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Constitutional History and the Historical Constitution

Harshan Kumarasingham, The Historical Constitution, in 1 The Cambridge Constitutional History of the United Kingdom (Peter Cane & H. Kumarasingham eds., 2023).

There is much to like in the new two volume Cambridge Constitutional History of the United Kingdom, a masterful compendium of theory and history from leading scholars, covering everything from King Æthelred the Unready to Liz Truss (similarly unready).1 As a comparative matter, however, it is Harshan Kumarasingham’s excellent opening chapter The Historical Constitution, that resonates with current debates in the United States.

As the U.S. Supreme Court falls further and further in thrall to history, with its attending assumptions of neutrality, certainty, and truth, it is illuminating to read about constitutional history in the United Kingdom. Kumarasingham recognizes that “[a]ll constitutions rely on history” (P. 3), but in his telling, history is acknowledged both as constitutive of the British constitution and as a political construct. The candor is refreshing.

The chapter explains that the uncodified nature of the British constitution makes reading history necessary, as the constitution itself is a mixture of institutions, laws, and political practices (P. 26). Like “a car whose driver uses only the rear-view mirror for guidance,”2 the British constitution has been developed by looking to the past to determine the future. But that past has often been recreated to serve future needs. Constitutional history has been “elastic”; the “Glorious Revolution,” far from a glorious “bloodless revolution achieved under the ‘fabric of an ancient constitution’”, was actually a “reality of destructive havoc, divided allegiances, weaponized positions, contested dogma and transactional replacement of kings” (P. 10).3

Kumarasingham draws together various histories and critical reevaluations to demonstrate the ways in which constitutional history has been deployed. History served to enforce social norms “to distinguish those who deserved power and those who did not” within the constitutional scheme (P. 13). Indeed, in being both “descriptive and prescriptive,” the constitutional historian might well have “perpetuated ‘the acquiescence of the many in the rule of the few’” (P. 14).4

In addition to history’s usefulness in maintaining the status quo, history has also served as a more immediate and straightforward political tool: Politicians wrote histories, and historians were often identified by political party, since the historical outputs were used to “justif[y] a party’s record in government” (P. 17). As Kumarasignham notes, politicians using history to “ ‘discover what they wished to discover,’ ” is a “tendency that has not ended” (P. 17).5

Lawyers, too, have drawn on history, and it may have been the “common-law mind” that created the “ ‘immemorial’ nature of the constitution,” and “intensified the ‘radical’ tendency of the “English mind’ to ‘read existing law into the remote past’ ” (P. 29).6 As Kumarasingham notes, “even a cursory examination of the nineteenth century . . . shows how practices and principles thought deeply historical and intrinsic to the constitution are, in fact, of more recent innovation and expedience” (P. 31). And yet, “the fact that [jurist Sir Edward] Coke and others mythologized and reinvaded the past . . . is not sufficient to erode their significance” (P. 29). Kumarasingham quotes John Baker as saying: “ ‘Coke may have got some of the early history wrong, but his constitutional conclusions have thrived down the centuries because they seemed right.’ ” (P. 29).7

Constitutional history has thus been a tool for the articulation of values and structures that achieve longevity and fidelity, not necessarily due to their truth value as historical facts, but to their perceived “rightness” or effectiveness within society. The process is constitutive and forward looking. And, as Kumarasingham notes, the constitution, due in part to the very elasticity of its historical development, has a “generous allowance for expedience” (P. 32). “This “feature” has allowed many different groups to “reason that constitutional power could be theirs. Both Monarchists and Marxists could utilize such history” (P. 32). In the United Kingdom, “[p]ower and people are at the heart of the constitution’s history” (P. 33)—a project of contestation and construction that draws on the past more often for inspiration than for limitation.

  1. To be fair, she is referenced only by implication, in the context of the collapse of the Johnson government. But I couldn’t resist.
  2. Erin F. Delaney, Stability in Flexibility: A British Lens on Constitutional Success, in Assessing Constitutional Performance (Thomas Ginsburg & Aziz Huq, eds, 2016).
  3. See J.G.A. Pocock, The Discover of Islands: Essays in British History 120-21 (2005), in support of these points.
  4. Richard Crossman, Introduction, in Walter Bagehot, The English Constitution 26-28 (1978) (1867).
  5. H. Butterfield, The Englishman and His History 4-6 (1944).
  6. J.G.A. Pocock, The Ancient Constitution and the Feudal Law 30-31 (1987).
  7. John Baker, The Reinvention of Magna Carta 1216-1616 at 444 (2017).
Cite as: Erin F. Delaney, Constitutional History and the Historical Constitution, JOTWELL (February 27, 2024) (reviewing Harshan Kumarasingham, The Historical Constitution, in 1 The Cambridge Constitutional History of the United Kingdom (Peter Cane & H. Kumarasingham eds., 2023)), https://intl.jotwell.com/constitutional-history-and-the-historical-constitution/.

Towards a Constitutionalism of Care

Rarely has a book by a constitutional lawyer had such timeliness: Julie Suk’s monograph, After Misogyny: How the Law Fails Women and What to Do About It, talks about the ways in which women often do too much, and men too little, to sustain the life, work, and health of others.

In 2023, the same message is all around us.  Anna Funder’s 2023 much lauded book, Wifedom: Mrs Orwell’s Invisible Life, tells the story of how George Orwell’s literary corpus was built on the back of the contributions of his wife, Eileen O’Shaughnessy, and yet those contributions were consistently minimized by Orwell himself and others writing about his work.

The new mini-series The Change, on the UK’s channel 4, gives a humorous though still highly pointed account of what Suk argues is core to misogyny, namely:  the “overentitlement and overempowerment” of men compared to women.  The protagonist of The Change, Linda, has spent decades carefully recording the amount of time she spends on household work (to the second), and when she turns 50, she decides that the lack of recognition of that work within the family calls for change, including a well-earned sabbatical from wifedom.

What distinguishes After Misogyny from these parallel accounts of sexism or misogyny is that Suk is a leading comparative constitutional scholar, and a central argument of the book is that constitutional norms offer an important resource in responding to this problem.

In making this argument, Suk draws on her considerable comparative knowledge, and especially her expertise in European constitutionalism, to highlight for a US audience the possibilities for imagining a more care-conscious model of constitutionalism.  Suk calls this a “constitutionalism of care” and suggests that its value lies in reshaping public attitudes and expectations, by “recognizing the public value of [women’s] sacrifices and entitling mothers to the protection of the community in return” (P. 208).

This argument is also especially welcome in the US.  It echoes the calls of other feminist constitutional scholars for us to pay greater attention to the relationship between constitutions, care, and social and economic transformation.1 But it also seeks to draw out the relevance to the US of historical and contemporary comparative experience in this area.

This same “double turn” – from the US to comparative experience and back to the US – is a hallmark of Suk’s prior work on the Equal rights Amendment.2 In the We the Women: The Unstoppable Mothers of the Equal Rights Amendment, Suk traces the history of the attempts to pass the ERA, the lessons from the globe about what constitutions can deliver for gender equality, and then turns back to the US to offer contemporary American feminists a clearer appreciation of the stakes behind the ERA debate.

The same pattern is a hallmark and strength of After Misogyny.  In this second important book on gender and constitutionalism, Suk takes us to recent and long-ago moments in Chile, Iceland, Ireland, Germany, and Italy to better to understand how the US can promote a more care-conscious society – i.e., one that does more to empower and reward women, rather than encourage male over-empowerment and overentitlement.

The main challenge for the US in this context is that its recognition of care is quite gender-specific. That is, it recognizes the role of mothers, rather than non-binary or male carers, or families in which care is divided more flexibly.  As Suk notes, this raises constitutional difficulties under current US Equal Protection doctrine. (Here again one can see the connection to Suk’s past work on the ERA and the value of changing existing US constitutional gender equality approaches.)

