Many thanks. We are midway through a fascinating set of conversations. A “new international law” --- what might it become? We have heard bits and pieces – short advertisements really – from an incredible range of scholarly projects.
I will say something about my own projects, to understand the past and future of humanism and legal pluralism, to think in a new way about war as a legal institution, and about poverty as a legal regime.
But I would also like to speak this evening about the scholarly project itself, the endeavor to think, to imagine, and to write a “new international law.”
We are not the first to have done so, of course. Legal intellectuals have repeatedly tried to come to grips with the way the world was governed and to write a new politics into being.
At the same time, writing is a deeply personal affair. To write is to wish. To wish to understand the world, to change the world – and also sometimes to submit to the world, or to withdraw from the world.
Writing is a project. [Sometimes a project of understanding – or deceiving -- the self. Sometimes projects of affiliation and disaffiliation, of commitment and aversion.] Projects that spring forcefully from the will to power – and projects of the most abject submission.
To my mind, too much legal writing today aspires to technical mastery, cognitive control. It is the work of experts, combing out the strands of their expertise, confident that their work reveals no wish, no desire, no project. But dispassion is, of course, also a wish – its expression also a project.
Let me sketch a brief agenda for a new international legal scholarship. The scholarship I wish were being written, and published.
1. How are we governed: the problem of pluralism.
First, a project of understanding -- how are we governed? Too much legal scholarship is written as if we knew, as if one could simply add up the structures of public and private, national and international law and see a functioning transnational regime. But the situation is not like that at all.
It is hard to realize when getting started in this business just how little we do know.
Our interpretive tools do not give us a good picture of the world around us – or a good map of our own powers. We do not know how we are governed, any more than we know how we govern. It is unlikely we will be very good at it.
We need better maps. This is a sociological project – to draw a picture of the mentality and machinery of the global establishment.
If we are governed by experts, by economists and
lawyers and policy mavens – to whom do they report? Where can their power be contested? [What is private power – perhaps the
[Just how do global industries maneuver for advantage in a networked world of rules and institutionalized policy management? We will need a better sociology of regulation. ]
Perhaps we should map the global “automobile” or “pharmaceutical” regime, rather than continuing to draw neat boundaries between national and international, public and private legal orders.
We need maps attuned to dislocations among overlapping regimes and intellectual disciplines – to the lack of fit between our legal and institutional imagination and the unfolding of social life. On such a map we could isolate – celebrate – sites of resistance and fortuity -- rather than the enhanced capacities and machinery of regulatory management.
We know the global order looks different from
Europe or from the
But legal pluralism is not only a fact about the world – it is also a professional experience. The experience that things don’t add up, that coherence fails, that incommensurability must be acknowledged.
We can experience doctrinal pluralism whenever there are conflicts, gaps or ambiguities in the law and when it suddenly appears to us that they may not be reconciled.
We have to choose. [And our discretion is unmoored from anything but a hope that precisely this discretion would not be necessary – that the world would already have been organized in a benign cosmopolitan order. ]
There is a moment of vertigo --- and of freedom, professional freedom. Legal pluralism is a doorway to that experience.
By exposing the face of rulership, legal pluralism keeps us attentive to the dark sides of benevolent power and right order.
I have rarely heard a group of international lawyers discussing a global problem without confidence that the whole thing would be far better handled were there more international law, more international lawyers.
This is a dangerous professional conceit, which has left international lawyers unable to face the dark sides of our own work.
Our legal order is not up to the task of governing us wisely. Law, I’m afraid, is very much part of the problem.
To write a new international law, we must come to the rulership of elites today with outrage.
But the rule of experts does not lend itself to outrage. No one decides to make the deaths of so many seem so legitimate. No one chose that so many would live in poverty. Our rulers speak the comforting language of professional humanism and cosmopolitanism.
It has become the language of our common profession as international lawyers --- in war and in peace.
Professional humanism is the experience of ruling in the name of an appealing grab bag of ethical commitments.
