International & National Law
INTERNATIONAL LAW AND THE LAWS OF NATIONS
POLSH317/PEACH 317
Haverford College, Spring 2019
M 7:30-10:00
Classroom: Hall 107
Mailbox: Faculty Mailroom in Hall Building
Office Hours: W 2-4pm, Coop Cafe; or by appointment
E-mail: tjdonahueAThaverford.edu
International law is a system of norms by which states regulate their treatment of each other and of each other’s citizens. Its underlying hope is that by setting a law for states and peoples, there will be more peace, order, and justice in world politics than if there were no such law. It is often thought that international law is a primitive domestic legal system, since it has no sovereign law-giver nor law-interpreter. So most studies of international law model it on domestic legal systems. But what if we were to reverse that relationship, and study the foundations of domestic law by using international law as a model? After all, the world's legal systems are increasingly influenced by international law. International law shapes and influences the statutes and judicial decisions of legal systems around the world, and the decisions of domestic courts are increasingly influenced by foreign law. Hence this course surveys the main features of international law and then uses these to better understand the foundations of domestic law, in criminal law, property law, contract law, corporate law, administrative law, and constitutional law.
Course Requirements. To earn full credit, you must:
(1) Participate in class discussion. I know many people find this daunting. Nevertheless, try. One main aim of the course is to help you improve in argument.
(2) Submit 6 weekly response papers. Each week, you may submit a paper, of not more than 350 words, that examines some thesis that that week’s reading has argued. The paper may criticize the argument by which the reading defends the thesis, mount its own argument to refute the thesis, or mount its own argument to defend the thesis. For full credit, you need only submit 6 such papers.
(3) You are required to submit, in Week 8, a proposal for your final paper. The proposal should state a question concerning one of the topics covered in the course, say why the question is important, state your answer to the question (i.e., your thesis), give the key reasons by which you will defend the thesis, state two serious objections to your thesis, and state how you will respond to the objections. The proposal should be not more than 800 words long. (For tips on how to say why the question is important--i.e., to show that there's a more general question we can't fully answer until we've answered yours, check out Chapter 4 of Wayne Booth et al, The Craft of Research (Chicago, 2008, available online through Tri-Co libraries), especially sections 4.1 and 4.2.)
(4) Submit a final paper. You are required to submit, on the last day of exams, a final paper. The paper should state a question concerning one of the topics covered in the course, say why the question is important, state your answer to the question (i.e., your thesis), defend the thesis with argument, state two serious objections to your thesis, and respond to the objections. The paper should be not more than 5,000 words long.
Course Assessment. Course marks will be computed on the following distribution: Attend Sept 12 Make-up or Submit Early Response: 5%; Class Participation: 20%; 6 Response Papers: 36% (6 % each); Paper Proposal: 15%; Argumentative Paper: 24%
Course Objectives. By the end of the course, students should
(1) Have become familiar and able to correctly use such key concepts of international law as states, recognition, sovereignty, immunity, customary international law, jus cogens, municipal law, collective responsibility, etc. ;
(2) Have strengthened their skills in applying these concepts to current debate about the problems of international law;
(3) Have honed their ability to specify how and why specific values clash when dealing with problems of making, interpreting, and enforcing international law;
(4) Have improved their skills in specifying the disagreement over the relevant facts involved in disagreement over these problems of international law.
(5) Have learned how to accurately describe the structure of a theory, specifying its key concepts, its main claims, the basic model underlying it, and the question to which it is an answer;
(6) Have honed their skills in specifying the structures of arguments, breaking them into premises-axioms, middle premises-lemmas, and conclusions-theorems;
(7) Have improved their ability in distinguishing between similar concepts denoted by the same word and spotting equivocations;
(8) Have honed their skills in evaluating and challenging the premises of an argument with rational and well-ordered arguments of their own;
E-mail policy. You are welcome to e-mail me with questions about the course. I try to answer e-mails within 48 hours of receipt. Don’t expect an answer before then. Fast usually means shoddy.