There are also conceptual dangers to constitutionalizing care norms in ways that reinforce rather than challenge gendered expectations around who performs care work. While revaluing care is critical to gender equality and the feminist project, equating care-work with mothers is much more problematic for women.  It often implies limits to women’s collective economic empowerment.  South African Constitutional Court Justice Kriegler put the point this way in his dissent in President v. Hugo:3

‘the notion … that women are to be regarded as the primary care givers of young children, is a root cause of women’s inequality in our society. It is both a result and a cause of prejudice; a societal attitude which relegates women to a subservient, occupationally inferior yet unceasingly onerous role. It is a relic and a feature of the patriarchy which the Constitution so vehemently condemns’.

In essence, the challenge is to revalue mothering, while at the same time empowering women to choose roles other than – or in conjunction with – mothering. And this means encouraging men to mother – no small ask in a world in which market-based work is rewarded so much more highly than most care work.

Suk is alive to this danger and usefully notes the distinction between the act of mothering –or intense parenting – and the gender of the parent (P. 199).  It may still be better, in this context, to talk about primary versus secondary parenting.   There are limits to this:  pregnancy, childbirth, and breastfeeding remain distinctly gendered forms of care work and reproductive labor.4 And they are a huge if rewarding form of labor.  But there is still a broad scope of intense parenting that could readily be made gender neutral, or equal.  And hence, we should be careful about both the scholarly and constitutional language we use in this context.

Labels aside, however, Suk notes attempts in Ireland and Chile to de-gender a constitutional commitment to mothering (Pp. 200-207). So far, these attempts have not led to formal constitutional change in either country. But there are strong indications of informal, court-led change in Ireland, or a dynamic approach on the part of Irish society to developing constitutional motherhood provisions.

The real question is how we can ensure that attempts to constitutionalize care actually lead to concrete change, and that our efforts to reward mothering do not simply end up enchaining women – or perhaps worse, rewarding men who pretend rather than actually show up to the work historically done by mothers.5

This a hard question, and one we have just begun to tackle.  But in answering it, we will surely be better for reading and engaging with Suk’s important new book.

  1. Jaclyn L. Neo, Constitutionalizing Care: How can we Expand our Constitutional Imaginary After Covid-19?, 20 Int. J. Const. L. 1307 (2022). See also the more globally-focused work along similar lines by Ruth Rubio-Marin, Global Gender Constitutionalism and Women’s Citizenship: A Struggle for Transformative Inclusion (2022).
  2. See Philipp Dann et al’s idea of a “double turn” from Global North to South and back again: Philipp Dann, Michael Riegner & Maxim Bönnemann, The Southern Turn in Comparative Constitutional Law: An Introduction in The Global South and Comparative Constitutional Law (Philipp Dann et al. eds, 2020).
  3. President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1, [80] (Kriegler J).
  4. For attempts to challenge this legally and practically, see David Fontana & Naomi Schoenbaum, Unsexing Pregnancy 119 Colum. L. Rev. 309 (2019) and Mathilde Cohen, The Lactating Man, in Making Milk: The Past, Present and Future of Our Primary Food (Mathilde Cohen & Yoriko Otomo eds., 2017).
  5. Gráinne de Búrca, Rosalind Dixon & Marcela Prieto Rudolphy, Engendering the Legal Academy, 22 Int. J. Const. L. (forthcoming, 2023); Justin Wolfers, A Family-Friendly Policy That’s Friendliest to Male Professors, N.Y. Times (July 26, 2016).
Cite as: Rosalind Dixon, Towards a Constitutionalism of Care, JOTWELL (December 15, 2023) (reviewing Julie C. Suk, After Misogyny: How the Law Fails Women and What to Do about It (forthcoming April 2024)), https://intl.jotwell.com/towards-a-constitutionalism-of-care/.

War is Peace

It is a rare event to begin reading an article and soon realize that the approach the author is taking is so novel, so creative, so analytically precise, and indeed so brilliant that it should redirect and reshape an entire field of study. I am pleased to jot about an article that does just that: Saskia Stucki’s Animal Warfare Law and the Need for an Animal Law of Peace: A Comparative Reconstruction. Stucki begins with a short quote from George Orwell’s 1984: “War is peace.” This is far more than a catchy epigraph; it strikes at the heart of the main problem with how humans treat animals in law and society all over the world today. In many or even most jurisdictions, what is typically called “animal welfare law” seemingly refers to laws intended to ensure the welfare of animals. As Stucki argues so clearly, that is a seriously flawed understanding of the situation of animals. Most animals are used and exploited by humans for human desires, and the largest number of animals by far are ones whom humans raise to kill for food. What does welfare possibly mean when we are talking about use, exploitation, and slaughter? For proponents of an animal welfare strategy, it means reducing suffering.

For some animal advocates, there is no chance of providing any meaningful welfare in these situations, and it is Orwellian to say that an animal was killed for food in a high welfare way, or that the welfare needs of an elephant in a circus were attended to when the only way to make elephants perform entirely unnatural tricks is through brute force in training. To actually improve the condition of animals demands recognition that they are rights holders and actual implementation of basic rights: the rights to liberty and bodily integrity, for example. Getting the animal out of the cage altogether, not just a more comfortable cage. These two approaches may seem to be running on different tracks and moving in different directions, and never the twain shall meet. This article rejects the notion that animal welfare law and animal rights are “competing and mutually exclusive paradigms for the legal protection of animals.” (P. 9.) The brilliance of this article is that Stucki does not merely take down this notion. She shows that the two approaches are instead “distinct yet complementary bodies of law” (P. 9) by clearly and precisely analogizing the laws regarding animals to the laws regarding war.

That brings us back to the title. “Animal warfare law”—what is that? This, Stucki argues, is what we currently call animal welfare law. This welfare of animals that so many jurisdictions apparently provide for must be seen against the backdrop of institutionalized violence and exploitation. In that sense, animal welfare law (AWL) serves a similar function as international humanitarian law (IHL) insofar as they both regulate, restrain, and humanize violence. (P. 3.) IHL is part of a triad in international law. The law of peace seeks to prevent war (jus contra bellum, or the prohibition on the use of force with very narrow exceptions) and in times of peace, human rights (HR) law is intended to protect humans, forming the trio of IHL—jus contra bellum—HR.

The fields of AWL and animal rights law (AR) do not have a similar triad, but one of Stucki’s tremendous accomplishments in this article is to chart one out, “rethinking AWL through the comparative lens of IHL.” (P. 4.) Stucki proposes the animal law equivalent: AWL—jus animalis contra bellum, or the prohibition on the use of force against animals with very narrow exceptions —peacetime AR. (P. 9.) Stucki goes further to make the most of this comparison. “Jus contra bellum for animals … facilitates a gradual transition from the ubiquitous war on animals to carving out and safeguarding zones of peace, and thereby paves the way for the formation of a more aspirational law of peace.” (Pp. 33-34.)

Stucki then uses the comparison to gain some traction on how “peacetime” AR might still be relevant in “wartime” AWL to counter the idea that AWL and AR should “adhere to a clear-cut division of labor, the former governing exploitative, violent situations and the latter non-exploitative, peaceful relations. However, a comparative look to the relationship of IHL and HR demonstrates that complementarity between antithetical wartime and peacetime regimes is possible.” (P. 37.) HR has been credited with the humanization of IHL. Likewise, “AWL is not a static body of law and thus potentially susceptible to the transformative and humanizing influences of AR.” (P. 41.)

The writing in the article is beautiful and each sentence and paragraph logically flows from one to the next. If you are not familiar with animal law or the laws of war, or if both are new to you, do not let that keep you from reading this article. Stucki carefully takes the reader through difficult terrain, using tangible examples to ensure that her argument is crystal clear. And further, it is not everyday that we have a front row seat to the reframing of a field of inquiry. Don’t miss this one.