[A commitment to engagement with the world, by our governments, and, perhaps more importantly, by citizens – at least those citizens who find themselves mobilized in civic organizations with a transnational will to visibility. A commitment to multilateralism and to support for intergovernmental institutions. A broad renunciation of power politics, militarism and the aspiration to empire. A commitment to moral idealism and to projects of moral uplift, religious conversation, economic development, democracy, and a commitment to attitudes of tolerance, moderation of patriotism, and respect for other cultures and nations – an aspiration that we might rise above whatever cultural differences divide our common humanity. And the idea that the “international plane” is precisely that high space, above differences, where humanity might find common ground. ]
But we should not be persuaded by the humanist sound of the language our rulers speak.
We should worry that there are only the most marginal opportunities for engaged political contestation over what they decide.
We have a legal order that obsesses about a few hundred detainees held here and there, about the state’s authority to torture and humiliate this or that individual person, all the while wrapping the violent deaths of thousands of others in the wartime “privilege” to kill and the comforting reassurance that all the “collateral damage” was proportional, necessary, and reasonable.
Our public order obscures the entire world of private power --- legitimating the governance decision that millions should be denied access to life saving medicines to protect legal rights.
In my own work, I have explored two related dangers for international legal profession. First, the tendency toward idolatry, towards enchanting the tools and norms and institutions and practices of international law while remaining marginal to power, standing on the sidelines “speaking truth.” For this, the traditional remedy is pragmatism.
But the second danger arises from pragmatism, from participation in governance, with all the tools of policy analysis, instrumental reason and savvy evaluation of the costs and benefits that entails. Humanitarians have slipped into the war machine, where they sit with soldiers, deciding whom to shoot. For this, the traditional remedy is a return to ethics – and the dangers of idolatry
There is no recipe or institutional roadmap to avoid these parallel difficulties. What we can hope for is a kind of professional, political and moral vigilance, discipline, and renewal. A posture for the humanitarian professional which is neither ethically nor instrumentally self confident, yet prepared to accept responsibility for the damage his or her initiatives will cause.
War today has become a legal institution. Once a bit player in military conflict, law now shapes the institutional, logistical and physical landscape of war. Law enable, frames, channels and legitimates the practice of war.
International law is no longer an affair of clear rules and sharp distinctions. Indeed, as law became an ever more important yardstick for legitimacy, legal categories became far too spongy to permit clear resolution of the most important questions – or became spongy enough to undergird the experience of self-confident outrage by parties on all sides of a conflict.
When things go well, law can provide a framework for talking across cultures about the justice and efficacy of wartime violence. More often, I am afraid, the modern partnership of war and law leaves all parties feeling their cause is just and no one feeling responsible for the deaths and suffering of war. Good legal arguments can make people lose their moral compass and sense of responsibility for the violence of war
War is a legal institution first because it has become a professional practice. Today’s military is linked to the nation’s commercial life, integrated with civilian and peacetime governmental institutions, and covered by the same national and international media. Officers discipline their force and organize their operations with rules.
[Some years ago, before the current war in
[Mobilizing “the military” means setting thousands of units forth in a coordinated way. Delicate political arrangements and sensibilities must be translated into practical limits – and authorizations – for using force.
Think back to the negotiations last summer over the UN force in
Moreover, if you want to screen banking data in
[Baron de Jomini famously defined strategy as “the art of making war upon the map.” Maps are not only representations of physical terrain – they are also legal constructs. Maps of powers, jurisdictions, liabilities, rights and duties. ]
Law is perhaps most visibly part of military life when it privileges the killing and destruction of battle. If you kill this way, and not that, here and not there, these people and not those – what you do is privileged. If not, it is criminal.
Two hundred years ago, international law was rooted in ethics – to think about the law of war was to meditate on considerations of right reason and natural justice. One hundred years ago, law had become far more a matter of formal rules, de-linked from morality and rooted in sovereign will.
