applied economics, etc.  The humanities have themselves to blame for their loss of status, having embraced postmodernist theories that deprived them of any claim to authority, much less truth.  No one looks to humanities, from novels to the essay to art to you-name-it, as a source of revelation.  Social sciences, preferably with a statistical edge, have taken pride of place.  The difficulty is that it is hard, at least in large swathes of law, to see that the new methods are as yet set to deliver.  Mathematics in many of the new fields appears to be less a means of revelation than of a way of establishing an intellectual pecking order: the more math, the smarter you must be:  but the relationship to truth in the real world appears murkier.  Maybe one day the methods will pay off in unambiguous ways - I am no postmodernist, and I would like to hold out for ways of coming at complex social truth, including statistically.  But much of it seems more promising as yet than able to deliver.  How much of the stuff that I see in political science, IR, and international law in these new fields depends, for example, on survey research that cannot be made better than it is by any amount of statistical massage.  Here is a moment for the humanities and its traditional emphasis on the interpretation of texts: consider the Pew survey questions for worldwide attitudes toward Americans, or about religions, etc., and consider the ambiguities that many of those polled might :  when American pollsters are able to show a vastly better track record just for exit polls for national elections, then we might turn to consider the same issues on a worldwide cross cultural basis.  But at the moment, it is more the promise of a method than a method.  In that sense, the new quantitative methods of social science in the traditional humanities and law appear to be more exercises in post modernism than science.  Sorry this is cryptic; it is really scattered notes to myself. 

A taxonomy of contemporary international law scholarship: political commitments, method, and modes of explanation (three axes) (Version 2.0)

In past posts, I have been working off and on again about how to conceptualize, catalog, and develop a taxonomy of contemporary international law scholarship.  Peter Spiro has been kind enough to invite me up next week to make a presentation at a seminar at Temple University, where I plan to carry this project a little bit further. 

The memo below is not very well developed, and is directed at the seminar participants, but in the interests of keeping my thinking moving forward, I am posting it here.  I may edit it down at some point and take out some of the stuff aimed solely at the seminar.  I'll eventually either replace this with a new version, or put up a new version on this blog.

This is not yet ready for prime time.  But I do persist in thinking that disambiguating these several dimensions and reassembling them as spatial axes gives some kind of handle on contemporary international law scholarship, a way of seeing it as a whole.  I hope it also helps clarify how some of the arguments about politics are really about method, and vice-versa.  That's the hope, anyway. 

(I am going to rework all this stuff as a presentation to my own faculty in April, and I hope by then to have added a bunch of cool Google 3D graphics.)

***

February 26, 2008

Memorandum Re: Describing the intersection of methodology and political commitment in contemporary international law scholarship

Summary

During the decade that I have been teaching public international law in a law faculty, the nature of public international law scholarship has been undergoing some seemingly fundamental changes.

By scholarship, I mean the articles and books published by scholars – sometimes by lawyers in practice or government or international organizations, but usually scholars – in student-edited law reviews, peer reviewed academic law journals (frequently journals outside the United States), leading scholarly journals of the profession (such as the AJIL), books, and related academic venues. The changes have been most pronounced within the US international law academy, its journals and scholarly venues, but some of this has spilled over to non-US settings as well. A part of this scholarship has had an impact on the practice of public international law – areas of trade law, for example, influenced by economic theories of regulation and law. Another part of it has had an impact on what we might call the politics of international law, its role in international discourse and debate within international relations, diplomacy, etc., particularly with reference to the nature, legitimacy, and deference to such constructs as the “international community” or “international institutions” such as the UN.

Changes in scholarship and reactions to them. The changes that I have in mind appear to be of primarily two different types – and they are often confused or run together. One change within public international law scholarship is about political commitments; the political commitments that international law scholars have long brought to the academic table, commitments to such things as internationalism, the independent existence and impact of international law itself, sovereignty or the decline of sovereignty, etc. In one sense this is no change at all – simply a revival or recasting of arguments over the nature and status of international law that go back at least as far as Grotius, the enthusiasts on the one side and the skeptics on the other.

A second change is about method – what is the way to go about study of international law? Within the legal academy, some part of that change seems genuinely new, or anyway new within the international law academy, even if the ‘new’ methods are old to other disciplines, such as international relations or political science or law and economics. They include such methods as rational choice theory, game theory, cost benefit analysis, empirical studies, etc. These changes also seems to me partly generational – the movement toward a new generation of scholars that, at least in the United States, has been exposed to new methods of looking at law generally, and are finally looking to bring these to bear on international law. If the older generation saw international law as, first, bringing moral or normative visions to bear on establishing what international is supposed to be and then using the tools of law to make it so, the new generation seems much more interested in more sophisticated and systematic descriptions of the world as it is.

Observing the discussions at many academic conferences and in the literature has convinced me that there is a great deal of confusion about how to understand these changes. Some of the debates are acrimonious, as new scholars – sometimes younger scholars and sometimes scholars schooled in a certain method and bringing it to international law – upset or challenge propositions that others long in the field had taken as settled. Many of the debates, so far as I can tell, simply confuse distinctions between politics and method. I was recently at a conference in which one leading public international law scholar denounced in the most vehement terms not simply the politics of one rising star in the ‘new’ international law scholarship, but very specifically that scholar’s method – or, more exactly, treated politics and method as identical with each other, saying that rational choice theory leads to improper skeptical questioning of what is finally an exercise in morality and natural law and, if unchecked, such methodology finally leads to authorizing the torture memos.

It was an extreme reaction, and it was recognized as such, but it is the very extreme version of a certain anxiety, especially among an older generation – my generation, it would seem, and older – that the new-fangled methods are somehow “impious” because they do not take a shared moral vision of the glorious role of international law – if not now, then what we, as the ‘invisible college of international law’, can gradually create if only we believe and act as though we believe – as our starting point. Not to mention the trepidation of meeting formal game theory and rational choice in the emerging scholarship and having no ability to read it, let alone take part in the discussion or do it. Parts of the new international law scholarship literally speak a new language.

A framework for representing international law scholarship. My purpose in this memo is to sketch out, in very preliminary form, a way of describing the current state of debate over the whole sweeping field of international law. It is very far from being ready for prime time. I am not entirely convinced that the categories I am proposing, at least in the way I am proposing them, are very useful. But I have decided to give this a shot, and make a couple of law faculty presentations on it.  

Let me emphasize that the project is fundamentally a descriptive one, not prescriptive. The aim is to find a reasonably useful way of conceptualizing and describing the current state of public international law scholarship.

I proceed in the brief memo below by developing three axes along which I think we might usefully distinguish various pieces of scholarship or even scholars themselves. I am reasonably sure that the axes themselves are important conceptually; I am less sure that positions assigned to the axes represent a good ordering or whether, indeed, any ordering at all makes sense. But again, I propose to take a shot at it. In addition to laying out these three axes, I also take up a separate question, which is the extent to which positions on one axis “drive” or “force” positions on other axes – the question, in other words, as to whether the axes represent independent or dependent variables.

(It would be extremely cool if I had a suitable set of graphics to go with all this – after all, it is essentially a 3D grid – and I am working on one using some Google tools. But that will have to wait for round two; I am definitely not there yet.)

The Horizontal X Axis:

Political Commitments:

Sovereignty and Liberal Internationalism

Imagine a horizontal x axis labeled ‘political commitments’. Since there are lots of political commitments, the first question is what political commitments are relevant, if any, to understanding international law or, in other words, how do you differentiate the most important political questions in international law. The second question is whether there is any way of ordering them serially on an axis that actually makes sense of them.

The issue I have chosen as the core political issue in international law is the debate between sovereignty, on the one hand, and liberal internationalism, on the other. One may ask – and I hope to get your thoughts specifically on this matter – whether this is the right question. It seems hard to come up with a question about the politics of international law that is more defining with respect to the broadest range of other political matters. Sovereignty – defined in Lincoln’s terms as a ‘political community without a political superior’ – puts front and center the primacy of the state, each individual state, and creates the terms of an international sphere ungoverned by any higher authority than states and what they might (temporarily or more permanently) consent to do. At the other extreme, liberal internationalism asserts the primacy of international law and international institutions as authorities ultimately above the will of individual states as free sovereigns. Liberal internationalism, like sovereignty, can come in many strengths and varieties, but ultimately it points toward a global federalism in which there is, in at least some matters, authority above that of the nation-state. But I am certainly open to entertain proposals that some other political question is actually more relevant or more ‘higher order’.

