Published on September 10, 2013 Author: Steven R. Ratner
Steven Ratner is the Bruno Simma Collegiate Professor of Law at the University of Michigan Law School.
Persuasion is at the heart of the lawyer’s – including the international lawyer’s – task. The lawyer may be persuading a decisionmaker of the merits of her client’s case; or persuading another party, or even her own client, of the need to follow the law; or persuading lawyers on the other side, or even her own side, of the best legal strategy to pursue to resolve a problem. For the international lawyer, like the domestic lawyer, most of that persuasion takes place outside any courtroom, whether in negotiations, hearings, private meetings, or public statements. Those institutions or individuals making the decisions on a client’s interests are far more likely to be regulatory or political actors than they are to be judges – particularly in the international context, where the nuts and bolts of legal claim and counterclaim are still beyond judicial scrutiny. Critical to the lawyer’s role in that process of persuasion is the question of whether, in those settings, a legal argument really works – whether it actually convinces the audience.
Lawyers do not generally ask this question when it comes to courts. We assume that international and domestic courts will be persuaded by legal arguments because their mandate is to decide cases based on the law alone – such that we’d question their legitimacy if they overtly set aside legal arguments in favor of non-legal arguments (moral, economic, or otherwise, though there can be recourse to ex aequo et bono). And we would all be guilty of malpractice if we did not present that best legal argument to a court.
But what about the lawyer’s role in persuading all those non-judicial actors – the ones that are more likely to make a difference to the client’s interest? In the international realm, whatever the client, lawyers have to persuade governments, international organizations, powerful nonstate actors, and the general public. Beyond the client’s interests, as international lawyers, we are also presumably committed to the idea that international actors follow the rules. If an actor is violating the law or contemplating doing so, do we know what works to convince it to stop doing so? How helpful is legal argumentation?
This issue has intrigued me ever since I was a State Department lawyer and continues to do so as I’ve worked in various capacities as a legal expert for the OSCE High Commissioner on National Minorities and the ICRC as well as a member of the UN Secretary-General’s panels of experts on accountability in Cambodia and later in Sri Lanka. In these jobs, the key audiences that my employers or I were trying to persuade are very rarely courts. Yet I’ve always been bothered by the proclivity of most doctrinal international law scholarship to gloss over the obvious reality that the lawyer’s job is not just to come up with the best legal argument to persuade a court – but rather to employ all his or her skills to solve a problem for a client. In this post, relying somewhat on a recent piece, I want to review the scholarship on persuasion and my sense of different transatlantic views of the issue. In the next post, I will offer some thoughts on why international lawyers should care about more than legal arguments.
Where We are on Understanding Legal Persuasion
Scholarship on persuasion is, more or less, a subset of scholarship on compliance – on why states (alas, the scholarship is mostly about states) follow or violate rules of international law. It is overtly interdisciplinary, with IR scholarship making key contributions. So the underlying assumptions of institutionalist, norm-centered, liberal, and constructivist approaches often affect scholars’ views on persuasion. Current understandings regarding the role of persuasion by one actor (the persuader) to induce another (the persuadee) to comply with the rules seem to fall into two camps. Static theories examine the relationship between the persuader and the persuadee, focusing on fixed traits of the parties or the norms at issue, without much regard to what is actually communicated between the actors. These factors include relative power of the actors, the extent to which they are repeat players or in one-off games, the internal makeup of a state, or certain qualities of the norm. These theories view the actual communication process as essentially a sideshow – that it cannot influence the decisions of actors to comply or not comply.
Dynamic theories, on the other hand, focus on the microprocess of interaction and communication between the two entities. Some institutionalists accept the relevance of argumentation, but only if one side introduces new information into the process that changes the other side’s calculations of how to advance its endogenously determined interests. Early constructivist theory identified a process whereby norm entrepreneurs persuade domestic actors to endorse an emerging norm through a so-called “norm cascade.” A promising approach has been taken by a group of German constructivist IR scholars, following Habermas, who suggest that certain conditions during international negotiations allow for argumentative persuasion to convince states to change their mind – as opposed to simply their positions. Thomas Risse examined the possibility that a “common lifeworld,” in Habermas’ terms, can prevail in certain international settings, such that the parties are truly open to being persuaded by the other side. They have also relied on psychological research on persuasion. Beyond these theories, the policy-oriented school of international law, which has strongly influenced my thinking, has long viewed law as a process of communication and thus recognized that compliance depends on persuasion.
