THE SHIELD OF ACHILLES

by Bobbitt, Philip

  In the early twentieth century, principally in the United States, the foundations of these two traditions were shaken by a new movement, Legal Realism. One of its founders, Karl Llewellyn, had written in 1930, “What these officials [judges, sheriffs, clerks, lawyers, presidents] do about disputes is, to my mind, law itself.”51 Llewellyn and others then set about showing that it was virtually impossible to account for past decisions by reference to the body of legal rules alone, let alone to predict what officials would in fact do in actual cases in the future. When the move to a society of nation-states took international law away from a small coterie of sophisticated specialists and put it in the hands of mass propagandists seeking justifications for their foreign policies, international law became vulnerable to the disenchantment that arose from the Realist critique of law generally. It was obvious that international law was manipulated to rationalize rules rather than to determine them, that sometimes it was ignored in deference to powerful interests, and that it even appeared indeterminate, leaving its commands to be decided by the changing needs of foreign policy.

  Formalism and Naturalism in international law played out in various different attempts to meet the challenge of Legal Realism. Formalism became the source of three schools of thought: Legal Process, Nominalism, and Consensualism. Naturalism served as the source of the New Haven School, Neo-Realism, and what might be called Perspectivism. These families of thought about the basis for international law have, as families do, overlapping memberships, black sheep, father figures, deeply held prejudices about each other, relationships deriving from birth order, inherited traits, exaggerated genealogies, and so on. The distinctions among them have to do with their answers to the two shattering twentieth century questions about international law: if the body of international legal rules cannot uniquely determine the legality of a particular act by the parties it is supposed to govern, how can it be law? And if international law is law, why doesn't it seem to have any effect? Indeed these two challenges, arising from developments in law (the claims of Legal Realism) and strategy (the persistence of the Long War), might be put in a single question: would the history of the twentieth century have been any different if there had been no international law?

  LEGAL PROCESS

  The advocates of the International Legal Process School begin with the answer to the Legal Realist challenge given by Henry Hart, whose influential work, The Legal Process (with Albert Sacks), initiated an entire movement in American jurisprudence. Hart sought to change the focus of jurisprudence from the substantive rule finding so much in evidence in nineteenth century treatises on law to the process of creating precedent. It's not what judges do, Hart told us; it is how they do it. Granting the Legal Realist's argument that assessing the substantive fairness of a particular outcome is a matter of ideology, Hart's approach holds that fairness will nevertheless result if methods of legal decision making that all parties concede to be fair are scrupulously adhered to. That adherence, not the substantive fairness of the rules, will in turn deliver legitimacy, and legitimacy will bring about compliance. Thus the International Legal Process School denies that law is altogether manipulable by the parties—and thus it retains its distinction from politics—because the legal process is distinct unto itself,* and is assessed by legal, not political, standards.

  The Hart and Sacks materials that dealt with U.S. domestic law had emphasized the interaction of institutions and procedures. When Abram Chayes, Thomas Ehrlich, and Andreas Lowenfeld published a set of case materials on international law, these were self-consciously styled on the Hart and Sacks work. Like the earlier case materials, they cut across doctrinal lines, including case studies drawn from international business as well as public international law and those arising from the acts of international organizations as well as the acts of states. The authors met the Legal Realist attack on international law head-on: they explicitly asked, “How and how far do law and lawyers and legal institutions operate to affect the course of international affairs?” and, anticipating their own answer to this question, they added, “What is the legal process by which interests are adjusted and decisions are reached on the international scene?”52

  Hart's jurisprudence, however, was highly court-centered. The legal process was legitimate because the conscientious work of judges, rendering dispassionate judgments based on neutral, general principles derived from precedent, seemed to provide an answer to the Legal Realist's insight that the substance of the principles themselves could not be explained on a neutral basis, nor the scope of their application—their generality— justified on distinctly legal grounds. The role of courts and the availability of sanctions that render courts powerful were, however, far less in evidence on the international scene. Here, the International Legal Process advocates offered a startling defense of the analogy of their subject to that of Hart and Sacks: domestic law was not, in fact, as court-driven as it might appear. Much constitutional law was, for example, not reviewable by courts53 and therefore the near-absence of judicial process in the international arena was not fatal to the Legal Process theory. Analogous institutional methods of constraining power by professionalizing the habits of officials were at work in both systems, domestic and international. Diplomats and senior officials also profited from the legitimacy conferred by well-understood rules, dispassionately applied.