Law stood outside the institutions it regulated, offering a framework of sharp distinctions and formal boundaries. War and peace were legally distinct, separated by a formal “declaration of war.”
For good or ill, however, war is no longer ethically – or legally – so distinct.
The detailed rules of
Indeed, law now offers the rhetorical – and doctrinal -- tools to make and unmake the distinction between war and peace, allowing the boundaries of war to be managed strategically.
Take the difficult question – when does war end? The answer is not to be found in law or fact – but in strategy. Declaring the end of hostilities might be a matter of election theater or military assessment. This is a war, this is an occupation, this is a police action, this is a security zone. These are insurgents, those are criminals, these are illegal combatants, and so on. Increasingly, defining the battlefield is not only a matter of deployed force – it is also a rhetorical and legal claim.
Law provides a vernacular for making such claims about a battlespace in which all these things are mixed up together. Troops in the same city are fighting and policing and building schools. Private actors are everywhere -- insurgents who melt into the mosque, armed soldiers who turn out to work for private contractors. Freedom fighters dressed as refugees, special forces operatives dressing like natives, private contractors dressing like Arnold Schwarzenegger, and all the civilians running the complex technology and logistical chains “behind” modern warfare.
In the confusion, sometimes we want to insist on a bright line. For the military, after all, defining the battlefield defines the privilege to kill. But aid agencies also want the guys digging the wells to be seen as humanitarians, not post-conflict combatants – privileged not to be killed. Defining the not-battlefield opens a “space” for humanitarian action.
At the same time, there are now more than one laws
of armed conflict. Different nations –
even in the same coalition – will have signed onto different treaties. The same standards look different if you
anticipate battle against a technologically superior foe – or live in a
Palestinian refugee camp in
Although we might disagree with one or the other interpretation, we must recognize that the legal materials are elastic enough to enable diverse interpretations.
Amnesty International called Israeli attacks on
Hezbollah “war crimes that give rise to individual criminal
A plural and anti-formal law leaves us all feeling justified as we respond to our opponents’ perfidy.
the international stage, there is only the Court of World Public Opinion. As a
lawyer, advising the military about the law of war means making a prediction
about how people with the power to influence our success will interpret the
legitimacy of our plans. What will our
allies or our own citizenry say? If we
will need the cooperation of citizens in
The military has harnessed law as a weapon. The American military have coined a word for this: “lawfare¨ ---- law as a weapon, law as a tactical ally, law as a strategic asset, an instrument of war.
We need to remember what it means to say that compliance with international law “legitimates.” It means, of course, that killing, maiming, humiliating, wounding people is legally privileged, authorized, permitted, and justified.
[We know that corporations often lobby hard to be regulated. The food and drug industry wants federal safety standards --- to legitimate their products, defend against price competition from start-ups who do not invest in long term brand reputation, and to shield themselves from liability. They want to be able to claim – we complied with all applicable legal regulations, and if you died anyway, it is not our responsibility. Sometime parallel goes on for the military. And it is here that we can begin to see the darker side of modern war and modern law. ]
A parallel process has eroded the firewall between civilian and military targets --- it is but a short step to what the military terms “effects based targeting.” And why shouldn’t military operations be judged by their effects, rather than by their adherence to narrow rules that might well have all manner of perverse and unpredictable outcomes? ]
[You may remember Major General James Mattis, poised to invade Falluja, concluding his demand that the insurgents stand down with these words:
“We will always be humanitarian in all our efforts. We will fight the enemy on our terms. May God help them when we’re done with them.”
I know I shivered at his juxtaposition of humanitarian claims and blunt threats.
We need to understand how this sounds – particularly when the law of armed conflict has so often been a vocabulary used by the rich to judge the poor. When the Iraqi insurgent quoted on the same page of the New York Times as Mattis threatened to decapitate civilian hostages if the coalition forces did not withdraw, he was also threatening innocent civilian death --- less of it actually --- but without the humanitarian promise. And, of course, he also made me shiver.
