The politics of progress in international law.

Author:Baker, Betsy
Position:Proceedings of the One Hundred Second Annual Meeting of the American Society of International Law: The Politics of International Law
 
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This panel was convened at 9:30 a.m., Saturday, April 12, by its moderator, Tom Farer of the University of Denver, who introduced the panelists: Betsy Baker of Vermont Law School; Rebecca Bratspies of CUNY School of Law; Florian Hoffmann of the Catholic University of Rio de Janeiro; Alexandra Kemmerer of the University of Wurzburg; Russell Miller of Washington & Lee University School of Law; and Margaret E. McGuinness of the University of Missouri School of Law.

The idea of progress has been offered to justify international law to the discipline' s skeptics, and to position international law as an engine for change. Manley O. Hudson's 1932 book Progress in International Organization offered a defining articulation of this progress narrafive. Drawing its cue from Hudson, the new book Progress in International Law and this related panel attempted a survey of the field of international law for our times, providing a benchmark for another generation's consideration of international law's progress. The panelists are the editors and some of the contributors to the book.

INTRODUCTION

By Tom Farer *

Progress in International Law is a cornucopia of intellectual delights, a superb, well integrated, critically reflective assessment of the present condition and character of international law and its users and the world of brute circumstance in which they (i.e. we) work. Although inspired by Manley Hudson's 1932 monograph Progress in International Organization, in its tone and substance the new volume is a reconceptualization of Hudson's project, really a powerful ambivalent meditation and commentary on that project, a project that could best be described as achieving an unparalleled measure of human welfare and peaceful cooperation among states through the progressive development of international law and associated institutions.

The new book problematizes that project and the project's bedrock premise that the elaboration of legal institutions and associated rules and principles is both a sign and an instrument of progress toward a world marked by peaceful cooperation in addressing what today we call threats to human security.

The very morphology of the two works testifies to the difference in epochs insofar as knowledge and intellectual activity and promise are concerned. For his assessment of the state of international legal order, Hudson imagined one author and one slim volume to be sufficient. Such assurance evokes memories of the great Renaissance scholar, Pico della Mirandola who, standing in the central piazza of Florence, challenged any and all comers to test his grasp of the sum total of higher human knowledge by which he meant the works of the Greek philosophers preserved by Islamic scholars through the Middle Ages, the works of the great Christian theologians and the works of his renaissance contemporaries all of which he had mastered.

Instead of one scholar and one modest volume, Russell Miller and Rebecca Bratspies, the co-editors of Progress in International Law, have marshaled some forty talented scholars within the margins of an impressively large book. And yet, though their reach is broad, they do not, either individually or collectively, claim to provide their readers with a sweeping magisterial statement of the current condition of law and its users. Indeed they appear to be conceding, even asserting that by the nature of the thing described, no single omnipotent vision of the international legal enterprise is possible. Nor do they collectively reassure us that after all the terrible decades that have passed since Hudson wrote, the time is ripe to begin new and thrilling chapters in the progress narrative. A majority imply hope that falls well short of conviction.

While they do not resolve the great uncertainties that shadow the narrative of international law and order, they succeed brilliantly in highlighting them in such a way that even as we go about our respective quotidian lives in the law as teachers and scholars and practitioners of one kind or another, all who read this book will do so with a heightened capacity for reflection on the nature of their contribution to the global process by means of which social goods are created, allocated, and not infrequently expropriated from the weak and the meek.

Taken together these essays illuminate the big questions that ought to haunt us, if not as lawyers, then certainly as citizens, questions endemic to our enterprise:

(1) Is law simply a language of power that conceals its pitiless character?

(2) Does international law simply provide resources for defending good and bad causes, enlightened and regressive policies?

(3) Is the history of international law coincidentally a history of struggle for supremacy over other powers and other peoples?

(4) Given the omnipresence of power and the solipsism of imagined communities, is it plausible that international law can actually restrain the exercise of brute power?