  But if the practical benefits of compliance with international law— predictability, mutuality, inertial continuity—were the basis for its operation, then presumably adherence to law would be abandoned when even greater benefits ran in the opposite direction, that is, toward noncompliance. That made legitimacy nothing more than a by-product of convenience. The international wing of the Legal Process School, by stressing the real-world forces making for coherence in and accommodation to law, sacrificed Hart's claim that legal process was fair not because it was efficient and effective but because it treated parties equally. By contrast, in the real world of international affairs, the relative weight and influence of the parties was supposed to be a determinative factor: that's what made the real world “real.”

  CONSENSUALISM

  Outside the United States, one school of thought overwhelmingly dominates international law. I have chosen to call that school—which to most of its adherents seems so authoritative, so indisputable, that the term school seems inappropriately sectarian—consensualism because it holds that the content of international law depends wholly (or almost entirely) on the consent of states. Because states are the only entities capable of endowing international law with authority (on this view), only law created by states can legitimately bind them; and because states are sovereign, they can only be bound by that law to which they consent. To the challenge posed by the Legal Realists, the Consensualist replies that the entire approach of Legal Realism is parochial. Of course international law does not have the structures of compliance that domestic law does and therefore to the provincial mind might appear not to be law, just as snails or sweetbreads might not appear to be food to someone accustomed to the sort of cuisine found at McDonald's.

  A system of law designed primarily for the external relations of states does not work like any internal legal system of a state… As regards [the question of] international law as “law,” the arguments of the critics [seize] upon… the topic of sanctions and compliance without recognizing the historical, structural and functional differences between legal systems within states and the international legal system as the necessary starting point of analysis. After all, there is no reason to assume that the international legal system must, or should, follow the historical models of centralized systems of national law… A horizontal system [like that of international law] operates in a different manner from a centralized one…54

  To the critic's point about the apparent failure of compliance with the legal order, the Consensualist has a suave and disarming reply. Because the international legal order is solely composed of those rules consented to by states, it is, ipso facto, usually complie
d with although its domain is more modest than those persons might wish who seek to use international law to reform states or coerce them into adopting particular policies. In any event, “spectacular cases of violation of international law, which attract the attention of the media more than regular conduct, are exceptional and should not be confused with the ordinary course of business between states.”55

  Consensualists share a fundamental premise: because international law is made and implemented by states, the consent of states, as manifested in their original intentions memorialized in explicit or implicit agreements, is the only basis on which rules may legitimately be said to govern state behavior.

  Both parts of this premise, however, are under intense attack: the first because it seems to fly in the face of the increasing role of international organizations and the development of doctrines of human rights in international law that accord a legal role to the individual; the second, because the current behavior of states is a much surer guide to their attitudes about the propriety of governmental acts than an hypothesized “original” intention at some earlier time, even if that intention could be determined with accuracy (which is seldom the case).

  There are answers to these objections. To the first, it might be observed that international organizations are to a large extent dependent upon the territorial entities—states—that fund them, carry out their mandates, and permit them to operate within their jurisdictions; this goes for the NGOs (nongovernmental organizations) as well, who exist at the sufferance of states, despite the occasional press release of the NGO that appears to suggest that it is the other way around. After all,

  [o]nly states can be members of the United Nations, only states are entitled to call upon the U.N. Security Council if there is a threat to international peace and security, only states may appear in contentious proceedings before the International Court of Justice, and only states can present a claim on behalf of a national who has been injured by another state if there is no treaty [an agreement confined to states] to the contrary.56

  To the second objection, the Consensualist replies with alarm that to abandon the edifice of the law in favor of chasing after the current political practices of states is to abandon what is useful and distinctive about the law: that it provides a standard by which current state practices are to be judged. A constant revision of these standards in order to bring them into congruence with discrepant behavior sacrifices this role; it allows “acts that would otherwise appear delinquent [to be] alchemized into harbingers of revised standards.”

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  The risk incurred, however, is that political actors will simply ignore a body of doctrine that increasingly departs from their interests. The Consensualist accepts this risk, underscoring the difference in mission between the Consensualist and other post – Legal Realist thinkers: the former does not seek to be a political adviser; rather he wishes to “preserve law's contribution to order by protecting its autonomy from ephemeral shifts in power and interests,”58 even if it means appearing irrelevant. The Consensualist has one powerful arrow in his quiver—the ability to make governments squirm, to embarrass them, to require them to play the hypocrite before their publics—and he is reluctant to give up this high moral ground. The Legal Realist's reply concedes that, as la Rochefoucauld said, “hypocrisy is the compliment that vice pays to virtue,”59 but asks “what good are compliments”?