However, not even the dynamic theories amply address the invocation of legal norms during the conversation about compliance. They do not explain the choices behind or consequences of the persuading entity’s invocation of the law and the difference between such a dialogue and one that does not invoke the law. Thus, for example, much of the constructivist literature on norm cascades fails to differentiate between norms that are socially desirable and those that are legally required. The paradigmatic cases, such as the antislavery movement, generally concern social norms that were not, during the norm cascade, legal rules. Even the work in the Habermasian tradition generally does not isolate specifically legal arguments. The notable exception in this regard is Ian Johnstone, who describes how legal arguments within international organizations are particularly powerful; yet his focus is on legal argumentation as improving discourse overall, rather than the choices participants make between legal and nonlegal argumentation.
Beyond IR scholarship, the literature on the role of law in persuasion in noninternational settings is generally confined to the courtroom context. But, in this micro-universe, the dialogue is retrospective and the targets of arguments are judges and juries operating in a rarified atmosphere far from political realities. While a sympathetic defendant or victim in a criminal case may influence those decision makers as much as the law, legal arguments are still central to – indeed, the raison d’être of – that venue.
As a result, most scholars have not delved deeply into the process of persuasion, and we still see a gap when it comes to the power of specifically legal argumentation. Much remains to be done on some key questions, including why actors do or do not invoke legal arguments to persuade other actors to undertake certain conduct; the different forms legal argumentation can take; and whether legal arguments work. I think legal scholars can and should make a large contribution to answering these questions and need to leave the theorizing to IR folks.
A Transatlantic Rift?
Yet in advocating such a role for international lawyers, I also sense a greater interest in these questions by U.S., Canadian, and Australian (and to some extent U.K.) scholars than those based in continental Europe. I would suggest at least three reasons for this divergence and would welcome reactions from readers about these.
First is the strong tradition of legal realism on one side of the Atlantic, where law students – future lawyers and academics — are taught not merely the contents or even the nuances of the rules and doctrines, but about what difference law really makes on behavior. Lawyers see themselves as problem solvers and not just as writers of legal opinions or briefs or as clarifiers of doctrine. My sense is also that, as a result, those lawyers, including international lawyers, are more integrally involved — and trusted by their clients – in decisionmaking and strategy than on the continent. At the same time, continental Europeans may well be handicapped to serve in these capacities; in a world where so much international policymaking, negotiation, and advocacy takes place in English, states (as well as international organizations and NGOs) often entrust the drafting of key documents – a critical phase of lawyering — only to native-English speakers, thus perpetuating their roles as hands-on advisers.
Second, within the legal academy in the U.S., Canada, and Australia, interdisciplinarity, whether with IR theory, feminist jurisprudence, or economics, is welcomed and not seen as some sort of threat to the integrity of legal academia. Despite the globalization of international law, I still get the sense that many trained in the European formalist tradition strive too much for the perfect doctrinal solution that might convince a court but prove perfectly useless to convince decisionmakers in nonjudicial settings. That view seems to assume that because formalist argumentation is de rigueur in some arenas (e.g., before an international court), other analytical approaches are somehow flawed. One finds an aversion to IR theory as somehow too American – even hegemonic — leading to an isolated, almost purist sense about what lawyers should do. One need only compare textbooks and courses offered on each side of the Atlantic to see the contrasting role for interdisciplinarity. Indeed, about ten years ago, the co-authors of my casebook and I offered a defense (in three languages) of our approach in response to Gilbert Gillaume’s views on American legal education. One cannot lump all of Europe together; in terms of the two largest traditions, French scholarship seems more formalist and isolated in key respects than German work.
Third, the entire subject of compliance does not fit in neatly with the formalist categories for the study of international law, notably the doctrinal straitjackets of “enforcement” and “dispute settlement” that dominate European treatises and approaches. In the narrowest sense, too many scholars limit their inquiries regarding the best methods to respond to violations of international law to the role of international tribunals – whether the ICJ, ICC, WTO DSB, ECHR, ICSID, etc. At best they may look at the list of options in Article 33 of the Charter. But any practicing lawyer knows that these methods are not how most disputes are resolved; these boxes miss the day-to-day persuasion that takes place at multiple levels whereby actors try to convince others of the merits of their legal views, including legal views that another party is violating the law. Relatedly, European scholarship seems to see lack of compliance with international law rules principally as the law violator’s problem and not possibly symptomatic of the law’s problems in terms of defective rules.
