LAW AND IRRESPONSIBILITY: ON THE LEGITIMATION OF HUMAN SUFFERING

by Scott Veitch. New York, NY: Routledge-Cavendish, 2007, 168pp. Hardback. $160.00. ISBN: 9780415442503. Paper. $44.95. ISBN: 9780415442510.

Reviewed by Kevin M. Wagner, Department of Political Science, Florida Atlantic University. Email: wagnerkj [at] comcast.net.

pp.975-976

Scott Veitch challenges the premise that law always presents a working framework to organize human society in a responsible manner. LAW AND IRRESPONSIBILITY is a studied philosophical look at how law itself can support or even be a cause of human suffering by acting as a systematic framework that endorses actions that cause suffering under the guise of legality. In presenting law as neither the representation of fairness nor even neutral in the arena of human responsibility, Veitch challenges an important paradigm in the legal studies discipline.

The notion that the application of law can result in outcomes that are unexpected is not new. Critical theorists and legal theorists have explored such topics in the past. Veitch’s contribution is to take this notion and make a plausible case that law can not only result in unforeseen developments, but as a system, can be the very foundation of irresponsibility and suffering. In making this assertion, Veitch is careful to concede that all implications of the application of law do not produce massive damage, but rather that they can, and on important occasions almost certainly do, result in the production of significant harms.

Veitch explores his ideas with an analytical framework supported by a series of examples that demonstrate how lawful actions, which he argues are often irresponsible, ultimately cause human suffering. The examples are the strength of the book, as they drive home his thesis by grounding them in a real world circumstance. The initial example, the United Nations sanctions regime in Iraq, is particularly effective. The sanctions were authorized through the appropriate legal mechanism of the United Nations and resulted in the death of 500,000 Iraqi children.

Veitch illustrates two key principles in this example. Initially, he asserts that the sanctions regime was not illegal, but expressly legal and authorized under international law. There was no criminal action as defined by the law, although the extent of death is significant. The law itself legitimizes the sanctions, removing not just criminal responsibility, but eliminating any basis for finding a responsible party.

It is in this principle of responsibility that Veitch makes his strongest case. Beyond the outcome-oriented analysis, Veitch asserts effectively that the legal regime itself is effective in generating conditions of extreme harm while creating a circumstance where there is almost no responsibility attributed to any party, including a state level actor. As noted in the Iraqi sanction regime, the law not only insulates the actor, it defines the actor as a defender of human rights while authorizing actions that [*976] result in massive harm to the human rights of thousands of people.

Both the strength and weakness of the book is Veitch’s thorough and fairly nuanced review of the theoretical underpinnings of his premise. Once understood, the ideas are interesting and provocative, and Veitch’s often painstaking examination lends credence to his approach. Nonetheless, the book itself is not lengthy, yet the argument becomes fairly repetitive by the book’s midpoint. There is something to be said for a thorough review of terms, definitions and premises, but at times the minutiae seem to overwhelm the theory itself and vitiate the more visceral impact of the ideas. When Veitch illustrates through example, the ideas gain depth and the book is effective.

LAW AND IRRESPONSIBILITY should have appeal to political theorists in the area of law and society. While Veitch uses empirical examples effectively, the primary substance of the book is theoretical and the methodology is fundamental analytical argument. This limits the appeal to students of policy and political behavior since it lacks any real measures. As a result, I would recommend this book as a supplement to graduate and upper division jurisprudence or law and society classes as a means to engage students on the meaning of law and its role in defining and constructing societal behavior. It is a strong theoretical contribution to the study of law and behavior and stands as a meaningful and innovative contribution to the discipline.

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© Copyright 2008 by the author, Kevin M. Wagner.

Law and Irresponsibility: On the Legitimation of Human Suffering

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CONSTITUTIONAL CONSCIENCE: THE MORAL DIMENSION OF JUDICIAL DECISION

by H. Jefferson Powell. Chicago: University of Chicago Press, 2008. 144pp. Cloth. $22.50. ISBN: 9780226677255.

Reviewed by Dr Stephen James, Member, Australian Association of Constitutional Law. Email: stephen.james [at] mail.com.

pp.969-974

This ‘little book,’ as H. Jefferson Powell modestly describes CONSTITUTIONAL CONSCIENCE (Frontispiece), makes a significant contribution to scholarship on American constitutional interpretation. In it one can clearly see the influence of the author’s background as an academic lawyer, theologian and former assistant attorney general in the US government. It is a defense of Supreme Court justices’ duty faithfully to interpret the words of the Constitution, while recognizing that ambiguity will often be present, that extra-textual considerations and values may have to be examined and that the words cannot be cordoned off from political and moral considerations.

Powell is a sophisticated textualist. While he recognizes that constitutional interpretation is a creative exercise, he is (like the rather different originalist, formalist or conservative interpreter) nevertheless opposed to judges treating interpretation as camouflage for the substitution of personal values, or the pursuit of values and outcomes that cannot plausibly be reconciled with the text of the Constitution. Thus, he is no friend to the instrumentalist interpreter or the judicial ideologue who, like the Marxist, sees no distinction between law and politics in a pejorative sense.

Powell tries to balance his recognition that the American Realists have tolled the bell signaling the death of the formalist, mechanistic, positivist fantasy that judges merely apply but do not make law, with his insistence that judges must obey the Constitution in a democratic republic. Thus there is a certain tension in the book, one the author thinks is unavoidable in the complex work of constitutional interpretation; that is, between traditional aspects of the judicial role and the moral dimensions of ‘the faithful interpretation of a fundamental law’ (p.x). This faithful interpretation means that a Supreme Court justice must take the Constitution as ‘the ultimate rule governing his official actions’ (though he never explains precisely how the text is a rule, and of what kind). While the book is largely focused on the role of Supreme Court justices as constitutional interpreters, Powell considers that the conscientious approach he advocates is applicable to other judges, and, indeed, to constitutional interpreters in the legislative and executive branches.

The book begins with a discussion of Chief Justice John Marshall’s defense of judicial review in MARBURY v. MADISON (1803). In particular, Powell emphasizes the importance of a judge’s oath to support the Constitution. In his view, this constrains the exercise of judicial review. The ‘central claim’ (p.9) of the book is that ‘the exercise of the power of judicial review presents [*970] profound moral questions for those who wield it and thus for all of us affected by it.’ Supreme Court justices must act in ‘good . . . conscience’ in interpreting the Constitution (p.11). That is, they must take the language of the Constitution seriously, act within the broad tradition (p.9) and practice of American constitutional interpretation and ‘use [the Constitution’s] language fairly’ (p.11). Much of the book is devoted to elucidating what ‘fair play’ (p.54) in constitutional interpretation would look like.

A judge acting conscientiously will, among other things, be honest, candid, frank about the ‘ambiguities’ in the text of the Constitution, and humble. She will know and accept the proper limits of her role as an interpreter (and the limited applicability and decisiveness of constitutional law in relation to issues faced by society) (p.11). Regarding humility, Powell further argues that justices must act in a fiduciary capacity. They have been entrusted with power and responsibility by the community and must act on its behalf (pp.6–7). This argument is not dissimilar to the originalist’s position (though Powell is certainly not an originalist) that judges must not usurp the sovereign power of the electorate, or, more crudely, ‘the people’. They have no authority to modernize the Constitution through undemocratic, irreversible judicial ‘amendment’ of it. For that reason, textualists have also argued against the ‘judicialization of politics,’ seeing what they regard as the disproportionate power of the US Supreme Court as a prime example of this unwanted development. Powell’s prescription for the ill of judicial usurpation is a range of ‘constitutional virtues’ (p.11), some of which I have referred to above. These virtues stop judges straying from their proper interpretive role, while legitimately allowing them to exercise moral judgement, consider political matters (and Powell is surely right that such matters are inescapable in constitutional law) and creatively make law.

In Chapter 1 Powell evaluates the controversial ‘Rule of Five.’ This so-called rule is based on an anecdote about Justice William J. Brennan of the US Supreme Court. Reportedly, in an impish exchange with one of his associates, he identified the ‘fundamental rule’ of ‘constitutional law’ by holding up one hand and declaring that ‘Five votes can do anything around here’ (pp.16-18). The incident has been interpreted to mean, in the most cynical Realist characterization, that providing it can garner a majority there are effectively very few constraints on Supreme Court decision-making. In contrast, Powell considers that the Court is constrained by what justices think is plausibly constitutional, what is ‘morally imaginable’ to society, and what the community is prepared to ‘support’ or at least acquiesce in (pp.16-20). One could also note that judges may be constrained by common law tradition, precedent, curial and extra-curial criticism and the doctrines of judicial independence, impartiality and the separation of powers. While Powell mentions these potential constraints, he spends relatively little time on them.

Chapter 1 also introduces, in the spirit of the long tradition of jurisprudential thought experiments (for example, those of Lon Fuller and Ronald Dworkin), a number of characters. We meet the [*971] corrupt Justice John, the politicized Justice Johanna (‘Her vote is the servant of her political ideals.’ (p.21)), the formalist/positivist Justice Oliver (‘a kindly caricature’ of what ‘most’ judges say publicly about how they adjudicate (p.25)) and the teleological Justice Marsha, who believes the Constitution itself demands that justices always seek ‘the best human outcome’ (pp.26-28). Powell is particularly critical of John and Johanna since they do not treat the text of the Constitution seriously, but also of Oliver and Marsha. Oliver is engaged in a form of self-deception because it is not possible to draw a bright line between legal and political content in adjudication. Thus, Oliver’s claim to act ‘apolitically’ is not credible (p.23). Powell’s criticism of Marsha is based on the liberal thesis that it is dangerous for anyone, let alone a judge, to assume that they can identify with any certainty optimal human outcomes.