  There are, however, also very practical reasons why this particular school, so much ridiculed in the United States, is far and away the most dominant form in the world generally. One reason why the Consensualist position appears so unrealistic is that it treats the consent of all states equally, ignoring their relative positions of influence. This has the consequence of requiring a breadth of consensus to change international law that is very difficult to achieve and that gives marginally less powerful states a more influential role than those schools of international law that look to the behavior of the most powerful state as determining the content of legal rules. I think this in part accounts for the fact that outside the United States much of what Legal Realism regards as the “basic legal myth” still flourishes in international law. Not only European scholars60 in international law, but also Asian scholars and commentators have been reluctant to depart from the traditional, Consensualist view of international law as located and determined rather than decided upon.61

  NOMINALISM

  The original intention of the states who are parties to a treaty or to a tacit understanding (as with custom) is binding in international law because that intention represents the scope of the states' consent. This is the basis for consensualism. But to what precisely did the parties consent? Not to their intentions, for states seldom have precisely the same intentions. Rather like partners in a marriage of convenience they share the same bed but dream different dreams. The parties consent to a text, however, regardless of what intentions, if any, they may have shared. Indeed as a predictor of behavior, the original intentions of the parties begin to decay as soon as the moment of consummation has passed. If international law is extrapolated from the behavior of states, then their once-consensual agreement on a matter must be counted an increasing irrelevancy because “original intention has no intrinsic authority”62 save what states choose to endow it with. Because the society of states is still in session, if intentions are to govern there is no reason to deny that society the authority to determine the propriety of a state's acts and omissions according to the present intentions of that society. But to do that is to accept that international law is no more than what states at any moment wish it to be.

  A different approach to the problems posed by Legal Realism avoids the pitfalls of intentionalism by directing us to the text—for that is what the parties have agreed to, regardless of their intentions or their subsequent regrets. This approach can be termed nominalism.

  The creed of the Nominalist might be put this way: Statecraft, long before there were written constitutions, found a role for written agreements.63 Texts do not replace the networks of norms, conventions, and institutions that help to manage international relations and are so prized by legal process theorists, but formal writing in the diplomatic idiom does provide an economical and relatively unambiguous way for political leaders to commit themselves and their posterity, a necessity precisely because intentions may change. Besides this, written commitments catalyze a public dialogue over proposed commitments by the state. Such a dialogue can coalesce the public and its leadership around these commitments or prevent the state from making undertakings it cannot or should not fulfill.

  It is true that “international law, like all law, involves the pursuit of social ends through the exercise of legitimated power and that in this sense it is reasonable to consider it as an aspect of the broader political process influenced by the factors that operate in politics generally.”64 But law is not the same as politics, for the set of rules that law comprises is binding on the political process, that is, accepted “as a means of independent control that effectively limits the conduct of the entities subject to the law.”65 Thus Oscar Schachter, a leading Nominalist in international law, rejects the Legal Realist's conclusion that international law is simply what states do. If we were to accept that state practice, and not the substance of legal rules, legitimates state action, then we would have sacrificed the binding, normative element of law. It seems as though we must then either put this element back in (as do the New Haven School personalities with whom Schachter was once associated) by empirically locating the normative nature of legal rules in a survey of the universally shared norms of the world's political cultures, or do without it, thus rendering law no more than an eccentric garnish, 66 like a classical allusion in a modernist poem. The Nominalist, however, locates this normative element in texts, and supports his position by pointing to the empirical fact that states are indeed most likely to restrain themselves when bound by specific treaty language. This is the Nominalist cosmology—a universe in which legal rules
can be distinguished from both statements about the world (e.g., states happen to observe the three-mile limit) and moral statements (e.g., for the good of all, states ought to observe the three-mile limit). While there are areas of the law—including the regulation of force, the right to self-determination, the economic rights and duties of states, and extraterritorial jurisdiction— where “the ratio of specific rules to general principles is low,” these are areas largely bereft of binding texts and, for this reason, are appropriate for the admixture of policies and practices.67