Archive for legal theory

Discussion Paper: “The Concept of International Law” by John Linarelli

Posted in Discussion Papers and Commentary, General Thoughts and Comments with tags , , , on March 24, 2009 by jeremyleong

We have posted a new discussion paper on international law and moral philosophy: “The Concept of International Law” by John Linarelli. This very thought provoking piece will be presented an ASIL International Legal Theory Interest Group panel at the Annual ASIL Meeting later this week. Linarelli offers a fresh take on what the enterprise of analytical jurisprudence can do for international law. He examines connected concepts of “normativity”, “validity” and “justice” and puts forth, for discussion, a contractualist account of global justice.

 

The paper can be found at:- http://fletcher.tufts.edu/FILA/pdf/FILADiscussionPaperNo0209.pdf. As always, comments are welcome.

Discussion Paper: “Doing Justice: The Politics and Economics of International Distributive Justice” by Joel Trachtman

Posted in Discussion Papers and Commentary, General Thoughts and Comments with tags , , , , on November 24, 2008 by jeremyleong

 

We just posted a discussion paper by Prof. Joel Trachtman. This paper was presented at a recent ASIL conference on distributive justice and international economic law. (See https://fletcherfila.wordpress.com/2008/10/26/asil-symposium-on-distributive-justice-and-international-economic-law/) To an extent, this short piece is like the interdisciplinary law scholar’s manifesto. Essentially, Trachtman sketches out the different roles that political science, economics and sociology can play in distributive justice discourse.

 

Importantly, he identifies each discipline’s strengths and weaknesses as analytical tools and where one discipline can cover the weaknesses of the other. His point? The endeavor of distributive justice is itself interdisciplinary. Has Trachtman taken morality discourse away from the exclusive domain of the moral philosopher and placed it in all our hands?

 

I don’t think so. If anything, Trachtman has provided a framework in which moral discourse which finds itself in a legal framework can be critiqued. For example, suppose one argues that Law A should be enacted because it provides distributive justice in a strictly Rawl-sian sense. Trachtman would point out that this argument suffers from “limited consensus”; “limited knowledge of causation”; “limited knowledge of remedies”; or “limited inducement”. Read the paper to find out what he means by this.

 

Different disciplines simply bring different notions of normativity. Moral normativity and legal normativity are merely pieces of the human puzzle. Maybe the complexity of human thought makes it difficult for us to wantonly rule out anything analytical tool. Yet, thanks to Trachtman, at least we have a framework in which we can evaluate the utility of those tools.

 

The paper can be found at http://fletcher.tufts.edu/FILA/pdf/FILADiscussionPaperNo0108.pdf.

 

As always, please feel free to respond or comment.

  

International Law, Science (Broadly Speaking) and Technology

Posted in General Thoughts and Comments with tags , , , , , , , , on October 30, 2008 by jeremyleong

So far, posts here have been limited to international law’s relationship with mainly the social sciences (e.g. economics, sociology, political science, etc). Regretfully, we have neglected to mention international law’s relationship with other fields of science such as the natural sciences and applied sciences such as physics, mathematics.

 

It is regrettable because science and technology has to a large extent permeated international law creation. They have also affected abilities to comply as well as change preferences for compliance or commitment to international law. There have been plenty of occasions where international law has been rendered irrelevant by scientific discovery and technological advancement and there are plenty of occasions where scientific discovery and technological advancement have provided sufficient incentives for states to cooperate in creating new international law.

 

Space law is one example. The first human was sent into space in 1961. Thereafter, the short period from 1965 to 1979 saw a proliferation of treaties relating to delimiting property in outer space; rescuing astronauts; registration of satellites; liability for damage caused by space objects; and regulating activities on the moon. Another example relating to compliance to international obligations can be found in the EC-Computer Equipment case in the WTO where a dispute essentially arose over the tariff classification of LAN equipment before and after the “Internet boom”. Science’s integration into international law is very clear from the WTO SPS Agreement that provides that scientific basis is necessary before a state can invoke the provisions of the SPS Agreement to carry out prima facie WTO-inconsistent measures to protect plant, animal and human health. See generally, http://www.microsoft.com/Presspass/exec/bradsmith/11-03-06InternationalLaw.mspx for an interesting speech by a SVP of Microsoft to ASIL on the relevance of technology to international law.