Overcoming this divide will be a formidable task. One consciousness-raising effort might be for those academics who have not tried it to find a way to see how the law really works to influence behavior. Volunteer some time — or, if you can find funding and your institution allows it, take a leave – to work on legal issues for a government, intergovernmental organization, or NGO (of whatever size). In these organizations, the practice of law is mixed with politics and policy. If you can work out an arrangement with one to be integrated into their work, the benefits will flow both ways. Although service as a lawyer for or before courts or arbitral bodies has many rewards, it presents only a small slice of the process of claim and counterclaim in which international law actually affects – or does not affect — the behavior of global actors. As Anne Peters has recently written in the EJIL, “legal practice provides the ‘reality’ check for international legal scholarship.”
In my next post, I’ll offer some thoughts for understanding how persuasion, including legal argumentation, works as a way of promoting compliance with international law
In my last post, I noted several gaps in the literature on legal persuasion, notably the reasons actors make legal arguments, the forms those arguments take, and their effectiveness. In this post, I want to express a few views on the first two of these questions, based on research that reflects my experience in-house at several international institutions whose mission includes encouraging compliance with international norms. In brief, I’ve tried to develop a theory under which an international actor (government, NGO, non-state actor, corporation, etc.) seeking to persuade another actor to comply makes decisions about the sort of strategy it will use based on four inputs:
- the nature of the compliance dispute;
- the parties to the dispute;
- the institutional setting for the persuasive process; and
- the traits and sense of identity of the persuading entity.
These inputs will affect all aspects of its persuasive strategy — the timing of the intervention (i.e., the ripeness issue), the specific institutional players it will deploy (e.g., high vs. low-level actors), as well as the substantive content of the argumentation — including, of course, its legal component. (image: illustration of a scene from the novel Persuasion, entitled, “The Unwelcome Hints of Mr. Shepherd, His Agent,” credit)
The legal arguments used by the persuader – the outputs — will also fall along four dimensions. Those arguments will vary according to what I have termed their:
- publicity (from secret all the way to public);
- density (from sparse in terms of detailed legal interpretation all the way to thick with it);
- tone (from gentle and educative all the way to confrontational); and, most critically for our purposes,
By directness, I mean the centrality that law will assume within the argument for compliance. The concept of directness helps us understand the nuances of legal argumentation as a way to promote law compliance. Three options for directness are possible, where, let’s say, X is the behavior required by the law. (I am simplifying based on a notion of law as imposing obligations.)
First, the persuader can invoke law directly, as in, “Please do X because it is the law.” Such a plea seeks foremost to base compliance on a need felt by the target to meet a legal obligation.
Second, the persuader can use law indirectly, as in, “Please do X because it is the law, and compliance with the law is [moral, economically advantageous, etc.].” Here, a desire to comply with law as such is seen as insufficient to alter the target’s behavior, so the persuader explains the benefits of compliance or the harms from noncompliance. The use of such additional arguments is quite common, even if the nonlegal considerations deployed will vary across targets and persuading entities.
Third, the persuader can use law furtively, by simply removing the reference to law, as in, “Please do X because it is [moral, economically advantageous, etc.].” Although still seeking compliance with the law, the persuader does not argue in legal terms at all.
Although I think all persuading actors work according to these inputs and outputs, let me elaborate through the example of the International Committee of the Red Cross – the sui generis Swiss NGO that is constantly seeking to persuade states and armed groups to comply with IHL. Although at times it argues that warring parties must comply because IHL is the law – the direct option above — it more often relies on the other two forms, indirect and furtive legal argumentation, each of which entails nonlegal arguments. The ICRC’s alternatives to law talk include principally:
- (a) humanitarian arguments (i.e., that changed behavior will reduce the suffering of innocent victims);
- (b) political arguments (i.e., that changed behavior will improve the target’s domestic or international reputation);
- (c) economic arguments (i.e., that changed behavior will lead to additional sources of foreign or domestic revenue);
- (d) pragmatic arguments (i.e., that changed behavior will improve the efficiency, discipline, or internal functioning – or treatment by opposing forces – of the target’s armed or security forces);
- (e) moral arguments (i.e., that changed behavior is the morally right way to respond, in the sense of the way a decent military or security force should act); and
- (f) customary arguments (i.e., that changed behavior is demanded by the customs and mores of the target’s society).
