The Sociology of International Precedent
The Sociology of International Precedent
Harlan Grant Cohen[*]
I. Introduction
Precedent presents something of a puzzle for international law. As a matter of traditional international law doctrine, precedents exert no special legal force. Since at least the establishment of the Permanent Court of International Justice in 1922, judicial decisions have been relegated to the status of “subsidiary means for the determination of rules of law.”[1] This understanding, carried into Article 38 of the Statute of the International Court of Justice[2] (ICJ) and reified by casebooks and treatises as part of international law’s “doctrine of sources,”[3] has meant that as a matter of international law doctrine, judicial decisions construing international law are generally not-in-and-of themselves law – decisions are not binding on future parties in future cases, even before the same tribunal.[4] And this doctrinal understanding is no accident. In creating international tribunals, states have been careful to retain as much control as possible over the final meaning of their obligations and consent.[5]
And yet, by most accounts, the use of precedent in international law is everywhere. Reports from international investment arbitration,[6] international criminal law,[7] international human rights,[8] and international trade,[9] all testify to precedent’s apparent authority. Across international law, practitioners invoke it and tribunals apply it. This would be remarkable if courts and tribunals simply cited their own precedent – international law doctrine requires no such result. But courts and tribunals go much farther (following the lead of international advocates), citing positively or negatively even the decisions of other unrelated courts and tribunals emanating from different areas of international law, with different mandates. The precedents from one regional body are argued to others;[10] precedents from human rights courts are argued to investment tribunals;[11] precedents from ad hoc criminal tribunals are applied to domestic civil judgments.[12]
Nor is this phenomenon limited to arguments from, to, or in the shadow of international tribunals. The invocation of tribunal decisions as precedent has become part of the fabric of international legal discourse, structuring everyday arguments between international actors over the meaning of international law rules even far outside the shadow of any court. Russian and Crimean political leaders invoke the ICJ’s Advisory Opinion on Kosovo’s declaration of independence as precedent for the legality of Crimea’s secession and absorption into Russia.[13] Advocacy groups like Human Rights Watch invoke decisions of the International Criminal Tribunal for Yugoslavia (ICTY) in open letters to government on the legality of tactics used to fight terrorist groups.[14] Academics invoke ICJ decisions in Nicaragua v. United States, the Israeli Wall Advisory Opinion, and Democratic Republic of Congo v. Uganda in debates over the legality of the use of force against non-state actors.[15] And perhaps most surprisingly, the Department of Justice responds to decisions of the ICTY, European Court of Human Rights, and the U.N. Committee Against Torture in internal, confidential government memoranda.[16] Together with other interpretations of international law by expert committees, by international organizations, or by states, these decisions vie for status as authoritative statements of what international law requires.[17]
But if this puzzling phenomenon is ubiquitous and even widely recognized, it has nonetheless, remained largely unexplained. Why, in the absence of any doctrinal requirement (or perhaps, permission), do some interpretations of international law by some courts, tribunals, or other bodies take on the force of precedent? Why do some interpretations come to be seen as authoritative, allowing some actors to wield them and forcing others to respond? For the most part, existing discussions of international precedent fail to deal squarely with these questions.
This project seeks to answer these questions and to explain when and why certain interpretations of international law come to structure discussions and debates regarding international law’s content and meaning. It does so by trying to develop a sociological account of international precedent that can complement and illuminate existing positivist and rationalist accounts. As will be explained below, what’s lost in the prevailing positivist and rationalist accounts is precedent’s role in legal argumentation and the actors and audiences who take part in it – in other words, precedent’s role in the practice of international law. Looking more closely at the “communities of practice”[18] in various areas of international law and the varied actors who take part in them, this project hopes to construct the “field”[19] (or really, fields) of international law and the role that precedents play within it.