 

The interaction continues to this day. Contemporary issues like climate change, nuclear non-proliferation and the law on use of force are affected by technological advancements and scientific discoveries in the fields of clean energy, nuclear physics and military science. It seems the international law, at times, struggles to keep pace with the science.

 

Maybe a leaf can be taken from domestic law such as patent law and information technology law. Patent lawyers and information technology lawyers have embraced technology as part of their trade. (Just as international trade lawyers and competition lawyers have embraced economics are part of the same.)

 

I also look forward to more work on how technological methodologies permeate into international law. The “Science Studies” movement has already started to look at science from broader sociological/economic and philosophical context. See e.g. http://www.compilerpress.atfreeweb.com/Anno%20Ben%20David%20&%20Sullivan%20Sociology%20of%20Science%20ARS%201975.htm. I suspect that an examination which integrates law’s place in this may soon follow. This article I chanced upon entitled, “Law in a Shrinking World: The Interaction of Science and Technology on International Law” (http://works.bepress.com/joseph_w_dellapenna/11/) may be a good start.

 

Would love to hear the views of any technologists and scientists out there.

ASIL Symposium on “Distributive Justice and International Economic Law”

Posted in Upcoming Events and Announcements with tags , , , , on October 26, 2008 by jeremyleong

ASIL’s International Legal Theory Interest Group will be hosting a symposium on “Distributive Justice and International Economic Law” in Washington D.C. on November 7, 2008.

 

“This symposium focuses on the role of distributive justice (e.g. questions about the fair allocation of primary goods under international economic law) and how international economic law may intrude upon the basic structure of domestic societies. The symposium seeks to explore this subject by examining its foundations, applications, and critiques.”

 

“Speakers include, Joel Trachtman (Fletcher), Daniel Butt (Oxford), Jeff Dunoff (Temple/Harvard), Carol Gould (Temple), Robert Hockett (Cornell), Aaron James (UC Irvine), Jan Klabbers (Helsinki), Chin Leng Lim (Hong Kong), Sanjay Reddy (Columbia), Kamal Saggi (Southern Methodist), Barbara Stark (West Virginia) Fernando Tesón (Florida State), Chantal Thomas (Cornell/Am. U. Cairo), Frank Garcia (Boston), John Linarelli (La Verne/Northeastern), Chi Carmody (Western Ontario), etc.”

 

It promises to be an exciting inter-disciplinary event featuring international law, moral philosophy and economics.

 

For more information:- http://www.asil.org/activities_calendar.cfm?action=detail&rec=38.

 

Constitutionalism and International Law: Clarity from “Impurity”

Posted in General Thoughts and Comments, Journal Watch with tags , , , , , on October 26, 2008 by jeremyleong

There has been resurgence in discourse relating to the relationship between domestic constitutional law and international law. Further, perhaps in an effort to re-examine normativity in international relations, there has been increased discussion of the prospects of international constitutionalism. The latest edition of the European Journal of International Law has several such articles:- “Human Rights as International Constitutional Rights” by Stephen Gardbaum and “Human Rights, International Economic Law and ‘Constitutional Justice’” by Ernst-Ulrich Petersmann, amongst others. Similarly, the latest edition of the International Journal of Constitutional Law features a number of articles which examine the impact of international law on domestic constitutional law and vice versa. Elements of this body of scholarship draw on disciplines such as moral philosophy and rational choice theory.