The ICRC thus offers ideas to warring parties on how compliance with the law is in their own interests, as it could improve military discipline, encourage reciprocal conduct by the enemy, promote a side’s reputation, appeal to a side’s moral values, and advance the prospects for long-term peace. Alternative argumentation is critical when interlocutors are ignorant of, or might be confused by, the law’s contents, or see IHL as a creation or tool of their enemy. It is also particularly useful in noninstitutionalized settings, affording more flexibility in the terms of discussion. As a result, one witnesses a spectrum of dialogues with regard to their legal component. At one end might be exchanges in conference rooms with the U.S. Department of Defense or Israel Defense Forces, each staffed with legions of highly skilled lawyers; at the other might be conversations in isolated camps with the Lord’s Resistance Army, a Sudanese rebel group, or elements of the Taliban.
So why should lawyers care about all these alternatives to legal argumentation? They seem about as far from good legal arguments as we can imagine. Because, in a word, as international lawyers, we are supposed to care about compliance with the law, and the real experiences of actors seeking that compliance from others show that the invocation of international law does not represent the exclusive or even dominant method for seeking it. While it is probably impossible to know in a quantitatively robust sense which arguments actually work, if we assume actors’ persuasion strategies are rational and based on their sense of what works, then we can say that achieving compliance with law does not necessitate – or even argue for – a conversation laden with law. Legal argumentation might assist the task, but it can equally undermine it.
These strategies also show that the modes of argumentation adopted by institutions seeking to promote law show that they are more than willing to settle for compliance – in the sense of matching behavior to the rules for self-interested reasons – rather than obedience – in the sense of matching behavior to the rules due to some internalization and acceptance of the norm. That is, the choices that persuading entities make regarding the modes of legal argumentation are choices about how to achieve behavior consistent with the law – about respect for law in the broadest sense of the term. They are not seeking to persuade a target to internalize a norm, although they are not opposed to it when that is feasible. Although scholars can usefully identify reasons why entities may internalize legal norms, the mode of argumentation adopted by a persuading entity is based on a much more basic question: how will its use of the law promote compliance in this case, given this dispute, these actors, this setting, and the persuading institution’s identity?
This conclusion about the limitations of a focus on obedience is, in a certain sense, not news at all. IR scholars recognize that obedience is too much to expect of states and other actors, as well as hard to observe or measure. Institutionalists do not regard obedience or internalization as essential to effective regimes. In the domestic context, Joseph Raz long ago noted that the best law can really expect of individuals is compliance (although he used the term “conformity” for the same idea). Indeed, as the ICRC demonstrates, even institutions that place a priority on – indeed, that make one of their defining missions – the implementation of specific bodies of international law are prepared to forego obedience for compliance. If a state or armed group observes IHL because the ICRC has convinced it of the advantages of observance, rather than caused it to accept a rule in its heart, the ICRC is prepared to call its intervention a success. Moreover, even those groups that adopt a wholly different modus operandi on legal argumentation, such as large international human rights NGOs — with their public, detailed, confrontational, and direct approach — seem prepared, at least based on my interactions with them, to settle for compliance. This observation reinforces my point that those lawyers actually practicing international law may have a much better sense of the limits of legal argumentation than academics who write about it.
Some readers may see a persuasive process oriented toward compliance as a poor substitute for the rule of law. From the perspective of improving behavior, internal acceptance of the rule, either its substance or its bindingness, should remain the long-term goal. With internalization, entities seeking respect for rules avoid repeatedly engaging with the same targets; indeed, the ICRC has many initiatives to this effect. In addition, for standards whose customary international law status is questioned, obedience, in the sense of acceptance of the rule because it is law, adds that magical ingredient – opinio juris – that turns practice into custom. Even consistent compliance falls short in this sense.
Yet, in the end, international lawyers should not object to compliance compared to obedience. In the case of IHL, for example, given the obstacles to internalization during armed conflict, the gravity of the violations and thus the urgency of terminating them, and the actors with whom ICRC delegates interact – not typically lawyers in foreign ministries or legislatures – compliance sounds hard enough. Beyond the ICRC, Raz’s insight regarding the realistic goals of a legal system seems even more compelling at the international level, and sophisticated international actors comprehend that their goal of furthering law compliance can be undercut if they make the target’s legal obligations too prominent during the persuasion process.
For international law to be more respected by all global actors, we as international lawyers need to recognize the advantages and disadvantages, and the nuances, of a good legal argument. We are kidding ourselves if we expect certain actors to be persuaded by standard legal arguments, and so we should not make arguments to them as if they are international judges. Sometimes the law needs to be in the shadows.