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JessicaWirthSecondPaper 6 - 03 Sep 2012 - Main.EbenMoglen
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< | Eben:
Though I was not initially planning on revising this essay, I have had an enlightening summer and what I've learned felt relevant. I have no expectation that you will be able to provide comments since I didn't originally ask for them; I just felt that I should keep thinking and writing after all.
Thanks,
Jessica | | |
International Law as Social Control (or Not) | | | (Words: 999) | |
<
< |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" character on the next two lines: | >
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< | | >
> | So you see now why I begin by defining lawyering as "making
something happening in society using words." You can learn
lawyering, and apply what you know in situations that do not call for
or admit of "law." In truth, international law's lawlessness is not
deeper than the lawlessness of most microsituations on the street, in
business, or in the management of organizations and families. It's
just larger.
Law school, from a realist perspective, should be about lawyering,
not law. Law is the stuff one learns in the process of lawyering,
and law school should teach you how to learn it.
What you are calling "legal training," which I would call "learning
how to be a lawyer," is therefore what you want regardless of whose
baggage—which we might also call rights, interests, or
power—is being sorted through, recognized, forwarded, rifled,
discarded, or transformed. | | | | |
<
< | Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list. | | | \ No newline at end of file | |
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JessicaWirthSecondPaper 5 - 22 Jun 2012 - Main.JessicaWirth
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Eben: | | |
The Weakness of International Law | |
<
< | Black theorizes that it is possible to explain the quantity and style of law, defined as the “normative life of a state and its citizens,” delivered in every individual setting and across settings. (Black, 2, 6). The quantity of law, is measured by the “number and scope of prohibitions, obligations, and other standards...and by the rate of legislation, litigation, and adjudication.” (Black, 3). The style of law, whether penal, compensatory, therapeutic or conciliatory, is explicable based on the social environment in which the law operates. (Black, 4). | >
> | Black theorizes that it is possible to explain the quantity and style of law, defined as the “normative life of a state and its citizens,” delivered in every individual setting and across settings. (Black, 2, 6). The quantity of law is measured by the “number and scope of prohibitions, obligations, and other standards...and by the rate of legislation, litigation, and adjudication.” (Black, 3). The style of law, whether penal, compensatory, therapeutic or conciliatory, is explicable based on the social environment in which the law operates. (Black, 4). | | | In applying Black’s framework to explain the quantity and style of international law as it operates against countries, I realized that it is hard to conclude that international law, which derives from custom and convention, is actually law at all. | | | Thinking Beyond Law
In my summer job, I recently attended negotiations between two factions within a group opposed to a dictator in the Middle East. They had the same objective – to overthrow this man – but the majority had long denied rights and citizenship to the minority, and the minority had in turn violently agitated for independence. But the political landscape had changed, and they suddenly needed each other. | |
<
< | Their history, their different languages and cultures, their perceptions of power relative to the other, the centuries of mistrust and resentment that had accrued – all were more powerful in that room than law. The lawyers present knew that, and operated within it. As the only people there not controlled or influenced by the record of discord, the lawyers for each side spotted when the parties were close on an issue, or when one side was tiring and might cave, or when one side was closing to walking out and the tone needed to be recalibrated, and in that fatiguing manner, they waded through the morass to come up with and technically draft seven points of agreement over two days. | >
> | Their history, their different languages and cultures, their perceptions of power relative to the other, the centuries of mistrust and resentment that had accrued – all were more powerful in that room than law. The lawyers present knew that, and operated within it. As the only people there not controlled or influenced by the record of discord, the lawyers for each side spotted when the parties were close on an issue, or when one side was tiring and might cave, or when one side was verging on walking out and the tone needed to be recalibrated, and in that fatiguing manner, they waded through the morass to come up with and technically draft seven points of agreement over two days. | | | Seven points of agreement over two days. None of it would have happened if the parties were unwilling to negotiate, but it was close to not happening anyway because of all of the extra baggage. There will always be baggage, though, and I can use legal training, if not the law itself, to sort through it. |
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JessicaWirthSecondPaper 4 - 21 Jun 2012 - Main.JessicaWirth
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| META TOPICPARENT | name="SecondPaper" |
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>
> | Eben:
Though I was not initially planning on revising this essay, I have had an enlightening summer and what I've learned felt relevant. I have no expectation that you will be able to provide comments since I didn't originally ask for them; I just felt that I should keep thinking and writing after all.
