Read THE SHIELD OF ACHILLES Online
Authors: Philip Bobbitt
PERSPECTIVISM
There are fundamental goals of the society of parliamentary nation-states that are often in conflict: sovereignty, democracy, human rights, and self-determination are examples. A state that denies human rights to its citizens can be subject to humanitarian intervention by other states in order to vindicate those rights, but this compromises sovereignty; a state that promotes democracy can, through the democratic operation of majoritarian elections and legislative action, end up denying rights to minorities; a national people that is permitted to create a state inevitably entraps persons who would have been in a majority in a differently drawn territory, or who become permanent, insular minorities in the one that actually comes about. McDougal refers to certain goals in conflict—such as peace
versus
justice, or freedom
versus
order—as antinomies that are in fact complementary and can be harmonized by reference to the overriding ethos of the constitutional order of the society of parliamentary nation-states, the dignity of man. But he appears unwilling to recognize that in some cases—perhaps the most important cases—there are other goals (such as the four mentioned above) that can never be wholly satisfied in the natural world of scarcity.
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Like McDougal, Acheson recognizes the rueful truth of Llewellyn's claim
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that for every legal maxim a countermaxim can be found, but also like McDougal, he has a preferred value, strategic security, that overrides all others, and that can be derived from the constitutional structure of the society of states within which international law must operate.
Perspectivists attempt to overcome what they believe to be the inherent cultural, class, and other biases in such overriding approaches, whether they are McDougal's or Acheson's, noting that these biases are especially evident in international law
when the higher goals are determined by the particular policies of a national state…. That [national elites] tend to regard their national state's conduct and policies as more conducive to achieving universal ideals is understandable. Sentiments, education, information sources and deeply rooted affinities are likely to prevail over the claims of distant, uncongenial societies.
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One might argue that the post-Versailles order is actually designed to give expression to such biases: by transposing to the international level the respect for the individual that structures the liberal, parliamentary domestic order, the system denies an external standard by which it is to be judged, regardless of whether this standard arises from the states themselves. Like the liberal constitutions of parliamentary nation-states that seek to allow each person to pursue his or her own path to happiness and fulfillment, international law in the current era, as Louis Henkin has observed, “is designed to further each state's realization of its own notion of the Good.”
The agnosticism of such a system toward particular substantive values is irksome to some. While they frankly concede the Legal Realist's argument that legal rules are indeterminate, they wish to bring external, nonlegal preferences to bear in order to resolve the indeterminacy problem. I will mention three prominent alternatives, but they are treated very cursorily because their impact on the international law of the society of nation-states has thus far been quite marginal. These alternative views are offered as exemplars of how an external standard, located in the world but not in law, might be applied.
One such option is feminism. A central feminist argument is that the international legal system is patriarchal, hierarchical, militarized, and masculinized. It has been urged
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that the practices of warfare favor men's lives over women's because the rules for combatants, who are almost exclusively men, tend to be better developed and better enforced than the rules governing the use of air power, which is often directed against civilian targets. The crucial dichotomy in law between the public and private that, on the level of the individual state, tends to cloak violence against women by privatizing it, on the international level protects the denial of human rights when these abuses are committed by nonstate, “private” actors.
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There is some doubt as to whether feminists from different societies share the American feminist agenda, but there can be little doubt that violence against women, their suppression as political actors, and their economic subordination are phenomena found in every society, and that, moreover, issues relating to the family and children are largely neglected in international law.
Another external standard comes from Islamic fundamentalists who have been outspoken in their condemnation of Western values, explicitly
including international law. Perhaps because the world of Wilson and House sought to project onto the globe a legal system in which states bore the same relation to international law as individuals did in the United States to domestic law, considerations of religion were excluded from international law.
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This is not to say that Islamic notions of international legal rules have been excluded; during the International Court of Justice litigation over the Western Sahara, Islamic legal arguments were presented to the effect that the Polisaro insurgents in Morocco constituted a lawful state according to Islamic rules and that they therefore were entitled to self-determination. Rather it is that the basic supposition of international law in the era of the nation-state has been that shared substantive religious belief is not a prerequisite to common understanding. All nation-states, regardless of their religions, are equally bound to the international order.
Islamic scholars, who locate legal authority with God, cannot so easily separate law and belief. The public international law solution of order without shared belief is not available to [them] insofar as their work is informed by Islam. The arguments they make within Western categories are not authoritative to a Muslim. The arguments they make from Islamic authority do not confront the political organization of the contemporary world.
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Yet law
is
argument—or, to put it another way, the modalities of legal argument determine how legal propositions are deemed true or false; to be outside these modalities is to be beyond legal discourse. That, of course, is what all externalist projects have in mind: to find a perspective outside the law from which to evaluate it and thereby to justify it when it corresponds to the preferences of that perspective.
A third alternative is proposed by the “critical analysis” school of jurisprudence. The title of Martii Koskenniemi's essay “From Apology to Utopia: The Structure of International Legal Argument” is suggestive of this approach.