Cite as: Kristen Stilt, War is Peace, JOTWELL (November 10, 2023) (reviewing Saskia Stucki, Animal Warfare Law and the Need for an Animal Law of Peace: A Comparative Reconstruction, 71 Am. J. Comp. L. 189 (2023)), https://intl.jotwell.com/war-is-peace/.

War By Some Other Name

Five years ago, I jotted here about The Internationalists, an engaging book from Professors Oona Hathaway and Scott Shapiro about the changing nature of war in the twentieth century. Professor Shapiro continues that inquiry in Fancy Bear Goes Phishing, published in May 2023. As some might tell from the word “phishing,” the book engages with hacking, a twenty-first century form of warfare with roots in the last decades of the twentieth. The book’s origins in his work with Hathaway are made clear in first pages: “Does cyberwar make a departure from traditional warfare, or are they both war, just with different weapons?” (P. 8). Shapiro worked in the software industry for several years after college before pursuing his JD and PhD in philosophy. He confesses that despite his initial confidence, delving into contemporary realities of software and cyberia, not to mention AI, made him realize that he “had slept through the revolution, only to wake up, several decades later, disoriented and clueless.” Nonetheless, his final product is a marvel to read, equal parts, computer science, philosophy, and law (both international and comparative), and a thing we should all like lots.

Consistent with its clever title, the book is well written and engaging. Five case studies are its foundation, and they rise above the anecdotal to the operatic and thought-provoking. Scott first tells us about the Morris Worm, let loose by a hapless Cornell graduate student Robert Morris, Jr., that brought down the Internet in 1988 and led to his conviction for hacking. We next meet the Dark Avenger, a Bulgarian hacker who, responding to a challenge from a cybersecurity researcher, devised a “mutating virus engine” that infected antivirus software. And what narrative of Internet woes would be complete without Paris Hilton, whose cellphone was hacked by an enthusiastic teenager, unleashing countless nude photos and a counterattack by Ms. Hilton against Lindsay Lohan? After entertaining us with the Hilton hack, Scott brings the eponymous Fancy Bear onto the stage with his leak of the infamous Hilary Clinton emails from the compromised servers of the Democratic National Committee. Finally, we learn about how a student’s attempt to erase his scores on the online game Minecraft, and perhaps also his Calculus grade, crashed the servers at Rutgers University.

So, what do these stories of technology-run-amok have to do with International and Comparative Law, or any body of law for that matter? Professor Shapiro quickly reminds us of the global context for these various shenanigans and the legal wranglings to control them. Those familiar with law and technology will sense quickly the battle between the regulatory power of computer code and that of legal code. But we find a more nuanced discussion of “code versus code” in these pages. Shapiro teaches us about Alan Turing’s idea of metacode, computer code that governs computer code, a concept that pays off elegantly at the end of the book, and to which I return at the end of this jot. In explaining how many of these hacks work, Shapiro draws a distinction between code and data. Code is the instruction for the machine on how to operate on data. Computer viruses propagate in part by the hacker inputting code as data causing a program to operate on itself in a self-destructive way. As I explain below, the code-data dichotomy has important parallels to the law-fact distinction.

We also learn from Professor Shapiro about upcode and downcode, each offering an oft neglected gloss on the conventional “code versus code” dichotomy. Upcode is human level code, the rules, norms, and practices that shape interactions among humans and between humans and machines. Downcode consists of the computer programs that guide the machines. A key lesson of the book is that too often policy makers, pundits, and market leaders turn our attention to tinkering with the downcode to cure the technical defects that permit hacking. The real problem is with the upcode, the lack of proper practices, governing norms, and legal interventions that allow humans to be the victims of hacks. Identifying upcode points us to the law, including international and comparative law. Professor Shapiro’s attention to the details of upcode is what makes this book one we should all like lots.

Upcode’s failure appears from mapping the five case studies of the book onto three legal categories and their attendant legal interventions. These three are cybercrimes, espionage, and warfare. According to Professor Shapiro, the Morris Worm, the leak of Hilton’s nude photos, the attack on Minecraft, and Dark Avenger’s mutating virus are examples of cybercrimes. Fancy Bear presents an example of espionage and warfare. Each of these legal categories highlights gaps in the upcode inviting legal reform.

For cybercrime, Professor Shapiro advocates reforms designed around what he calls the three P’s: “pathways to cybercrime, payments for cybercrime, and penalties for vulnerable software.” These reforms invite changes to domestic law and, more importantly, international coordination. University of Cambridge researcher Alice Hutchings found, through survey and ethnographic research, that hackers as a group view themselves as moral agents “possessing a sense of justice, purpose, and unity” (P. 293). Professor Shapiro proposes that policy makers recognize this and try to rechannel that sense of purpose. Such behavior is facilitated through financial platforms, such as cybercurrency, which create incentives and support for hackers globally. Coordinated international regulation of cybercurrency could aid in limiting how hacking activities are promoted. Finally, international coordination to regulate the software industry through imposition of liability for poorly designed software is needed to overcome the immunity that software companies enjoy.

Cyberespionage poses a bigger challenge for international legal reform of upcode. As Professor Shapiro points out, international law recognizes espionage of one country by another as lawful and acceptable. As between countries, espionage is an upcode feature, a recognized practice for learning information for political and diplomatic reasons. But Shapiro advocates for reforms that target international espionage for pure economic gain as opposed to the use of longstanding use of spies to uncover state secrets. Furthermore, government surveillance of its own citizens to quell dissent and single out whistleblowers (like Daniel Elsberg) should be condemned. Professor Shapiro points to Snowden’s revelations as evidence of overreach by the government in obtaining information beyond what is currently permitted under FISA. Whistleblowing can serve to reveal the overreach and promote the need for more stringent warrant requirements. Cyberespionage, in short, needs to be more precisely defined to limit the state’s power in quelling dissidents.

Finally, there is the problem of cyberwar, the motivating question for this book. Do established principles of the international law of warfare apply to cyber-dependent warfare, meaning the harnessing of the software that weaponizes the Internet to harm a state and its citizens? For Professor Shapiro, conventional international law applies when cyber-dependent warfare has “kinetic effects,” meaning physical harm to property or persons. A hack of a country’s hospital systems that results in the death of patients or of a country’s electricity grid that results in the downing of airplanes, or the crashing of trains would be examples of kinetic effects that violate international law. Under this view, Fancy Bear may not have engaged in an act of war by hacking into the DNC servers releasing Senator Clinton’s emails. But this hacking, Shapiro argues, still violates prohibitions under international norms against interference in a country’s elections and domestic governance. However, Professor Shapiro recognizes that norms under international law for cyber-dependent warfare are currently vague. He recommends nation-states to engage in treaty making or the creation of “clubs” for the development and propagation of norms in the contemporary world of cyberwarfare.

Fancy Bear Goes Phishing is a provocative book and invites further critique and investigation. The line between upcode and downcode, for example, is far from clear. The proposal to impose liability on software companies for defective code sounds like a change in upcode. But the ultimate target seems to be downcode. One could ask whether reforms to upcode are just ways of identifying necessary changes to downcode. In addition, Shapiro’s analysis at points rests on distinction between code and data, a distinction discussed previously in this jot. But as with the gray line between law and fact, upcode can often bleed into data, making it difficult to hinge reform solely on upcode. Finally, “kinetic effects” seems to provide a tangible touchstone for identifying violation of the law, but it seems to ignore readily recognizable effects, such as harms to reputation, the existential fear of terrorist attacks, or mental stress from the threat of hacks. Perhaps treaties can address these problems. But see the discussion in his book with Hathaway and my previous jot on the lack of success of the Briand-Kellogg treaty outlawing war.

