With respect to formal law and regulation, it is worth thinking about her arguments that “[a] fresh type of segmentation is occurring inside the state apparatus, characterised by a growing and increasingly privatised executive branch of government aligned with specific global actors (notwithstanding nationalist speeches), alongside a hollowing out of the legislature whose effectiveness is at risk of becoming confined to fewer - and more domestic - matters.”  This decline of legislative power (and the privatization of government) is a big issue for domestic law in the US, with extensive “executive power” debates (small examples include this recent NYTimes article here and a Boston Globe article on the presidential candidates here - though many have argued that this increase was a trend under Bill Clinton as well), all too often without considering whether or not this is happening with respect to more “international” issues, whether increased power and privatization are linked, whether this is happening elsewhere in the world and if there is something larger to be considered.  And this should all be considered beyond the hot-button issues of the war on terror and include executive power in economic matters as well.

This also fits in nicely with notions of transnational regimes for economic policy-making (run by “experts”… “elites” might also be appropriate… perhaps these experts are more at ease in executive branches than in legislative… or are more able to get what they want?) per David Kennedy’s work.  Alas, the wonderful former HLS/Fletcher prof and student is now at Brown as VP for international affairs and a prof of international relations.  Congratulations to him, but surely a loss for HLS. 

The sections on “colonialism” and “globalization” concepts of non-state law are probably of most interest to international lawyers, but Hertogh notes that the non-state law concept entered, at least for a time, the area of “legal pluralism at home”, using such examples as Ellickson’s work on societal norms in Shasta Country (still a favorite among some law and society types or law and econ scholars, etc.).  This is an interesting link to make as perhaps lawyers looking at international legal pluralism, either to support it or to critique it. also need to take more into account legal pluralism at other levels (local, national, etc.), at least to find arguments and ideas to work with (including whether or not more codified law is necessary for “international law” to be more effective).  This exercise might remain useful even if the newer “globalization” notion of non-state law is, as Hertogh argues, significantly different from the “colonialism” and “legal pluralism at home” notions of non-state law.

This is obviously an interesting take, and pokes holes at some of the main realist histories which have taken on a sort of “truth” through sheer repetition.  It is interesting to note though that this article focuses almost exclusively jus in bello (laws of war — how it is engaged in), and there is little mention of jus ad bellum (”Just War Theory”…laws of when wars can be engaged, etc.).  Some scholars, though no means all, are willing to give more of a pass to jus in bello (that things such as the Geneva Conventions are generally binding — note it is a very different question than which particular rules under the Geneva Conventions might be binding in any given situation) as more binding international law than jus ad bellum (such as arguments that the US war in Iraq is legal or illegal).  Was there any Greek thought on jus ad bellum?  On what might or might not be valid reasons to engage or not engage in war?

This is all the more interesting as the Melian dialogue is often used by realists in arguments about jus ad bellum more than jus in bello.  After all, the Melians are basically arguing that their neutrality should be respected under international law.  Athens goes with a “might makes right” approach… “you know as well as we do that right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must” (translated differently, and almost certainly more accurately, in Lanni’s article, but the sentiment is the same).  Therefore the Melians should pay tribute or be destroyed.  This is far more a question of what is a Just War and whether the Athenians can “legally” or justly/rightly attack the Melians at all, rather than a question of the actual conduct of the war once it is decided upon.  

On a separate note, it is also interesting to think how this might tie into later Western notions of laws of war, largely based on Judeo-Christian heritage and thus sometimes dismissed for being simply appeals to a higher power that have no independent or “legal” binding.  But if the Greeks also felt they were restricted in some way, perhaps others did too.  Is this just a question of what any “culture”’s views of such laws might be?  Some authors have pointed to everything from Sun Tzu suggesting limits on the way that wars were conducted, the concept of war crimes in the Hindu code of Manu, the 1305 trial of Sir William Wallace, through Grotius and onwards.  Is it worth looking to see if there are any shared values, no matter their source?  Is this something to work from, at least for jus in bello?  But the Greek values seem different than those classic Western jus in bello ones…  and perhaps many of those were because they were all part of the larger Greek culture (i.e. did the rules apply when Greeks fought non-Greek civilizations?  Could they destroy their temples and/or fight during their religious holidays?  My guess is ‘yes’, but I don’t know)? 

Lots to think about, in any event.

It is interesting to think how international economic law and regulation might adjust (or in some cases, be created in relatively unregulated areas) if there are concerns with various housing and credit markets, particularly as these were internationalized and securitized.  Might additional legal regimes be created?  How might claims in the current market play out as they expand to international parties?  If there is a big shift, as Wolf argues, certainly legal claims will follow (and are starting in subprime, as this Economist article notes), along with considerations of new regulatory approaches.  Will responses to any crisis be country-by-country or more universal?  Does it depend on if there is “decoupling” or not?  Certainly some have argued that there will be no decoupling (see, e.g. Nouriel Roubini’s blog) — but that does not mean that responses might not vary between different countries and different actors, as much Roubini hopes for more coordinated approaches.

In any event, hopefully re-workings of concepts such as this will help break up some of the camps up in IL scholarship, which so often seem to be overly-simplified versions of IR camps.

It is especially important to get this “right”, or do it as best as one can, as ROL programs proliferate and get mixed into larger geopolitical agendas.  It is also worth asking the larger questions of why ROL programs are proliferating and who they serve, not simply whether they are “effective” or just not doing it right.  In any event, some fun holiday reading.

Of course the struggle of lawyers in Pakistan is a good example of how concepts of fairness and justice can be real motivating forces for change.  In some ways perhaps people can adjust to different systems, situations and forms of government, at least until enough people perceive of things as being unjust or unfair.  Democracy of course can play a role in this but that is not always the case and perhaps putting reform in semantic boxes (”democracy” or “freedom”) for sale may be less effective.

Of course, one’s concept of what is just may not comport with another’s; the justice sought by religious leaders may be very different than those sought by civil servants.  But that is a whole different issue.  In any event, an interesting read and worth thinking about, especially for those engaged in rule of law reform.