II. Finding the Right Frame
A. The Limits of Positivist and Rationalist Accounts
Many observers have noted the emergence of precedent within particular fields; some have even opined as to whether that trend is good or bad.[20] But few have gone further to ask why a system or habit of precedent has emerged in the first place, let alone to try to explain the varied shapes those systems or habits might take. Most of the existing accounts of international precedent instead approach the question obliquely focusing on different questions such as (1) when and why states delegate interpretive authority to tribunals,[21] (2) when and why, strategically, states, courts, or other actors might invoke tribunal decisions as authoritative,[22] or (3) when and why states might follow or rely on particular tribunal decisions[23] (and by extension, might invoke those decisions as authoritative in the future).[24] These accounts have tended to start from either a positivist or rationalist perspective and go some way towards explaining why precedent might be a desirable or undesirable regime design feature, a useful coordination point, or a useful litigation or adjudication strategy. But all seems limited in their ability to explain uses of precedent that seem to go against the self-interest of the actors involved or that are far removed from their original litigations contexts. Some of these accounts suggest that precedents can act as soft law, providing useful predictors of what others actors will believe the law requires[25] or that precedent may exert independent compliance pull on actors – a reality litigants and judges may use to their benefit.[26] But even in these cases, the mechanism – why precedent would be a predictor or how it would exert compliance pull is left somewhat to the imagination.
The problem with these existing accounts is that focused on other questions like delegation, compliance, or strategy, they focus too much on the inputs and outputs of the legal system—on particular moments when constitutive treaties are drafted, when litigation strategies are designed, when the decision is made to comply or not. While these moments implicate precedent, they don’t deal with it head on, and such miss the ways in which precedent actually works and the function it plays in legal argumentation.
B. The Potential for Sociological Accounts
Understanding the emergence of international precedent requires an account not just of the inputs and outputs of the legal process, but of that process itself. Understanding international precedent requires an account of the practice of international law.[27]
Law does not simply provide rules to be followed. Law also sets the norm or rules for discerning, interpreting, advocating, and debating the contents of those rules. It provides a set of spoken and unspoken ground-rules that structure an ongoing claim and response over the applicable law. One party argues for one interpretation of the rules; another argues for a different one. The law frames which arguments are better or worse, which arguments will be convincing and which will fail.
It is in this process, this practice, that precedents gain their legal force and play their role. Precedent might best be understood as the burden prior interpretations of a particular rule put on future arguments about the content or meaning of the rule.[28] In its weakest form, precedent simply supplies an argument that one must respond to; one cannot make an argument about the rule’s meaning without some reference to why the prior decision is right, wrong, or distinguishable.[29] In its strongest form, precedent creates a strong presumption that the prior interpretation of the rule is in fact the rule. The question is not why actors do follow or do not follow precedent, but instead when and why prior interpretations place these burdens on arguments about the rule.
This means that fully understanding how and why interpretations take on weight as precedents requires understanding the process of legal argumentation and the practitioners who take part it in it. Elsewhere, I have argued that thinking about international law as the product of specific communities of practice can help explain the philosophical, theoretical, and doctrinal differences developing between different areas of international law,[30] e.g., international human rights law,[31] international criminal law, and international investment arbitration,[32] as well as the emergence of areas of transnational law almost completely divorced from state control like global administrative law.[33]
But imagining international law as a product of these communities of practice can also help unlock the mystery of precedent. Precedent is hard to understand as an objective fact disconnected from any particular group of actors. A prior decision by a particular legal body is a fact, but how much weight it should be given in future debates over a particular rule is dependent on how it is perceived by the actors reading it. Precedent is what Friedrich Kratochwil[34] and John Ruggie[35] have described as an “institutional fact.” Like a “hit” or a “strike” in baseball, it is only a fact within the particular rules of a particular institution or community.[36] Just as a student of baseball and a student of cricket will see two very different sets of facts in a group of people with bats and ball on a field, so too will actors biased towards the authority of courts or the bindingness of precedent perceive the value of a tribunal decision differently than actors biased towards state consent, state prerogative, and pragmatism. Different international law regimes – international human rights law, international humanitarian law, international investment law, international environmental law, or international criminal law – may involve different mixes of actors – advocates, political leaders, diplomats, military personnel, scientists, economists, international lawyers, and domestic lawyers. Each of these different actors will bring their own professional norms and biases to the debate, and different mixes of actors will agree on different norms and operating assumptions. Understanding the relative weight different decisions by different bodies seem to carry in different contexts requires understanding the communities of actors who might perceive them that way.