The second question – the ordering question – also raises many issues about whether one can suitably order a range, seriatim, of intermediate positions between the strongest form of sovereignty and the strongest form of liberal internationalism. Even if one agrees that the sovereignty question is the central political question for international law, there is still a big question for the method I am pursuing here as to whether it even makes sense to describe various positions as lying on a linear range. That, again, being open to discussion, here is what I would offer, starting from the pure sovereignty position and running over to liberal internationalism:[1]

• Pure sovereignty.
• Democratic sovereignty.
• Sovereign state weak multilateralism.
• Sovereign state strong multilateralism.

• Multilateralism anticipating evolution toward liberal internationalism.
• Pooled sovereignty multilateralism.
• Liberal internationalism through global government networks.
• Liberal internationalism through the legitimacy of global civil society.
• Liberal internationalism through global constitutionalism.
• Global parliamentarianism and global democracy.

If you imagine these positions on a line running from left to right, the basic intuition is that we start with the most “hard” sovereignty position and work our way to the most “hard” liberal internationalism and global federalism. Democratic sovereignty comes next, and with it a special view of sovereignty that says, in effect, that sovereignty itself is not the primary moral value at issue – instead, democracy and the democratic liberty of a liberal, democratic sovereign state, in which sovereignty serves as the protecting vessel, as it were, for the values of liberal democracy.

The line next runs through a series of intermediate positions, however, associated with various forms of multilateralism, and we might ask what distinguishes one from another, and in what order. Again, the basic intuition is that certain forms of multilateralism are done on the assumption that the basic premises of sovereignty are not disturbed – multilateralism of unchanging sovereigns. The strongest forms of multilateralism are often unstable positions, because of the collective action problems involved with holding parties together, but unstable or not, the assumption is one of weaker and stronger forms of multilateralism.

The break in the line – the tipping point from sovereignty positions over to liberal internationalism positions – comes in the center of the multilateral positions. It is associated less with any actual characteristic of a particular multilateral regime, but instead is associated with the expectations and attitudes of significant players toward the meaning and purpose over time of multilateralism itself. The expectation of multilateralism that crosses over to the liberal international side of the line is that an important motivation for the multilateral activity is not simply the activity for its own sake, but for the sake of movement toward stronger forms of liberal internationalism. A variety of theories can account for the movement itself – an expectation, for example, that once states are embedded within a generally beneficial system, they will come to see the benefits of making it a permanent system and overcoming collective action problems, finally, with genuinely superior forms of authority, above the sovereign state engaged in repeat games. Pooled sovereignty multilateralism, modeled on earlier incarnations of the European Union, for example, represents a stronger form of multilateralism in expectation of liberal internationalism and some form of real federalism.

The next liberal international positions are attempts at genuine federalism, but utilizing one or another mechanism by which to provide governance and legitimacy. The first of these – the “cool” position these days, in my experience – is liberal internationalism through governance by “global government networks,” in which national government bureaucracies and court systems essentially interlink across borders to provide coordination and governance in a liberal internationalist agenda but using the powers assigned to them by their national states. This position is particularly associated with Anne-Marie Slaughter and, in a somewhat different version, Benedict Kingsbury. Next is an older version of global governance, in which governance is provided by a coalition of international organizations and international NGOs or, alternatively, in which international organizations govern but gather the legitimacy necessary to do so by treating international NGOs as representatives of the world’s peoples. This global civil society-as-legitimation device is still wildly popular among international NGOs, but has seemingly lost currency with other global elites in the last few years.

The final two liberal internationalist positions are directly about global federalism, naked global federalism, so to speak, without apology or obfuscation. The first is “global constitutionalism” – roughly, the attempt to treat the UN Charter and various other treaties and customary international law and bodies as the constituent elements of a genuinely federal global system. Its main adherents tend to be European legal positivists who, looking at the experience of the EU, believe it provides the model and way forward for supranational governance, beyond sovereign states, for the world as a whole. The final position is global parliamentarianism, as advocated, for example, by Andrew Strauss and Richard Falk, which takes seriously the question of the “democracy deficit” of international institutions and proposes to remedy it by genuine global parliamentarianism. That latter position has seemed to me the most thorough-going in its approach to liberal international federalism.

Let me leave aside more comment on how these various positions might be described, made more complicated, added to, etc., and move to the quite distinct questions of method in public international law scholarship.

The Vertical Y Axis:

Method in International Law Scholarship:

Prescriptivism and Descriptivism

The question of political commitment has tended to dominate the public debate over public international law scholarship. Much of it was generated by the resurgence of what Professor Spiro has aptly called the “New Sovereigntists” – American scholars, often coming not from the field of international law, but constitutional law, who were concerned about the apparent encroachment of international law, customary international law especially. These voices became more active in the later 1990s, and include particularly Curtis Bradley and Jack Goldsmith. Many in the traditional international law field, both in the United States and Europe, and comfortably located within a community of similar belief, reacted with dismay to this new scholarship.

My own minor contribution to it was from a different vantage point – challenging the picture of international organizations gaining democratic legitimacy, and the particular claim of NGOs as “global civil society” that could provide this kind of legitimacy. But what it shared with the New Sovereigntists was a defense of democratic sovereignty as a normative ideal worthy of defense for its own sake, as against an earlier literature in which those skeptical of liberal internationalism generally did not contest the moral worthiness of the global federal vision, but doubted that there was any realistic manner by which to get there. That form of realist skepticism was more or less acceptable within international law circles – it was, after all, the overwhelming view then and now of much of the international relations academy. But what, I think, really angered traditional international law scholars was the robust moral claim made by the defenders of democratic sovereignty. It is a debate that will almost certainly resurface in the argument over citizenship in Professor Spiro’s splendid new book – or will, at least, once I get a chance to review it – and argue that democratic sovereign states, not liberal internationalism, are the last, best hope of humankind and that the category of citizenship in a democratic nation state is far and way the most important mediating category as against tribalism, ethnicity, religion, and other identities that are empowered by the rise of genuinely global governance. But I will leave that aside.

Even if questions of political commitment were predominant in the most public debates within the international law academy in the later 1990s until today, slightly under the surface have been the questions of methodology for doing public international law scholarship. Disentangling these two – politics and method – seems to me one of the most important analytic tasks at this very moment in the scholarly discussion. Method, for the generations of international law scholars since the Second World War, has almost entirely been prescriptive in nature. By that, I mean that the method has consisted of a moral debate (often taken to have been settled by Grotius) from which one extracts a moral vision of international law, which in the hands of international legal scholars collectively has been the idea of gradual progress in the direction of liberal internationalism, ideally in the form of global federal constitutionalism.

The method, then, is moralizing, followed by developments in the law that will enable that moral vision to be realized. The legal methods are somewhat variable – the elaboration of positive law through treaties, authoritative restatements of the law, the announcement of increasing amounts and depth of customary international law, and the assertion of primacy of international law over domestic law, including seeking mechanisms by which to draw national courts into the tasks of enforcement, and many other things. The fundamental observation is that the method of “doing” public international law scholarship is a normative method grounded in morality and law that is very closely tied to the political project. To the extent that there is a prior discipline outside of law, as it were, conditioning the legal theories, it is not international relations and certainly not economics, but instead moral philosophy, largely that of Kant’s Perpetual Peace. This is roughly the method of the great figures of the post-war generation, Henkin, Schacter, Steiner, Franck, et al., and, within the next generation, Koh, Alston, Simma, Higgins, and a great many more. Once the moral vision is set, then the methods might be those of legal positivism or legal process or many other things, but it is a normative activity.

With that as a backdrop, let now imagine a vertical y axis, with prescriptivist (normative) methods at the top and descriptivist methods at the bottom. At the prescriptivist upper end, we can put Kantian moralizing as a method. There are other normative methods we might want to include on this line, but many of them I would prefer to reserve to a third, z axis. These other normative methods would include feminism, critical theory, critical race theory, counter-hegemony theories, and neo-conservatism – among many others. I instead want to turn and ask what might go at the bottom end of the y axis, the descriptivist end?

Upper y axis: Prescriptivism

• Normative methods; Kantian moralizing.

Lower y axis: Descriptivism

• Rational choice theory
• Game theory
• Empiricism

One striking feature of the rise of a new generation has been the rise of descriptivist methods for pursuing international law scholarship. Notably, moral philosophy is much less important as the “backing” discipline for international law scholarship. Tracing the rise of this generation gives two intellectual sources for this. One was the conscious attempt by Anne-Marie Slaughter and others in the 1990s – all impeccably liberal internationalist in political commitment – to draw international relations scholarship meaningfully into international law scholarship.

