This panel was convened at 1:00 pm, Thursday, March 26, by its moderator, Devashish Krishan of Baker Botts LLP, who introduced the panelists: David Bederman of Emory University School of Law; Tai-Heng Cheng of New York Law School; John Crook of George Washington University Law School; and Mary Ellen O'Connell of University of Notre Dame Law School. *
THE IDEA OF LAW
Comments on DOUGLAS M. JOHNSTON, THE HISTORICAL FOUNDATIONS OF WORLD ORDER, THE TOWER AND THE ARENA (2008)
This celebration of Douglas Johnston's magisterial opus, The Historical Foundations of Word Order, is particularly appropriate in light of the theme of this year' s Annual Meeting, "International Law as Law." The Historical Foundations is an expansive sweep covering how international law has actually operated from prehistoric man to the present time, and across major civilizations. If past is prologue, The Historical Foundations is a codex to decipher what international law is, can be, and should be.
The Annual Meeting's formulation of "international law as law" may seem defensive, as it might suggest an attempt to assert that international law is something concrete: "law" as we may understand the term in other contexts, such as in domestic law before national courts.
Ironically, the conjunction of "law" with "international law" might achieve the opposite, and arguably more desirable, or at least more interesting, effect. If international law is law, but looks and functions quite differently than domestic law, perhaps it is not that international law needs to be more concrete, but that the idea of law itself needs to be broader than formalists might admit. To use an avian metaphor, if a long-known but little understood feathered creature neither looks like a duck, nor quacks like a duck, but ornithologists nevertheless categorize it as a duck, then the form taxon duck must include more than just the tasty fowl farmed in the Hudson Valley.
Through his survey of scholarship on international law, and his detailed analysis of international incidents, Johnston provides lenses through which we can observe international law more carefully. Lo and behold, not only is international law unlike Hudson Valley duck, it is not even a single type of duck. Johnston's lens brings into focus, in the distance, a flock of Mandarins, Muscovys, Ruddys, Combs, and Pouchards! All different; but all ducks.
Johnston documents how international law theory, in its seemingly interminable quest for self-definition, appears to have fragmented over time into a range of different approaches: formalism, realism, New Haven, transnational legal process, and so on. All different; but all designated as law by their respective proponents.
This fragmentation has been persistent. One reason for the longevity of disputes over theory may be that some scholars have attempted to argue that their respective theories most closely approximate epistemological truths about what law is. If law can be proven to be a system of primary rules derived from secondary rules and a rule of recognition, then it cannot, so the reasoning goes, also be a process to increase human dignity through global decision-making involving norms, authority, and control. But, I dare say, no scholar has yet proven the truth of a concept of law, if, indeed, such a truth exists.
Another reason for continuing disputes over what international law is may be disagreements over the purposes and venues of law. If law exists only to decide disputes in court, then it may be focused principally on legal rules and their application to facts, not political considerations and policy choices.
Yet, in international incident after incident, Johnston demonstrates that law does not operate in courts alone. In his taxonomy, law occurs in juridical, diplomatic, and societal contexts.
And, Johnston tells us, the purpose of law itself can change. A scholar working in the Tower may occupy himself with broad appraisals of how legal rules interact with politics and policy. He may also make recommendations to improve well-being. As a scholar, Johnston presents a theory about law, and not merely a theory of law.
A legal advisor involved in formulation and implementation of foreign policy in the Arena must concern himself or herself with not just legal rules. He or she must also be sensitive to policy and politics, although, as Johnston...