Chapter 2, ‘Playing the Game,’ has a similar theme. What did Justice Oliver Wendell Holmes, Jr. mean when he said that his job on the bench was not to do justice but ‘to play the game according to the rules’ (p.38)? Did it mean he was as cynical about the Constitution as the fictional justices John and Johanna? Or did it reflect instead a distinctive and legitimate judicial wariness of collective or personal commitments to ‘just’ outcomes? Powell thinks the latter account is the proper understanding. Supreme Court justices can pursue justice providing they do so ‘within a certain activity or practice’ (p.40). What does this mean? According to Powell (p.42), Holmes thought that ‘the justices of the Supreme Court are supposed to play a game, an ordered, rule-bound activity, not to pick and choose what they like, even if what they prefer is justice in some ethical or political sense.’

Little of this would cause indigestion to conventional positivist and formalist judges in the common law tradition. The judge’s fidelity is to the law, not to societal or personal values, especially where stare decisis is applicable. These notions are evident when a judge applies law she thinks is regrettable. She may even in dicta criticize the binding law, but, consistent with the traditional doctrine of the separation of powers, remind the reader that judges are not legislators. The continuing injustice must then be corrected through the political process, through the amendment or repeal of the offending law. Some judges may resist even this level of commentary. So the difference between the approaches of Holmes and Oliver may be much less than Powell imagines.

For Powell, the rules of the game of constitutional interpretation are ‘expressed in the words of the constitutional text’ (p.44). He argues that constitutional theory ‘hasn’t worked’ since no theory has ever been instantiated in the practice of the Supreme Court, nor been accepted by other lawyers or judges, let alone by ‘the American public’ (p.46). Moreover, no particular theory can be identified within the US Constitution. Indeed, according to Powell, the Constitution is ‘resolutely atheoretical, at least when one goes beyond generalizations about the separation of powers and the rule of law’ (p.46). I find Powell’s view of theory strange. For one, CONSTITUTIONAL CONSCIENCE is an exercise in constitutional theory. Moreover, are [*972] there not clear theoretical dimensions to the US Constitution, at the very least in relation to the Bill of Rights, but also regarding such matters as federalism? (see also the author’s discussion of freedom of thought at p.112). Further, in chastising judges such as Justice Marsha who seek outcomes claimed to be the best for humans through their adjudication, Powell draws on liberalism to claim that acceptance of disagreement is fundamental to the US polity and Constitution (evident of course in the jurisprudence of the First Amendment). Also, democratic theory underpins Powell’s argument that judges must have humility, recognizing that much conflict and disagreement is properly resolved through political not judicial channels.

Nor do I find Powell’s argument that judges do not employ theory persuasive. There has in fact been quite an overlap between jurisprudential discussion and judicial practice (think, for example, of the writings of American Realists as scholars and judges). Theory has played an especially important role in ultimate constitutional courts such as the US Supreme Court, the Canadian Supreme Court and the High Court of Australia (even though the Australian Constitution has much less explicit reference to values than the American one does). Theory is also intrinsic to the concept of constitutionalism. Finally, Powell assumes that constitutional theorists are averse to the political, and so seek ‘technological means of excluding politics from constitutional law’ (p.47; see also p.50). But this is not an accurate statement about many constitutional theorists (for example, purposive interpreters like Justice Marsha).

In this chapter (as in Chapter 4) Powell further develops his account of judicial virtues. Many of these are consistent with the professional conventions and culture of the judicial role in the Anglo-American common law tradition: ‘loyalty to a certain objectivity, rationality and neutrality in law, and . . . distance from the passion, willfulness, and self-interest of electoral politics’ (p.47). In fact, ‘fair play’ in constitutional interpretation involves the judge exercising legal craftsmanship. This is a kind of cultural and professional constraint on constitutional interpretation. In making this argument, Powell draws upon the work of Bobbitt (pp.53-54). The virtues described here do not seem very different from the way that Justice Oliver would approach constitutional interpretation, despite Powell’s criticism of him.

Powell contends that judges ought to act ‘not from and on behalf of the judge’s personal politics or faction but in service to the community, to the government of laws and not of men’ (p.47). Much of this view can be reconciled with the hoary doctrines of the separation of powers, judicial impartiality and independence. However, serving the community, or acting on its behalf, is not the same as advancing the principle of a government of laws. Judges in constitutional democracies take oaths to administer the law without fear or favour, and to act independently, not only of the legislative and executive arms, but of the electorate. They are not answerable directly to the electorate and do not represent it. They ought to be insulated from populist pressures.

Chapter 3 shifts the focus from judicial interpretation of the Constitution to the [*973] role of members of the executive, using a case study of a nineteenth-century US Attorney General, Amos T. Akerman. Powell takes Akerman’s advice to President Ulysses S. Grant in relation to the presidential power to make civil service appointments as exemplary: as a model of his preferred ‘good faith’ interpretation of the Constitution (pp.56-57). The lessons for the constitutional interpreter that can be derived from Akerman’s advice are that she must act in a ‘lawyerly manner’: defining the issues, paying serious attention to the text as authoritative, attending to authorities, and constructing coherent legal arguments that will be approved by one’s professional peers (pp.60-70). The lawyer’s particular ‘technical expertise, learning and skill,’ which is ‘not common among the citizen body as a whole,’ facilitates judicial craftsmanship (pp.71-72). This sounds very much like Chief Justice Coke’s defense of the special training of the lawyer in the science of the common law, a special kind of reasoning that the monarch did not possess. Powell (pp.73-74) sees in this tradition of technical constitutional interpretation a partial solution to the lack of consensus in society over fundamental values:

In a community which is deeply divided . . . technical argument provides something which we all share in common. It serves as a sort of lingua franca, a means of communication which transcends the heated disagreements which it serves to express.

Again, I doubt that Oliver would have cause to object. He would be as happy as Powell is to endorse the ‘craftsman’s pride in getting it right, or as right as he could’ (p.70). Thus, the constitutional conscience of the book’s title requires judges to respect the traditions and conventions of their judicial role, not to follow the direction of their own internal moral compasses. As Powell says, it is conscience as part of judges’ ‘public personae as officials of the Republic’ (p.108).

Chapter 4 explores in greater detail the virtues necessary for a faithful judicial interpretation of the Constitution. The ‘virtuous justice’ (p.82) accepts a number of ‘presuppositions’ about the Constitution: its ‘intelligibility,’ the possibility of meaningful dialogue ‘about the purposes and goals of the American project,’ the unavoidability of uncertainty regarding the meaning and applicability of the text, and its ‘commitment to liberty’ (pp.83, 85, 86-93). With these presuppositions there are, as corollaries, various constitutional virtues (pp.83-93): faith (that one can understand and is bound by the text), integrity, candor, humility and ‘acquiescence’ (p.99), which is akin to the doctrine of precedent. The notion that the Constitution is underpinned by liberal values is unremarkable. But it goes against Powell’s frequent dismissals of the relevance of constitutional theory to the enterprise of constitutional interpretation and his insistence upon the great difficulty of identifying core norms in the Constitution. We might recall in this respect Powell’s claim that the Constitution is atheoretical.

Powell turns his attention in the final chapter to ‘substantive commitments’ that parallel the interpretive virtues. These are the ‘priority of the political’ as opposed to judicial channels for resolving social conflicts and moral [*974] dilemmas, the lack of orthodoxy in the American constitutional system (evident in the liberties of thought and speech) and ‘the inclusion of everyone’ within the constitutional republic (pp.110-116). Liberal democrats would have no difficulty accepting these norms, but it is not clear to me that all of these claims can be made out by someone who, first, seems at times so wary of constitutional theory, and second, requires that judges anchor their interpretations in the text. Think, for example, of Powell’s following claims. He claims that where his virtues ‘hold sway’ in Constitutional interpretation the ‘American political community will be resistant to the temptations to prejudice, cruelty, and heartlessness’ (p.102). He also says that the virtuous interpreter will recognize ‘the incorrigible otherness of those with whom they must live and yet who decline the old, sour, ultimately violent solution of denying the equal humanity of the other’ (p.101). I am not convinced that these admirable values flow clearly from the modest interpretive virtues he identifies. In this sense, it is similar to the substantive claims Lon Fuller made much earlier for his procedural prerequisites for the existence of law that were criticized by H.L.A. Hart. Powell begins his work by only asking ‘the reader to entertain . . . a very thin set of ethical presuppositions’ (p.6). But, by the end of the book, the presuppositions seem to have fattened quite considerably. Here Powell asks the reader to find in the interpretive virtues, and in the content of the Constitution, not only liberal but egalitarian commitments (see also pp.96-97).

CONSTITUTIONAL CONSCIENCE is an erudite and stimulating work, rich in insight. It makes innovative use of history, philosophy, law and political science. Refreshingly, Powell’s discussion is not limited to the much-ploughed territory of debates over originalism. His identification and elaboration of interpretive virtues is an original and important contribution that will have significance for jurisprudence and constitutional law well beyond the United States.

CASE REFERENCES:
MARBURY v. MADISON, 5 U.S. 137 (1803).

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© Copyright 2008 by the author, Stephen James.

Constitutional Conscience: The Moral Dimension of Judicial Decision

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INTERNATIONAL JUSTICE IN RWANDA AND THE BALKANS, VIRTUAL TRIALS AND THE STRUGGLE FOR STATE COOPERATION

by Victor A. Peskin. New York and Cambridge: Cambridge University Press, 2008. 294pp. Hardback. £45.00/$85.00. ISBN: 9780521872300. eBook format. $68.00. ISBN: 9780511372858.