This movement during the 1990s had some impact, but much less, I would suggest, than the rise within law faculties themselves of economics and social science as the most important intellectual influences, eclipsing traditional philosophy and jurisprudence, and the resultant triumph of a very new form of legal realism within the American legal academy (and nowhere else). By the year 2000, American law and economics scholars were casting about for new fields to plow with a familiar set of propositions, and in any case, a whole generation of rising scholars had imbibed a certain amount of economics-style thinking (so alien to the legal positivists of Europe), best described generically as ‘social science legal realism’ from their first days in law school. If IR theory still seemed a somewhat alien transplant, these basic forms of social science legal realism were not, at least not in American law schools.

The new descriptivist methods fall into two categories, however, and I am doubtful that there is any way to serially order them on a line. On the one hand, there are abstract theories of rational choice, game theory, and rationalist theories based on essentially deductive incentive and tradeoff predicates. On the other, there are empirical methods seeking to study international law by making testable hypotheses and looking to see what the evidence is, for or against.

These two have initially developed separately.  Eric Posner’s work over the last decade, for example, is largely rational choice theorizing, rather than empirical, applying basic propositions of law and economics to public international law. Oona Hathaway’s work on testing of propositions about the effects of human rights treaties, for example, exemplifies the new empiricism in international law scholarship. The reason that these two cannot be serially ordered, however, is that the distinction between them is ultimately false and a disappearing artifact – really, they are two parts of a unified descriptivist methodology in which rationalist theories propose hypotheses which empiricism then seeks to test.  Ultimately the two must come together as a scholarly enterprise.

(I am ignoring here the very large question of what constitutes a defensible method of empiricism.  We should indeed probably include several different empirical methods.  We leave that aside.)

X and Y Together: Four Quadrants and the Intersection of Politics and Method

Just as we could probably locate additional normative methods on the upper prescriptivist line, we could probably locate additional descriptivist methods on the lower portion of the line. I am content to leave the y axis as it is, however, in order to ask whether, even on this simplified model, it has any utility in helping to visualize, and then disentangle, the questions of method and politics. Let me suggest in a crude way that we might locate some examples of particular scholars within this framework (ideally, we should proceed not by person, but by piece of scholarship, both to show that some works by a particular scholar are about one kind of method, others about something else; and in any case, scholars and their scholarship change over time, not to mention that a single piece of scholarship can fit into more than one quadrant):

Upper left quadrant:

• Henkin
• Steiner
• Koh
• Franck
• Falk
• Strauss
• Simma
• Alston
• Higgins
• Slaughter

Upper right quadrant:

• Anderson

Lower right quadrant:

• Goldsmith
• Posner

Lower left quadrant:

• Raustiala
• Guzman
• Hathaway
• Slaughter

Labeling scholars and putting them into quadrants is fun, and I do think has some explanatory power in separating the aspects of their scholarship that are primarily about method and or primarily about politics. In particular, I want to stress that in the emerging literature of public international law, some scholars unite a politics of liberal internationalism with a descriptivist method, while others unite a sovereigntist politics with a descriptivist method. There were certain assumptions, especially earlier but still present in many of my discussions with scholars, at least, that rational choice or game theory methods, for example, are essentially the same as a politics of sovereignty – failing to disambiguate method and politics, and in many cases taking Goldsmith and Posner as exemplary of descriptivist method. That claim is disputed by other scholars – Andrew Guzman’s outstanding new book on international law and rational choice theory (required reading, everyone!) is an explicit challenge to the political conclusions reached by Goldsmith and Posner, for example.

Independent and Dependent Variables:

Does a Position on One Axis Ever ‘Force’ a Position on the Other?

Once method and politics are separated, however, we now face a general question of what relationship the two have to each other. If you hold a position somewhere on the x axis, might it ‘force’ your position on the y axis, or vice-versa? Are the axes, or at least particular positions on them, such that they make the other axis a dependent variable? Or, alternatively, are these two axes and all the positions on them independent of each other, so that politics and method never ‘force’ each other?

The traditional older generation of the upper left quadrant almost certainly believed that the correct method – Kantian moralizing translated into law and institutions – led to a certain kind of political commitment, liberal internationalism. Indeed, the anxiety of the moralist liberal internationalists is precisely the belief that if you do not start your inquiry from a certain moral perspective, you will not arrive at a political commitment to liberal internationalism.

Many of the younger, descriptivist generation reject that. Hathaway and Lavinbuk, for example, in their Harvard Law Review review of the Goldsmith and Posner book, explicitly call for method and politics to be regarded as independent variables. Or, at a minimum, a question of dependent or independent variables subject to testing. This opens the way for scholars such as Kal Raustiala or Andrew Guzman to be found (by me, at least) in the lower left quadrant – with liberal internationalist political commitments, but a rationalist methodology (along with a certain amount of empiricism, too).

Nonetheless, Goldsmith and Posner, in The Limits of International Law, do not appear to regard method and politics as genuinely independent variables. After all, their book argues that if you adopt a certain rational choice model, with certain basic and simplifying assumptions, the consequence will be that liberal internationalism is indeed ruled off the table as a matter of politics being forced by method. That is, if the method of rational choice theorizing that The Limits of International Law pursues is correct, then liberal internationalism cannot be true because its foundational assumption – the independent pull and tug of international law on behavior – is false. And if that assumption is false – and seen to be false because of the application of a true method, rational choice modeling – then liberal internationalism is not in fact available as a meaningful international politics. It may live on, but only as an illusion or a veil (the Marxist strain of Goldsmith and Posner’s thinking is quite striking). As I have suggested elsewhere in reviewing The Limits of International Law, in that case democratic sovereignty is really the “last man standing” as a politics, because the other possibilities turn out to be false or illusory.

The point for our purposes is not whether Goldsmith and Posner are right about that. They are sharply disputed by a new literature from other rationalists; perhaps their arguments are incorrect. But what we take out of this is that they adopt the position that political commitments are not independent of method – the correct method, correctly applied, in fact rules out a whole range of political commitments and leaves certain other ones standing. The y axis turns out to be the independent variable, and the x axis the dependent variable.

In some sense, of course, that is always true – political commitments should be the result of the right method. In that sense, political commitments are always dependent, the conclusion of a correct method. But the point is that given the disagreements over method, it is possible to arrive at either liberal internationalism or sovereignty positions through descriptivist method – something that, I think, has not been widely understood or accepted.

It should also be noted that normative moral methods need not, at least in my view, lead solely to liberal internationalism. It is not the sole consequence of a moral vision of the international sphere. One might – as I do – reach the position of democratic sovereignty on the basis of moral argument.

The Spatial Z Axis:

Modes of Explanation in International Law Scholarship:

Endogenous or Exogenous Explanatory Theories

We might usefully add one more axis to our spatial model – actually, we might add several, but we can discuss which one(s). The one I propose to add as the z axis is one not about politics, nor about method, but instead about the mode of explanation – and that with reference to a particular question, how endogenous or exogenous a method of explaining international law is. This is to raise the familiar “inside versus outside” jurisprudential observation, from HLA Hart, about modes of explanation in law – familiar, but it nonetheless seems to me quite relevant for situating contemporary international law scholarship.

By inside versus outside, I mean the question of whether a way of explaining something about law is explained by reference to law itself, or whether it is explained by reference to some form of explanation, scholarly discipline, or social realm outside of law itself.[2] I do not propose to get overly technical about the distinction, nor do I propose to get overly wrapped up over the differences between method and explanation. Also, let me add that this z axis is the least worked out part of this whole discussion, and I welcome your thoughts on whether it adds anything or not.

Let us imagine, then, a z axis with the following positions on it, running from explanations that are “inside” the law to explanations that arise from “outside” the law. (It might make sense to “double” the line, meaning to start from the center point and work our way outwards, from inside explanations to outside ones, and then to deploy exactly the same list in the opposite direction again starting from the center.) I grant that some of these distinctions are fairly arbitrary and perhaps do not really work, but let us try:

• Practice positions, eg, international law clinic briefs, etc.
• Positive law explanations.
• Legal process explanations.
• Historically grounded state practice explanations.
• Law and politics explanations.
• Empirical sociological explanations, e.g., Goodman and Jinks.
• Feminist legal theory.
• Counter-hegemonic explanations, eg., anti-globalization theory.
• Critical legal theory and critical race theory.
• International relations and political science explanations.
• Social theory explanations, e.g., New Class theories of global governance.
• Sociology of the international law academy, i.e., Koskenniemi.