Nevertheless, there is a compelling takeaway from this book in curing us of any sanguine notion that technology will solve the problems that technology has wrought. Professor Shapiro calls this notion “solutionism,” taking the phrase from social critic Evgeny Morozov. Put bluntly: there is no killer app to be found. If there is any doubt, Scott Shapiro presents elegant proof of this proposition in his Epilogue, building on Alan Turing’s work on metacode. Shapiro’s proof shows how the existence of such an app that can cure all technical woes leads to a contradiction. I cannot do justice to his proof here, distilled from Turing’s demonstration that there are questions that no computing system can answer. Shapiro’s argument against solutionism echoes Kurt Godel’s proof of the incompleteness of axiomatic systems and Kenneth Arrow’s proof of the impossibility of rational group preferences. As with those famous theorems, that argument against solutionism reminds us of the role of political deliberation and humanism in resolving technical problems.

I began the Summer of 2023 by reading Fancy Bear. I ended the Summer by watching Oppenheimer and Barbie. The former, about the original killer app, so to speak, reminded me of Shapiro’s appeal to upcode as the film depicted its total failure. The latter movie shows how competing upcodes interface with the data of fantasy and life. Maybe someone should make a movie out of Fancy Bear with its enchanting case studies and mind-blowing synthesis of law, philosophy, and technology. However, be prepared if that movie ends more like Oppenheimer than like Barbie.

Cite as: Shubha Ghosh, War By Some Other Name, JOTWELL (October 17, 2023) (reviewing Scott J. Shapiro, Fancy Bear Goes Phishing: The Dark History of the Information Age, in Five Extraordinary Hacks (2023)), https://intl.jotwell.com/war-by-some-other-name/.

Rundle on the Rule of Law

Kristen Rundle, Revisiting the Rule of Law (2022).

Kristen Rundle is one of the world’s leading theorists of the rule of law.  Revisiting the Rule of Law , evidences her extraordinary command of the theoretical literature, her deep familiarity with public law developments around the world, and the characteristic clarity that she brings to complex debates.  Revisiting the Rule of Law is a tour d’horizon that is accessible to newcomers to those debates and enlightening to those who are well-versed in them.

Part I surveys methods by which the rule of law is theorized.  Rundle begins by describing a series of recurrent themes in the literature.  The first is that the rule of law has legal and political dimensions.  As a political idea, the rule of law requires that “the rulers and the ruled, the government and the governed—must each be subordinate to the demands of law” (P. 5).  By contrast, the legal dimension of the rule of law focuses “on how the institutions and procedures of a legal system constitute, express and sustain” (P.  5) this relationship of mutual subordination to the law.  Part I then moves onto other classic themes in the rule of law literature: the meaning and significance of arbitrary power; the contrast between the rule of law and rule by law; the rule of law’s status as an ideal; and the essentially contested nature of the concept of the rule of law.

With these essential themes in view, Rundle surveys scholarly accounts that emphasize formal, procedural, and substantive aspects of the rule; a teleological approach that aims to identify the purpose(s) of the rule of law; and theories of the rule of law that are situated in broader theoretical projects.  These theories include Dicey’s conception of the rule of law, which is embedded in a particular theory of English constitutionalism and Hayek’s conception, which is inseparable from his theories about liberty, the market, “spontaneous order”, and the role of common law courts in overseeing this kind of order (Pp. 18-19). Rundle closes this Part by drawing links between conceptions of the rule of law and theories of the nature of law, and identifying devices (dichotomies and taxonomies) that commonly frame discussions about the rule of law.

Part II identifies a range of ways in which diverse ideas are “entangled with” the rule of law.  According to some theories, the rule of law contributes to a society’s attainment of other goods (e.g., liberty or legitimacy).  In other theories, the rule of law is closely associated with, or a “companion” (P. 29) to, other ideas (e.g., human rights; peace, security, and development; law, order, and security).  Sometimes theories connect the rule of law with institutions (e.g., the courts); procedural protections (e.g., impartiality and the right to be heard); and concepts (e.g., dignity).  At other times, theories conflate the rule of law with constitutionalism.  These theories tie the rule of law closely with the separation of powers, with the legislature as a site of representative democracy and vehicle for pursuing political agendas, and with the executive as a branch whose power needs constraint.  Emergencies receive special attention because they are situations when executive power is concentrated, unsupervised, and potentially abused.  Part II closes by describing controversies about whether the rule of law is necessarily tied to a “particular vision of politics” (P. 44), and especially with visions that are either antithetical to or compatible with the welfare state.

Part III suggests that revisiting the rule of law requires asking “what remains under-examined or underdeveloped within theoretical treatment of the idea, and asking why” (P. 48).  This Part begins by assessing implications that flow from theorists’ assuming that the rule of law requires general rules.  Rundle assesses how a focus on general rules may draw theoretical attention away from the “core political demand of mutual subordination to law” (P. 50).   This inattention may lead theorists to assume that discretion is necessarily arbitrary or to fail to theorize the modern administrative state’s “proliferation of legal forms and technologies” (P. 52).  Rundle further argues that theorists’ focus on legal rules may lead them to overemphasize legal persons’ “capacity to follow rules and to be answerable for their breach” (P. 56).

This emphasis may further lead theorists to neglect the ways in which legal persons can make legal demands on officials.  According to Rundle, legal persons can require officials to comport themselves consistently with demands of mutual subordination to law (P. 57).  The rule of law resides, then, in the quality of the relationship between officials and legal persons (P. 61).  In some cases (as with judges and legislators) it will be relatively easy to identify who a relevant official is, but in others, including situations of contracted-out governance or automated government decision-making, it will be less obvious (P. 58).

Rundle concludes Revisiting the Rule of Law by describing particularly clear departures from the demands of the rule of law and by issuing a “provocation” (P. 65).  She notes that the relationship of mutual subordination to law is severely undermined when officials exercise “inflated” discretion that dramatically increases their power over those who are subject to their authority (P. 65).  She cites the complex discretionary decision-making powers of immigration officials as an example of this kind of distorted relationship.

Rundle’s provocation bears on the relationship between indigenous and settler legal orders.  She notes that law plays a central role in indigenous political orders, as well as in political orders that understand themselves to be governed by the rule of law. She asks “how and in what ways might they be able to come together, to find common ground? Which aspects of our thinking on the rule of law might need to shift to make space for that project?” (P. 66, internal citations omitted).

Revisiting the Rule of Law leaves the reader with these and other pointed questions.  Comparative public law scholars will do well to keep Rundle’s questions in mind as we study contemporary rule of law challenges across the globe.

Cite as: Hoi Kong, Rundle on the Rule of Law, JOTWELL (September 19, 2023) (reviewing Kristen Rundle, Revisiting the Rule of Law (2022)), https://intl.jotwell.com/rundle-on-the-rule-of-law/.

Corporate Pathways for International Law

Kish Parella, International Law in the Boardroom, 108 Cornell L. Rev. __ (forthcoming, 2023), available at SSRN (Oct. 31, 2022).

The Trump Administration provided a natural experiment in international law when it withdrew from state-level commitments to international law regimes. In the wake of this move, while the national government rejected international norms, big corporations continued to comply. Their compliance challenged long-standing assumptions about the centrality of states in enforcing international law. International Law in the Boardroom takes an important step towards understanding this puzzle: it unpacks how corporations institutionalize compliance with international norms. It then articulates how this analysis of the mechanics can help corporate compliance become even more widespread, a particularly laudable goal in a world where state commitments may swing with political change.

The article investigates what large companies have done by taking a case-study approach. It identifies contexts where the “state pathway” was weak–climate change, human rights and sustainable development–then examines the actions of large companies within sectors tied to each particular area. For example, when examining climate change, the author analyzed three large companies in the energy sector and three more “industrials.” (§ III.A.)