How should we evaluate the strategic use of perfidy by every outgunned insurgency battling a modern occupation army? From an “effects-based” perspective, perfidious attacks on our military – from mosques, by insurgents dressing as civilians or using human shields – may have more humanitarian consequences than any number of alternative tactics the insurgents may have used.
[Perhaps more importantly, they are very likely to be interpreted by many as reasonable responses by a massively outgunned, but legitimate force. Indeed, even our own troops typically respond in at least two registers. In the first, it is all perfidy – the insurgents are barely recognizable as human, understand only force, know no boundaries. But we also find a common recognition that, as one soldier put it “what would I do if this were my town? How would I fight – probably just as they are now.”]
It is in this atmosphere that discipline has broken down in every asymmetric struggle, when neither clear rules nor broad standards of judgment seem adequate to moor one’s ethical sense of responsibility and empowerment.
civilians, media commentators, politicians, all begin to lose their ethical
moorings. We can surely see that it will
be hard for any Iraqi – or Lebanese – mother to feel it was necessary and
proportional to kill her son. “Why,”
she might well demand to know, “when
[In the early days of the
His colleague, Sergeant Eric Schrumpf chipped in to describe facing one soldier among two or three civilians, opening fire, and killing civilians: “We dropped a few civilians, but what do you do. I’m sorry, but the chick was in the way.”]
There is no avoiding decisions to kill in warfare. The difficulty arises when humanitarian law transforms decisions about whom to kill into judgments. When it encourages us to think the chick’s death resulted not from an exercise of human freedom, for which a moral being is responsible, but rather from the abstract operation of professional principles.
What does it mean to pretend these decisions are principled judgments? It can mean a loss of the experience of responsibility – command responsibility, ethical responsibility, political responsibility.
[I was struck that Iraq war reporting was filled with anecdotes about soldiers overcome by remorse at having slaughtered civilians --- and being counseled back to duty by their officers, their chaplains, their mental health professionals, who explained that what they had done was necessary, proportional, and therefore just.]
[Of course, if you ask leading humanitarian law experts how many civilians you can kill for this or that, you will also not get an answer. Rather than saying “it’s a judgment call,” however, they are likely to say something like “you just can’t target civilians” --- thereby refusing to engage in the pragmatic assessments necessary to make that rule applicable in combat.
In psychological terms, it is hard to avoid interpreting this pragmatism-promised-but-not-delivered as anything other than denial. A collaborative denial --- by humanitarians and military lawyers --- of their responsibility for the decisions inherent in war. ]
[In short, the greatest threat posed by the merger of law and war is loss of the human experience of moral jeopardy in the face of death, mutilation and all the other horrors of warfare.]
My third wish is for a scholarship of engagement --- offering the rough draft for a new politics, a new law, a new order and a new posture of professional responsibility.
Things like “governance” do change. In Foucault’s terms, there was the gallows and then there was the prison timetable. Or, if you prefer, for a long time an “economy” is an input-output cycle to be managed, harnessed for national growth or development, and then suddenly an “economy” is a market of individuals responding to price signals, allocating resources to their Pareto-Optimal destinations through exchange.
We might think of two past moments of new governance: new ways to govern, but also new meanings for “politics,” new identities for subjects and rulers, for law, for the state, and for things like “culture.”
These things have to be thought up – when they are made they have to be understood, their power wrought into knowledge.
Sometime between 1789 and 1900 – and as late as 1960 for much of the colonial world – governance was consolidated on a global basis around the national sovereign state. People were organized into territorial states, granted citizenship, and government was defined as what national public authorities did. Building a national public politics across the planet had a strong emancipatory dimension – slaves, women, workers, peasants, colonial dominions obtained citizenship in relationship to the new institutional machinery of a national politics. New governance – called “government,” centered on Parliament, and offered new identities for sovereigns and subjects, status dissolved into nation and contract.