 

This enterprise is, however, not new. But it has undoubtedly taken on added sophistication. Hans Kelsen was one of the first to think about the relationship between the domestic and the international legal orders. From his “Pure Theory of Law”, Kelsen posited that international law is a source of validity for changes in the basic norms of domestic legal systems. This suggests that all domestic constitutional orders derive validity from international law. Further, this theory is considered “pure” insofar as it is derived from cognition focused on law alone. To Kelsen, an “impure” theory of law would include ingredients of psychology, ethics and other disciplines or ideologies.

 

What would Kelsen say about the “purity” of current interdisciplinary scholarship in international constitutionalism then? Domestic constitutional law scholarship has itself evolved along inter-disciplinary lines. For one, fairness and justice discourse is seldom far away, as evidenced by the works of Rawls and other moral philosophers. Further, public choice theory and other law and economics theories have had significant impact on domestic constitutional law scholarship. I suppose it is only natural for these and other extra-legal disciplines to have had the same effect on international constitutional scholarship and hopefully, increased scrutiny from multiple angles will help clarify the factors that continue to divide the international and domestic spheres. I believe a collection of essays edited by Professors Joel P. Trachtman and Jeffrey Dunoff on this very topic is forthcoming. We shall update you accordingly.

“Crits” and the Interdisciplinary Study of International Law

Posted in General Thoughts and Comments with tags , , , , , , , , on October 8, 2008 by jeremyleong

  

The critical legal studies movement of the 80s and 90s may have left a more profound legacy on international law than we think. Some may say that critical legal theorists pioneered interdisciplinary study of international law. They used the language of politics, sociology, linguistics and other disciplines to attack doctrinal approaches to international law.

 

Martti Koskenniemi comes to mind first. In From Apology to Utopia: The Structure of International Legal Argument, Koskenniemi keenly identifies that “(t)he dynamics of international legal argument are provided by the constant effort of lawyers to show that their law is either concrete or normative and their becoming thus vulnerable to the charge that such law is in fact political because apologist or utopian” (Koskenniemi, 1990).

 

He then goes on to criticize existing “rule-based” and “policy-based” approaches to international law and examines the politics of international law in the process of advocacy and argumentation. His point is that any international legal argument which justifies some determined limit on state sovereignty will be vulnerable from “an opposing substantive perspective.” The result is a continuing argument between states. In his words, “(t)he formality of international law makes it possible for each state to read its substantive conception of world society as well as its view of the extent of sovereign freedom into legal concepts and categories…It is impossible to make substantive decisions within the law which would imply no political choice.” Koskenniemi’s solution? For lawyers to venture into “fields such as politics, social and economic casuistry which were formally delimited beyond the point at which legal argument was supposed to stop in order to remain ‘legal'”.

 

Next, when Phillip Allott assessed the “Health of Nations” and spoke of building “Eunomia”, he was taking an anthropological look at states. He called for an “international law revolution” where an international society of human kind was built before an international law of the same could be built. To him, the language of doctrinal international law, itself, pulled societies further and further away from each other rather than drawing them closer. He implores, “(h)umanity must take command of its future…It will make of itself an international society which is at last a society, a society whose purpose is the survival and prospering of the whole human race.” We also took toward David Kennedy, a Fletcher alum and former Professor, who first took a deep and critical look at international law structures. In one of his latest works, The Dark Side of Virtue, Kennedy takes a sociological view of international humanitarian law. He examines the subject from the eyes of the victim, the enforcer, the bureaucrat and other actors. Finally, he comes to the conclusion that they all have keenly divergent perspectives. One may also add Anthony Carty to this list. In “The Decay of International Law”, Carty utilizes the inherent contradiction between theories of state and theories of law as his basis of criticism. In so doing, readers find him echoing plenty of political theory.

 

I have two questions:- 1. Where has inter-disciplinary study of international law taken over where the critical legal theorists have left off? 2. What are critical legal theorists up to now? Have they shed their skins and re-invented themselves as constructivists or rationalists etc etc?