Thanks,
Jessica | | | | |
<
< | The Largest Nearby Tree: International Law as Social Control (or Not) | >
> | International Law as Social Control (or Not) | | | | |
<
< | -- By JessicaWirth - 23 Apr 2012 | >
> | -- By JessicaWirth - 21 June 2012 | | | A Misplaced Belief | |
<
< | I came to law school because of an abiding interest, since my first public policy class my freshman year of college, in engineering solutions to global collective action problems. The most notable of these is the failure to mitigate climate change, but other environmental trends –the shrinking supply of potable water, growing desertification and its effects on migration and urbanization, the loss of biodiversity –are also critically important. Taking climate change as an example, the underlying premise is that no single state actor will altruistically decrease emissions where it knows that it will be singularly expensive for it to do so and also minimally efficacious absent cuts by other emitters. | >
> | I came to law school because of an abiding interest, since my first public policy class my freshman year of college, in engineering solutions to global collective action problems. The most notable of these is the failure to mitigate climate change, but other environmental trends – the shrinking supply of potable water, growing desertification and its effects on migration and urbanization, the loss of biodiversity – also loom. Taking climate change as an example, the underlying premise is that no nation acting alone will decrease emissions; it cannot justify bearing the entire cost when changing its output has minimal impact absent similar cuts by other emitters. | | | | |
<
< | I can’t pinpoint where or how it happened, but after a couple discouraging summers in Washington D.C. and two years at a foreign policy think tank, I grew tired of politics and people spewing hot air. Law school was a convenient catchall. Somewhere in the law, I figured, there was a way to accomplish meaningful international environmental objectives. My assumption was solidified when I started looking at law school seriously and saw international law touted in each glossy brochure. | >
> | I looked for solutions in policy and politics, but became discouraged at what I perceived to be political cowardice, gridlock, and sheer ignorance. Law school was a convenient place to project my aspirations; somewhere in the law, I figured, was a way to accomplish meaningful international environmental objectives. I thought I could work within the framework of international law to bypass the impossible, frustrating mechanics of Washington, and generate change from the outside in. I did not consider, and none of Columbia’s glossy brochures mentioned, that law is actually the weakest way to bind and obligate, especially internationally. | | | | |
<
< | It did not occur to me that law was actually the weakest way to bind and obligate, particularly internationally. | | | The Weakness of International Law | |
<
< | Black theorizes that it is possible to explain the quantity and style of law delivered in every individual setting and across settings. (Black, 6). In Black’s construct, “law” is “governmental social control,” which he further defines as “the normative life of a state and its citizens, such as legislation, litigation, and adjudication.” (Black, 2). The quantity of law increases and decreases, and is measured by the “number and scope of prohibitions, obligations, and other standards…and by the rate of legislation, litigation, and adjudication.” (Black, 3). The style of law employed, whether penal, compensatory, therapeutic or conciliatory, is explicable based on the social environment in which the law operates. (Black, 4). | >
> | Black theorizes that it is possible to explain the quantity and style of law, defined as the “normative life of a state and its citizens,” delivered in every individual setting and across settings. (Black, 2, 6). The quantity of law, is measured by the “number and scope of prohibitions, obligations, and other standards...and by the rate of legislation, litigation, and adjudication.” (Black, 3). The style of law, whether penal, compensatory, therapeutic or conciliatory, is explicable based on the social environment in which the law operates. (Black, 4).