Reviewed by William A. Schabas, Irish Centre for Human Rights, National University of Ireland, Galway. Email: william.schabas [at] nuigalway.ie.

pp.965-968

This is a book about the complex and often difficult relationship between the international criminal tribunals for the former Yugoslavia and for Rwanda with the governments of the constituent parts the former Yugoslavia, following the break up, and of Rwanda. Thus it concerns the almost inevitable tension that results when international institutions encroach upon an area that traditionally was the preserve of sovereign states: the prosecution of persons for crimes committed on their territory.

The International Criminal Tribunal for the former Yugoslavia was created by the United Nations Security Council in May 1993, at the height of the war in Bosnia and Herzegovina. Intended as a measure to promote conflict resolution, it was premised upon the likelihood that the courts of the various new states in the region would not do justice themselves to perpetrators of atrocities, with perhaps the exception of any of their enemies who might fall into their hands. The Tribunal did not really become fully operational until after the Bosnian war was over. But resistance to principled and impartial justice within the region remained. The court had stepped in to prosecute those whom the national courts were reluctant to pursue. Yet the court could not investigate the cases, gather evidence and even take custody of the accused without the cooperation of the very states that it did not trust to prosecute the cases themselves. Hence, the conundrum of cooperation that Victor Peskin endeavours to plumb.

Rwanda seemed to be somewhat different. It was actually the initial source of calls to create the International Criminal Tribunal for Rwanda, which was set up by a Security Council resolution adopted in November 1994, less than four months after the end of the devastating genocide. But Rwanda’s initial enthusiasm for international justice quickly soured when it could not agree with the United Nations on several important aspects of the new institution. For example, Rwanda disagreed with the Security Council’s insistence that there be no capital punishment. It did not accept limitation of the temporal jurisdiction of the Tribunal to the calendar year 1994. Rwanda wanted the seat of the Tribunal to be in its capital, Kigali, whereas the United Nations opted for nearby Arusha, in Tanzania. As a result, Rwanda, which was by sheer coincidence a member of the Security Council when the vote to establish the Tribunal was adopted, was the lone dissenter, opposing establishment of an important international effort to help [*966] render justice. In the years that followed, Rwanda’s relationship with the Tribunal was every bit as troublesome as the relationship between the Balkan states and the sister Tribunal.

As Peskin explains, by 2002 or so, a curious and unexpected pattern had emerged. The Balkan states had become increasingly willing to cooperate with the Yugoslavia Tribunal. This was manifested in such dramatic developments as the transfer of Slobodan Milosevic to stand trial in the Hague, which took place in late June of 2001. By contrast, Rwanda had grown more and more negative about its international court, threatening to block cooperation altogether and literally jeopardizing all future activities. In mid 2002, according to Peskin, the Rwandan government imposed travel restrictions that had the effect of preventing its nationals from testifying in Arusha. This brought at least one trial to a temporary halt.

The topic of cooperation has been largely neglected in the academic literature. Peskin highlights the ‘Court-centred’ studies, most of them authored by lawyers close to the Tribunals, that focus on the legal issues but fail to unravel adequately the political dimension of the problem. As for the Rwanda Tribunal, it also suffers from a more traditional neglect, because students of the subject are not only ‘Court-centric,’ they are also ‘Euro-centric.’ He also notes quite appropriately that most academic commentators are enamoured of the alleged independence of the international tribunals from the realm of the political, extolling their ability to transcend such considerations. By contrast, Peskin starts with the assumption that politics is at the core of the operation of these tribunals. The way forward is to acknowledge this reality, he posits, rather than to deny it.

Much of this volume consists of a very rich and useful narrative of some of the big crises in which the issue of cooperation has featured. Peskin explores the complexities of the arrest and transfer of various Serb suspects to The Hague, beginning with persistent and still only partially successful attempts by the International Tribunal to gain custody over two of its first indictees, Bosnian Serb leaders Radovan Karadzic and Ratko Mladic. Only in mid-2008 was Karadzic finally arrested in Belgrade and surrendered to the Tribunal; his accomplice Mladic is still at large. And although these two leaders were only a source of great frustration, in the meantime Slobodan Milosevic was arrested and brought to trial. The whole business required time and patience, but in the end it was fundamentally successful. Peskin explores the political aspects that drove the process of arrest and surrender, insisting upon the democratic transition within Serbia rather than the simplistic, standard explanation of economic pressure from the United States and the European Union. Of course, both factors surely contributed here.

Serbia may have emerged as the main culprit in the conflict, but there is much evidence of Croatian atrocities whose responsibility lies at the highest levels. Croatia too frequently defied the Tribunal in the early years. An important decision by the Appeals Chamber of the Tribunal, in October 1997, responded to Zagreb’s resistance to a request for documents from the Prosecutor. Here, [*967] too, democratic transition was a decisive factor. Whether or not former Croat president Franko Tudjman was ever actually indicted by the Tribunal is a closely guarded secret that even the revealing and indiscreet memoirs of former United Nations officials, including Prosecutor Carla del Ponte, have not elucidated. But it is certain that his death brought about a positive change in Zagreb’s dealings with The Hague. Eventually, the Tribunal got what it wanted, arresting leading suspect Ante Gotovina in 2004 with the assistance of the Croat regime.

But just as Serbia and Croatia manifested a similar evolution, drawing steadily closer to the International Tribunal as their young democratic regimes became more stable, Rwanda’s attitude towards the Tribunal did not develop in the same way, or so Peskin argues. His thesis is that at the heart of the tension was concern that the Tribunal would turn its attention to the alleged crimes of the Tutsi-led Rwandese Patriotic Front, which took power in July 1994 under the leadership of now-President Paul Kagame. Since initial reports emerged in 1995 from both United Nations bodies and human rights NGOs, it has become increasingly clear that atrocities were also perpetrated by the victors in the Rwandan conflict, although on a scale that is nowhere near that of the genocide. Estimates vary inevitably, but a well-accepted estimate considers the victims of genocide to have numbered in the region of 800,000, while the victims of massacres committed by the other side, some of them inevitably driven by sentiments of vengeance, were in the order of 25,000. The first two prosecutors of the International Criminal Tribunal for Rwanda did not show much interest in pursuing the crimes committed by the Rwandese Patriotic Front, but this seemed to change when Carla del Ponte took office in September 1999. The investigations barely figure in the public record of the Tribunal, and it is therefore only through interviews and investigations by a scholar like Victor Peskin that we can glean much knowledge on the subject.

There is therefore one important difference between Rwanda and the Balkans that may explain the differences in attitude to cooperation. At the Yugoslavia Tribunal, the Prosecutor is after the leaders of old regime rather than their opponents, who have steadily taken power as democracy has prospered. This recalls the pattern in post-war Germany, where old Nazis and their sympathizers, who were present enough in government in the early years, became increasingly marginalised. One result was an increasing willingness of German courts to address Nazis war crimes and atrocities themselves. But it was only in the 1960s that meaningful domestic trials got underway, and Germany has never looked back. In Rwanda, although the Prosecutor has been and remains principally concerned with the enemies of the current regime, that is, the former leaders and instigators of the genocide, its threat to prosecute persons associated with the current government inevitably make the relationship more difficult and problematic.

But are the distinctions as important as Peskin indicates? Rwanda, too, has gone through its own progressive evolution, although it is probably more African than European in flavour. For example, [*968] in 2007, Rwanda abolished capital punishment, an indication of its aspiration for full membership in the progressive wing of the international community. By all accounts, its courts and prisons have steadily improved. The major episodes of non-cooperation with the Tribunal now appear more as anomalies in what has been a pretty good record, especially in recent years. The virtual melt-down in 2002, when Rwanda prevented witnesses from traveling to Arusha, was an ephemeral one. In semi-annual presentations to the Security Council, undertaken as part of the completion strategy of the Rwanda Tribunal beginning in 2004, both its Prosecutor and its President have extolled the cooperation of the Rwandan government. There have been no complaints whatsoever. Perhaps, then, Rwanda actually confirms the pattern that Peskin has observed in the Balkans.

Peskin’s important and valuable insights into the relationship between international tribunals and the governments of countries that are targeted by their prosecutions provide great assistance in understanding future problems. The United Nations Security Council may not ever repeat its experimental establishment of the two ad hoc tribunals for the former Yugoslavia and Rwanda. It is not entirely out of the business, but the more recent institutions, for Sierra Leone and Lebanon, manifest important differences in conception. The lessons that Peskin presents are surely most important for the permanent International Criminal Court. Because the Yugoslavia and Rwanda Tribunals were created by the Security Council acting pursuant to Chapter VII of the Charter of the United Nations, the institutions could always argue that States were obliged by international law to cooperate. They never tired of invoking this mantra, although without much result, as Peskin demonstrates. Political developments, rather than empty threats that the Security Council might intervene, moved the cooperation agenda forward. The powers of the International Criminal Court in this respect are even more modest, because it cannot in any way count upon Security Council muscle to help ensure compliance with its ‘requests.’ Peskin helps us to understand that here too political developments will be the key to cooperation. His findings should be much studied by those who are struggling to make the International Criminal Court work. Perhaps he will turn his attention to a sequel, examining the troubled dealings of the permanent International Criminal Court with the governments of Uganda and Sudan.

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© Copyright 2008 by the author, William A. Schabas.

International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation

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THE TERROR PRESIDENCY: LAW AND JUDGMENT INSIDE THE BUSH ADMINISTRATION

by Jack Goldsmith. New York: W.W. Norton & Company, 2007. 256pp. Cloth. $25.95. ISBN: 9780393065503. Paper. $12.95. ISBN: 9780393065503.

