Saturday, May 26, 2007

Methodological heterogeneity and the larger intellectual setting of international law scholarship (post 1 of 4)

Heterogeneity and the “two cultures.” (This first post won't have much to say about international law scholarship, I'm afraid. It seeks to locate shifts in international law scholarship against the larger intellectual backdrop of the academy and the legal academy, and so starts elsewhere than international law.)

Like many in the field of academic international law, I have been struck during the past decade by the increasing methodological, intellectual, and ideological heterogeneity that has begun to enter our field. Arguments from sovereignty, rationalism, neo-conservatism, empiricism, neo-marxist anti-globalization neo-imperialism counter-hegemony theory, rational choice, feminism, IR theory, from ... well, where did all this new stuff come from, and what is its influence in an academy hithertofor comfortably ensconced largely in a method of prescriptive moralizing as law (even if sometimes wrapped in plain-vanilla doctrinal lawyering) in support of an ideology of liberal internationalism?

At the same time, however – and again like many others in the field – I am struck by the fact that this heterogeneity is actually late in coming to international law. Waves of new methodologies, intellectual orientations, and ideological diversity have come to many other fields of law long before now, decisively reshaping those fields decades ago, and long before they have barely begun to seep into international law scholarship. That conjoined observation – the arrival of heterogeneity, but late, comparatively – asks for its own explanation.

It is possible to overstate the heterogeneity, and I am sure I sometimes do, as someone fundamentally interested in seeing the field open up. For one thing, the intellectual diversification of the field of international law is almost entirely a phenomenon of the American international legal academy. I, at least, see little evidence of it elsewhere, in Europe, or in the rest of the world. There are complex reasons for that divide, I would guess – a much greater methodological commitment, for example, abroad and in Europe to international law in a positive law framework (particularly the methodological sense among many that positive law is a “scientific” approach to law, rather than something that requires external, particularly social science explanations); a fervent if sometimes intangible belief in Europe that the experience of the EU bears lessons for the world as a whole; fewer scholars outside the US entering the field with the new gold-standard qualifications of economics and social science; and a greater ideological commitment to liberal internationalism for which positive law approaches can have the tendency methodologically to assume the ideological conclusion.

Part of the answer to the “lateness” question is likely the fact that the field is not dominated by Americans, and hence is much slower to respond to intellectual movements within the United States legal academy. That includes a certain resistance from Europeans and others outside the United States, who see, among other things, the tendency (I am cribbing from Jose Alvarez) of American scholars to see international law as policy as a way of shortchanging its positive law obligations. On the other hand, seen from the perpsective of the rest of the American legal academy, academic international law in the overall American legal academy appears as a sort of “soft target” for scholars who have honed a method – law and economics, rational choice, etc. – elsewhere in law and who, in international law scholarship, see an unplowed field. Would not Eric Posner, who is a fine and plain-spoken fellow, likely agree? To which the response is, well, to a hammer everything looks like a nail. And then the replies and counter-replies: but it is in any case a very American argument.

These movements in United States international law scholarship also partake of much larger intellectual movements, in law as well as the still larger academy. I mention them only in passing because they raise matters too large deeply to consider – yet it is important to keep them in mind, even if they do not appear directly to bear on international legal scholarship.

C.P. Snow famously wrote, now fifty years ago, of the development of the “two cultures” of science and the humanities, and their tendency to become ships passing in the night. There is some reason to think that today we are seeing a repeat version of that. Only it is not the divide between the sciences – the physical sciences and technology – and the humanities that yawns increasingly today, but instead the divide between the social sciences and the humanities. For many and complicated reasons, the center of gravity over facts and facticity, knowledge and even truth, has shifted from the humanities – in part because of the post-modern retreat of so much of it from claims of universalism – to social science, led by the upsurge in the prestige of economics. (Part of the upsurge in the prestige of economics as a deliverer of "truth," to be sure, lies in the pragmatist shift in how truth is understood, to become something closer to a pragmatist view of truth as "facts," in a "local" sense - but moving along, though this point is far from unrelated to legal scholarship today. Post-modernism in the humanities, for its part, might, I suppose, be right – but right or not, the effect of its method has been the systematic sawing off of the branch that the humanities sits upon insofar as these fields claim to be revelatory of broad truths about human beings, as Zygmunt Bauman once put it.) Nature and intellectuals, however, abhor a vacuum. The social sciences have moved to fill that gap – even if, to be sure, the things which are measurable by the methods of the social sciences, through surveys, public health statistics, etc., are not necessarily the things we would want to measure in order to understand what used to be known as the human condition.

Why raise something so large and speculative and unapparently unrelated here? Well, to the extent this is true, our own intellectual field, law, stands squarely at the gap, with a foot on each side, as it yawns, however, farther and farther apart. Again, law-at-the-gap is a peculiarly American phenomenon, for the accidental reason (in part) that law school and law professors require an undergraduate degree, but in potentially any subject matter – altogether different from most of the world. Our intellectual backgrounds come from the humanities, social sciences, hard sciences, the arts – and our intellectual predispositions are often interdisciplinary, for this is precisely what brought many of us into the American legal academy rather than remaining to specialize in our undergraduate fields. (That, and the higher pay.) We straddle the divide and make an effort to straddle it, to keep a foot in each camp. Yet it becomes harder and harder over time, as fields and discourses advance and become more specialized. The gap yawns and widens.

Not exactly news, of course. In that process, however, momentum in the legal academy has clearly been with the social sciences, led by economics. When I was a law student in the early 1980s, philosophy was the backbone of the intellectual project of law, but even at that moment, the mantle was passing to economics. Philosophy, especially moral theory, retains very considerable importance, but it is now conjoined with economic and empirical and social science thought within the field of jurisprudence – see, e.g., the explicitly interdisciplinary work of Larry Solum and Brian Leiter – and it is no longer so clearly the prestige intellectual driver, the prestige foundational field, of the legal academy that it once was. Other parts of the humanities, particularly insofar as they have been absorbed into post-modernism, have effectively retreated within the legal academy into their own sub-worlds – cultural studies, law and literature, etc., all interesting subgenres, but plainly not leading within the legal academy. Indeed, to a great extent, those fields have retreated into their own hermetically sealed worlds.

The phenomenon of the “two cultures,” then, updated to the social sciences and the humanities (and the humanities represented here, in our world of international law, as the assertion of values, moral discourse, idealism, and legal prescriptivism embodying all that) is finally coming to the field of international law, at least in the United States. Long present in the larger academy, long present in the legal academy, and finally arriving in international law scholarship. And this is the American debate, quite apart from the debate with the rest of the world over the intellectual place of the project of positive international law. It has been going on for the past fifteen years, but the pace has been accelerating.

Why should the pace accelerate? There are potentially lots of reasons, ranging from the snowball effect to shifts in how younger scholars are trained and what they are interested in. These effects finally catch up to international law scholarship for the same reason that Einer Elhauge, for example, has just produced what is in essence a comparativist textbook on competition law, even though he would not describe himself as primarily an international law scholar – globalization has made international and comparative law a natural necessity across many, many fields, especially in areas of economic law. All of these answers could be true in greater or lesser degree. I want to focus on one, however – partly for its own interest and partly because it illustrates a larger issue. It is the intersection and dissection of method and ideology, but first I will say a word about ideology separately.