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International law, in this view, either amounts to an apology for state acts (legitimating international behavior) or it dissolves into utopianism (which is “incapable of providing a convincing argument on the legitimacy of any practices”). In either case, international law is “singularly useless as a means of justifying or criticizing international behavior.” This charge is certainly true. Indeed law itself, though it can legitimate, cannot justify its practices.
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Koskenniemi argues that an international lawyer should be “committed to reaching the most just solution in the particular disputes he is faced with.” This will require “sociological enquiries into causal relationships and political enquiry into acceptable forms of containing power.”
Whether or not such a program rests on inquiries in which one can have supreme confidence,
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one can hardly be insensitive to the hunger for an external standard by which to assess the justice of our acts.
There are of course several other options in the Perspectivist portfolio. I have not mentioned the law and economics movement,
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communitarianism,
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or the theories and terminologies of Ronald Dworkin,
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John Rawls,
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or Jürgen Habermas,
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which have been so fruitful for jurisprudence at the noninternational level. I have only tried to give a sample of what a Perspectivist sort of approach is like.
As a postscript to this
tour d‘horizon
of the post–Legal Realist approaches to interpreting and applying the law of the society of parliamentary nation-states, I would make two observations. The first, which I indicated at the beginning of this section, is that these six alternatives are simply contemporary versions of Formalism and Natural Law. The Legal Process, Nominalist, and Consensualist schools have in common the belief that, as Brierly put it, “[n]othing can be law to which states have not consented,”
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although they differ in precisely how to determine that to which states have in fact agreed. Their primary jurisprudential task is the identification of what must be obeyed; hence their concern with locating the legitimate sources of law. The New Haven School, Neo-Realists, and Perspectivists all find something in the world, outside law itself, that validates international law, though they strongly differ as to what that something is, and what relation it must have to law in order for a legal rule to be legitimate. Their primary concern is the problem of making political choices;
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hence their attention to facts extrinsic to the law that prompts, but does not decide, such choices. All these approaches are efforts to respond to the challenge of the Legal Realist, and none is necessarily the captive of the Left or the Right.
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My second concluding note is perhaps somewhat more novel, but it is in accord, as will be obvious, with the entire history portrayed in Book II. These six schools of international law track the six modalities of U.S. constitutional law, for as we have seen, international law is built out of the constitutional law of states and the international constitutional order of this period has been in part the work of American leaders, from Colonel House to Dean Acheson, who seized world leadership from the society of state-nations and then created, with the leaders of the other parliamentary nation-states, the coalition that fought and won the Long War.
The “modalities” of American constitutional law are the ways in which we characterize a proposition of that law as true or false. The six modalities of constitutional interpretation in the United States are (i) historical (relying on the intentions of the ratifiers of the Constitution); (2) textual
(looking to the meaning of the actual terms of the constitutional text as these would be understood by the contemporary “man in the street”); (3) structural (inferring rules from the relationships that the Constitution mandates among its structures—federalism, the three branches of the federal government, etc.); (4) doctrinal (applying rules generated by precedent); (5) ethical (deriving rules from the ethos of the Constitution, described in the Declaration of Independence and elsewhere); and (6) prudential (seeking to balance the costs and benefits of a particular rule according to a parameter—economic, political, or otherwise—extrinsic to the Constitution).
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Other states may use different modal forms of argument—in Iran, religious argument and the
sharia
, for example, which would not be admissible in the United States forum—and even the modalities currently in use in the United States will change and develop through time.
It will be easily seen that each of the schools of international law discussed can be paired with its constitutional modality: consensual/historical; nominalist/textual; Neo-Realist/structural; Legal Process/doctrinal; New Haven School/ethical; Perspectivist/prudential. One sees these pairings in the willingness of the Consensualist to consult the
travaux préparatoires
and the constitutional originalist's desire to invoke the
Federalist
papers; the struggle of Henry Hart and his colleagues to formulate the Legal Process ideology to save doctrinalism in the face of Legal Realism; the efforts of McDougal to identify a universal
ethos
, the dignity of man, and so on.
The market-state described in Book I will also strive to make its consti-tutional form the template for a constitution for the society of states. How this struggle will play out remains to be seen. Whether we will face another epochal war on the scale of the Long War, I cannot say. But mustn't we try to anticipate what such a constitution would look like and how it might be reconciled to the society of states without a cataclysmic or critically disabling conflict? These issues are the subject of Part III.
In the winter of 1917, an observer standing on the corner of Fifth Avenue and 42nd Street in New York, and watching the persons hurrying up the broad stone steps of the neoclassical public library, would have observed five men who arrived separately but at about the same time each day. Only one man of this group, if any, would have been known to the public; that man was the president of City College, and more importantly, he was the brother-in-law of Colonel House, the most powerful political figure in America outside his alter ego and closest friend, Woodrow Wilson. The other men were also chosen by House: an historian from Columbia University; a rising young journalist from the
New Republic
magazine; a law partner of House's son-in-law; the director of the American Geographical Society. These five were the inner core of a secret group, code
named The Inquiry, set up on Wilson's orders to bypass the State Department and formulate America's plans for the postwar world. Before the United States ever entered the First World War House had suggested to Wilson that a body of experts be convened to supply American delegates to the future peace conference with the information they would need.