The resulting list of S&P 100 companies is full of recognizable names like Chevron, UPS, and Boeing. For each corporation, the author dug into primary materials: investor reports, SEC filings, shareholder proposals, NGO benchmarks, company manuals and handbooks, and more. (§ III.A.)

The article reports the results of this digging. (The reporting is appropriately qualitative rather than quantitative, as the context suggests.) Although directors are not always expert in the specific areas, a striking and positive theme emerges: oversight of these particular issues is explicitly located at the level of the board of directors – the entity in charge of directing how the whole business is managed. Though it requires a close read, there are intriguing details. Significantly, sustainability sometimes affects how leaders are paid; some companies have “integrated sustainability metrics into the determination of executive compensation” (§ III.B.2.) Overall, the examples examined are “promising,” “suggest[ing] that many large corporations are institutionalizing international law.” (§ III.E.)

The article adeptly contextualizes these results, acknowledging open questions and inherent limitations of the case-study approach. In particular:

Are the promising results generalizable? The issues and corporations studied here are high-profile. The article cautions that both the visibility of the corporation and the saliency of the particular issue may shape compliance, tempering celebration of the positive results. It notes that “compliance may improve with the visibility of the corporation, which is influenced by its size, brand, reputation, product or service, or other organizational features.” Particular issues also may have higher visibility because of “emotional salience, magnitude and nature of harms, victims and media coverage,” as well as “attain[ing] high visibility within a sector when investors or other groups recognize the potential for that issue to influence the financial performance of a corporation.” (§ III.E.)

Do the corporate committees and policies affect corporate actions in a way that promotes the international-law objectives? Interestingly the term “greenwashing” does not seem to be anywhere in this piece, despite its use of corporate statements of commitment and its focus on corporate climate change and sustainable development as two of the three case studies. But neither does the author overclaim. “Effectiveness” is explicitly a question for another day. And the article’s inquiry into congruence between international law norms and corporate policies and structures is likely a necessary first step towards action.

Finally, the article follows through on its promise to propose concrete applications of its insights. It concludes by speaking to an international law audience with specific examples of treaty drafting, with the earlier-developed principles in mind. The advice is not just about how to talk about the impact of human rights; for instance, connecting them with shifts in corporate purpose. It also promotes practical, and often overlooked, mechanisms. It recommends, for instance, including comparability and measurable benchmarks to amplify the actions of corporations and their influence on corporate peers and contracting partners (§§ V.A. & V.B.)

The author pulls off a difficult feat. The article crosses disciplines that have distinct jargons, assumptions, obsessions, pet peeves, path dependencies. It brings together international law scholarship and corporate governance in a fruitful and rigorous way to address a modern world of shifting roles.

Cite as: Verity Winship, Corporate Pathways for International Law, JOTWELL (August 7, 2023) (reviewing Kish Parella, International Law in the Boardroom, 108 Cornell L. Rev. __ (forthcoming, 2023), available at SSRN (Oct. 31, 2022)), https://intl.jotwell.com/corporate-pathways-for-international-law/.

The Legal Academy’s Gender Gap

Gráinne de Búrca, Rosalind Dixon, & Marcela Prieto Rudolphy, Engendering the Legal Academy, 22 Int’l J. Const. L. __ (forthcoming, 2023).

(Professor Jill C. Anderson and Professor Mathilde Cohen are equal co-authors of this article.) Law professors, consider: demographically speaking, who on your faculty tends to be widely published and cited, consume the most airtime at meetings and workshops, and hold tenured positions, perhaps with an endowed chair? According to Gráinne de Búrca, Rosalind Dixon, and Marcela Prieto Rudolphy’s insightful new article, Engendering the Legal Academy, the answer is likely to be—regardless of the country in which your law school is located—professors who identify as cismen. By contrast, they maintain that people who identify as women, especially women of color, are overrepresented among non-tenure track writing and clinical instructors and perform a disproportionate share of service roles while struggling to keep up with research “productivity.” In a field that proclaims a commitment to equality, yet whose 50 all-time most cited scholars include only two women (per U.S. data from 2021), a “gender gap” persists.

The article builds on work by Meera Deo and others who have examined race and gender inequality in U.S. legal academia. We focus here on what we see as two distinctive contributions, one that broadens the conversation and one that deepens it. First, it brings an international and comparative perspective into view. The authors draw on a mix of theoretical and empirical work, overlayed with their personal experiences, to show that women’s lower pay, lesser job security, higher teaching and service demands, and lack of scholarly recognition are features of law schools worldwide. Second, the article advances “non-consequentialist” justifications for reform. Instead of fixating solely on who these inequalities are bad for, it argues that, as a product of oppression and epistemic exclusion, the gender gap deserves attention because it is bad period. The argument travels well to other forms of social subordination.

Taking a step back, the authors’ international lens sharpens the question, “Why focus on the legal academy?” In some respects, inequality in law schools matches the common predicament of academics in all disciplines globally. UNESCO estimates, for instance, that “[j]ust 30% of the world’s researchers at universities are women.” Moreover, professorships are positions of considerable privilege to begin with, and in a number of countries teaching law is further advantaged relative to other academic departments in terms of compensation and course load. Various justifications for focusing on law schools emerge from the article.

First, the authors note that “the legal academy is . . . not equally privileged in all countries or contexts. In Sri Lanka, for example, Dinesha Samararatne notes that while women made up 77 percent of academics at the University of Colombo between 2009 and 2015, academic work was associated with significant teaching and administrative responsibility, and very modest pay.” In several countries, including the United Kingdom, law professors may earn less than comparable professionals and face increasing precarization. Additionally, the data marshalled by the authors show stubborn disparities even in countries that have relatively more developed welfare state programs, including support for caregivers in the form of paid parental leave, disability leave, and subsidized childcare, adult care, and healthcare. The gap persists notwithstanding the fact that women increasingly make up a majority of law students and new lawyers, as in 25 of 28 countries for which the authors have data. In sum, whether or not legal scholars are high-powered and well-paid professionals, barriers continue to prevent women and other marginalized people from reaching higher levels of professional success.

Second, legal institutions have played a central role in constituting gender inequality and are thus a key site of reform. How will the encoding of misogyny, transmisogyny, and misogynoir (among other gendered forms of bias) end if new legal thinkers are educated in institutions where cismen hold disproportionate epistemic authority over what the law says and should say? Ending gender oppression, the authors point out, requires more than just achieving gender diversity in legal academia, “as descriptive representation would not guarantee any particular outcome in terms of equality or justice.” They advocate a variety of initiatives, including de-prioritizing scholarship, which imposes asymmetric costs on female scholars (who “simply have less time” given their caregiving responsibilities) as well as on “those with significant health issues, or certain forms of disability.” They also put forward practical fixes such as: assigning academic service roles fairly and rewarding faculty for these services (might we also suggest offering teaching release and extra pay, particularly to professors of color burdened with “cultural taxation”?), providing or subsidizing childcare, and permitting hybrid attendance at academic events (we would add committee and faculty meetings), among others.

Here the authors’ non-consequentialist arguments get real traction. “[C]hanging social structures can be incredibly difficult, as well as costly,” especially in the short term. Costs may be economic, but they can also take less tangible forms, such as reactive attitudes. If closing the gender gap can only be justified by tallying up its harms and assessing costs under status quo norms, then reforms could conceivably appear to fall short of their price tag. Certain initiatives may even backfire, as they may exacerbate women’s and other marginalized faculty’s “time-poverty in ways that reinforce the original problem.” Having shown how inequality’s causes and reforms are thus interwoven, the authors reach a conclusion that is as sweeping as it is compelling: rather than “a set of discrete practices” what is needed is “the development of a feminist legal academy” along multiple dimensions, but most centrally based on “the re-evaluation of academic caregiving in relation to research” and teaching.