In applying Black’s framework to explain the quantity and style of international law as it operates against countries, I realized that it is hard to conclude that international law, which derives from custom and convention, is actually law at all. | | | | |
<
< | Black applies his theory to explain the behavior of law in individual situations, from which one may draw comparisons across places or across history. In applying his framework to explain the quantity and style of international law as it operates against countries, I encountered an initial problem that I wasn’t expecting. Had it occurred to me earlier, I would not have applied to law school at all: it is hard to conclude that international law, which derives from custom and convention, is actually law at all. | >
> | Custom in international law refers to customs derived across countries, not derived within countries. Custom within a country is akin to a traditional practice, and it has clear legal output. For instance, the traditional practice of denying women in the Middle East and parts of Africa property rights creates a legal output: foreclosure of the legal right own or inherit land and the denial of access to remedies at law. Customary international law does not have the same effect. For example, customary international law (since codified in the International Convention on Economic, Social and Cultural Rights), holds that women have equal rights to own property and that laws cannot be administered in a discriminatory fashion against them. This international custom may not have a legal output. Iran is party to the ICESCR, yet women may not own property there. | | | | |
<
< | Custom does not meet Black’s definition of law because it does not lead to quantifiable legislative or adjudicatory outputs. One problem is that there is disagreement about what is customary as across nations. When it agreed upon –for example, it is almost universally accepted that genocide is contrary to customary international humanitarian law—responses to a country’s breach of custom vary, largely based on the breaching party’s international standing or geopolitical significance, and the extent to which other countries are galvanized to do something. In essence, the international custom against genocide only creates an output when we care enough for it to do so. | >
> | Conventional international law is slightly more like law as Black defines it. Countries that ratify or accede to conventions are “obligated” to take affirmative steps to achieve the measure defined in the agreement, typically through their domestic legislative process; countries who sign are “obligated” to respect the provisions of the agreement. “Obligated,” is a strong descriptor, though, given that there are not necessarily legal outputs for the failure to comply. Domestic litigation is possible only if the country incorporates the treaty into its national body of law or the judiciary finds international law authoritative. International litigation may result if there is an optional protocol designating a forum in which to bring suit. Such fora, however, typically lack enforcement mechanisms (see the lack of action resulting from SERAC v. Nigera, in which the African Commission held that Nigeria violated its obligations under the African Charter). Absent litigation, the only output is reprimand by the U.N. body responsible for monitoring the treaty. | | | | |
<
< | Conventional law seems the stronger candidate to actually be law because treaties and agreements place affirmative obligations on parties to undertake particular, measurable things. For example, the parties to the Kyoto Protocol must nominally reduce their emissions in five year increments. To do this, they must pass laws, trade emissions, or finance cleaner energy projects, all of which affect the normative life of the state. However, if conventional international law is law, it operates in very low quantities and its style is largely conciliatory and therapeutic. Kyoto, for example, does not have monetary penalties for non-compliance. Rather, the enforcement bureau works with the non-compliant state and affords it numerous exceptions and chances to meet its obligations. The only looming punishment is being barred from trading emissions, but this is a last resort that is only employed after years (or decades, given the tempo of the U.N.), of other interventions. | >
> | If international law is not law, or if it is law that operates at such conciliatory level as to have little practical influence, then I must admit that the other forms of social control which so frustrated me that I tried to circumvent them through law actually explain what happens in the realm in which I hope to have an impact. I am training as a lawyer because I made the naïve mistake of many who have come before me. I could quit, or I could figure out what legal training gives me that will help me be useful in an arena where law matters very little. | | | | |
<
< | My conclusion from attempting to explain the behavior of international law is that one source of international law is not actually law. This is not an inherently bad thing, as I would have thought when I was applying to law school; rather, it simply means that other forms of social control besides law actually explain what happens in this realm. It is, like Black says, part of much of social life that is “anarchic.” (Black, 2). The other source of international law behaves at a very low level, which Black’s theory would explain by saying that other theories of social control besides law are stronger. | | | Thinking Beyond Law | |
<
< | Two months ago, I attended a dinner for international legal practitioners. I was at the dinner through a student group, and mostly went because I’m not one to turn down subsidized filet mignon. In the course of making small talk during the cocktail hour, I mentioned that this summer I will be joining a public interest law firm that provides pro bono legal assistance to countries coming out of conflicts, like the South Sudan, which seek to forge new international legal agreements. The man I told this to looked amused. He, as it turns out, had been heavily involved in South Sudan’s referendum and its subsequent attempt to build a central justice system that could co-exist with sixty brands of tribal law, engrained cultural traditions, and pockets of Shari’a. As the lights flashed, signaling dinner, he gave me one last piece of advice in his charming, formal English: “In many South Sudanese villages, the court is generally the largest nearby tree.” | >
> | In my summer job, I recently attended negotiations between two factions within a group opposed to a dictator in the Middle East. They had the same objective – to overthrow this man – but the majority had long denied rights and citizenship to the minority, and the minority had in turn violently agitated for independence. But the political landscape had changed, and they suddenly needed each other.