Academic Dishonesty: Don’t do it! Here is Haverford College's official language on the subject:
"A Note from Your Professor on Academic Integrity at Haverford:
"In a community that thrives on relationships between students and faculty that are based on trust and respect, it is crucial that students understand a professor’s expectations and what it means to do academic work with integrity. Plagiarism and cheating, even if unintentional, undermine the values of the Honor Code and the ability of all students to benefit from the academic freedom and relationships of trust the Code facilitates. Plagiarism is using someone else's work or ideas and presenting them as your own without attribution. Plagiarism can also occur in more subtle forms, such as inadequate paraphrasing, failure to cite another person’s idea even if not directly quoted, failure to attribute the synthesis of various sources in a review article to that author, or accidental incorporation of another’s words into your own paper as a result of careless note-taking. Cheating is another form of academic dishonesty, and it includes not only copying, but also inappropriate collaboration, exceeding the time allowed, and discussion of the form, content, or degree of difficulty of an exam. Please be conscientious about your work, and check with me if anything is unclear."
I may, at any time, use tools like turnitin.com to detect plagiarism.
Students with Disabilities, Special Needs, or Having Difficulties: Here is the Haverford Office of Access and Disability Services' Statement, which I affirm:
"Haverford College is committed to supporting the learning process for all students. Please contact me as soon as possible if you are having difficulties in the course. There are also many resources on campus available to you as a student, including the Office of Academic Resources (https://www.haverford.edu/oar/) and the Office of Access and Disability Services (https://www.haverford.edu/access-and-disability-services/). If you think you may need accommodations because of a disability, you should contact Access and Disability Services at hc-ads@haverford.edu. If you have already been approved to receive academic accommodations and would like to request accommodations in this course because of a disability, please meet with me privately at the beginning of the semester (ideally within the first two weeks) with your verification letter."
Writing response papers: Here are guidelines on what I’m looking for, and what I’m not looking for, but other teachers might be: https://sites.google.com/site/tjdonahu/home/writing-response-papers
Timeline of Events and Ideas: https://sites.google.com/site/tjdonahu/home/classics/timeline
How to understand and use theories: Puzzled? You're not alone! Even the professionals find this difficult. Click here for some tips on how to do it: https://sites.google.com/site/tjdonahu/home/using-theories
SCHEDULE
Week 1. Introduction
Week 2. (1) History of International Law. (2) International Law and National Law: How Do They Relate?
Stephen C. Neff, “A Short History of International Law,” in International Law, ed. Malcolm D. Evans (Oxford UP, 2010): 3-24
Antonio Cassese, “States: Rise and Decline of the Primary Subjects of theInternational Community,” Oxford Handbook of the History, pp. 49-70
Eileen Denza, "The Relationship between International and National Law," in International Law (4th ed.), ed. M. Evans (Oxford UP, 2014): 413-440
Week 3. How International Law Gets Implemented Nationally, and How Should It?
Jeremy Waldron, "Foreign Law and the Modern Jus Gentium," Harvard Law Review (2005)
John O. McGinnis and Ilya Somin, "Should International Law Be Part of Our Law?" Stanford Law Review 59 (2007): 1175-1247
Optional: Antonio Cassese, “The Implementation of International Rules within National Systems,” International Law, pp. 213-239
Week 4. Sources of International Law
Vaughan Lowe, “How International Law Is Made,” International Law (Oxford UP, 2007): 34-99
Antonio Cassese, "The Hierarchy of Norms in International Law: The Role of Jus Cogens," International Law, pp. 198-212
Samantha Besson, "Theorizing the Sources of International Law," The Philosophy of International Law, ed. S. Besson and J. Tasioulas, pp. 163-186
FIRST RESPONSE PAPER DUE
Week 5. (1) States in International Law. (2) How International Law Settles Disputes
Vaughan Lowe, “States,” International Law, pp. 136-169 [Haverford click here] [Bryn Mawr click here]
Vaughan Lowe, “Inside the State,” International Law, pp. 170-187 [Haverford click here] [Bryn Mawr click here]
John Merrills, “The Means of Dispute Settlement,” in International Law, ed. Malcolm D. Evans (Oxford UP, 2014): 563-588
SECOND RESPONSE PAPER DUE
Optional: Antonio Cassese, “International Wrongful Acts and the Legal Reaction Thereto,” International Law (2005), pp. 241-277
Week 6. THE INTERNATIONAL LAW OF VIOLENCE
Antonio Cassese, “Enforcement,” International Law (2005), pp. 296-316
Brian Orend, "War," The Stanford Encyclopedia of Philosophy (Spring 2016 edition), Edward N. Zalta (ed.)