Reviewed by John E. Finn, Department of Government, Wesleyan University. Email: jfinn [at] wesleyan.edu.

pp.956-964

I. Introduction.
Among the challenges to constitutional government linked to the Bush era are the rise of the surveillance state, harsh interrogations and torture, indefinite detention and the suspension of habeas corpus, extraordinary renditions, and military commissions. Many of the decisions to adopt these policies were taken unilaterally, without the counsel of Congress, the federal courts, or other agencies and actors in the executive branch. Each of them poses a challenge to constitutional principles and practices, but more important than any one of them is the underlying understanding of the office of the presidency they rest upon. Taken together, they represent the rise (return?) of the unitary (imperial?) presidency, an executive with extraordinary obligations and equally enormous powers. This is, to put it mildly, a robust theory of the presidency, a theory in which the president’s duty to protect us from terrorism supersedes every other obligation of the office, including the oath to support the Constitution.

Notwithstanding obvious difficulties from the standpoint of constitutional theory, there are a number of ways one might try to justify the location of such extraordinary obligations and powers in a single office. One might argue, for example, that a crisis releases the chief executive from constitutional limitations that apply in times of peace and normalcy. Or one might argue that the office of the chief executive comes equipped with a Lockean prerogative. Both sorts of claims, whatever their merits, claim a long lineage in constitutional theory and practice. Jack Goldsmith makes clear, however, that the Bush administration’s justification for the use of extraordinary powers was intricately caught up with a theory of newer vintage, sometimes called the theory of the unitary executive.

The unitary theory of the executive holds that Article 2 vests the whole of executive power in the office of the presidency and that such power is not shared with the other branches or even, necessarily, accountable to them. Part of Goldsmith’s book is a story about how and why one version of this theory took hold in the Bush administration. In particular, the version of the unitary presidency that appealed to some officials, such as David Addington, in Vice President Cheney’s office, and John Yoo, in Justice, is this: In times of crisis, the President’s duties and powers as Commander-in-Chief trump constitutional rules and federal laws that would ordinarily constrain the executive. Relying on this expansive understanding of executive power, Goldsmith’s predecessors at the Office of Legal [*957] Counsel in the Department of Justice (OLC), including Yoo and Jay Bybee, prepared several classified memos asserting that the president may legally ignore a range of federal statutes, including laws prohibiting torture, and electronic surveillance without a judicial order.

One of the chief arguments in favor of the unitary presidency is that it purports to center responsibility in a single, identifiable public office and thereby promotes democratic accountability. Ironically, however, Goldsmith’s narrative suggests that the centralizing of public accountability in a single location has had the precise opposite effect. The fear of being held to account has not only skewed policy decisions and the policy making process, it has also led the presidency to isolate itself from the inevitable scrutiny and accountability that would result from a process in which it shares power with congressional and judicial actors.

There are important questions about the constitutionality of almost all of the major policy decisions taken by the Bush administration in the global war on terror (GWOT). But the more important, larger question – the one that that applies not just to the eight years of the Bush administration but to the office of the presidency after Bush leaves – is whether the conception of the presidency that rests behind specific policy decisions can be reconciled with constitutional democracy. To answer it, we need first to think carefully about the kinds of pressures and reasons that gave rise to the terror presidency as an institutional form. We need to consider, too, the durability of those pressures: Are the institutional changes wrought by the terror presidency local to the Bush administration or more permanent?

II. Fear and the Rise of the Terror Presidency.
Much of Goldsmith’s record of his time at the Department of Justice addresses the role of the OLC in advising the President about the legality of a series of decisions made in the war on terrorism, including decisions concerning the application of the Geneva Conventions to detainees. Among Goldsmith’s first priorities was a review of earlier OLC opinions that considered the legality of several secret counterterrorism policies. Goldsmith learned quickly, and much to his distress, that some of these opinions “were deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President” (p.10). Goldsmith’s explanation for the inferior quality of these opinions, some of which were prepared by his friend John Yoo, is the “extraordinary pressure” incumbent on the Office of Legal Counsel (OLC). “Fear explains why the OLC pushed the envelope” (p.166).

Fear provides the occasion for the extravagant claims of power that undergird the terror presidency. Moreover, these fears are a more or less permanent feature of a political landscape dominated by the war on terrorism, a war that is both grave and unending. Goldsmith identifies two kinds of fear – ”fear of not doing enough” and “fear of doing too much and ending up before a court or grand jury” (p.12), but there is a third he does not name: the fear of electoral or public accountability. Thus there are three distinct kinds of fear in play: Fear of the next attack, fear of laws that overly [*958] circumscribe presidential power, and, paradoxically, fear of electoral accountability.

a. Fear of the Next Attack.
Goldsmith argues that it is “It is hard to overstate the impact that the incessant waves of threat reports have on the judgment of people inside the executive branch who are responsible for protecting American lives” (p.72). Goldsmith offers up several examples of the pervasive effect of this kind of fear in the administration. In one case, after Goldsmith advised Addington against the legality of a particular policy, Addington responded: “If you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands.” Elsewhere, Goldsmith describes the impact of the “threat matrix.” Delivered every morning to the president, the matrix “lists every threat directed at the United States in the past 24 hours.” The matrix, Goldsmith notes, can be “many dozen pages long” (p.71).

The key point, however, is not that the administration is so keenly aware of the threats facing the United States. It is, instead, the administration’s view that these threats are grave, unprecedented, and that “success” in responding to them means preventing all of them. (Goldsmith notes that this definition of policy success was described by Suskind as the “one per cent doctrine” (Suskind 2006).) Goldsmith captures this sense in a quote from Jim Baker, who likened the wear on terrorism to a soccer game: “the task of stopping our enemy to a goalie in a soccer game who ‘must stop every shot,’” for if the enemy “‘scores a single goal,’” the terrorists succeed. To make matters worse, “‘the goalie cannot see the ball – it is invisible. So are the players – he doesn’t know how many there are, or where they are, or what they look like.’“ Indeed, the invisible players might shoot the ball “‘from the front of the goal, or from the back, or from some other direction – the goalie just doesn’t know’” (p.74). Such an approach, Baker admitted, can lead one to become “paranoid” and lead to “obsession” (p.72). It is far from clear this is a sensible strategy for coping with uncertainty and risk in general or with the threat of terrorism in particular (Macklem et al. 2001). Indeed, failure (in the sense that not all attacks can be prevented) under such a definition is a near inevitability, and the fear of failure, Goldsmith concludes, is a prime factor in the administration’s formulation of antiterrorism policy.

b. Fear and Lawfare.
A second kind of “fear” also appears in Goldsmith’s account. Goldsmith argues that the presidency is hobbled, if not crippled, by law. Goldsmith pictures a presidency cabined and enfeebled by a thicket of rules, statutes, and judicial decisions that, far from clarifying what the law permits and prescribes in the GWOT, instead confuses and cripples the executive branch.

Goldsmith identifies two sets of legal restraints upon the presidency – domestic law and international treaties and conventions. Domestic legal constraints include the War Powers Act of 1973, the Foreign Intelligence Surveillance Act of 1978, and the Torture Act of 1994, all of which, Goldsmith argues, unwisely confine presidential war power.

One of the chief difficulties with such laws, he argues, is their vagueness. The [*959] lack of clarity opens up the possibility that national security officials might later be prosecuted. Goldsmith reports that the Bush administration was concerned about the prospect of “lawfare” or the possibility of legal prosecution if they ran afoul of any one of a great many legal restrictions upon the presidency. The fear of prosecution was not so much a concern that such actions might occur in John Ashcroft’s term of office, but rather “in a subsequent administration of a different party” (p.68).

Goldsmith also argues that a snare of international obligations and commitments similarly circumscribe the presidency. After World War II, the international community embraced a broad range of conventions, such as the Geneva Conventions on Prisoners of War, that assert international jurisdiction over human-rights violations. (Goldsmith notes, in this regard, that Addington once advised Secretary of Defense Rumsfeld that international law is “a tool of the weak” and a threat to the interests of the United States.) Goldsmith writes at some length about the kinds of concerns in the administration generated by the International Criminal Court, and recounts his own memo on the “judicialization of international politics,” written while he was at Defense and later circulated to the National Security Council. (Goldsmith writes that “Yoo and I were a part of conservative intellectuals – dubbed ‘new sovereigntists’ in FOREIGN AFFAIRS magazine – who were skeptical about the creeping influence of international law on American law”(p.21).)

The proliferation of domestic and international legal constraints upon the executive branch has caused a profound transformation in the environment that surrounds the presidency. Goldsmith argues that past presidents, such as Lincoln and Roosevelt, were largely free of such restraints. They were free to respond to crises without the fear of subsequent indictment. More important, perhaps, is that these new rules have contributed to a new legal culture, “reinforced by the swarm of lawyers that rose up in the military and intelligence establishment” (p.91), a culture dominated by “risk-averse legalism” (p.93). Goldsmith concludes that the restraints on the presidency enacted after Watergate constitute a substantial obstacle to the Bush administration’s effort to respond to September 11. “The administration,” he writes, “has been strangled by law, and since September 11, 2001, this war has been lawyered to death” (p.69).

How did the Bush administration respond to these overbearing legal restrictions on presidential power, many of which would have required the president to act in cooperation with Congress? Goldsmith claims that Addington and others relied on a series of poorly argued, secret legal memos to simply sidestep them. Moreover, in Goldsmith’s view, Addington, and his superior, Cheney, deliberately rejected the counsel of those both inside and outside the administration, who had urged cooperation and consultation with Congress.

c. Fear and Politics.
Finally, Goldsmith alludes to another kind of fear prompted by the war on terrorism – the fear of electoral [*960] accountability, or of being held to account for failure to prevent the next attack. The clearest evidence for both the existence and the importance of this fear is the simple fact that most of the OLC opinions Goldsmith addresses were prepared in secret and classified. The purpose of such secrecy was precisely to evade accountability, whether in the Attorney General’s office, elsewhere in executive branch, or outside of it.

