Archive for Rationalism

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.

  

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Financial Crisis: Views on the G-20 Communique and International Cooperation

Posted in General Thoughts and Comments with tags , , , , , on November 18, 2008 by jeremyleong

 

Dani Rodrik and Daniel Drezer both offered their views on the results of the recent G-20 meeting and communiqué. (See http://rodrik.typepad.com/dani_rodriks_weblog/2008/11/and-now-the-real-g-20-communiqu.html and http://danieldrezner.com/blog/?p=4059 respectively.)

 

In short, despite his low initial expectations, Rodrik could not hide his disappointment. His complaint, “(t)here is no coordination in the fiscal arena, the promises made to emerging markets are vague, and even though there is a clear statement on protection and export subsidization, there is no monitoring or enforcement mechanism.” Drezner is more sanguine. He actually found some laying of groundwork for actual reform of global governance structures through the IMF and an expanded Financial Stability Forum.

 

My question: Is this all the cooperation we can get? No, I am not retracting previous posts on the possibility of international cooperation in the wake of the financial crisis. (See https://fletcherfila.wordpress.com/2008/11/13/update-financial-crisis-and-international-cooperation-a-diplomatic-angle/, https://fletcherfila.wordpress.com/2008/10/12/financial-crisis-cooperation-and-a-global-new-deal/ and https://fletcherfila.wordpress.com/2008/10/06/financial-crisis-an-opportunity-for-international-law/.)

 

I think more exciting times will be upon us. When the crisis bottoms out, I sense the opportunity for greater strategic behavior from stakeholders in the international financial system. For example, the investors with liquidity at that time will start to attack and regulators can either choose to defend or play along. Perhaps, it is only then that we see some real incentives for cooperation and coalition building between domestic and international regulators and even investors. Right now, all that everyone can do is agree (weakly) that something must be done for governance. Hardly exciting news to me.

John Bellinger’s Keynote at the International Symposium on International Criminal Justice

Posted in Discussion Papers and Commentary, General Thoughts and Comments with tags , , , , , on November 17, 2008 by jeremyleong

 

Over the weekend, the Fletcher School held an international symposium on international criminal justice. Current State Department Legal Adviser John Bellinger delivered the keynote address, “US Perspectives on International Criminal Justice”. The text of the speech can be found at http://www.state.gov/s/l/rls/111859.htm. Based on the speech, it appears that the US policy does not fundamentally resist the application of norms of international criminal justice. Bellinger quite clearly stated that the US has supported various ad hoc international tribunals such as the Special Court for Sierra Leone, the ICTR and ICTY and the Khmer Rouge Tribunals. Yet, the concerns regarding the ICC, in particular, the concerns of the US military, were equally unequivocally expressed.

 

Some folk at Opinio Juris had something to say about the speech which prompted a reply from Mr. Bellinger. (See http://opiniojuris.org/2008/11/15/bellinger-on-international-criminal-justice/ and http://opiniojuris.org/2008/11/16/john-bellinger-responds-to-my-post/.) The crux of the debate being that the speech had not adequately addressed concerns such as “not giving the Security Council (and the US, with its permanent veto) control over the ICC’s docket, not exempting Americans from the territorial jurisdiction of the Court, etc.” 

 

That aside, from an analytical standpoint, the US view of international criminal justice may provide a nice example for study of “tipping points” to commitments to international treaty obligations. Are there common “tipping points” which influence whether the US joins a treaty or not? It may be worthwhile to review a variety of international treaty negotiations and see if there are nuanced commonalities where the US has signed and ratified and where the US has not. I suspect that some regression analysis would be required. Perhaps, a list of causal variables may be produced from there. Domestic causal variables will certainly be important. This may shed some light on the divide between concluded treaties and “what could have been” treaties and could assist international policy makers in crossing that divide.

 

We are expecting to post some of the papers from the symposium as discussion papers soon. In particular, some outstanding work was presented on changing the preferences of stakeholders in the international justice system. Look out for that.

Update: Financial Crisis and International Cooperation (A Diplomatic Angle)

Posted in General Thoughts and Comments with tags , , , , , , on November 13, 2008 by jeremyleong

As an update to https://fletcherfila.wordpress.com/2008/10/12/financial-crisis-cooperation-and-a-global-new-deal/ and https://fletcherfila.wordpress.com/2008/10/14/frigid-financial-markets-and-ice-caps/, I am posting a BBC article on the prospects of a shift in the existing balance of power in the wake of the current financial crisis (http://news.bbc.co.uk/2/hi/in_depth/7724298.stm). This article is particularly interesting because it provides some analysis on a possible new balance of power which will follow from the rise of Asia and the decline of Western economies.

 

The language of a “new balance of power” reminds me of a piece by Martin Wight, “The Balance of Power”, in: Herbert Butterfield and Martin Wight (eds.), Diplomatic Investigations: Essays in the Theory of International Politics, 149, (1968). Wight argues that there are a variety of definitions of “balance of power”; use of any particular one depends on the speaker and the audience. In my mind, this language is too anomalous and not quite useful.

 

Perhaps, as noted in previous posts, a more effective exercise would be in a more rationalist analysis of the incentives and disincentives for cooperation or competition between various actors. In particular, I expect regulatory competition in the finance sector between states to be of some importance. Moreover, in this rationalist analysis, a temporal factor, as always, will be at play. Some states will be looking for pay off immediately while perhaps other states may be able and willing to hold out on cooperation in favour of more long term returns.

 

As always, thoughts, comments and criticisms are welcome.

Obama, Change and International Law

Posted in General Thoughts and Comments with tags , , , , , on November 6, 2008 by jeremyleong

 

The votes were tallied as the world waited. The results were announced and history was made. America got her new President. Change was the promise. With a Democratic party dominated Congress as well as the possible opportunity for President-Elect Obama to pick 2 Supreme Court Justices during his term in the White House, this is certainly a good time for the President-Elect to make good on his promise.

 

How well does an Obama administration bode for international law? During the Presidential Primaries, ASIL conducted a survey of the various positions taken by candidates on international law issues. Obama’s responses in this survey generally signal a shift in US policy from unilateralism to multilateralism as well as an emphasis on the need for better compliance with international law so as to enhance US ability to influence international law creation and promote American values abroad. However, on particular issues, the existing international obligations and rules seemed unsatisfactory. For instance, he, in the course of the campaign, strongly advocated the re-negotiation of NAFTA as well as supported humanitarian intervention in Sudan. See http://www.asil.org/obama.cfm as well as a previous post on intervention: https://fletcherfila.wordpress.com/2008/10/06/intervention-some-food-for-thought-on-a-fletcher-favourite/.

 

Two issues come to mind.

First, perhaps, only time will be able to separate meaningful policy statements from campaign rhetoric. Of course, this would have been a necessary concern regardless of whoever won the election. However, there already has been some controversy in the Canadian media over Obama’s commitment to re-negotiate NAFTA. See http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20080227/dems_nafta_080227/20080227?hub=CTVNewsAt11. Furthermore, adherence and compliance to international law takes more than executive policy and the new administration will be operating under domestic political constraints. Such is the wisdom of Putnam’s Two Level game.

 

Second, social constructivists may have some fun in examining the idealation effects that Obama and his “Change” campaign will have on international law creation. Will US values and preferences become more accepted in other states to the extent that these foreign values and preferences change? To what extent will this change be attributable to the strength of the Obama message? Also, high expectations can be a double-edged sword. In the event that the new administration fails to live up to its promises, what impact will the subsequent disappointment have on US ability to change foreign values and preferences? What can public diplomatists do to manage expectations?

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.