David Luban, “War Crimes: The Law of Hell,” in War: Essays in Political Philosophy, ed L. May (Cambridge UP, 2008)
Optional: Ohlin, “Justice after War,” Oxford Handbook of the Ethics of War, ed. Helen Frowe and Seth Lazar
Week 7. International Criminal Law and Domestic Criminal Law
David Luban, “Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law,” The Philosophy of International Law, ed S. Besson and J. Tasioulas
R. Posner, “An Economic Theory of the Criminal Law,” 85 Columbia Law Review 1193 (1985)
R. A. Duff, "Towards a Theory of the Criminal Law?" Proceedings of Aristotelian Society, Supplementary Volumes 84 (2010): 1-28
THIRD RESPONSE PAPER DUE
SPRING BREAK!
Week 8. (1) Is Criminal Law about Enforcing Morals? (2) What Should We Criminalize, and Why?
P. Devlin, “The Enforcement of Morals,” (1959)
R. A. Duff, "Towards a Theory of the Criminal Law?" Proceedings of Aristotelian Society, Supplementary Volumes 84 (2010): 1-28
Sandra E. Marshall and R. Antony Duff, “Criminalization and Sharing Wrongs,” Canadian Journal of Law and Jurisprudence (1998)
Optional: Douglas Husak, “Criminal Law Theory,” in The Blackwell Guide to the Philosophy of Law and Legal Theory, ed. Martin P. Golding and William A. Edmundson (Blackwell, 2005): 107-121.
PAPER PROPOSAL DUE
Week 9. (1) Punishment. (2) The International Law of the Global Economy and International Property Law
Re-read Duff and Marshall on sharing wrongs.
Vaughn Lowe, “The Global Economy,” International Law (Haverford click here) (Bryn Mawr click here)
J. G. Sprankling, “The Emergence of International Property Law,” NC Law Review 90 (2012): 461-509
Week 10. Foundations of Domestic Property Law
A.M. Honoré, “Ownership,” in Oxford Essays in Jurisprudence, ed A. A. Guest (1961)
J. W. Harris, “Private and non-private property,” in Property and Justice (Oxford, 2002). Arguing that all forms of property regime can be reduced to private property ideas.
Jeremy Waldron, “What Is Private Property?” Oxford Journal of Legal Studies (1985), pp. 313-333, 346-348. Arguing that private property is just one co-equal form of property, along with collective and common property.
Optional: Jeremy Waldron, “Property Law,” A Companion to the Philosophy of Law and Legal Theory, ed. Dennis Patterson (Blackwell, 1996)
Week 11. Re-cap of Property Law Systems; Labor Law
Re-read Harris and Waldron articles from Week 10
Horacio Spector, “Philosophical Foundations of Labor Law,” Florida State U Law Review 33 (2006): 119-1148
FOURTH RESPONSE PAPER DUE
Optional:
Charles Fried, “The Ambitions of Contract as Promise,” Philosophical Foundations of Contract Law
Dan Markovitz, “Good Faith as Contract’s Core Value,” Philosophical Foundations of Contract Law
Week 12. International Corporate Law and Domestic Corporate Law
Re-read Spector on foundations of labor law
David Ciepley, “Between Public and Private: Towards a Political Theory of the Corporation,” American Political Science Review (2013) 107
Oliver Hart, “An Economist's Perspective on the Theory of the Firm:,” Columbia Law Review 89 (1989): 1757-1774
FIFTH RESPONSE PAPER DUE
Week 13. Global Administrative Law and Domestic Administrative Law
Benedict Kingsbury et al, “The Emergence of Global Administrative Law," Law and Contemporary Problems 68 (2005)
Philip Hamburger, "The Administrative Threat to Civil Liberties," Cato Supreme Court Review 2017-2018
Adrian Vermeule, "No [Review of Philip Hamburger, Is Administrative Law Unlawful?" Texas Law Review 93 (2015): 1547
SIXTH RESPONSE PAPER DUE
Week 14. Global Constitutional Law?
Ran Hirschl, "Opting Out of 'Global Constitutionalism'," Law and Ethics of Human Rights 12 (2018): 1-36
Miguel Poiares Maduro, "Three Claims of [EU] Constitutional Pluralism," in Constitutional Pluralism in the European Union and Beyond, ed.
FINAL PAPER DUE LAST DAY OF EXAMS AT NOON