The distorting effects of this kind of fear on antiterrorism decision-making in the Bush administration should be of special interest to students of the unitary theory of the presidency, because it suggests an elemental flaw in one of the theory’s central premises. One of the advantages of the theory of the unitary executive is that it claims to locate popular accountability in the president. In other words, a president may not evade accountability for policy by claiming that his hands are unnecessarily tied by the demands of Congress or the federal courts. The president alone is responsible. But in Goldsmith’s view, the administration was unwilling to abide such scrutiny, in part because it fears the public no longer shares its sense of the urgency or importance of the threat. “The American public largely shared the government’s anxieties on 9/11. But since that time public concern about the terror threat has waned” (p.187). Elsewhere, Goldsmith observes that “it is natural for public vigilance to fade over time, even if to the President’s eye the threat has not faded one bit” (p.187). Goldsmith’s response to diminishing public concern is to urge the President “to educate the public about the threat without unduly scaring it. . . . And he must convince the public that he is acting in good faith to protect us and is not acting at our expense to enhance or protect himself” (p.192).

And yet in large measure it is precisely the fear of shouldering public accountability that explains overreaction to exaggerated fears. It is the same fear that leads, too, to unilateral decision-making, to decisions taken in secret and without the consult of other branches. Instead of concentrating responsibility in a single office – and in so doing advancing democratic accountability – the unitary theory of the presidency has had the opposite effect, of obscuring who bears responsibility by shielding decision making responsibility from the public and by vitiating the separation of powers. The unitary theory of the presidency has given us a presidency enshrouded in secrecy, entrusted with profound powers that cannot be held to account by co-ordinate constitutional actors.

III. Reconciling the Terror Presidency and the Constitution.
In Chapter Six, Goldsmith takes up directly the “failures” of the Bush administration. To put it simply, individual policy mistakes all trace to a larger failure of political strategy. In Goldsmith’s view, most if not all of the president’s policy decisions in the GWOT should have been made on the basis of greater consultation with Congress. They would thus have been considerably less vulnerable, both politically and legally.

It is here that Goldsmith comes closest to his position as an academic and not as a lawyer in the OLC. Goldsmith draws upon the presidencies of Lincoln and, especially, Roosevelt to think more expansively about the terror presidency [*961] and its relationship to the larger constitutional order. His comparison with Roosevelt starts with a claim that the challenges facing the terror presidency are similar to those Roosevelt confronted: “Franklin Roosevelt faced a similar set of challenges in the eighteen months prior to the Unites States’ entry into World War II in December 1941” (p.192). The basis for this comparison is perhaps questionable, itself another misjudgment occasioned by fear. It is far from clear that the challenges are even remotely similar, and Goldsmith does not do much to justify the comparison. But Goldsmith is right to think there are lessons to be had in Roosevelt’s use of the prerogative power. Goldsmith notes, for example, that neither Lincoln nor Roosevelt confronted the fear of lawfare; instead, they operated in environments largely free of the legal constraints that hobble the terror presidency.

Goldsmith attributes the “successes” of the Roosevelt presidency’s claim for and use of extraordinary powers to careful and widespread consultation with Congress and with potential critics of his administration. The failures of the Bush administration, by contrast, are grounded in a view of the presidency that regards consultation with other actors – indeed, voluntary compliance with the law – as an unwelcome constraint on presidential power. To consult, Goldsmith suggests, was a sign of weakness: “The Bush administration has operated on an entirely different conception of power that relies on minimal deliberation, unilateral action, and legalistic defense. This approach largely eschews politics: the need to explain, to justify, to convince, to get people on board, to compromise” (p.205).

At this point, however, the argument is not fully explained. Goldsmith never actually identifies how the absence of law promoted Roosevelt’s successful use of expansive emergency powers (largely by cooperating with co-ordinate constitutional actors), or how its presence forestalled the Bush administration from pursuing a similar path.

In some ways, Goldsmith’s sense – that Bush should have sought the active cooperation of Congress and other political actors – comports neatly with an understanding of constitutionalism that is based on “justification” rather than “invariance” (Finn 1991). But the failure of Bush to consult is, for Goldsmith, an unfortunate failure of political leadership, a method of governing that is flawed chiefly because it failed. It is flawed, too, because it left the office of the presidency weaker: “They borrowed against the power of future presidencies – presidencies that, at least until the next attack, and probably even following one, will be viewed by Congress and the courts, whose assistance they need, with a harmful suspicion and mistrust because of the unnecessary unilateralism of the Bush years” (p.140).

Goldsmith’s primary criticism of Bush, then, is not that the President acted unconstitutionally or illegally but rather only that he acted unwisely. The lesson we are to take away is that future presidents – all of which will be terror presidencies – should consult more broadly and more frequently with other constitutional actors. But Goldsmith’s recommendation (that future presidents consult, or give reasons), is driven not by any commitment to the rule of law, or [*962] to constitutional values, but rather simply and only by a desire to secure presidential power. In that respect, the differences between Goldsmith and Addington and Yoo are simply prudential. If the President’s policy agenda could be better advanced without such consultation and cooperation, there would be nothing in Goldsmith’s prescriptions – nothing in the law or the Constitution – that would or should foreclose that approach.

There are, of course, other counterweights to the terror presidency, such as judicial review. Indeed, one could argue that the terror presidency has already run up against a serious set of judicially imposed restraints (Dworkin 2008). On the other hand, it is far from clear that cases like RASUL, HAMDI, HAMDEN and BOUMEDIENE constitute unequivocal evidence of the efficacy of judicial review. As I have suggested elsewhere, “Although the Court appears to have insisted upon some measure of judicial accountability, it has also authorized important and far reaching departures from what the rule of aw requires in ordinary criminal cases. . . . The overall import of the decisions is to authorize a separate system of jurisprudence . . . for offenders designated by the government as enemy combatants” (Finn, forthcoming). Moreover, as Goldsmith acknowledges, the Court’s decisions in HAMDI and HAMDEN were followed by congressional actions that pretty much gave the President whatever he asked for, including authorization to pursue aspects of the military commissions that the Supreme Court had invalidated. Other counterweights to the terror presidency might include the kinds of accountability occasioned by elections, the free and open public dialogue guaranteed by the First Amendment, and a reinvigorated commitment to the separation of powers. Unfortunately, Goldsmith does not take up the question of whether or how these mechanisms might constrain the terror presidency.

In the end, Goldsmith’s recommendations are grounded not in the rule of law, or the Constitution, but rather in their utility as a mechanism for enhancing the powers of the terror presidency. Nowhere does Goldsmith really address the fundamental question of whether the terror presidency can be reconciled with our commitment to the Constitution. Instead, we get only a bromide: “In the permanent emergency we face, the best hope for preserving both our security and our liberty is to select leaders who will be beholden to constitutional values even when they are forced to depart from constitutional traditions” (p.216).

IV. Conclusion.
A long time ago, when the dangers terrorism poses for constitutional governments seemed safely a matter of history, I wrote that “Even in a crisis, there is a sense in which constitutionalism, government based on reason and limited by the rule of law rather than government by will or self-interest, can persist” (Finn 1991, p.28.) What is necessary in a crisis, I argued then and still believe, is not invariance from strict constitutional limitations on the use of power, but rather the project of public justification. Justification as a constitutional project is necessarily an activity that takes place in concert with other constitutional actors; it thus demands, as a constitutional obligation, [*963] that executives consult widely and broadly with other constitutional actors. It prohibits as unconstitutional claims of exclusive extraordinary power, whether grounded in theories of prerogative or the unitary presidency (Finn 1991, pp.28-40). They are not matters of political convenience or simply stratagems for increasing presidential power. They demand, instead, that the pursuit of power, no matter how nobly intentioned or how authentic the need, must conform to certain irreducible constitutional constraints. If antiterrorism policies fail to comply with these principles, the failure is not, as Goldsmith suggests, a mistaken approach of political style. It is a failure of constitutional governance.

Can constitutional government survive the terror presidency? Constitutionalism, Noah Webster once wrote, is “the empire of reason.” What constitutionalism demands is “a commitment to a public life premised upon the public articulation of reasons” (Finn 1991, p.30). Fear is an enemy of reason, and succumbing to it seems to answer in the negative Hamilton’s searching question, in Federalist One, of “whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force” (Rossiter 1961). There is irony, therefore, in Goldsmith’s use of Roosevelt as a role model for how a strong presidency should function in a constitutional democracy. The irony is not that Roosevelt’s critics, like Bush’s, accused him of embracing dictatorial powers and disregarding constitutional restraints. The irony is that the Terror Presidency owes its existence to and requires fear. And it is the persistent durability of fear that explains why we should be careful not to assume that the constitutional challenges of the last eight years are unique to the Bush administration: “For generations,” Goldsmith warns, “the Terror Presidency will be characterized by unremitting fear of devastating attack, an obsession with preventing the attack, and a proclivity to act aggressively and preemptively to do so” (p.189).

REFERENCES:
Dworkin, Ronald. 2008. “Why it was a Great Victory.” http://www.nybooks.com/articles/21711 (August 14, 2008).

Finn, John E. 1991. CONSTITUTIONS IN CRISIS: POLITICAL VIOLENCE AND THE RULE OF LAW. New York: Oxford University Press.

Finn, John E. (forthcoming) “Counter Terrorism Regimes and the Rule of Law.” forthcoming in Martha Crenshaw, ed., THE CONSEQUENCES OF COUNTERTERRORIST POLICIES IN DEMOCRACIES. (New York; Russell age Foundation, forthcoming).

Mackle, Patrick, Ronald J. Daniels, Kent Roach (eds). 2001. THE SECURITY OF FREEDOM. Toronto: University of Toronto Press.

Rossiter, Clinton, ed. 1961. THE FEDERALIST PAPERS. New York: New American Library. [*964]

Rossiter, Clinton. 1948. CONSTITUTIONAL DICTATORSHIP. Princeton: Princeton University Press.