I grant that there may not be a very good way serially to order these positions. Roughly, however, they correspond to “inside” and “outside” legal explanations. Positive law, of course, is the easy example of explaining international law on its own legal terms. International relations theory, on the other hand, looks to a quite exogenous body of explanatory materials. In between these I have located, first, history, law and politics as guides to state practice and the practical issues of international and national politics that shape international law and how it should be explained. And, second, I have located a body of essentially critical theories – feminism, for example – that partly draw upon endogenous explanation but partly draw upon exogenous theory as well.

Finally, I have placed at the furthest edge, methods that draw upon social theory and sociology in a quite different way – New Class theory, for example, to explain the rise of a global bourgeoisie that seeks a certain transnational governance order; one might also put various residual forms of Marxism here. On the outermost extreme sits Koskenniemi’s sociology of the profession of international law and international law scholarship – in one sense, completely inside international law, but in a far more important sense, standing entirely outside of it as law in order to explain it in historico-sociological terms that owe much to Durkheim and the sociology of professions (or anyway, so it seems to me; Koskenniemi might well disagree).

I invite your comments as to whether this z axis adds anything usefully explanatory to the whole picture. I believe it does, in the sense that another part of the debate over method and politics is driven by exactly this question of what counts as authority to settle questions of international law, the very questions that arise in scholarship. Explanation, in this special sense, is not precisely the same as methodology.  What you privilege as a source of explanation, what you say has the authority of explanatory power (including, to be sure for what purpose) will often be determinative of what you think international law scholarship should be. European scholars often criticize American scholars for what they see is far too much exogenous explanation – not just a matter of method, descriptive versus prescriptive, but as a matter of explanation, what has the authority to explain something and for what purpose.  (And a large part of that gap, of course, is owed to differences in the manner of training - the greater tendency of American scholars to have undergraduate backgrounds in exogenous fields, etc., etc.)

***

Conclusion: Have We Learned Anything?  Maybe

We could add other axes, or substitute axes, along different questions and dimensions. But now, in closing off this admittedly rather cryptic memo, let me try and sum up what it seeks to address and why I persist in thinking it offers a useful way of framing certain debates. First, it does seem to me that there is a marked confusion today within international law scholarship as to the separate dimensions that form that scholarship. This memo seeks to present a means of situating scholarship in such as way as to avoid those confusions. Second, it also seems to me that there is a debate as to what kinds of positions about what force certain other positions. The model sketched here is designed to make it easier to assert what might force what. Third, there is a debate about what should constitute the central questions that international law scholarship seeks to answer – ranging from what is the law to what is it authority – and this model furthers that debate, I hope, by be willing to assert that these are the central axes and positions that currently matter. I’m not sure this accomplishes any of those ends, but this is where the project currently stands. I look forward to your comments.

---

[1] I give an abbreviated statement here; in other places I give a fuller description of these positions. See especially, Kenneth Anderson, "Remarks by an Idealist on the Realism of The Limits of International Law," 34 Georgia Journal of International and Comparative Law 253 (Winter 2006); “Squaring the Circle: Reconciling Sovereignty and Global Governance Through Global Government Networks,” 118 Harvard Law Review 1255 (February 2005).  See my SSRN author page for pdf downloads.

[2] Larry Solum has a useful exegesis of the inside-outside distinction over at Legal Theory Lexicon blog, at http://lsolum.typepad.com/legal_theory_lexicon/2004/05/legal_theory_le.html. The original argument is in HLA Hart’s classic of jurisprudence, The Concept of Law.

Prudence and morality for a political community's trustees confronting war

A note on ethics and war and just war theory.  In class, we have been talking our way through Walzer's chapter on realism and his deservedly famous discussion of the Melian dialogue.  The positions that can be disambiguated from that discussion as statements of realism are:

• Amoral realism.  The view that morality has no role in war.  It is expressed by the Athenian generals when they say (paraphrase), because we have power, we will do what we will and you will do what you must.  And because morality has no role in war, there is no ground to speak on moral grounds of limits on war.
• Amoral realism, 'an argument upon your safety' from Thucidydes.  This prudential argument says, too, that morality does not have a place in the discussion, because it is simply about your safety.  You must do whatever you must do to secure your safety.  Put in this bare bones fashion, it is still an argument of pure prudence, although it rapidly shades over into the moral argument formalized by Hobbes:
• Moral realism, 'an argument upon your safety' but by a 'necessity of nature', from Hobbes.  The move that converts Thucidydes into a moral argument, by linking it to the moral claim that in the state of nature, you are entitled, morally entitled, to whatever you deem prudent for your safety, including war.  Again no limits on war.

All that - plus some more - appears in Walzer, chapter 1.  But I want to add something else, something that converts and amplifies the 'argument upon your safety' from a purely prudential argument into a moral one.  It is that when the subject of all this is not a person, but a community, then obligations to see to the safety of that community become more than merely prudential.  They become a moral requirement that entails prudential forms of action.  The leaders of the community are, in effect, trustees and fiduciaries entrusted with the safety of the community.  What they do as matters of prudence are also, and in the first place, acts of morality on behalf of the community for whom they act. 

An individual, that is, might choose to take greater risks for himself or herself than he or she would feel entitled to have the community take.  It is a familiar position for a fiduciary - you are obliged to act more prudently than you would for yourself alone, and in so doing you fulfil a moral duty to others that, with respect to yourself alone, would be merely prudential.

I have described this as "amplifying" the prudential 'argument upon your safety' because the trustee, as fiduciary, must be more cautious and more prudent because of moral obligations to the community.  It amplifies in some circumstances the possibility of conflict, including preemptive and preventive war.

(For a real life example of this, see Jack Goldsmith's The Terror Presidency, a book premised in large part on the proposition that any US administration, keenly aware of its role as trustee of the safety of the American people, will believe it not just prudent but moral to do whatever it takes to ensure public safety.  Many people argue that this prudence is misplaced and excessive, and risks other kinds of things, such as damage to the long term constitutional order.  Goldsmith's observation is that it is not merely a sense of prudence - protecting ourselves - but morality - the president has the moral obligation to do whatever can prudently be done to keep the American people safe.  In that sense, the moral obligation of a trustee serves as an amplifier of prudential action.  See my TLS review of it, downloadable at SSRN, here.)

***

(PS.  Philip Bobbitt (I don't think he'd mind me identifying him), in an illuminating conversation (as they always are) with me today noted that this sentiment, the idea that what is prudence for an individual becomes a genuinely moral obligation for the ruler - and amplifies it -  is part of Machiavelli's thought in The Prince.  But it is not Machiavelli as caricatured, but part of his republican thought.  Philip has a new short biography on Machiavellli and The Prince for a general audience coming out soon.  Also, Philip's magnificent Terror and Consent will appear from Knopf on April 1 - don't miss it! 

I should add, too, that this was a conversation with my daughter Renee, who has been studying Western intellectual traditions in her 9th grade Sidwell history class.  Renee has the good fortune to have an outstanding teacher - scholar in her own right - who has the class reading Machiavelli, et al., in original selections.  Renee remarked how much she loves listening to Philip talk about ideas, he is very clear, she says.  Philip is remarkably patient in explaining these things, and Renee took away an important idea about Hegel today to use in her Marx paper.)

Short review of Stephen Hopgood's Keepers of the Flame: Understanding Amnesty International

I was asked recently to review Stephen Hopgood's Keepers of the Flame: Understanding Amnesty International for an academic journal.  The journal review must necessarily be a capsule, around 750 words.  So I thought I would post up here my original 1600 word draft, before it gets cut down to size and the more biting stuff toned down (by me, by the way). 

There are a couple of things I did not address in this draft review, knowing that the final product is 750 words.  One is the embrace by AI of a sort of multiculti-anti-imperialism ideology.  Another, following on the first, is AI's embrace of often crude anti-Israel biases that have led to what can only be called factual errors in its reporting and beyond-dubious legal standards and international law interpretations.  A third, finally, is the unsurprising inability of the organization to mediate the contradictions between its gender, gay, and other progressive Western agendas and its pro-Muslim sensitivities; try as it might to ignore them, the contradictions result in considerable, um, cognitive dissonance.  At best.  Then there is AI's anti-Americanism, on which I commented in the Weekly Standard piece footnoted below.  One might as well add just how helpful all the above are to fundraising.