The twentieth century also remade global politics – it was no longer all nations all the time. Law infiltrated the political. Sovereignty, like property, was disaggregated into bundles of rights. Corporatism, administration, public/private partnerships, management – boundaries eroded, merged. Federalism, power sharing, subsidiarity, devolution. Interdependence, social solidarity, policy management.
In short – a politics of governments was replaced by a process of governance. How might we remake global politics for the 21st century?
A new politics would make people again become political citizens. How will they experience the responsible freedom of discretion? How will they contest decisions affecting them. What could a transnational public capacity mean?
[We face some daunting
challenges. There is a demographic
challenge, particularly in Europe and the ex-Soviet
This is not a clash of cultures, of modernity and tradition or secular and religious. At war are two modes of being – of human being -- in a shared modern culture of economic, political and social management. ]
Scholarship today embroiders the habits of the technical class, decorating their modes of regulation and management with intellectual filigree and institutional pedigree.
A new international law would struggle for a new politics.
Rendering the forces affecting people’s lives more visible and contestable to the world’s citizens. Encouraging the human experience of responsible freedom throughout the worlds of corporate, private and technical expertise. Carrying the revolutionary force of the democratic promise – of individual rights, of economic self-sufficiency, of citizenship, of community empowerment, and participation in the decisions that affect one’s life --- to the sites of global and transnational authority.
In economic affairs, we must ask – who will inherit the failure of the Washington Consensus? The collapse of state socialism was inherited by the banks, the Americans, the international financial institutions. But after neo-liberalism, who? Might the nation-state – or the global city -- be strengthened as a shield for the weak, be made reliable as a guarantor of policy diversity, as an arena for democratic political life?
Globalization can sever links – supply chains, social networks, traditional patterns of credit. In a world increasingly divided -- between rich and poor, leading and lagging economic sectors, regions, social groups --- how can new links be forged?
[Might the flow of capital and goods be managed alongside the flow of labor? Could we imagine a grand bargain linking the free movement of labor, capital and goods. How can borders be secured without disrupting the productive flow of migrant labor, of remittances, of social bonds, of technological and economic know-how?]
Here are three short utopian heuristics to suggest the scale of what would be required.
Imagine a generalized
promise of political, social, economic and cultural inclusion, along the lines
of trade regime’s promises of Most Favored Nation or National Treatment. The EU has made an open promise to societies
on its borders for a generation, changing regimes in
What if the EU had responded to the challenge
of terrorism as they responded to the fall of the Berlin Wall -- offering to
change regimes from Eastern Turkey to
What if every national and
regional unit made an open-ended offer of inclusion – statehood in
Or imagine that every human was born not only with a national passport, but with a once-in-a-lifetime five year non-renewable residence permit for any country of his or her choice? It could be regulated, managed, limits could be set --- but imagine the global recognition of a birthright to mobility.
Or perhaps each person on the planet were allocated three votes, and could cast them in any election they cared about in the world – again, it could be managed, regulated. But it would be a new politics, without even departing from the democratic preoccupation with voting or the 20th century identification of politics with the institutional sites of public authority.
Imagine a policy jury for global affairs. It is customary now before war is declared to ask lawyers to pore over the targets and scrutinize the justification, and to ask foreign policy professionals to debate the implications in fancy journals and on Sunday morning television. The boldest proposals now on the table suggest we publish the agenda of these meetings, or invite the experts of the military industrial complex, the financial class, the human rights community, to join in the discussion. When it comes to decision, however, we debate the jurisdiction of various public institutions --- the Security Council, NATO, Congress, the Presidency.
But imagine empanelling a Policy Jury of global citizens, not to consult or participate or dialog, but to decide. If, behind closed doors, the experts could convince the policy jury by majority vote, let the missiles fly.
Well, I sketch these ideas not because they would work or even be good ideas, but to signal the scale of what would be required to remake global governance for the 21st century.
As scholars, we can wish, we can engage – or we can grind the routines of professional practice into grains of knowing.
But I have gone on long enough – we have food, we have one another, and I hope we share an avocation to exercise the powers of knowledge.
I look forward to our discussion.