Schlesinger, Arthur. Jr. 1973. THE IMPERIAL PRESIDENCY. New York: Popular Library.

Suskind, Ron. 2006. THE ONE PERCENT DOCTRINE: DEEP INSIDE AMERICA’S PURSUIT OF ITS ENEMIES SINCE 9/11. New York: Simon & Schuster.

Yoo, John. 2006. THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11. Chicago: University of Chicago Press.

CASE REFERENCES:
BOUMEDIENE v. BUSH, 553 U.S.___ (2008).

HAMDAN v. RUMSFELD, 548 U.S. 557 (2006).

HAMDI v. RUMSFELD, 542 U.S. 507 (2004).

RASUL v. BUSH, 542 U.S. 466 (2004).

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© Copyright 2008 by the author, John E. Finn.

The Terror Presidency: Law and Judgment Inside the Bush Administration

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TEMPTATIONS IN THE OFFICE: ETHICAL CHOICES AND LEGAL OBLIGATIONS

by Stephen M. Goldman. Westport, CT: Praeger, 2008. 224pp. Hardcover $39.95/£22.95. ISBN: 9780275996758. eBook format. $43.95. ISBN: 9780275996765.

Reviewed by Bruce Howes, Department of Philosophy, Okanagan College. Email: bhowes [at] okanagan.bc.ca.

pp.952-955

TEMPTATIONS IN THE OFFICE by Stephen Goldman is a book in the best tradition of legal approaches to the application of ethics. It is stylistically clear and methodologically admirable. The organization of the book is simple and lucid: Chapters 1 and 2 are given over to the general diagnosis of ethical wrongdoing, Chapter 3 proposes a curative procedure, and Chapters 4 through 8 offer a guide to specific applications of that cure.

At its core the book sets out to accomplish two rather daunting tasks: a) construct a procedure to deal with already recognized ethical concerns, and b) set up a means by which to initially recognize concerns as ethical in nature. While the latter task is left somewhat incomplete, the former and arguably more important task is carried off with resounding success.

Goldman, a practicing lawyer in the Washington, DC area specializing in complex civil litigation and a Distinguished Lecturer in Law at the Catholic University of America Law School, lays down a procedure to aid managers through the choppy waters of clear ethical dilemmas in the workplace. This is the ‘crown jewel’ of the book – what Goldman calls “The Foursquare Protocol.”

Goldman suggests that if a manager finds herself on the horns of an ethical dilemma in the workplace, she should take the following four steps. First, she should marshal as many facts as possible. Second, she should seek out information on how previous ethical decisions within the company were arrived at, as well as how these decisions were generally received by employees. Third, the manager ought to sort out the relevant similarities and dissimilarities between those past situations and the present one. And last, the manager should honestly and clearly assess any personal interests, biases, or conflicting interests she has that might impair her proper treatment of the problem.

Now this is a very brief description of a template for which the balance of the book (pp.73-205) rather convincingly displays the advantages (It is worth buying the book to get more detail). There is a lot of horse sense here. Goldman applies his proposed protocol to the main areas where ethical problems are found: sexual harassment, conflict of interest, executive compensation, corner-cutting, and the abuse of power.

As Goldman says when dealing with, say, conflicts of interest it is helpful to “look at how the law treats business conflicts of interest” (p.120). The Protocol is explicitly an attempt to [*953] transplant the best traditions of the legal profession – practices, procedures, and general outlook – into the midst of business’ clash with values. While some might quip (after inserting their favourite lawyer joke) that, given the ever expanding range of ‘due process’ rights within the workplace, it was really only a matter of time before some lawyer somewhere got around to baldly proposing that managers be required to have the formal skills of a judge. Goldman may be asking a lot of managers here; but given that a new round of corporate scandals may be upon us, perhaps not too much.

Goldman observes that too often managers handle ethical qualms (at least those who acknowledge there is any such thing in business) by following their ‘intuition.’ This often leads to at least the semblance of unfairness and inconsistency, if not the reality of it, which can then lead to compounding the original problem. As such, a key “prong” of Goldman’s protocol is the 2nd one, with its demand that “organizational memory” be mined for insight (p.65). This is an excellent instance where the law provides solid guidance.

One thing to note about the 2nd protocol is its implicit limit. It requires the manager to research past decisions from her own company only. Though not explicit on the matter, Goldman is here suggesting an entirely ‘in-house’ solution to ethical woes. Given that private enterprises are often very sensitive to outside intrusion into internal decisions (beyond what the law demands), this ought to be a generally palatable place to draw the lines of responsibility. With the in-house restriction, each business is seen as a distinct ‘jurisdiction,’ and no serious changes to organizational ‘culture’ need be undertaken.

Now, some might argue that if it makes sense to look at precedents in my organization, then it would also make sense to look at similar situations elsewhere, or solutions found in similar organizations. So keeping things in-house might not be wise or even workable in the long term. But this quibble does not make Goldman’s advice any less reasonable for a manager dealing in real time with slippery ethical issues. And there is the added dividend that any manager adopting this framework will, as well, be building good ethical habits into her company’s “organizational memory” for future reference.

The task of providing a framework for already recognized ethical problems is solidly completed with the Foursquare Protocol. Goldman’s other important task is to help provide people with what he calls an “early warning system” for recognizing ethical problems in the first place. Such a system would provide managers with “a way of detecting when what seems like a perfectly straight-forward business issue actually hinges on values” (p.xi). This is very laudable aim, but a difficult one to define. As such, this aim remains, at best, only vaguely realized in TEMPTATIONS.

Early in the book Goldman makes the point that ethical problems are one of three major ways that businesses tend to get themselves into serious trouble (the other two are market failures and liquidity problems). And as he puts it, these ethical business failures “usually [*954] start in a mundane way” with people simply “ignoring the basic values underlying situations” (p.xi). This is a keen insight denoting that early diagnosis of a problem’s ethical core is the key to solving it.

Obviously such an early warning system will be of no use to those who positively refuse to acknowledge that there are business decisions that require ethical considerations. And indeed in Chapter 1 Goldman explicitly identifies such a group, referring to them as “Ethically Indifferent Persons”, or EIPs.

EIPs are described as people who are “impervious” to any kind of argument which shows sensitivity toward the well being of others (pp.13, 38-40). To those who have an EIP as a boss, Goldman counsels that they should avoid any attempt to question or challenge the EIP’s insensitivity – usually an encounter with a brick wall is less futile. Yet the goal of the employee must be nonetheless to make sure that his own decisions continue to be humane. So such an employee must find a way to do the ethically sensitive thing while framing the issue for the boss in terms of the bottom line.

The distinction Goldman builds between EIPs and non-EIPs seems right; and his advice that non-EIPs should attempt to approach EIPs on a footing consistent with business rather than on a ‘values’ footing, seems correct too (p.14). Chapter 2 seems to be the place where we ought to find the early warning system. But Chapter 2 seems no more than a well written but standard defence of the need of ethics in business. Is this the early warning system?

If so, EIPs will not use it, since they refuse to accept the existence of ethical concerns. And if so, non-EIPs do not need it. If the ‘early warning system’ is merely this argument that ethical concerns in the workplace should be taken seriously and treated distinctly – then it seems that Goldman is preaching to the choir. Non-EIPs already know they should be treated that way.

What an early warning system should be is a means by which to distinguish ordinary business problems from those with an ethical dimension while the ethical problem is still a small distant ‘blip.’ NonEIPs do indeed need such a system to alert them to the ethical dimension before it overruns them. Goldman alludes to this but fails to provide such a system.

So an early warning system remains elusive, but this in no way diminishes Goldman’s success at providing a very useful tool (The Foursquare Protocol) for managers to deal with already recognized ethical problems in the workplace.

One last subject needs to be delicately broached here. Goldman very early on states that moral philosophy is to be avoided as much as possible given that it is “dense and maddeningly divorced from reality” and that “[b]usiness ethics are too serious a business to be left to the philosophers” (p.xiv). As a philosopher who teaches business ethics, this view requires some token resistance here.

Be assured that I understand what Goldman means by this statement. I have seen the whites of my students’ eyes on more than one occasion. Goldman’s complaint about [*955] ‘maddening’ philosophical abstraction may be fair if being taught ethics in school (Goldman cites his own frustrations with philosophy as an undergraduate in the early 1970s) has the effect of making business people wildly flee in the face of ethical concerns on the job. Reflection has to be ‘managed’ in the real world. And I would hope that Goldman is not meaning to suggest that any ‘Protocol’ could make reflection redundant.

I would as well argue philosophy need not leave such permanent scars and no longer does. And a glance at recent business ethics texts by philosophers (at least the ones that I have seen) should be enough to convince Goldman that most of those authors fully agree that a first priority must be striking the right balance between theory and praxis. With such a glance he will see that even philosophers can be sensible – when we absolutely must.

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© Copyright 2008 by the author, Bruce Howes.

Temptations in the Office: Ethical Choices and Legal Obligations

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INTERNATIONAL LEGITIMACY AND WORLD SOCIETY

by Ian Clark. Oxford: Oxford University Press, 2007. 280pp. Cloth. $65.00/£32.00. ISBN: 9780199297009.