The Article makes a much-needed contribution by exposing the entangled, global nature of obstacles to academic flourishing for women and other minoritized people and the unequal burden of academic carework placed on their shoulders. It invites all of us to reimagine law schools as inclusive workplaces and learning environments, not just for professors, but also for the staff and students, who are increasingly feminized, but may lack crucial protections available to faculty members. The path is not likely to be easy, of course. As Mary Beard has written, “You cannot easily fit women into a structure that is already coded as male; you have to change the structure.” As a classicist who has examined the silencing of women’s voices in Western literature—starting with Telemachus telling his mother Penelope to shut up because “speech is the business of men”—and has herself been the target of a torrent of abuse for her public speaking, Beard intimately knows what we are up against.

Cite as: Jill C. Anderson & Mathilde Cohen, The Legal Academy’s Gender Gap, JOTWELL (July 10, 2023) (reviewing Gráinne de Búrca, Rosalind Dixon, & Marcela Prieto Rudolphy, Engendering the Legal Academy, 22 Int’l J. Const. L. __ (forthcoming, 2023)), https://intl.jotwell.com/the-legal-academys-gender-gap/.

The 26 Words Legislating Speech on the World Wide Web

Anupam Chander, Section 230 and the International Law of Facebook, 24 Yale J. L. & Tech. 393 (2022).

As the entire universe of speech, commerce, warfare, and living (Meta’s steep but so far unavailing investments notwithstanding) moves into cyberspace, tying together nearly every corner of the globe, the problem of governing the burgeoning world of virtual interactions and their real-life effects (or alleged effects) has become critical. In his careful and important essay, Section 230 and the International Law of Facebook, Anupam Chander elaborates the critical role of Section 230 of the 1996 Telecommunications Act, what Jeff Kosseff calls the 26 words that created the internet, as the cornerstone protection for a governance regime that prioritizes the flow of ideas and information over one that would “strengthen the hand of those around the world who seek to impose liability for either permitting speech or curbing speech.” (P. 396.)

Stated simply, Section 230 bars liability for those hosting (although they generally must not contribute to) content made available through the internet. Chander’s argument is nuanced. His primary thesis is objective in nature: Section 230’s legal effect is global and far-reaching, finding its way into bilateral and multilateral treaties and shaping adjudication over the responsibility of content hosts in both U.S. and foreign courts. Yet it is the normative elements of the essay that provide the most force, providing a stark—even nightmarish—scenario should Congress, as some members of the chamber have threatened, retreat from Section 230’s essential protections.

This essay is one I like a lot, and I hope others active in the study and shaping of private and public international law as well as the law of data freedom will as well. In addition to contributing valuable analysis to the growing literature on how municipal law in influential jurisdictions (think privacy laws adopted in California and the European Union) shapes global norms and rules, Chander undertakes a valuable effort to 1) map the legal terrain of treaty text, domestic, and foreign adjudication where Section 230 plays both decisive and contributing roles in protecting content hosts; 2) elaborate (he has done much work on the topic elsewhere) the critical role Section 230 has played in developing community guidelines and self-regulatory mechanisms that allow internet commerce, speech, and interaction to flourish; and 3) illustrate (if perhaps subtly so) the difficult reckoning lawmakers would face were they to backtrack.

Chander’s treatment is particularly timely in light of the current efforts to reach an international pandemic agreement. The most recent draft text of that convention, accord, or other international instrument (its binding effect is yet to be determined) specifically includes a definition of an “infodemic,” and national laws will inevitably follow to address public health disinformation, both pretextual and sincere. Chander anticipates this kind of challenge, noting that then-President Jair Bolsonaro attempted to penalize Facebook, Twitter, and YouTube for taking down content he posted that the platforms considered COVID-19 disinformation. Chander writes that Bolsonaro’s “decree was quickly blocked by both the Brazilian Senate and, an hour later, the Supreme Court, due to concerns about the constitutionality of the provisional measure. Section 230 provides the background U.S. legal protection from liability for removing what the platforms believe to be disinformation. The platforms formulated their content moderation approach against this background, an approach later vindicated in the Brazilian case.” (P. 406.)

To be sure, the road ahead is fraught for not only the platforms but for those who create and upload content and those affected by the content’s reach. The U.S. Supreme court upheld protections for Facebook, Google, and Twitter this term, but did so through analysis of the Justice Against Sponsors of Terrorism Act rather than, as they had been invited to do, construction of Section 230’s liability shield. Chander ties Section 230 to Article 19 of the International Covenant on Civil and Political Rights which provides that “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” But Article 19 does not stop there. It conditions those rights with special responsibilities: “It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others;(b) For the protection of national security or of public order . . . or of public health or morals.

It is these precise kinds of restrictions, likely the result of legislative rather than judicial action, that Chander anticipates. A world where social media and internet search platforms are liable, even in an attenuated way, for the content they allow to be communicated, could place them more squarely as gatekeepers for content that may be valuable but unpopular, even offensive; certainly raise the costs of business that would be passed on to advertisers for sure and perhaps by users through subscription or other fees; and generally raise inevitable barriers to speech and commerce that now flow relatively (though certainly not perfectly) freely, at least in much of the world. But COVID-19, a world increasingly characterized by state-sanctioned violence against civilians and non-combatants, and the disappearing distinctions between the virtual and the tangible will present formidable challenges to the status quo approach.

Cite as: Sam F. Halabi, The 26 Words Legislating Speech on the World Wide Web, JOTWELL (June 8, 2023) (reviewing Anupam Chander, Section 230 and the International Law of Facebook, 24 Yale J. L. & Tech. 393 (2022)), https://intl.jotwell.com/the-26-words-legislating-speech-on-the-world-wide-web/.

The World Bank’s Many Worlds of the Rule of Law(yering)

In 1972, Laura Nader published her generationally influential article, “Up the Anthropologist.” The motivation for Nader’s intervention was borne partly out of her experience with students who felt daunted by the prospect of studying powerful social elites—what has now become popularly known as “studying up.” As a pioneering legal anthropologist, for Nader this often involved the study of law, especially elite lawyers. Nader outlined many of the opportunities and demands that would face anthropologists and others who sought to use ethnographic methods to study those who could articulate and promote their own representations in public, and actively limit researcher access to their workplaces.

Fifty years after Nader’s intervention, Dimitri van den Meerssche’s The World Bank’s Lawyers: The Life of International Law as Institutional Practice tackles this task of “studying up” at perhaps one of the most singularly powerful international institutions—the World Bank. Van Den Meerssche takes up this particular challenge when all of the barriers Nader identified early on have only intensified. Not only is the Bank fully enmeshed in the defense of its own public image, but it is fully aware of the possibility that researchers could take any access as an opportunity to construct their own critical narratives

Van Den Meerssche has thus produced a fascinating analysis of how to study such an institution under these constraints, as well as a meditation on what critique of international institutions should look like. What he produces is not a traditional ethnography but, as Nader presaged, a creative empirical study that takes advantage of the Bank’s own complexity to dive deeply into the daily world in which the Bank’s lawyers operate.

The World Bank’s Lawyers structure follows its core analytical stratagem: each of the Bank’s three primary General Counsels (GC) from 1983-2016 receives two focused chapters. Van Den Meerssche gained access to the Bank during a three-month position during the time of the third GC examined, Anne-Marie Leroy. This experience sensitized him to the workings of the Bank’s lawyers, and oriented how he explored the tenure of all three GCs through interviews and the ability to request from the Bank itself access to its own prodigious internal documentary production. While many of his requests were denied without comment, he was able to gain access to often quite detailed records from this thirty-year period.