This is still first draft, not cleaned up, and I might well make some copy editing changes in the text below.  The Hopgood book is excellent, strongly recommended for anyone trying to understand the cultural inside of a leading organization of what is sometimes called - though not by me! - 'global civil society'.

***

Keepers of the Flame:

Understanding Amnesty International

Stephen Hopgood

(Ithaca NY: Cornell UP, 249 pp., paper, 2006)

ISBN: 978-0-8014-7251-0

The opacity of international nongovernmental organizations (NGOs), their closetedness and disdain for opening up even a small window into their internal workings, and more broadly their lack of accountability, is remarkable considering how much of their activity is devoted to getting other kinds of organizations to do precisely what they won’t. The environment, human rights, development, gender, labor, it does not really matter what – the most powerful global civil society groups (and the foundations that fund them) display haughty aversion to the transparency and accountability that they demand of government, business, international organizations and, really, everyone else.

The international NGO sector, taken as a whole, controls large resources (even leaving aside the development organizations that act as outsourcers of government funds). Greenpeace, for example, has had a peak annual budget exceeding a hundred million dollars. Oxfam, too, is also financially considerable.  NGOs have an enormous economic and political footprint in the developing world especially; their leverageable moral capital even larger than their financial capital. Yet getting concrete information (even routine financial data of the kind every public corporation must publish quarterly) is cantankerous at best. Getting truly inside NGOs, inside the culture, the habits of thinking and decisionmaking, is, in many instances, simply impossible.

For these reasons, Stephen Hopgood’s quasi-historical, quasi-anthropological, quasi-organizational account of governance, decision-making, values, power, organization, staffing, and control of Amnesty International is an important, fascinating study of one of the leadership organizations of global civil society. Hopgood traces the development of the organization as a history of its internal arguments and fights over its fundamental mission and mandate, beginning with its origins in 1961 with a British lawyer, Peter Benenson, and his mission – one squarely in the grand tradition of British social reformers that includes the Utilitarian Bentham and the Evangelical Wilberforce – to document and advocate on behalf of “prisoners of conscience.” One dimension of the book is the history of the organization. But a second dimension, much more important, is a compelling and closely observed walk through the fundamental and sometimes contradictory mission questions that AI has faced over its approximately fifty years of existence.

What are those mission issues? Perhaps the most vexed is the question of how wide AI’s human rights mandate should reach. And, by implication, how much should AI interpret and understand “human rights” to be simply an ever lengthening laundry list of progressive social demands? Hopgood begins his account with a revealing incident from 2003 when many members of the secretariat staff signed an open letter to AI general secretary Irene Kahn and her senior staff calling on them to maintain, and indeed refocus, the mission of AI onto something much closer to its original mandate. It appears to have had little impact on the internal trajectory of AI’s mission. Ironically, in fact, if there is anything that has pushed AI (and also HRW) back towards its original mandate, at least temporarily and partially, it is the post-9/11 US detention facility at Guantanamo, and the arguments over torture and coercive interrogations and renditions that have accompanied it. Activities about which AI, under Kahn, seems to have been become somewhat – well, how to put it? of course, torture is bad, but we have all these other new activities concerning development and anti-imperialism and what-not that are just so exciting – when they occurred in the usual benighted places, suddenly become front burner issues when the US is involved. Hence AI’s controversial invocation of Guantanamo in its 2005 annual report as “an American gulag” – although, thoroughly in keeping with the “new” AI public relations, that particular charge appears only in the press release and executive summary to the press, and is nowhere argued for in the actual body of the report.[1]

The original 1960s AI brief was, well, brief – to see to prisoners of conscience, those imprisoned on political grounds rather than ordinary criminal grounds in the liberal sense, oppose torture and the death penalty. It gradually expanded to cover the political human rights found, particularly, in the International Convention on Civil and Political Rights (ICCPR) that came with the founding of the UN. A liberal understanding of these rights lent themselves to a certain prioritization – core rights that could be understood on Kantian, categorical terms. No tradeoffs accepted regarding torture, for example; categorical, admitting of no exceptions. Yet the difficulties were present from the beginning, given that the ICCPR was accompanied by the International Convention on Economic and Social Rights, and by the enunciation within both the United Nations and many declarations and documents of positive international law that aspirational economic rights – ones requiring resources, economic growth and, yes, tradeoffs – were as much “human rights” as anything else. The core human rights NGOs – AI and Human Rights Watch (HRW) – resisted for a long time. But gradually, with varying degrees of actual commitment, they concluded that the juridical status of those rights in international law prevented them from prioritizing them over civil and political rights; the most they could do, as HRW has long done, is plead rather weakly that organizationally, they are not very efficient at what we might call “tradeoff” rather than “Kantian-trump” human rights.

Hopgood shows how AI gradually has come to embrace the entire economic, social, and cultural canon of left-progressivism, preaching it as though it were required by the Categorical Imperative rather than simply being one politically contestable vision of the good even within an impeccably liberal paradigm. As a practical political matter, it especially moved this way because of the fact that, unlike most other leading international NGOs, its constituent national chapters are membership organizations. Members, voting members. One practically has to have worked in NGOs to understand just what it means to have an organization whose board of directors is not self-appointing and self-perpetuating, from the top down.

On the one hand, it means an organization that has accountability to its members for the positions it takes, and in that special sense, democracy. But that democratic accountability is entirely internal. It is not accountable to anyone outside the organization – which, in the case of demands for how development budgets should be spent, the economic tradeoffs involved in poor and developing countries facing AIDS, environmental problems, malaria, girls’ education, is far from a minor thing. On the other hand, non-membership organizations, the self-appointing board-controlled organizations, have advantages in ideological coherency (as exemplified by HRW), top-down governance not swayed by the diffuse political desires of a voting membership. HRW, to be sure, has followed the shifting winds of liberal internationalism, gradually converting its mandate from international liberalism to international multiculturalism, but by comparison to AI, it remains much more willing to say that not everything that is good is a matter of rights.

Hopgood is best – superb, even – on the internal culture of AI, and the secretariat in London especially. Anyone (this reviewer included) who has had dealings with the culture of AI on the inside will immediately recognize the enormous pressures of an organization that is both a big business, a professional commitment, but also what amounts to a religious vocation with all the intensity that entails. Burnout is common and even expected; even so, Hopgood’s interviews on the subject are startling. So is the sense that the world devolves into the space within AI itself. It is a place of religious fervor, but also of people who finally have no other place to go even if they wanted to, and few job skills deployable outside of AI itself; a place of many theological disputes over mandates and ideological categories, but at the same time, because of the democratizing pressures of the membership, a place prone to sometimes humiliating mistakes. Its embarrassing factually flawed reporting on Guatemala a few years ago, for example, or its general lack of sophistication (even by the standards of broadly sympathetic fellow organizations, HRW and the International Committee of the Red Cross (ICRC)), in matters of the laws of armed conflict – for an organization that pioneered human rights professionalism, it can sometimes remain remarkably amateur. Moreover, relations between the secretariat and wealthy and powerful national organizations such as AIUSA can be tense.

Finally, however, Keepers of the Flame documents (yet without entirely recognizing it) the ways in which an organization can exhaust the mobilizing discourse of rights. “Rights” in AI’s usage, in the relentless broadening of categories that Hopgood reveals chapter by chapter, perversely lose their sanctity, luster and status as trumps, and simultaneously their ability to mobilize, precisely because they become merely the language for describing every fashionable political desire. It has been a long time since AI was regarded by serious political actors as anything other than a political advocacy group, a long time since it was regarded as standing above ordinary politics in the way that, for example, the ICRC has carefully continued to do, even in its nastiest confrontations with the US. And yet AI, blinded by its own rhetoric, will likely never recognize the damage it has done to the language of rights in pursuit of its promiscuous political agendas. As Michael Walzer once put it, in a passage Hopgood might fruitfully have made his own, the “effort to produce a complete account of justice or a defense of equality by multiplying rights soon makes a farce of what it multiplies. To say of whatever we think people ought to have that they have a right to have it is not to say very much.”[2]

---

[1] I have written critically of AI in this regard; see Kenneth Anderson, “An American Gulag? Human Rights Groups Test the Limits of Moral Equivalency,” The Weekly Standard, Vol. 10, No. 37, June 13, 2005, available at SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=935770.

[2] Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (NY: Basic Books 1983), p. xv.