Reviewed by Mark Rigstad, Department of Philosophy, Oakland University. Email: Rigstad [at] oakland.edu.

pp.948-951

Ian Clark’s INTERNATIONAL LEGITIMACY AND WORLD SOCIETY (2007) is an ambitious and quite successful attempt to answer questions that were raised but left open in his LEGITIMACY IN INTERNATIONAL SOCIETY (2005). In the earlier study, Clark examined how historically contingent norms of legitimacy have been periodically renegotiated by states from the Westphalian peace settlement to the post-Cold War era. In the present companion volume, he employs the same historicist methodology – which explicitly owes its pedigree to the English School of international relations theory – in order to investigate the extent to which “international society has been persuaded to adopt new normative frameworks because it has been persuaded that world society has a right to be heard, and for its values to be incorporated” (p.11). His investigation proceeds by means of a series of historical case studies in which the terms of international legitimacy were recast in the process of negotiating peace settlements following major wars. This focus on post-war negotiations as the seminal moments for periodic restructuring of legitimacy builds upon one of the general observations of his previous book (p.37). New terms of legitimacy tend to emerge as victors’ norms. Separate chapters detailing these negotiations cover the post-Napoleonic abolition of slavery among the eight European powers that signed on to the Congress of Vienna in 1815, the regulations of warfare that emerged at the Hague conferences of 1899-1907, the failed attempt to include a norm of racial equality in the League Covenant at Versailles in 1919, the successful attempt to include international norms of social justice governing labor in the same Versailles Treaty, the insertion of human rights provisions at San Francisco in the UN Charter of 1945, and the requirement of democratic governance among European member states in the post-Cold War Charter of Paris. These historical chapters, which are too richly detailed to treat fairly here, are bounded by theoretical chapters that outline Clark’s general findings about the nature of the relationship between international society and world society.

In the theoretical chapters, Clark brings together a plausible blend of insights from both the English School and constructivist approaches to international relations theory. “What both share is a view of inter-state relations as being shaped by common understandings and values that impact upon state behaviour” (p.208). Whereas international society consists of official government actors, world society comprises individual citizens and transnational networks of nongovernmental organizations (INGOs). To understand the nature of [*949] these societies qua societies is to understand their “shared values” or “normative beliefs” (pp.34, 176-177). Although these two societies are “analytically separate,” they share an “increasingly overlapping” history of mutual interaction and interdependence (p.7). What emerges from the central case studies – as well as brief concluding accounts of the Ottawa Convention on Land Mines, the Rome treaty establishing the International Criminal Court, and recent gatherings of the World Trade Organization and the G 7/8 – is a narrative of “normative integration between international and world society” (p.208).

Clark sometimes touches upon the ways in which international society has shaped the development of world society, sometimes by facilitating and sometimes by obstructing the efforts of INGOs. But these moments are only elaborated insofar as they serve his central aim, which is to trace the direction of influence that world society has exercised over international society by acting as a “norm negotiator” (p.192). Norms of legitimacy shape the identities and interests of the members of international society by setting conditions for inclusion and exclusion. These norms are not to be understood as the principles of some ideal theory, but as part of the historically contingent and evolving consensus of international society (pp.32-33, 211). And since these norms sometimes pull in different directions, legitimacy is best understood as the “equilibrium point around which international society develops a consensus” (p.208). When international society periodically renegotiates its norms of legitimacy, in part under the influence of INGOs, “a critical identity shift takes place at the interface of international and world society” (p.209). Contrary to classical realist accounts of international relations, Clark maintains that these changes in norms of inclusion/exclusion are at least as important for understanding international relations as the strategic interplay of state interests. Among other things, states want legitimacy. The normative conceptions of international society tell states how to acquire and maintain this good. While recent constructivist IR theory has been “preoccupied” with this question of “how states come to know what they want” in the context of international society, Clark’s monograph addresses an important lacuna in the literature by focusing on “how international society comes to know what it wants” (p.178). To some extent, however modest, international society sometimes learns what it wants by paying heed to the claims of world society.

If the influence of world society sometimes instructs international society about where its true interests lie, it certainly does no do so with anything approaching sovereign or hegemonic authority. Not only is Clark careful to avoid any such exaggerated claims about the influence of world society, he takes great pains to argue that international society is far from being passive in its exchanges with world society. Although “legitimacy enhances power,” it is also the case that “power facilitates the adoption of certain notions of legitimacy” (p.19). The society of states sometimes must listen to the claims of world society in order to learn what legitimacy requires; but it also tends to grant influence to precisely those world society actors that are most likely to [*950] advance its preconceived interests. The latter, somewhat neglected side of the story makes it mysterious, if not dubious that, as Clark claims, “in most of the cases reviewed in this book, international society appeared to have no particular ‘interest’ in the norm proposed for adoption” (p.21). This claim would indeed be misguided if it were taken to mean that world society has somehow managed to impose new norms against the interests of international society. Clark rejects such an account of the transformations of legitimacy norms, however. Instead, world society actors, with the crucial aid of sympathetic and powerful victor states, manage to persuade international society to embrace changes in its identity and “concomitant changes in its interests” (pp.204, 212). There is no static opposition of interests between world society and international society, but a “progressive integration” between them that yields “reciprocal benefits” (pp.210, 211). On the one hand, international society needs world society as a source of instruction about conditions of legitimacy, especially insofar as these conditions hinge upon human rights norms; and on the other hand, world society needs international society to enforce these norms (p.196).

The extent to which world society now penetrates international society has given rise to two important theses that Clark is especially concerned to repudiate. The first is the notion, popular among “second-generation solidarists,” that the rise of world society’s influence amounts to a displacement of international society (p.33). To the contrary, the patterns of historical change examined here show that we are not simply seeing a transition from a society of states to a new world society of individuals. Detailed analysis of the historical record suggests a far more complex process, which cannot be explicated in terms of a single theoretical model of international social transformation (p.206). The second thesis that Clark is concerned to repudiate would challenge his basic terms of analysis. If, as he admits, world society’s influence has arisen “only in proportion to its relative abandonment of a ‘separate level of existence,’” then one might reasonably wonder whether it makes sense to continue talking about how it confronts and engages with international society (pp.210, 187). His response to this objection has two prongs, one contemporary, and one historical. Since the process of mutual integration between world society and international society is still underway, it “may remain helpful to cling to a concept of world society as a tendency or incomplete process” (p.188). Moreover, if we were “to allow one concept to swallow the other,” then we would forsake “the language needed to convey the rich history of the encounters between these two societies at a series of formative moments” (p.213). The implication of both arguments is that there may or may not come a time when the distinction between world society and international society is no longer significant for understanding geopolitics. We shall have to wait and see.

Clark’s INTERNATIONAL LEGITIMACY AND WORLD SOCIETY is clearly written and organized, informed and fascinating in its historical details, and methodologically cautious in the articulation of its findings. The author carefully lays out his theses in relation to [*951] the relevant literature, and he is consistently fair in his treatment of those with whom he disagrees. The book should be of interest not only to historically-minded theorists of international relations, but also to INGOs and statesmen who wish to learn about the contingencies that lead to successful or failed norm entrepreneurship.

REFERENCES:
Clark, Ian. 2005. LEGITIMACY IN INTERNATIONAL SOCIETY. Oxford: Oxford University Press.

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© Copyright 2008 by the author, Mark Rigstad.

International Legitimacy and World Society

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INTERNATIONAL ECONOMIC LAW: THE STATE AND FUTURE OF THE DISCIPLINE

by Colin B. Picker, Isabella D. Bunn, and Douglas W. Arner (eds). Oxford, England and Portland, Oregon: Hart Publishing, 2008. 344pp. Paper: $60.00/£35.00. ISBN: 9781841137551.

Reviewed by Susan L. Karamanian, The George Washington University Law School. Skaramanian [at] law.gwu.edu.

pp.942-947

INTERNATIONAL ECONOMIC LAW: THE STATE AND FUTURE OF THE DISCIPLINE is a collection of some of the papers presented at the 2006 meeting of the American Society of International Law’s International Economic Law Group (IELG). The 2006 meeting was held at Bretton Woods, New Hampshire, the birthplace in 1944 of what would become the post-war international financial and economic system. The conference organizers, Isabella D. Bunn of the University of Oxford and Colin B. Picker of the University of Missouri Kansas City, along with IELG leadership selected an iconic venue in an effort to inspire the participants. The festivities were held in the historic Mount Washington Hotel, the venue of the 1944 conference.

The focus of the 2006 IELG conference was not the likely one, the history of international trade and finance since 1944. Nor was it the second one that may come to immediate mind, the establishment of the three post-war economic pillars, the World Bank, the International Monetary Fund and the General Agreement on Tariffs and Trade (GATT), later the World Trade Organization (WTO), and the whirlwind of activity associated with each institution.

Instead, the meeting examined the current and future state of a relatively new discipline and what the discipline, understood in a broad sense, means for world order. The organizers pushed the participants to examine international economic law from a dynamic perspective with an emphasis on the future. Views from beyond Europe and the United States were presented, as were ones that added new twists, e.g., the feminist view (Tracey Epps and Rose Ann MacGillivray), the WTO and “opportunists” (Sara Dillon), and the domestic corporate law course as a forum for teaching international economic law (Franklin A. Gevurtz).

In addition to producing a conference with substantial scholarship as reflected in the papers, the IELG leadership had a more ambitious agenda – namely, to use the meeting to create a new, non-US based world forum dedicated to international economic law. True to the mission, the Society of International Economic Law (SIEL) was launched in Geneva, Switzerland in July 2008. SIEL is aimed at academics and academically-minded lawyers and officials, and expressly seeks members from “all parts of the world.” (See Society of International Economic Law available at http://sielnet.org.) [*943]

Bunn and Picker, along with Douglas W. Arner of the University of Hong Kong, edited the conference papers. The results of their efforts and those of the contributors are far more than just another account of trade and investment law with an inward, rigid or technical examination of institutions and the jurisprudence. This book is not a primer on international economic law. Also, the book may be of little use to the reader who is not interested in a critical assessment of the values and policy permeating the discipline. And, therein rests the work’s value, as quite often scholarship in the field gets bogged down in regulatory details without regard to the big picture and other disciplines.