The key is identifying the actors who practice in a particular area of law, both at the center of that practice, interacting regularly and intensely over the meaning rules, and at the periphery.[37] Looking at these particular actors or groups of actors, we can begin to isolate characteristics, habits, biases, or incentives that might shape the international legal practice in which they engage.
Elsewhere, I have sought to catalogue the various potential sources of precedent in international law – the range of tribunal decisions, national court opinions, expert interpretations, and state actions that might be invoked as authoritative interpretations of international law – and the varied potential reasons any particular interpretation might be deemed more or less authoritative, ranging from the self-interested to the principled.[38] Focusing on the actors participating in international legal process helps us to see how they might interact with and understand these two factors.
We might, for example, focus on these actors’ professional training, asking how training in law, economics, science, or soldiering might change or construct their views regarding particular sources. Based on their training, we might expect lawyers, particularly common-law lawyers, to be more familiar with judicial opinions and to find judicial opinions more easily accessible.[39] Given rule-of-law principles that suffuse their training, we might also expect them to weigh consistency with prior interpretation and adherence to the broader legal regime more heavily, and see judicial opinions that recognize these principles as more authoritative.[40] We might expect military personnel to see sources differently, looking to pragmatic concerns of military effectiveness and looking to prior combat actions as more authoritative precedents.
Or we might look at look at the epistemic communities in which these actors operate, asking who they interact with on a regular basis. We might expect foreign ministry lawyers who deal regularly with diplomats to approach potential sources of precedent differently from military lawyers embedded within the military chain of command.[41] We might expect international criminal law lawyers with one foot in domestic criminal law to approach issues (often the same issues) differently from military lawyers.[42] And we might expect private commercial law lawyers, government lawyers, and public international lawyers to value different sources of authority in investment arbitration.[43]
Alternatively, we might want to look at different actors’ social and political capital or incentives. How is success in their job defined and who defines it? Even if they are all trained as lawyers, politicians,[44] bureaucrats, NGO activists, judges, and military lawyers may all respond to different incentives and may look to different audiences for career or personal advancement. To the extent they work with other lawyers, particularly domestic lawyers, they may be expected to argue from judicial precedent. Failing to cite precedents that might seem relevant to other lawyers may even result in professional opprobrium or sanction. Within a legal organization, arguments that follow the professional script and reference judicial precedents will be rewarded. Arguments that seek to be overly creative or iconoclastic might not. And these effects should be compounded with in subfields of international law, where specific sources – decisions of international criminal tribunals, human rights bodies, investment arbitral tribunals, national court opinions, International Committee of the Red Cross commentaries, UN Security Council resolutions – may be seen as particularly important or authoritative.
Working with non-lawyers, lawyers will face other considerations. In some cases, arguments from judicial precedent may enhance the lawyer’s stature. Lawyers as a professional group have specific sources of political and social capital that they can use to maintain their importance and relevance in relation to other societal actors,[45] among which is lawyers’ purported expertise in interpreting and applying certain legal sources. This expertise includes, among other things, stylized forms of analogical reasoning and the ability to parse legal opinions. Lawyers, seeking to maximize their own power and authority vis-à-vis other international actors, may want to emphasize the value of precedents and their unique ability to understand them. In other contexts, however, lawyers may fear being seen as irrelevant by other actors and too easily marginalized. Government lawyers often recount how precedent-strewn arguments made amongst lawyers are shorn of references to international decisions when made to political leaders who might perceive their authority differently (or in some cases, negatively).