Higher education tuitions, endowments, tax subsidies, the end of the American baby boomlet in university admissions, and the long term question of foreign student admissions

Note:  Looking at the comments, I want to clarify two things.  First, the concerns I raise below address the obligations of universities and how they should deal with being part of a particular political and social community.  It is not about individuals who apply to schools as such, whether from the US or anywhere else.  If I were a student abroad, had the money and the possibilities, I would certainly want to seriously consider coming to the US for study - in part because its universities are better than those in most other places, in part because the credential is often worth more, and in part because, should I wind up staying, the opportunities created are better.  The question in the post below is not whether individuals should seek admission; the question is rather whether universities as US institutions have an obligation to the US as a social and political community to consider US applicants and foreign applicants differently.  Second, this post is entirely about undergraduate education.  Graduate education and graduate education funding raise very, very different issues from those related to undergraduate admissions, and I do not address them below.

(Thanks Glenn for the Instalanche and welcome, Instapunditeers!)

I'm not posting much, for reasons stated a few posts ago, but I wanted to put up here a note I sent to Glenn Reynolds of the redoubtable Instapundit - Glenn has been tracking the discussion over the question of university endowments, tuition costs, and moves in Congress to address endowment payouts.  I wanted to note that the discussion so far is really missing a crucial long term element, which is the composition of university admissions.  I have left this in its original form, as an email to Glenn, although Glenn has mostly been simply noting the debate rather than setting out a fixed view.

***

Dear Glenn,

I've been following your posts on the higher education tuition debates, and the proposals to force greater endowment payouts.  That stuff is all very interesting, especially to a nonprofits lawyer like me, but I would say that the debate is missing a big issue. 

The biggest long term issue affecting American undergraduate institutions - one which higher education, tax authorities, politicians, parents and the general public need to make some fundamental decisions about now, rather than simply letting the demi-monde of university admissions offices do it - is to what extent tax exempt US universities should be committed to American students.  The most elite universities, the Harvards, Yales, etc., have already committed themselves, at least in principle, to pure global cosmopolitanism.  They have asserted, as a matter of high moral principle, that they are global institutions committed to serving the planet as a whole and not merely any particular place; Harvard is no more an American institution, about serving American society, than it is about serving Massachussets or Boston. 

This is not a call for America Firsting or nativism or anything like that, but it is a question about the commitment of universities to wholesale cosmpolitanism.  Note, after all, that the high minded moral principle coincides perfectly with university self-interest in getting the best students from wherever they might come.  Universities compete on talent.  On a purely cosmopoplitan basis, Harvard, Yale or Princeton could in theory staff an entire undergraduate college solely with people from abroad - there are only 300 million Americans after all, and over a billion Chinese, etc., etc., so that if one were truly serious about looking solely at the undifferentiated talent pool of the entire planet, one might in theory have the best students in the world while including no Americans.  That's just simple numbers. 

When one adds to that the growing wealth elsewhere in the world, and the ability of the wealthy in Asia or the Middle East to write an American university a contribution check in the way that the wealthy now do in order to cement legacy and wealth advantages in the admissions offices, the question of civic commitment versus cosmopolitanism becomes even more relevant.  It does not go away because, to offset the wealthy and legacy students, universities take a certain number of affirmative action students on the basis of identity politics (indeed, one of the striking gamings of the current system is how universities seem increasingly willing to apply affirmative action labels to include students from abroad as diversity admissions, moving away from historically disadvantaged groups within the United States). 

Obviously an entire entering class at Harvard or Yale and no Americans is not going to happen.  But at the margins, the incentives and the legitimating moral rhetoric are all there to move away from American students.  I myself think that there is a powerful contrary moral argument that says that institutions such as universities should be cosmopolitan only to an extent, while remaining rooted in a particular place, a particular society, and finding a large part of its mission there - and that universities as good as Harvard need to arise in other places in the world.  The cosmopolitanism that elite universities in the United States espouse has a tendency to undercut the development of their potential competition elsewhere - smothering future competitors still-borne, as it were, on the basis of a certain high-minded principle.

Call my contrary moral principle the "higher provinicialism" that Josiah Royce, the academic who went out to the semi-civilized wilds of California to further the University of California, urged as the moral ideal for the UC.  That is what a school like Harvard should strive for, not a generalized cosmopolitanism that never comes down from the jet stream to find an actual place on earth, while purporting to run the joint. But this bucks the official ideologies of multiculturalism, cosmopolitanism, and the general idea elites have that the United States should lose itself in the service of what those self-same global elites happen to think is good for the planet as a whole.

The question is what happens when the stream of admissions to universities starts heftily to favor highly qualified - make no doubt about it - students from abroad, while at the same time those same university endowments lower costs for students under federal pressure.  Those same university endowments have swollen in no small part because of massive federal, state, and local tax subsidies in the form of nonprofit exemptions compounded, in important cases, over decades adding up to whole centuries.  Shouldn't the question of whether those subsidies ought, in the first place, to serve the needs of the society that provided them be on the table in this discussion? 

Sure, there is obviously a place for cosmopolitanism and the enriching presence of many students from around the world and all that.  There is a powerful argument that American social interests are served by universities being a transmission belt to the rest of the world through education and interchange (although my experience as an academic suggests that the legitimation of radicalization and anti-Americanism are also large results produced by American higher education among its foreign students; the legitimizing and systematizing and conceptualizing of anti-American sentiment).  But those are quite different things from the dissociation and disconnection from American society and institutions that many universities are urging as their ideal admissions principles. 

There is simultaneously a large question of what happens when the current baby boomlet runs out, and universities start seeing a relative decline in applications.  Every private institution of higher education that I know of is assuming that its economic model will keep going through a higher and higher percentage of foreign students.  This is not necessarily a bad thing, but it raises serous questions as to whether the substantial tax subsidies implicit in universities as tax exempt organizations should continue in the same extent and way, particularly if universities follow the money and see themselves as increasingly as a sort of export industry conducted at home, increasingly about the needs and desires of people and places outside American society.  What is the obligation of American universities toward American society as such?  And how should that affect the substantial subsidies that American society puts toward higher education?

The political discussion over university tuitions is being conducted almost entirely as though the students in question are, and will continue to be, essentially all American students in which the impact of international admissions is too small to matter to class composition.  That is unlikely to remain the case at the margin, particularly at the elite universities with endowments large enough to be relevant to the fees question.  The composition of those student bodies needs to enter the discussion, not just tuition levels.

All best as ever,

Kenneth Anderson

ps.  I haven't been posting much to my blog, but I am going to post up this note there.

Very successful National Security Court conference, thanks to everyone

The February 1 conference announced in the previous post on the idea of a national security court went off splendidly, and I just want publicly to thank everyone who took part or attended.  We had about 200 people in attendance, which is a remarkably high number.  The lunch at which Judge Brinkema spoke was jam-packed.  And amazingly, people stayed right through the day to the final panel. 

So hooray for us!  Thanks to the panelists and speakers.  Thanks to my co-convenors, Dan Marcus and Steve Vladeck of WCL, and Ben Wittes of Brookings.  And particularly thanks to Jennifer Dabson and all the WCL event staff who made the thing happen.

We had wonderful people on the panels - see the list below.  And we were amazed and honored that people came in from out of town to attend.  We could have filled the panels from the extraordinary people sitting in the audience; the embarrassment of riches was, well, embarrassing.  Likewise, we could have filled the panels with people from my faculty at Washington College of Law, but we made an executive decision to use WCL people only to moderate panels, and give the substantive positions to people from outside the school.

I should also say that it is rare to have an event at a university in which there is a reasonable diversity of political and intellectual views; we were careful in planning to try and achieve that, and it is pretty clear to me that we did.

I hope Brookings, which co-sponsored the event, was as pleased as WCL was.

If you would like to hear audio podcasts - which can either be saved and played as a podcast or else streamed over your computer - of the sessions, you can find them at the WCL website, here.  Click on the first item, WCL podcasts, go down to Feb 1, and you will find sessions 1-3 and Judge Brinkema's address, each as a separate item.

http://www.wcl.american.edu/podcast/podcast.cfm

National Security Court Conference Announcement, 1 February 2008 in DC

If you are in DC on February 1, 2008, and would like to attend what promises to be a very special conference on questions of administrative detention, civilianization of the Guatanamo detention process, and arguments over various proposals to establish a new civilian national security court, you should plan to come to Washington College of Law, American University for the following ..........  You can register and come free as a general attendee, or you can pay $50 bucks and get CLE credit. 

