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The Law That Counts in World Politics
By W. Michael Reisman, Andrew R. Willard
PRINCETON UNIVERSITY PRESSCopyright © 1988 Princeton University Press
All rights reserved.
INTERNATIONAL INCIDENTS: Introduction to a New Genre in the Study of International Law
W. MICHAEL REISMAN
Theory that can face fact .. is what we need. Karl Llewellyn
The scene is Beijing. You are an international political advisor to the government of the People's Republic of China. The news dominating the cable traffic is that Argentina has invaded the Falkland Islands. Even though the invasion is on the other side of the planet, in a region in which the People's Republic is not directly involved, you will follow the events there with great interest for the next several weeks.
Some of your colleagues will be concerned about the military dimensions of the conflict, for example, problems encountered in launching amphibious attacks on well-defended island positions, establishing supply lines over long distances, and using weapons in hostile natural environments. But you will be absorbed in quite a different aspect of the matter: the reactions of the international community to the unilateral assertion by a continental nation of the right to seize an offshore island.
The reason is obvious. The People's Republic has claims (the validity of which is now acknowledged by most other states in the world) to the island of Taiwan, some 100 miles off the Chinese mainland. But even those who concede your claims have admonished you not to use force to regain Taiwan. Although the United Nations Charter prohibits the use of force in general terms, you recognize that force is often used in interstate relations and is sometimes not seriously condemned. The distant war over the Falkland Islands is of great interest to you because it is almost a laboratory test of just how serious the objections are to the use of force in a situation of this sort. A high degree of actual tolerance for Argentina's unilateral action — words and other verbal condemnations notwithstanding — may be a signal that the international community is willing to accept such unilateral military assertions of right. Substantial condemnation of Argentina and effective support for the United Kingdom may indicate exactly the opposite.
POLITICAL INFERENCES AND INTERNATIONAL LAW
In your analysis of a complex event like the Falklands War, you are in fact making inferences about the normative expectations of those who are politically effective in the world community. These expectations constitute significant variables in international political behavior, because shared notions of what is right influence perception, reaction, and capacity for mobilization. These inferences about what other actors think is acceptable behavior are not derived from international judgments or from constitutional documents, statutes, or treaties. They are almost entirely derived from the responses of key actors to a critical event. The expectations and demands of those actors themselves may have been shaped, in part, by many of the formal sources of law just mentioned. But whether those formal sources of law have genuine significance or are merely a façade concealing raw and ephemeral political calculations can only be assessed when you have seen how the sources fared in a particular incident.
Political advisors are constantly studying incidents such as the Falkland Islands War and making inferences from them about politically relevant expectations. These inferences are constantly updated by new information gleaned from similar events. In predicting or projecting future behavior, of course, account is taken of a variety of other unique political factors that characterize any event. It is no disservice to law to acknowledge that prescriptions about what one ought to do are, alas, only one factor in deciding what one will do. Naturally, the weight accorded prescriptive norms will vary with the factual context, the identity of the actors, and the effectiveness of the legal system enforcing the norms.
The normative expectations that political analysts infer from events are the substance of much of contemporary international law. The fact that the people who are inferring norms from incidents do not refer to the product of their inquiry as "international law" in no way affects the validity of their enterprise, any more than the obliviousness of Molière's M. Jourdain to the fact that he was speaking prose meant that he was not. Whatever it is called, law it is. Yet, at least on first consideration, it is startlingly inconsistent with our accepted notions of law to suggest that one ought to orient oneself in the international legal system by reference to these incidents rather than primarily by reference to statutes, treaties, venerable custom, and judicial and arbitral opinions. Indeed, as we shall see, the jurisprudential implications of this reorganization of focus are profound, in ways going beyond even Jellinek's disquieting observation about the "normative force of the factual."
INTERNATIONAL LAWYERS AND INCIDENTS
International lawyers frequently lament the fact that they are rarely consulted by foreign policy decision makers. This cannot be attributed to a general, visceral dislike of lawyers, for government officials, when operating in a domestic setting, frequently consult lawyers. They correctly assume that lawyers are reliable specialists in understanding the expectations of those who are politically and legally effective. Why is it that the same decision makers do not resort to international lawyers with comparable frequency?