What Van Den Meerssche’s study reveals then is not some set of summary conclusions about “law” or “the rule of law” at the Bank but the way in which each General Counsel attempted to transform the role of law and lawyers at the Bank based on their quite distinct visions of lawyering. Heavily influenced by Actor-Network Theory—inspired by Bruno Latour and often associated with Science and Technology Studies—Van Den Meerssche shows how each GC worked to influence one node within this complex ecosystem, with great attention to the levers they used to reorient the work of the Bank’s lawyers and their place within the Bank’s programming more generally.

Thus, for each GC—in turn, Ibrahim Shihata (1983-1998), Roberto Dañino (2003-2006), and Anne-Marie Leroy (2009-2016)—Van Den Meerssche centers their personal ambitions in an almost organic reconstruction of the Bank in a space between nation-states and among other international institutions. He is thus able to show that there was never any stable concept of the “rule of law” at work at the Bank; instead each GC drew on their particular background to promote quite thick and divergent concepts of the rule of law in order to re-shape the place of law at the Bank—all while engaging and transforming the practices of their predecessors. Each of the two chapters devoted to these three tenures is filled with a dense tapestry of how each GC used daily and routine practices to implement these visions.

Herein, Ibrahim Shihata is cast as championing a “(liberal) trusteeship ideal of international law(yering)” (P. 7) which emphasized the gatekeeping role of lawyers as limiting avenues of World Bank programming. Shihata constantly worked to control how other sectors of the Bank thought about law through his own writings and lobbying but, most powerfully from Van Den Meerssche’s vantage, in managing the daily work and interactions of the Bank’s lawyers themselves. We are treated to intricate reconstructions of events such as the “distinctive ceremonial pattern[s]” of discussions by Bank lawyers among themselves and at meetings with other authorities at the Bank (P. 53). Crucially, while Shihata deployed a strategic formalism about law that foregrounded the authority of lawyers, it also opened up new avenues for Bank programming by naturalistically linking legal reform to private-sector-led economic growth (P. 65).

Shihata’s view of the proper role of the GC and the Bank’s lawyers then becomes a point of contrast for subsequent GCs. Many lawyers wedded to Shihata’s vision projected a narrative of loss whereby “law” became irrelevant within the Bank. But as Van Den Meerssche makes clear, this loss is, in reality, simply a transformation affected by subsequent GCs’ deploying many of the same tactics to reshape the daily routines and work of the Bank’s lawyers to pursue their own visions.

Shihata’s replacement, Roberto Dañino, is then introduced as presenting a stark shift in what a Bank lawyer should be. Dañino’s background as a self-styled cosmopolitan corporate lawyer moved him to embrace the moralizing power of “human rights” often invoked to criticize the Bank. He thus cast his tenure as rescuing the GC and the Bank’s lawyers from a crisis of relevance. The new Bank lawyer would not be an impediment to the aspiration of other facets of the Bank, but an enabler or “how to” lawyer. This fusion of liberal legalism wed to corporate pragmatism would not circumscribe or limit the Bank’s programming by taking on human rights concerns, but would ultimately vastly expand it (most notably to criminal law).

This spread “law” throughout the Bank, but also—critically for Van Den Meerssche’s approach—a whole range of new processes to diagnosis and evaluate the work of the Bank’s lawyers and the programming of the Bank writ large. Dañino used surveys of clients and various auditing practices to manage the Bank’s lawyers in the same way as such audits were increasingly imposed on borrower states. He introduced a language of “risk-analysis” to undermine Shihata’s emphasis on the Bank’s Articles of Agreement as the source of the GC’s authority, and saw lawyers as leaders in global policy reform. Most interesting, Dañino attempted to “enrol” various leading academics to transform their critical positions on the Bank and incorporate them as external allies as part of this new cosmopolitan vision.

When Leroy took over in 2009, she implemented her own new set managerial practices to transform the daily life of the Bank’s lawyers. She jettisoned Dañino’s justificatory invocation of human rights, but intensified his framing of “risk” as central to the Bank’s operation. Her background in French public sector administrative lawyering, in contrast to both of her predecessors, centered risk management as a practice of legal anti-formalism which sought to insulate the Bank from its various critics even as it again expanded the “apolitical” from economics to nearly every aspect of modern governance. Leroy thus completed a shift from Shihata’s more traditional fiduciary view to transform concerns with politics to concerns with managing risks, and from legal rules to “principles-based” legal practice. This shift summarily led the “rule of law” at the Bank to become a “culture of informed risk-taking modeled on the image of a flexible, dynamic, decentralized and outcome- oriented administrative practice” (P. 197). Such certainly ended Shihata’s vision of lawyering, but again spread Leroy’s vision extensively throughout the institution.

It is difficult to do justice to the detail in which Van Den Meerssche reconstructs each of these shifts through an array of documentary practices and shifting relationships. As he describes it, the Bank’s rule of law is a lively “moveable feast” (P. 10). In tracing the life of various managerial and project assessment documents, he stays true to his methodological tactic of not trying to demystify or deconstruct the work of the Bank’s lawyers, but to lay out the very material realities in which they existed with dispassionate rigor. He sought to reveal each actor in his ambit as a “full-blown mediator” (P. 285) of their own reality—a mediation that has practical effects even if by some standards incoherent, or self-serving, or both.

This methodological choice is framed by the two legal anthropologists who inhabit the interstices of the book’s footnotes, Galit Safaty and Annelise Riles. Van Den Meerssche embraces Riles, citing her 2011 Collateral Knowledge as inspiration as it sought to unpack the technical and documentary practices of financial regulators. In contrast, he provides a strident critique of Safarty’s own more traditional 2005-2006 ethnographic study of World Bank Values in Translation. Safaty was notably open about her strong normative priors in support of human rights, and critical of Dañino’s tenure as a failure to truly integrate human rights concerns into the Bank’s “rule of law.” Van Den Meerssche sees this commitment as missing much of the real material operation of the Bank by sidelining the daily world of lawyering his work reveals without prejudice. Given the access that he did receive to the Bank and its internal documentation, his methodological choice clearly led to victory in studying what many considered a now impenetrable empirical subject.

At this point, evaluations of The World Bank’s Lawyers could diverge. Van Den Meerssche’s enthusiastic embrace of Latour invites all the controversies that Latour’s approach to critique has inspired—as obscuring the material realities of power and influence beyond the “life worlds” of the subjects it tries to reconstruct. Here Van Den Meerssche perhaps suffers from the original sin of his inspiration, as Latour’s own oft-cited ethnography of the French Conseil d’Etat was notorious for its many claims regarding anthropology without engaging with any of its practitioners or controversies. Today, those like Nader who struggled with these issues have produced generations of ethnographies of powerful institutions—legal and otherwise—of which Safaty’s is but one, and otherwise missing in the text. For social movement actors unfamiliar or averse to Latour’s ANT/STS framing, much work would be needed to translate the fruits of this perspective as has been done in these other traditions of modern legal anthropology.

Still, Van Den Meerssche’s dedication and methodological seriousness provides numerous entry-points for interested readers. As with other recent works which attempt to recapture the material life of international law beyond its traditional sources, he convincingly demonstrates that an institution like the World Bank, even one focused facet like the General Counsel, can never be understood through legal analysis alone. Furthermore, the implicit critique his work enables is nothing less than vicious to common claims that international institutions are “constitutionalizing” and the prospect that non-radical reform of the Bank could be transformative for the form of lawyering it embodies. It would be now near impossible to take at face value any claim that the “rule of law” is some consistent rubric for understanding how the Bank’s lawyers operate. It is indeed a cold, dispassionate dissection that lays bare the Bank’s almost a-human view of lawyering as an enabling adjunct of the technocratic regulatory rationalism at the hear of global popular discontent.