Their history, their different languages and cultures, their perceptions of power relative to the other, the centuries of mistrust and resentment that had accrued – all were more powerful in that room than law. The lawyers present knew that, and operated within it. As the only people there not controlled or influenced by the record of discord, the lawyers for each side spotted when the parties were close on an issue, or when one side was tiring and might cave, or when one side was closing to walking out and the tone needed to be recalibrated, and in that fatiguing manner, they waded through the morass to come up with and technically draft seven points of agreement over two days.
Seven points of agreement over two days. None of it would have happened if the parties were unwilling to negotiate, but it was close to not happening anyway because of all of the extra baggage. There will always be baggage, though, and I can use legal training, if not the law itself, to sort through it. | | | | |
<
< | He was alluding to what I now understand: my work this summer and as the kind of lawyer I want to be will extend beyond the confines of “law.” I thought law was an answer, but it is only a starting line. I look forward to learning what else matters, because that is how I will do what I came here to do. | >
> | (Words: 999) | | | | |
<
< | (Words: 997) | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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JessicaWirthSecondPaper 3 - 30 Apr 2012 - Main.JessicaWirth
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| META TOPICPARENT | name="SecondPaper" |
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| | | A Misplaced Belief
I came to law school because of an abiding interest, since my first public policy class my freshman year of college, in engineering solutions to global collective action problems. The most notable of these is the failure to mitigate climate change, but other environmental trends –the shrinking supply of potable water, growing desertification and its effects on migration and urbanization, the loss of biodiversity –are also critically important. Taking climate change as an example, the underlying premise is that no single state actor will altruistically decrease emissions where it knows that it will be singularly expensive for it to do so and also minimally efficacious absent cuts by other emitters. | |
<
< | I can’t pinpoint where or how it happened, but after a couple discouraging summers in Washington D.C. and two years at a foreign policy think tank, I grew tired of politics and people spewing hot air. I felt stuck. Law school was a convenient catchall. Somewhere in the law, I figured, there was a way to accomplish meaningful international environmental objectives. My assumption was solidified when I started looking at law school seriously and saw international law touted in each glossy brochure. | >
> | I can’t pinpoint where or how it happened, but after a couple discouraging summers in Washington D.C. and two years at a foreign policy think tank, I grew tired of politics and people spewing hot air. Law school was a convenient catchall. Somewhere in the law, I figured, there was a way to accomplish meaningful international environmental objectives. My assumption was solidified when I started looking at law school seriously and saw international law touted in each glossy brochure. | | | It did not occur to me that law was actually the weakest way to bind and obligate, particularly internationally. | | | Custom does not meet Black’s definition of law because it does not lead to quantifiable legislative or adjudicatory outputs. One problem is that there is disagreement about what is customary as across nations. When it agreed upon –for example, it is almost universally accepted that genocide is contrary to customary international humanitarian law—responses to a country’s breach of custom vary, largely based on the breaching party’s international standing or geopolitical significance, and the extent to which other countries are galvanized to do something. In essence, the international custom against genocide only creates an output when we care enough for it to do so. | |
<
< | Conventional law seems the stronger candidate to actually be law because treaties and agreements place affirmative obligations on parties to undertake particular, measurable things. For example, the parties to the Kyoto Protocol must nominally reduce their emissions in five year increments. To do this, they must pass laws, trade emissions, or finance cleaner energy projects, all of which affect the normative life of the state. However, if conventional international law is law, it operates in very low quantities and its style is largely conciliatory and therapeutic. Kyoto, for example, does not have monetary penalties for non-compliance. Rather, the enforcement bureau works with the non-compliant state and affords it numerous exceptions and chances to meet its obligations. The only looming punishment is being barred from trading emissions, but this is a last resort that is only employed after years, or decades, knowing the haste of the U.N., of other interventions. | >