There are numerous reasons why international lawyers are increasingly irrelevant in many areas of international politics, not all of them attributable to the lawyers themselves. We cannot ignore the advanced decay of the formal legal system that was painstakingly reconstructed after World War II. One is as unlikely to seek and pay for the advice of the votaries of a demonstrably ineffective legal system as one is to seek and pay for the blessings of the high priests of a sect manifestly out of favor with the pertinent divinity. But the problems we call "legal" continue to present themselves for resolution, whatever the state of the system; someone must perform legal functions even in a decaying system.
The reasons for the diminished relevance of international lawyers are attributable less to the system, however, than to the international lawyers themselves and the jurisprudential framework within which they operate. For key areas of public international law, international lawyers make themselves irrelevant by failing to identify what international law in this context is and by failing to report it to those to whom they are responsible. International lawyers pay relatively little attention to the incidents from which political advisors infer their normative universe. Rather, they persist in constructing their normative universe from texts. They thus confine their attention to sources of international law that were either merely ceremonial at their inception, or that, although animated by more normative intentions when they were created, have ceased to be congruent with expectations of authority and control held by effective elites.
To be sure, some international lawyers try to examine practice but, as we will see, that exercise is quite a different enterprise from the intuitive legal research of the political advisor. Rather than seeing incidents as norm-indicators or norm-generators, as does the political advisor, the international lawyer generally reacts to them in judgmental fashion, assuming that the norm in question is a priori and enduring and examining the incidents in terms of whether they indicate that a particular norm has been violated.
The question the political analyst will ask, in contrast, is not simply whether the acts at issue have violated some preexisting norm but rather, whether expectations entertained by effective elites about what is permissible may be inferred from their behavior. The question is eminently practical, for even those who do not regularly use the word "law" in their discourse, and even those who snicker when others use it, must make estimates about the subjectivities of allies and adversaries alike. These subjectivities necessarily include what those actors think is right. In a world in which allies and adversaries do not submit to intensive interviews and rarely volunteer or are permitted to tell the whole truth (if any part of it), deeds — actions and reactions — become one of the few available windows to what others are thinking, either consciously or unconsciously.
By default, the political advisor becomes a do-it-yourself lawyer.
FINDING THE LAW IN DOMESTIC SYSTEMS
All lawyers, whether domestic or international, face the same core problem in seeking to ascertain the law: to identify the operational norms used by those who are politically and legally relevant in projected situations, so that accurate predictions of how they are likely to characterize and react to different behavioral options can be made, and the most promising plans of action can be fashioned and recommended to the client.
In the United States, identifying the law is simple and relatively routinized. For one thing, the lawyer knows who the decision makers are. Statutes are reliable guides to legal expectations, but it is court decisions that present the real test: experience has taught American lawyers that for almost all of their purposes, lawmaking is what the courts in fact do. That insight has allowed American legal science to adopt, as its basic unit of knowledge, what we might call its "epistemic" unit, the appellate decision. A tremendous and technologically impressive industry has developed to report, catalogue, and analyze these epistemic units, all of which are made available to practitioners and scholars in retrieval systems of increasing speed and sophistication. The systems of inference called "legal reasoning" or "legal logic" are applied to these epistemic units and become an important part of the repertory of the lawyer in predicting future decisions by courts and in trying to influence them.
Why have judicial decisions in the United States been a fairly accurate indicator of the operational norms entertained by politically relevant strata? Some American lawyers, without comparative or historical perspective, have assumed that the answer to that question can be found in the inherent character of courts. This is a misleading oversimplification, for it looks at a result without reference to the causal factors that produced it. In particular, it evades the important prior question of why courts are effective in this environment. Not surprisingly, those who accept this apparent insight and have sought to apply it in the international sphere have concluded that the unruliness and violence of international politics is attributable to the absence of courts. For instance, the peace movement in the United States of the late nineteenth century was, in large part, a movement to establish an international judicial system. Indeed, it was a major factor in the creation of the international courts of the twentieth century.
Since 1899, international courts in one form or another have existed, but the unruliness and violence of the arena have persisted. Plainly, it is not the presence or absence of courts that determines whether minimum order will obtain. Other factors are critical.