The World Bank’s Lawyers stands out among the work of a new generation of international law scholars looking to expand and contest the very nature of international law scholarship. However one might feel about the nature of his critique, he has succeeded in provoking any serious reader to consider how knowledge about the field is produced, and what the aims of critical scholarship in international law should be.

Cite as: Jedidiah Kroncke, The World Bank’s Many Worlds of the Rule of Law(yering), JOTWELL (May 8, 2023) (reviewing Dimitri van den Meerssche, The World Bank’s Lawyers: The Life of International Law as Institutional Practice (2022)), https://intl.jotwell.com/the-world-banks-many-worlds-of-the-rule-of-lawyering/.

Artificial Intelligence, Human Rights, & Legal Judgment

Many nation states have grappled with the questions raised by the use of artificial intelligence (AI) in administrative decision-making, law enforcement and criminal prosecution. National courts have addressed the use of data analytics for criminal sentencing. National legislatures have debated regulations limiting the use of machine learning for surveillance and profiling. But what role does international law play in the governance of existing and emerging artificial intelligence technologies? As of this writing, there are no international treaties providing guidance or imposing obligations on signatories in shaping the regulation of artificial intelligence. National law is the sole locus for containing artificial intelligence-based technologies.

Two essays published in the American Journal of International Law Unbound contribute to the neglected area of international law and artificial intelligence. Both look to international human rights law as the source of protections for liberty and equality in the encroaching technologies of machine learning, data analytics, and other software aided tools in the domains of law. Each however takes a different approach to integrating technology with traditional legal approaches in reining in unchecked uses of artificial intelligence. One author is skeptical of human rights law and its potentially luddite tendencies. The other author advocates for democratic values, as embodied in international human rights law, as providing the check for the deployment of new technologies. Because these two essays fill a longstanding gap in the scholarly literature on artificial intelligence and international law through contrasting yet complementary approaches, these are important works that I like lots.

Professor Malcolm Langford, University of Oslo Law Faculty, examines how two rights recognized under international human rights law can moderate the use of automation in administrative decision making: the right to social security and the right to a fair trial. These two rights, he points out, are often the basis for criticisms of administrative implementations of artificial intelligence for making decisions about the denial of benefits or alteration of rights. While Langford acknowledges the criticisms, he emphasizes that “they should be evidence-based, informed by an understanding of ‘technological systems,’ and cognizant of the trade-offs between human and machine failure.” (P. 141).

Langford’s account of AI begins with the parallels between the logic of AI and the logic of legal process recognized in the 1970’s. This recognition led to introduction of automated technology in the administration of benefits, justified in part by the need for efficiency in allocating and distributing benefits and in part by the need for promoting ease of access. As automation expanded, the democratic goals of transparency, participation and accountability became compromised. At the same time, the advantages of technology in providing benefits underscored the need for digital literacy among the recipients of government benefits. Furthermore, digitization of appeals transformed administrative hearings into formal adjudication. Transformation into formal adjudication reveals the need to recognize a right to a fair trial within the digital rule of law. This right is necessary to combat arbitrariness and discrimination created by digital algorithms. In addition, the right can counter concerns about legal accuracy and lack of transparency in algorithm-based methods. Finally, a right to a fair trial can address inequities between parties arising from unequal resources and access to counsel.

Substantive rights may cure the threats from digital technologies, but they serve to critique the use of artificial intelligence in legal process more broadly. Langford identifies Severalin which critical empiricism can guide the critique. The primary question is how critics frame the technology. Langford emphasizes that technology is not an artifact or a thing but a “complex assemblages of components and know-how that make up ‘technological systems.’” (P. 145). Analogously, the right to a fair trial “is based on a complex combination of actors, processes, and rules.” (Id.). This systems-based approach to artificial intelligence and legal rights highlights the use of systems as tools for control as well as tools for change. “Public administration,” Langford concludes, “should be understood as a form of technology, complex and hierarchical amalgam of rules, algorithms, institutions and spaces—that can both liberation and repress.” (Id.)

This complexity points to the need for evidence to document the ills of artificial intelligence . Design of automated administration should minimize the dangers whether these ills arise from machine or human error. Evidence should inform regulation of artificial intelligence to preserve the values of democracy such as accountability and transparency of process. Regulation would go together with new digital tools that can hold the government accountable for how technologies are implemented and used for decision-making.

Langford envisions a role for digital technology to combat digital technology: “Public and private investment in digital accountability will be crucial therefore in ensuring that automation advances rather than retards international human rights.” (P. 146). Langford identifies “public interest technologies” that can mobilize citizens to counter AI and government overreach acomplaints to identify AI failures and to propose regulations to cure them. One example is JustBot, an application to help individuals in Europe “apply more readily to the European Court of Human Rights and potentially avoid customary summary rejection.” (Id).

In contrast with Langford, Daragh Murray of University of Essex advocates for a critical regulatory perspective on artificial intelligence in administrative decision making. His argument is that international human rights law obligates states to ask two questions before deploying artificial intelligence: (1) why a deployment is necessary and (2) what alternatives are available. These two questions are assessed against democratic principles that protect individuals against arbitrary state interferences violative of human rights. What Murray proffers is a framework for legislatures to follow in assessing policy justifications for adopting AI-technology and for courts to review legislative decision making.

Mr. Murray frames this inquiry as an ex ante obligation on states to address these questions before deploying AI technologies. But he also recognizes that court may apply this inquire ex post to review AI technologies that states have implemented. He uses the example of live facial recognition technology in the United Kingdom where an appeals court was reviewing the South Wales Police’s adoption of face recognition technology, as of the time of the article’s publication.

AI deployment is necessary based on an assessment of “the potential utility and the potential harm of any deployment, in light of the constraints of democratic society.” (P. 160). This assessment of utility and harm would include fidelity to democratic principles, the solution to a pressing need, and a proportionality analysis of means and ends. This third factor points to the consideration of alternatives to artificial intelligence in light of the objectives underpinning the deployment, the necessity of the objective, and the precise manner in which the technology is implemented. Furthermore, before deploying any AI-technology, the state should consider whether it “could use other, less invasive, approaches to achieve the same—or sufficiently similar—objectives.” (p 161). For example, alternatives to facial recognition technology to identify individuals subject to an arrest warrant would include contacting the person’s family or household and visiting places where the person is known to frequent.

This two-question approach leads Murray to an inquiry that would distinguish between AI technologies that represent “a continuation of preexisting police capability by other means, or…a step-change in capability.” (P. 162). For AI technologies that serve as a continuation, Murray proposes that resource efficiencies are relevant for decision-making, given the potentially positive impact would have on the state’s effectiveness. If, however, a particular AI technology represents a step-change in police capability, resource efficiencies should not be relevant for consideration because of the expansion in state powers and potentially adverse effects on human rights. In short, Murray offers a human rights-centered methodology to assess and control state deployment of artificial intelligence.

These two articles together fill a gap in understanding artificial intelligence within international law. While filling a gap, the articles also expand the debates over artificial intelligence. International human rights can aid human judgment as it confronts the challenges posed by artificial intelligence. These two contributions set forth the place of legal process and the role of AI in the future of human rights. Together they provide a preliminary roadmap for reforms. Separate, each article supports the two sides of ongoing debates, those who favor traditional law and those who favor novel technologies. These two articles together I like a lot because they are important seeds for future scholarship on law, policy, and technology.

Shubha Ghosh, Artificial Intelligence, Human Rights, & Legal Judgment, JOTWELL (April 4, 2023) (reviewing Malcolm Langford, Taming the Digital Leviathan: Automated Decision-Making and International Human Rights, 114 Am. J. of Int'l. L. Unbound 141 (2020); Daragh Murray, Using Human Rights Law to Inform States’ Decisions to Deploy AI, 114 Am. J. of Int'l. L. Unbound 158 (2020)), https://intl.jotwell.com/?p=4651&preview=true.