> | Conventional law seems the stronger candidate to actually be law because treaties and agreements place affirmative obligations on parties to undertake particular, measurable things. For example, the parties to the Kyoto Protocol must nominally reduce their emissions in five year increments. To do this, they must pass laws, trade emissions, or finance cleaner energy projects, all of which affect the normative life of the state. However, if conventional international law is law, it operates in very low quantities and its style is largely conciliatory and therapeutic. Kyoto, for example, does not have monetary penalties for non-compliance. Rather, the enforcement bureau works with the non-compliant state and affords it numerous exceptions and chances to meet its obligations. The only looming punishment is being barred from trading emissions, but this is a last resort that is only employed after years (or decades, given the tempo of the U.N.), of other interventions. | | |
My conclusion from attempting to explain the behavior of international law is that one source of international law is not actually law. This is not an inherently bad thing, as I would have thought when I was applying to law school; rather, it simply means that other forms of social control besides law actually explain what happens in this realm. It is, like Black says, part of much of social life that is “anarchic.” (Black, 2). The other source of international law behaves at a very low level, which Black’s theory would explain by saying that other theories of social control besides law are stronger.
Thinking Beyond Law | |
<
< | Two months ago, I attended a dinner for international legal practitioners. I was at the dinner through a student group, and mostly went because I’m not one to turn down subsidized filet mignon. In the course of making small talk during the cocktail hour, I mentioned that this summer I will be joining a public interest law firm that provides pro bono legal assistance to countries coming out of conflicts, like the South Sudan, which seek to forge new international legal agreements. The man I told this to looked amused. He, as it turns out, had been heavily involved in South Sudan’s referendum and its subsequent attempt to build a central justice system that could co-exist with sixty brands of tribal law, engrained cultural traditions, and pockets of Shari’a. As the lights flashed, signaling dinner, he gave me one last piece of advice in his charming, formal English: “In many South Sudanese villages, the court is generally the largest tree.” | >
> | Two months ago, I attended a dinner for international legal practitioners. I was at the dinner through a student group, and mostly went because I’m not one to turn down subsidized filet mignon. In the course of making small talk during the cocktail hour, I mentioned that this summer I will be joining a public interest law firm that provides pro bono legal assistance to countries coming out of conflicts, like the South Sudan, which seek to forge new international legal agreements. The man I told this to looked amused. He, as it turns out, had been heavily involved in South Sudan’s referendum and its subsequent attempt to build a central justice system that could co-exist with sixty brands of tribal law, engrained cultural traditions, and pockets of Shari’a. As the lights flashed, signaling dinner, he gave me one last piece of advice in his charming, formal English: “In many South Sudanese villages, the court is generally the largest nearby tree.” | | | He was alluding to what I now understand: my work this summer and as the kind of lawyer I want to be will extend beyond the confines of “law.” I thought law was an answer, but it is only a starting line. I look forward to learning what else matters, because that is how I will do what I came here to do. | |
<
< | (Words: 999) | >
> | (Words: 997) | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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JessicaWirthSecondPaper 2 - 24 Apr 2012 - Main.JessicaWirth
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| META TOPICPARENT | name="SecondPaper" |
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| | | Black theorizes that it is possible to explain the quantity and style of law delivered in every individual setting and across settings. (Black, 6). In Black’s construct, “law” is “governmental social control,” which he further defines as “the normative life of a state and its citizens, such as legislation, litigation, and adjudication.” (Black, 2). The quantity of law increases and decreases, and is measured by the “number and scope of prohibitions, obligations, and other standards…and by the rate of legislation, litigation, and adjudication.” (Black, 3). The style of law employed, whether penal, compensatory, therapeutic or conciliatory, is explicable based on the social environment in which the law operates. (Black, 4).