(I should add that it was really tough figuring out who to ask onto the various panels, and I apologize to anyone who didn't get invited to join the panels.  An embarrassment of riches, alas.  But please do come anyway - this is not likely to be one of those immense conferences - we are aiming at something smaller for serious professionals in which there is room for discussion apart from the panelists themselves.)

This is a co-production, by the way, of WCL's Law and Government Program (Dan Marcus and Steve Vladeck and Kenneth Anderson), and the Brookings Institution (Benjamin Wittes).  Ben and Ken are both members of the Hoover Institution Task Force on National Security and Law, but this is a separate event.

***

TERRORISTS AND DETAINEES: DO WE NEED A NEW NATIONAL SECURITY COURT?

Sponsored by the American University Washington College of Law

Program on Law and Government and The Brookings Institution

February 1, 2008

10:00 am – 4:00 pm

American University Washington College of Law

4801 Massachusetts Avenue, NW, Room 603, Washington, DC

In the wake of the 9/11 attacks and the capture of hundreds of suspected al Qaeda and Taliban fighters, we have been engaged in a national debate as to the proper standards and procedures for detaining “enemy combatants” and prosecuting them for war crimes. Dissatisfaction with the procedures established at Guantanamo for detention decisions and trials of detainees for war crimes by military commissions, and concerns about the feasibility of conducting major terrorism trials in regular Article III courts, have led to proposals to establish a special National Security Court.  This new court, which would have greater flexibility to conduct non-public proceedings than do the regular federal courts, could make or review status and detention decisions and/or conduct trials of suspected terrorists.  The conference will discuss the pros and cons of establishing such a new federal court, and what jurisdiction should be assigned to such a court.

9:30 am Registration

10:00 am Welcome Remarks by Claudio Grossman, Dean, American University Washington College of Law

10:15 am Panel 1: War or Crime? The Legal Framework for Detaining and Prosecuting Enemy Combatants

Moderator: Professor Kenneth Anderson, American University Washington College of Law

Introduction – “Who are the Guantanamo Detainees?”: Benjamin Wittes, Research Director in Public Law, The Brookings Institution

Panelists:   Honorable Patricia Wald, former Chief Judge, U.S. Court of Appeals for the District of

Columbia Circuit and Former Judge, International Criminal tribunal for the former Yugoslavia; John B.

Bellinger, Legal Adviser to the U.S. Department of State; and Stuart Taylor, Jr., Contributing Editor,

Newsweek, and Senior Writer, National Journal

11:45 am Lunch with keynote speaker:  Honorable Leonie Brinkema, U.S. District Judge, E.D. Va (Judge in the Moussaoui case): “Reflections on Trying Terrorist Cases”

1:00 pm Panel 2:  A National Security Court for Detention Decisions

Moderator: Professor Daniel Marcus, American University Washington College of Law

Panelists:  Professor Robert Chesney, Wake Forest Law School; Professor David Cole, Georgetown University Law Center; Elisa Massimino, Director, Washington Office, Human Rights First; and Professor Matthew Waxman, Columbia Law School

2:30 pm Panel 3:  A National Security Court for Terrorist Crimes

Moderator: Professor Stephen Vladeck, American University Washington College of Law

Panelists: James Baker, former Counsel for Intelligence Policy, U.S. Department of Justice; Andrew McCarthy, Director, Center for Law & Counterterrorism; and Andrew Patel, private criminal defense lawyer who has represented a number of terrorist suspects, including Jose Padilla

4:00 pm Adjourn

General Registration – no charge. CLE Accreditation (4.5 credits) will be applied for – CLE Registration - $50

To register, please go to www.wcl.american.edu/secle/cle_form.cfm

For further information, please contact: Office of Special Events & Continuing Legal Education,

American University Washington College of Law
Phone: 202.274.4075; Fax: 202.274.4079; or secle@wcl.american.edu

Thanks to Andrew Sullivan for praise for Mormons, Muslims, and Multiculturalism

I am flattered and delighted that Andrew Sullivan, over at his blog The Daily Dish, (unaccountably) listed my Weekly Standard essay from last week, Mormons, Muslims, and Multiculturalism: The deeply dispririting Romney-Huckabee religion showdown, as his pick for best political essay of 2007.  It might well have been the last political essay of 2007 that Mr. Sullivan happened to read, but far be it from me ever turn down praise like that.   My thanks to Andrew Sullivan; I am honored.  (Let me also thank, once again, my editor at the Weekly Standard, Richard Starr, who both did a superb editing job and also gave me the space to say what I wanted to say.)

(Thanks Scott for pointing me to this.)

Thanks to Instapundit for linking to my Jack Goldsmith review in the TLS

My thanks to Glenn Reynolds here at Instapundit for linking to my review in the Times Literary Supplement (London) of Jack Goldsmith's superb The Terror Presidency.  (You can get directly to my Goldsmith review here.)

One of the things I listened to closely while writing that review was the Instapundit podcast interview with Jack Goldsmith, which I highly recommend and which you can reach at this link.

Glenn, thanks as ever! 

(And if any Instapundit readers come here after visiting the TLS, let me just say that I regard the TLS as the finest literary review in the world.  It covers a breathtaking range of subjects, its discussion of literature is unsurpassed anywhere, and if you are a student or, really, anyone looking to hone your own essay and prose style, read the TLS for models on how to write.)

Reactions to my Weekly Standard, Mormons, Muslims, and Multiculturalism article

I've received a fair amount of email traffic reacting to my Weekly Standard piece (open link at the WS, a blog summary here, and a letter back to Michael Novak re his (mis)summary, here).  The emails have been very mixed, very divided - not a big surprise. 

Among the various blog reactions, I wanted to flag to readers' attention the blog Levantine Dreamhouse - Abu Kareem, in New York, writes a very interesting blog that I recommend quite apart from the discussion of the Mormons, Muslims, Multiculturalism piece.  It's both reasoned and witty.

***

What has surprised me among the reactions, however, is how many evangelicals were most offended not by things I said about Huckabee or even about evangelicals (I think some of them decided not to take public offense, but instead to wallow in silent martyrdom=quiet resentment), but instead by my having the chutzpah to cite not just to Isaiah 3, but to the corresponding verses in the Book of Mormon. 

My goodness.  The horror, the horror. 

Very, very telling.   

Merry Christmas

Merry Christmas and happy holidays and happy new year. 

Jack Goldsmith, The Terror Presidency - my TLS review now up

Jack Goldsmith's part memoir, part historical and legal analysis of the Bush administration's war on terror, The Terror Presidency, came out a number of months back.  It has of course been widely and positively reviewed, as befits a book that captures so extraordinarily well the dilemmas of governance and executive power in the difficult circumstances of terrorism and counterterrorism.  It is one of the few books about the Bush administration and one of the few insider books on the Bush administration that I can confidently predict will remain required reading for the long historical term. 

I am delighted to note that my own review, in the Times Literary Supplement of 19 December 2007, is now up online at the TLS, here. 

(Thanks to Scott Lahti for cluing me in, I had no idea it was actually out.)

An excerpt:

***

The grand irony, Goldsmith observes, is that although the Bush administration lawyers sought “to leave the presidency stronger than they found it”, in fact they “seem to have achieved the opposite”. The reason is simply that the American constitutional system really does have three branches of government. Although the judiciary in principle has little constitutional role to play in matters of war or foreign policy generally, the fact that the war on terror has been conceived by the administration as a global war – in which the whole world is the battleground, in which even American citizens on American soil could be named as enemy combatants and indefinitely detained solely on the say-so of the executive – ensures that the Supreme Court cannot be left aside.

The administration’s tunnel vision has thus left it blind to the fact that, by seeming to go it alone and refusing to go to Congress for such things as limits, but also authority, to hold detainees at Guantánamo, or specific rules on interrogation that confine, but also legally protect, interrogators, the administration has tied itself in marriage to a far more exigent spouse – the Court. The message of successive detainee cases from the Supreme Court – Hamdi and Hamdan, particularly – has not so far been that the constitution forbids much of what the executive proposes to do. After all, most of this pertains to non- citizens detained outside the United States; and until the Bush administration’s spectacularly overreaching legal theories blew up in its face, no one thought the constitution applied to them at all. The message is, rather, that the administration should seek Congressional assent for what it wants to do. The Court has signalled provisionally that it will accept at least some extraordinary rules in the war on terror – provided, however, that the political branches have together given those departures democratic legitimacy. The Court’s limits, following the just argued Boumediene case, to what the political branches might do even together are not yet firmly drawn.