Three chapters, research and scholarship, teaching, and practice/service, frame INTERNATIONAL ECONOMIC LAW. The treatment of these arguably narrow topics, however, is expansive at times. Many of the contributors examine the issues in depth and provide a variety of perspectives, which makes the book useful to an audience beyond the academy. Practitioners and officials of governments and international institutions who undertake their work without reflecting on its policy implications are apt to be blind-sided by the unexpected. This book, if studied closely, should enable the reader to anticipate and deal with the likely changes on the horizon.

Another of the collection’s strengths rests in the diversity of authors and subjects covered and the creativity and critical analysis many of them bring to the subject matter. The 21 contributors are from Europe, Asia, including the sub-continent, the Middle East, New Zealand, Canada and the United States. They are mainly academics, many with experience outside of the university setting, with a few practitioners. Most of the essays adeptly intertwine theory with real-world lessons.

The work’s subjects include an extensive treatment of how international economic law is studied, investigated, and analyzed, what makes it a discipline, its relationship to other disciplines, and the significance of this discussion beyond the discipline and the academy. Another recurring subject is the role of institutions, the WTO, IMF, World Bank, private corporations, and law faculties, in shaping, managing and responding to the discipline. Subjects such as international relations theory, economic theory, sociology, and public international law permeate the discussion on international trade, international banking, and international investment law.

Tomer Broude sets the stage for the book’s first chapter on research, as well as for the other two chapters on teaching and practice, by broadly and critically assessing the relevant landscape. According to Broude, the discipline’s roots, based on the theory that free markets lead to welfare maximization, manifest themselves through the pragmatic liberalism driving the important and essential work of John Jackson and his Michigan school. Yet, the theory may not adequately explain what has happened in practice, as Broude looks to the works of others who have questioned whether the multilateral and bilateral trade regimes have enhanced welfare. His point is not that the theory was wrong from the outset but that something is missing, mainly the [*944] “extra legal” tools to understand and explain.

Gregory Shaffer, Joel P. Trachtman and Andrew Lang respond to Broude by exploring research methods. Shaffer and Trachtman, in separate essays, call for empirical work with Shaffer arguing for a new legal realist approach to the discipline that would use both quantitative and qualitative methods. Both recognize that empirical work alone may not suffice, and it could and should be subjected to a healthy array of methodological criticism. Both admit, however, that serious empirical work would likely be illuminating and, for Shaffer at least, perhaps reshape predispositions. Lang draws on institutional theory within the discipline of sociology to make the same point, and he takes the next step by applying the reasoning and identifying specific research projects and objectives. For example, he makes the case that trade institutions are normative systems, and this, in turn, affects policy. His analysis reflects Shaffer’s plea for qualitative work, an effort that would examine who are the relevant actors, what motivates them when they act and with what result.

Other authors, namely Frederico and Matteo Ortino and Emmanuel Voyiakis, respond to Broude by examining the contours of international economic law. The Ortinos question the role of international law, and they effectively use case studies to prove their point. In their view, to understand cross-border transactions one must be grounded largely in municipal law and private legal instruments, including economic law. Voyiakis, on the other hand, argues thoughtfully about the relationship between WTO law and international law, re-defining and addressing the separatist argument. His essay pushes the reader to look beyond a simple characterization of the problem as one system of law versus another. Instead, the critical issue involves the values each system promotes, and the extent to which these values conflict.

The reasoning in the first chapter can be dense, at times, and its relevance may not be readily apparent to the lawyer in the trenches fighting one of the many daily international economic law battles, whether before the WTO, an international arbitral tribunal, or a municipal court. Yet, the issue of what is international economic law and how it should be studied, analyzed, and presented is important when considered outside of the academy. The lack of a clear understanding of the relevant sources of law and their effect, or at least an appreciation of the complexity of these issues, could result in irrelevant or misguided arguments and bad results.

The book’s second chapter, devoted to the teaching of international economic law, has a relatively narrow focus. Some of the essays, however, draw in broader themes beyond pedagogy. Epps and MacGillivray use empirical methods (data gathering based mainly on interviews and the review of (a) websites about law school faculty members and their teaching and publication records, (b) course enrollment records, and (c) international economic law journals) to establish “a real dearth of feminist perspectives in international economic law, which contrasts to public international law more generally” (p.169). They recognize and identify some of the women who have contributed scholarship to the field. An [*945] interesting focus, not developed but perhaps ripe for later work, would be to examine the role and influence of women trade negotiators who, through their position, have yielded substantial authority – e.g., Carla Hills, Charlene Barshefsky, and Susan Schwab (US Trade Representatives) and Mari Pangestu (Indonesia’s Minister of Trade). Have these women provided “fresh [feminist] insights” which would act “as a stimulus for growth and development” in the field (p.159)?

Frank Gevurtz and Constance Z. Wagner, in separate essays, examine the teaching of international economic law with a focus on corporate responsibility. Gevurtz documents how domestic corporate law imposes certain corporate social responsibility norms. In this and other respects, according to Gevurtz, the distinction between domestic corporate law and international economic law is not that clear. His analysis builds on his firmly-held belief, as reflected in other works, that disaggregating the international from the domestic can be counterproductive. Wagner, on the other hand, advocates a separate course or module on corporate responsibility in the international business transactions curriculum. Sandwiched between the contrasting essays of Gevurtz and Wagner is Seema Sapra’s discussion of teaching international economic law in India, a nation that has undergone substantial economic growth without a clear reform agenda. Sapra, like Gevurtz and Wagner, focuses on the appropriate vehicle for teaching the subject of international economic law, which she considers in a broad context, necessarily tied to domestic governance reform.

Gevurtz, Wagner, and Sapra offer cogent and reasonable arguments for their respective approaches, and none seems strident in his or her approach. Instead, they collectively offer their ideas for the readers’ taking, with Sapra’s of specific relevance to India.

The final chapter is devoted to the practice of international economic law. The essays in this chapter have a strong real-world dimension, which is a nice balance to the theory of the earlier chapters. Douglas Arner provides one of the book’s few overviews, a useful survey of international financial law. The analysis is prescient in its conclusion, as the current financial uncertainty evidences the lack of a crisis resolution mechanism. David A. Gantz documents Vietnam’s accession to the WTO and provides interesting and detailed insight into reforms of Vietnam’s domestic legal system. His work, in addition to being an important record of the accession process, takes on broader issues such as the long-term consequences of WTO membership.

A thought-provoking essay is submitted by Rumu Sarkar, who urges that the World Bank establish an appellate body within the bank, similar to the WTO institutional structure, to review certain decisions of the World Bank Inspection Panel (WBIP) arising out of a complaint by an affected party. At first blush the proposal is curious. Sarkar does not argue that the WBIP, which does not make legal findings, has made bad decisions. She acknowledges that a claim brought before the WBIP is based solely on the World Bank’s failure to follow its own internal guidelines, as opposed to a nation’s failure to follow a treaty. Hence, what is driving her [*946] effort? First, she relishes the development of international administrative law within the World Bank. Second, following the guiding principle of the WBIP, she argues for greater accountability and transparency within the World Bank through the appellate body. Her creative reasoning sets out a detailed draft protocol for an “appellate board” (which, she argues could also be established within the IMF). The unsettled issue, however, is whether there is a pressing need to add this legal dimension to the work of the WBIP.

Andrea Bjorklund’s essay on precedent and investor-state arbitration helps ease the transition from the previous chapters on research methods and teaching. Bjorklund combines legal formalism and a theoretical orientation in arguing that arbitral tribunals are establishing a modern international law of investment and they are doing so in a fairly disciplined manner, somewhat like courts’ reliance on precedent. The significance of her work goes beyond documenting this development, which is in itself important. Bjorklund also identifies various challenges to the process – e.g., the lack of formal rules for steering a tribunal to a particular prior decision, the lack of hierarchy in the tribunals, and the lack of defined ethical standards to guide arbitrators. Like many of the essays, Bjorklund’s contribution tees up a variety of issues for further examination.

The last essay, Andreas F. Lowenfeld’s submission on IMF conditionality, or what he calls the “jurisdiction to prescribe,” is a fitting final one. Lowenfeld targets issues addressed in some of the earlier essays – e.g., sovereignty, the narrowing distinction between international and domestic, and the international acceptance of certain practices. He sets out four proposed principles for the IMF and other international organizations in assessing the legitimacy of regulatory measures that cross national barriers. The proposed principles, measures of “reasonableness,” are consistent with the Restatement of the Foreign Relations Law of the United States’ standards for evaluating the law’s extraterritorial reach. Lowenfeld does not purport to give answers, but instead, as he has done ably over the years, he offers guidance and wisdom. For example, under his “mirror principle,” “[t]he more we would regard such a prescription as excessively intrusive, the less justification there is to break the jurisdictional barrier and prescribe it as a condition” (p.328, emphasis in original). He defines “we” as “first world nations such as the United States, Japan, the United Kingdom, the European Union or one of its prickly member states” (p.328). Ever cautious, Lowenfeld acknowledges the flexibility of the four proposed principles and the need to consider the economic pros and cons of most regulatory decisions.

Lowenfeld’s reasoning rings loudly when one considers the increased foreign investment in the United States, particularly from sovereign wealth funds, and the controversy associated with Dubai Ports World’s proposed acquisition in 2006 of the management of six US ports. Like some of the other authors in the book, he takes a pragmatic view of the issues. He is not wedded to inflexible notions of sovereignty when prudence dictates that a more studied and reasoned understanding of the [*947] world’s problems could bring relevant parties together to reach a better result.

INTERNATIONAL ECONOMIC LAW is a fitting tribute to the Bretton Woods international financial and economic system, with all of its complexities and challenges, and to all of those who have helped build and shape it. The work is necessary reading for the current and future generation of lawyers, policymakers, and scholars from around the world who are committed to maintaining the relevance and development of the discipline.

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© Copyright 2008 by the author, Susan L. Karamanian.

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