Reflections on Thomas Franck, Race and Nationalism (1960): ‘General Principles of Law’ and Situated Generality

Abstract:     
This article shows that Thomas Franck's little known first book, Race and Nationalism: The Struggle for Power in Rhodesia-Nyasaland (1960) shares a theme with several of Franck's most influential later books: The Structure of Impartiality (1968), The Power of Legitimacy Among Nations (1990), Fairness in International Law and Institutions (1995), and Recourse to Force (2002). The theme is that of persuasion and diversity: the problem of formulating, interpreting, and applying legal norms so that they appear legitimate in the eyes of very different communities. Over time, however, Franck’s account of diversity thins, and his post-1990 scholarship on this theme in international law has attracted criticism for his sanguineness about his own standpoint and his unconcern for the differences in perspective and position produced by history, culture, and gender. The article sets the stage for a reply that seeks to integrate Franck's earlier work into his later. It does so by making visible the heuristic of domestic adjudication implicit in the four later books.

The article looks at how the metaphor of adjudication might be adapted to respond to the sorts of diversity-based criticisms leveled at Franck. By developing the metaphor to take fuller account of communities of judgment, we are able to recognize the emergence of a new model of international legal sources that aspires to do justice to diversity without sacrificing universality. In particular, the article analyzes several contemporary interpretations of general principles of law and argues that they reflect what the article describes as "situated generality."

Number of Pages in PDF File: 33

Keywords: international law, international legal theory, judgment, diversity, cultural relativism

Accepted Paper Series