Black applies his theory to explain the behavior of law in individual situations, from which one may draw comparisons across places or across history. In applying his framework to explain the quantity and style of international law as it operates against countries, I encountered an initial problem that I wasn’t expecting. Had it occurred to me earlier, I would not have applied to law school at all: it is hard to conclude that international law, which derives from custom and convention, is actually law at all. | |
>
> | | | | Custom does not meet Black’s definition of law because it does not lead to quantifiable legislative or adjudicatory outputs. One problem is that there is disagreement about what is customary as across nations. When it agreed upon –for example, it is almost universally accepted that genocide is contrary to customary international humanitarian law—responses to a country’s breach of custom vary, largely based on the breaching party’s international standing or geopolitical significance, and the extent to which other countries are galvanized to do something. In essence, the international custom against genocide only creates an output when we care enough for it to do so. | |
<
< | Conventional law seems the stronger candidate to actually be law because treaties and agreements place affirmative obligations on parties to undertake particular, measurable things. For example, the parties to the Kyoto Protocol must nominally reduce their emissions in five year increments. To do this, they must pass laws, trade emissions, or finance cleaner energy projects, all of which affects the normative life of the state. However, if conventional international law is law, it operates in very low quantities and its style is largely conciliatory and therapeutic. Kyoto, for example, does not have monetary penalties for non-compliance. Rather, the enforcement bureau works with the non-compliant state and affords it numerous exceptions and chances to meet its obligations. The only looming punishment is being barred from trading emissions, but this is a last resort that is only employed after years, or decades, knowing the haste of the U.N., of other interventions. | >
> | Conventional law seems the stronger candidate to actually be law because treaties and agreements place affirmative obligations on parties to undertake particular, measurable things. For example, the parties to the Kyoto Protocol must nominally reduce their emissions in five year increments. To do this, they must pass laws, trade emissions, or finance cleaner energy projects, all of which affect the normative life of the state. However, if conventional international law is law, it operates in very low quantities and its style is largely conciliatory and therapeutic. Kyoto, for example, does not have monetary penalties for non-compliance. Rather, the enforcement bureau works with the non-compliant state and affords it numerous exceptions and chances to meet its obligations. The only looming punishment is being barred from trading emissions, but this is a last resort that is only employed after years, or decades, knowing the haste of the U.N., of other interventions. | | |
My conclusion from attempting to explain the behavior of international law is that one source of international law is not actually law. This is not an inherently bad thing, as I would have thought when I was applying to law school; rather, it simply means that other forms of social control besides law actually explain what happens in this realm. It is, like Black says, part of much of social life that is “anarchic.” (Black, 2). The other source of international law behaves at a very low level, which Black’s theory would explain by saying that other theories of social control besides law are stronger. |
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JessicaWirthSecondPaper 1 - 23 Apr 2012 - Main.JessicaWirth
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>
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| META TOPICPARENT | name="SecondPaper" |
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The Largest Nearby Tree: International Law as Social Control (or Not)
-- By JessicaWirth - 23 Apr 2012
A Misplaced Belief
I came to law school because of an abiding interest, since my first public policy class my freshman year of college, in engineering solutions to global collective action problems. The most notable of these is the failure to mitigate climate change, but other environmental trends –the shrinking supply of potable water, growing desertification and its effects on migration and urbanization, the loss of biodiversity –are also critically important. Taking climate change as an example, the underlying premise is that no single state actor will altruistically decrease emissions where it knows that it will be singularly expensive for it to do so and also minimally efficacious absent cuts by other emitters.