Ultimately there is the basic question, the question of whether implicit in the evolution of modern international law is a teleology of progress? The most unalloyed skeptics would argue that players change roles but the narrative of power remains unchanged. This fine book suggests that reality is more complicated and in that complication there lie the seeds of a modest hope.

* Dean, Josef Korbel School of International Studies, University of Denver.

REMARKS

By Russell A. Miller *

As Dean Farer has so thoughtfully illuminated, our book has two alms. First, it aims to survey the field of public international law--to snap a photograph, if you will as it stands today. Second, it hopes to achieve that ambitious goal while engaging with the persistent notion that international law is a force for progress--is perhaps even a form of progress itself. This is the "progress narrative" of which I expect we will be hearing quite a lot this morning. Of course, the latter objective is intertwined with the former. To know whether we should, whether we can speak of "progress in international law," requires us to take stock.

HUDSON AND PROGRESS

Manley Hudson, whose similar effort in 1932 inspired our book, understood the relationship between claims of progress and accounting. Except, for Hudson, the notion of international law's inherently progressive character was not open for critical inquiry as it is in theses pages. With an almost fanatical resolve--the phrase "blind faith" comes to mind Hudson advocated a progressive vision of international law.

Hudson never explicitly theorized the relationship between "progress" and international law--he merely assumed it. For Hudson, as for generations of international lawyers that preceded and succeeded him, the notion that international law serves as the ordained mechanism for the achievement of "progress" was an accepted tenet, a prospect confirmed by none other than Kant, who wrote:

It is a duty to realize the condition of public right, even if only in approximation by unending progress, and if there is also a well-founded hope of this, then the perpetual peace that follows upon what have till now been falsely called peace treaties (strictly speaking, truces) is no empty idea but a task that, gradually solved, comes steadily closer to its goal (since the time during which equal progress takes place will, we hope, become always shorter). (1) Thus, the first commentators on the field we now call international law, believed that it would serve the ends of spreading "civilization." By Hudson's time the term "civilization" had begun to lose its appeal--even if it would still find its way into the ICJ statute after World War II. It had been replaced by Hudson's ubiquitous "progress." The yearning for steady movement forward, and the conviction that international law was the vehicle by which to achieve this movement, was ever-present in Hudson's work. Hudson was not alone in his belief that international law represented progress, nor in his confidence that it was possible to definitively mark that progress with regard to the existence and content of legal doctrines. Philip Jessup carded the torch forward. Louis B. Sohn (who began his U.S. legal career as Hudson's research assistant) characterized the progress of international law as an evolutionary process to be guided in the "right" direction by international lawyers. Myres McDougal posited international law as a balance between progress and stability.

HUDSON (AND BORAH): THE POLITICS OF PROGRESS IN INTERNATIONAL LAW

But, to claim that international law might be a force for progress or a form of progress itself is an inherently political undertaking. Because, to accept or reject international law's progressive character, is at the same time to join the intensely political debate over the utility and applicability of international law in a world order that suddenly seems newer--that is, less familiar--than we might have once hoped or feared. In this sense, our book and this panel--are more than a superficial gesture toward the theme of this year's Annual Meeting. Progress is political; a fact that also had not escaped Hudson. In relation to his 1932 book Progress in International Organization, he hardly could have avoided the politics. As Dean Farer alluded, Hudson's book was drawn from lectures he first delivered upon the inauguration of the "William Edgar Borah Foundation for the Outlawry of War." Senator Borah, the ferocious isolationist and architect of the Senate's defeat of the League of Nations Covenant was in attendance when Hudson took the stage to begin the lectures. Borah was probably Hudson's staunchest ideological and political rival. The tension between them was palpable and long-standing. For more than a decade the advocacy of their conflicting political visions of America's role in the world had taken account of the other, sometimes in direct correspondence, other times in tit-for-tat lectures across the country. The meeting of Hudson and Borah for...

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