But there is no going it alone in a system of divided constitutional powers. If not Congress, it will be the Court – or more exactly, as Benjamin Wittes has noted, the inconstant Justice Anthony Kennedy, the Supreme Court’s swing vote – that endorses policy. In pursuing unfettered executive power to act alone, the administration has made Justice Kennedy its five-star general, its very own Douglas MacArthur in the war on terror. On the infrequent occasions when the administration has been forced by the Court to go to it for authority, it has been denied practically nothing. It has not so far mattered that the Bush administration is a lame duck, or whether Congress is in Republican or Democratic hands.

The administration seems not to have understood that what lives by executive discretion dies by executive discretion. If the Bush administration took counterterrorism as seriously as it took the abstraction of executive power, it would have thought ahead to its own departure from office. If it truly believed that its approach to counterterrorism was correct, then from the first day of its second term it would have engaged with Congress to create institutions to outlive any particular Presidency. It would have thought about the example of the Cold War and how a democracy deals with a genuine threat to a whole way of life. In retrospect, the democratic institutions of the Cold War did a remarkable job of balancing safety and liberty over decades; pure executive discretion cannot possibly promise the same. The administration having undertaken none of these things, US counterterrorism policy today flails without long-term strategic guidance or institutional stability.

Did Michael Novak actually read my Weekly Standard article?

19 November 2007

To the editor, National Review Online:

I ran across the following article by Michael Novak in the National Review, "Salt Lake Debate," December 17, 2007, taking a quick shot at the end at my Weekly Standard article this week, "Mormons, Muslims, and Multiculturalism," available online here (and some additional discussion at my blog post, here).

Look, I grant that the article was very long and had a long list of targets.  I acknowledge that numbers of people - including intellectuals, professors, theologians, etc., had some trouble following the argument.  Inelegant?  Possibly. My fault for bad writing?  Maybe.   Emotional?  No doubt, for reasons I explain at length in the essay. 

Still, it is hard to believe that Mr. Novak actually read the article before penning the following paragraph about it:

In another vein, a writer in The Weekly Standard, a former Mormon, urged publicly testing candidates even about purely theological matters — transubstantiation, baptism by immersion, circumcision, and other particular practices or beliefs of various faiths — just to see how, by the criteria of Enlightenment and liberal correct reasoning, the candidate “reasoned” about such matters. This, I think, makes Enlightenment and liberal political philosophy a new orthodoxy. And that test would provide a very narrow gate into republican self-government. By that test, only a small part of the population of the United States might pass. Most Americans have a much larger definition of “reason” and the “reasonable” than that.

Does my article urge publicly testing candidates about purely theological matters as transubstantiation, baptism by immersion, circumcision, etc., just to see how by the criteria of the Enlightenment and liberal correct reasoning, the candidate "reasoned about such matters?  

I offer three basic rules of thumb for what it is okay to ask of a candidate for public office about his or her religious doctrines.  The first is that any question of religious doctrine must have something to do with public policy or governance.  Specifically, I say:

[A]re there principles that can help define what religious questions should be in-bounds and what should be out of bounds in a tolerant, liberal polity?

First, for something to be "in," [bounds for questions] there does have to be a connection to governance, politics, and the public sphere. This is the most traditional form of American religious toleration in politics. A Buddhist's belief in reincarnation ought to be neither here nor there; a Mormon's conception of the Savior likewise; and a Jew's refusal to regard Jesus as Lord likewise.

Well, I don't know, that sounds to me like it rules out questions of transubstantiation, baptism by immersion, etc.  How else would Mr. Novak take it?  Indeed, the article does specifically raise transubstantiation and the Virgin Birth.  What does the article say?

Just as it is not considered irrelevant to know if one believes that space aliens came to Roswell, New Mexico, or has views on Area 51--shades of Dennis Kucinich?--a candidate's views on the Virgin Birth or transubstantiation or creationism are likewise relevant to making an informed electoral choice as to a candidate's fundamental rationality.

True, that does sound like it subjects the Virgin Birth and transubstantiation to politically correct tests of reason.  It sounds indeed as though this would create a new orthodoxy of reason, as Mr. Novak suggests.  But suppose we actually look at the article and see to whom this view is attributed:

And note that on this matter, atheistic rationalists and religious overbelievers join hands to say, all-in. A Hitchens, after all, would say that the electorate deserves to know the full irrationality of a candidate, and that is best expressed in his or her religious beliefs, even apparently private ones. (He would say this, and has said it: "Phooey," writes Hitchens, "to the false reticence of the press and to the bogus sensitivities that underlie it.")

So, this new orthodoxy of reason is attributed to ... the atheist rationalist Christopher Hitchens but also religious zealots like Huckabee who would insist that all religious practice, including weird aspects of Mormon belief and ritual that have no connection to governance, should be considered in deciding for whom to vote.  Mr. Novak's plainly rejects that and, I would have thought pretty obviously, so do I.  I'm arguing against it.  It is stated pretty clearly in this paragraph.  I don't believe that Mr. Novak read it, or at least not closely enough to follow it.

Past this first principle - that the religious belief in question has to have some relevance to public governance in order to be up for question at all - I further add a second, still more limiting principle on questions about religious doctrines.  It is that even where a religious belief does conceivably have a connection to governance - such as abortion or opposition to the death penalty - questions put to a candidate should be framed in a way that focus on the issue of the candidate's private conscience and belief about such matters, and not on the religion as such, in order to avoid, as Romney correctly said, making the candidate a spokesperson for the corporate religion as such.  I praised Romney on that very point, and took it even further in defense of liberal toleration:

To be sure, there was something good and liberal in part of his answer, and we should start with that. Romney said--correctly as a matter of deep liberalism--that for him to give representations as to the content of his faith would make him a representative of that faith, rather than of the people, who are of many faiths. To do so would be to head down the path of communalism, a political space defined not by a religiously neutral public sphere but by a division accepted as reasonably legitimate consisting of groups--religious, ethnic, whatever--that have claims on behalf of their immutably identified members.

How Mr. Novak could get from that to an assertion of a new liberal orthodoxy is quite beyond me.  I simply doubt he read the article.  What is so hard about this?

Finally, I offer a third principle, for when it is appropriate to take account of religious doctrine of a candidate.  It is in a limited circumstance - important, but limited by the previous two principles.  If a candidate asserts, or gives sufficiently good reason by his or her actions to show, that a position is rooted not in religious belief as such, but in the authority of the church, and thus puts an officeholder squarely between two authorities and obligations - church and the polity - then it is legitimate to inquire into the content of doctrine. 

I offer an example that I say flatly is hypothetical and indeed "fantastical" - the Catholic bishops announcing that any Catholic politician voting for abortion funding will be excommunicated and is therefore in peril of his or her salvation.  In that case, a genuinely devout candidate is genuinely caught between two competing authorities, the obligation to God and the obligation to the commonwealth, if, for purposes of the hypothetical, that is the will of the populace and, for example, prior to the announcement of this new doctrine, the candidate had promised to support abortion funding (saying, eg, that this was not his or her private religious view, but following the clear will of the majority).  In that case, it seems to me perfectly liberal and consistent with toleration for citizens to inquire into the content of doctrine that might lead a candidate, or even an officeholder, to vote in a way that is loyal to one's soul and God, but not loyal necessarily to one's citizens who are not necessarily of the faith. 

Any reasonable reader - no, any reader - of my article would recognize that the intent of this essay is to offer straightforward principles of liberal toleration that Mr. Novak himself would broadly endorse.  It seems pretty obvious to me that he started reading, perhaps got annoyed at the length (but surely Mr. Novak is used to reading things longer than 1500 words?) or at the tone of the essay, landed on a particular paragraph without bothering to read to whom its view was attributed, decided that it was my view, and engaged in a little drive-by libel. 

I understand that some readers found this essay hard to follow.  I don't defend its elegance; I was quite annoyed when I wrote it, and decided to take on all targets.  If it was too scattershot or emotional for Mr. Novak's sensibilities, my regrets.  But I can hardly think that the views he attributed to the me or the article by Mr. Novak are correct on any reading.  They are exactly what they are - views attributed to my foils, in this case Hitchens in particular.  Thirty seconds more of reading would have shown Mr. Novak this. 

I don't defend the readability of the article.  If it confused Mr. Novak then I will grant it had its problems of readability.  I do think Mr. Novak, whether my fault or his, has quite misread it.  He is, with good reason, a widely respected commentator, and his views on what the article said will and, all things being equal, should carry weight with those who might read the article Would Mr. Novak care to withdraw or amend his reading of it?