|
Law in Contemporary Society
|
|
The Largest Nearby Tree: International Law as Social Control (or Not)-- By JessicaWirth - 23 Apr 2012A Misplaced BeliefI 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. 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 LawBlack 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 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 LawTwo 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: 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. To restrict access to your paper simply delete the "#" character on the next two lines:
|
|