I can’t pinpoint where or how it happened, but after a couple discouraging summers in Washington D.C. and two years at a foreign policy think tank, I grew tired of politics and people spewing hot air. I felt stuck. Law school was a convenient catchall. Somewhere in the law, I figured, there was a way to accomplish meaningful international environmental objectives. My assumption was solidified when I started looking at law school seriously and saw international law touted in each glossy brochure.
It did not occur to me that law was actually the weakest way to bind and obligate, particularly internationally.
The Weakness of International Law
Black theorizes that it is possible to explain the quantity and style of law delivered in every individual setting and across settings. (Black, 6). In Black’s construct, “law” is “governmental social control,” which he further defines as “the normative life of a state and its citizens, such as legislation, litigation, and adjudication.” (Black, 2). The quantity of law increases and decreases, and is measured by the “number and scope of prohibitions, obligations, and other standards…and by the rate of legislation, litigation, and adjudication.” (Black, 3). The style of law employed, whether penal, compensatory, therapeutic or conciliatory, is explicable based on the social environment in which the law operates. (Black, 4).
Black applies his theory to explain the behavior of law in individual situations, from which one may draw comparisons across places or across history. In applying his framework to explain the quantity and style of international law as it operates against countries, I encountered an initial problem that I wasn’t expecting. Had it occurred to me earlier, I would not have applied to law school at all: it is hard to conclude that international law, which derives from custom and convention, is actually law at all.
Custom does not meet Black’s definition of law because it does not lead to quantifiable legislative or adjudicatory outputs. One problem is that there is disagreement about what is customary as across nations. When it agreed upon –for example, it is almost universally accepted that genocide is contrary to customary international humanitarian law—responses to a country’s breach of custom vary, largely based on the breaching party’s international standing or geopolitical significance, and the extent to which other countries are galvanized to do something. In essence, the international custom against genocide only creates an output when we care enough for it to do so.
Conventional law seems the stronger candidate to actually be law because treaties and agreements place affirmative obligations on parties to undertake particular, measurable things. For example, the parties to the Kyoto Protocol must nominally reduce their emissions in five year increments. To do this, they must pass laws, trade emissions, or finance cleaner energy projects, all of which affects the normative life of the state. However, if conventional international law is law, it operates in very low quantities and its style is largely conciliatory and therapeutic. Kyoto, for example, does not have monetary penalties for non-compliance. Rather, the enforcement bureau works with the non-compliant state and affords it numerous exceptions and chances to meet its obligations. The only looming punishment is being barred from trading emissions, but this is a last resort that is only employed after years, or decades, knowing the haste of the U.N., of other interventions.
My conclusion from attempting to explain the behavior of international law is that one source of international law is not actually law. This is not an inherently bad thing, as I would have thought when I was applying to law school; rather, it simply means that other forms of social control besides law actually explain what happens in this realm. It is, like Black says, part of much of social life that is “anarchic.” (Black, 2). The other source of international law behaves at a very low level, which Black’s theory would explain by saying that other theories of social control besides law are stronger.
Thinking Beyond Law
Two months ago, I attended a dinner for international legal practitioners. I was at the dinner through a student group, and mostly went because I’m not one to turn down subsidized filet mignon. In the course of making small talk during the cocktail hour, I mentioned that this summer I will be joining a public interest law firm that provides pro bono legal assistance to countries coming out of conflicts, like the South Sudan, which seek to forge new international legal agreements. The man I told this to looked amused. He, as it turns out, had been heavily involved in South Sudan’s referendum and its subsequent attempt to build a central justice system that could co-exist with sixty brands of tribal law, engrained cultural traditions, and pockets of Shari’a. As the lights flashed, signaling dinner, he gave me one last piece of advice in his charming, formal English: “In many South Sudanese villages, the court is generally the largest tree.”
He was alluding to what I now understand: my work this summer and as the kind of lawyer I want to be will extend beyond the confines of “law.” I thought law was an answer, but it is only a starting line. I look forward to learning what else matters, because that is how I will do what I came here to do.
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