Courts have been significant political institutions in the United States not because of something inherent in courts or in the law they process but because of the continuing congruence in U.S. politics of expectations of authority and expectations of control. Expectations of authority are subjective images of how power ought to be exercised; expectations of control are subjective images of how power will in fact be exercised. The more congruent those two sets of expectations, the more effective the legal system in question. This is not the only possible constellation of power and authority. In Venezuela, during the nineteenth century, to cite only one contrasting example, a type of caudillo system obtained: all of the formal institutions of power — legislature, court, and sometimes even the executive branch — were essentially powerless and were largely ignored by those holding effective power.
In the United States, the relatively stable political system and the preeminent role assigned to courts within it had a striking effect on the sociology of legal knowledge. Coordinately, it was an important factor in stimulating the creation and then in shaping the unique direction of American law schools and the specialized methods developed there for teaching the "science of law." Oliver Wendell Holmes captured the basic spirit of this new legal science when he stated that law was nothing more than the prediction of what courts will do: "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." Obviously, American lawyers were doing and continue to do much more than merely predict what courts will do. But the power of Holmes's insight derived from the regularly validated fact that what courts in the United States were saying was a remarkably reliable indicator of the probable future actions and reactions of effective elites. Given this degree of predictive power, it is hardly surprising that lawyers should have begun to study appellate decisions.
It has been said that a key part of the American genius is the capacity to mass produce and distribute a good idea. Consistent with Holmes's apothegm, Christopher Columbus Langdell established, at the Harvard Law School, a teaching method that assumed that the fundamental epistemic unit of legal science was the appellate opinion. "It seemed to me," Langdell wrote in the introduction to his casebook on contracts, "... to be possible to take such a branch of the law as Contracts, for example, and, without exceeding comparatively moderate limits, to select, classify, and arrange all the cases which had contributed in any important degree to the growth, development, or establishment of any of its essential doctrines." Thus, one could organize these opinions into a coherent body of law, treating each as a self-contained and self-explanatory unit, consistent in its properties with others. The examination of these epistemic units could provide the basis for a thorough and systematic legal education.
Law schools stimulated the development of a new genre of legal literature, the "casebook," to be used in the institutions of legal education. Casebooks encompassed the legal universe, for Langdell had decreed "[f]irst, that law is a science; secondly [sic], that all of the available materials of that science are contained in printed books." This preoccupation with cases engendered increasingly sophisticated procedures for gathering, processing, analyzing, and retrieving appellate opinions on a national scale. All of these developments combined to enculturate, even more intensely, those trained in American law to think in terms of cases, with all that that implied.
TRANSPOSING DOMESTIC METHODS TO THE INTERNATIONAL SYSTEM
Since the end of the nineteenth century, great efforts have been mounted to create in the international arena a set of institutions comparable to those to be found in Western Europe and North America. Since 1945, the result of this handiwork has been a complex superstructure and administrative apparatus that bears striking resemblance, at least superficially, to national governments in Western Europe and North America. In the General Assembly of the United Nations, some purport to find something comparable to a legislature. The Secretariat of the United Nations is compared to a domestic Executive Branch, and the specialized agencies of the United Nations are likened to the regulatory agencies of modern industrial government. Most reassuring, the International Court of Justice sits in splendor in The Hague, as the "principal judicial organ" of the United Nations.
It is absurd to assume that the mere existence of this network of international institutions means that it is as effective as a domestic government and that its edicts may be relied upon; Holmes could plausibly direct his readers to do no more than study the behavior of courts to predict the development of law because the context within which his courts operated gave them effective power to prescribe legal rules. Professors who gave the same instructions to their students of international law would be leading their charges into a fantasy world. The sad fact is that the apparent governmental network that has been established internationally has little power. What power it has in certain cases is assigned to it by effective elites who have sometimes found it useful to use the United Nations or a related agency in a particular instance.
Students of international law, like their domestic counterparts, frequently tend to define decisions in terms of the institutions rendering them. In the domestic law systems of Western Europe and North America, courts, for historical reasons, have been deemed to be the authoritative appliers of the law. Hence legal decisions are defined essentially as the handicraft of those courts. Insofar as there is a congruence between actual political power in the community and the authority of courts, that focus can provide a cogent indicator of decisions. In fact, such a congruence is rarely perfect, and the identification of judgments as decisions in a larger sense frequently leads to the distortions characteristic of much academic law.
Excerpted from International Incidents by W. Michael Reisman, Andrew R. Willard. Copyright © 1988 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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