Bottom-Up International Lawmaking: Reflections on the New Haven School of International Law
29 Pages Posted: 28 Nov 2007 Last revised: 5 May 2011
Many contemporary international legal scholars find themselves besieged by intellectual and geopolitical currents highly reminiscent of those that influenced the New Haven School of International Law. Just as the New Haven School answered Cold-War, power-based realism, a new generation of scholars is called upon to answer a neo-conservative, nationalist ideology that likewise challenges the normative value of international law. The response - a response indelibly marked by New Haven School jurisprudence - is to question the naysayers' foundational assumptions by turning from the detached, game-theoretic heights of power-based realism to the on-the-ground nuance and gradation of socio-legal realism.
This essay first isolates three artificial assumptions about the nature of international law which are at the core of the nationalist critique: 1) states as lawmakers; 2) the treaty as the pre-eminent form of international law; and 3) international law as a choice, as a deliberate process that state elites can orchestrate and control.
The essay then offers three bottom-up lawmaking vignettes - export subsidies, climate change regulation, and corporate social responsibility initiatives - to cast light on the self-serving simplicity of the nationalists' assumptions. In each instance, a bottom-up lawmaking process unfolds, featuring private parties, NGOs, sub-state actors, and/or mid-level technocrats, who coalesce around shared, on-the ground experiences and perceived self-interests and solidify norms, often intended as a form of self-regulation. Over time, these informal rules embed, often unintentionally, in a more formal legal system and harden as law. Whereas top-down lawmaking, the type of lawmaking at the heart of the nationalist critique of international law, is a process of law internalized as practice, bottom-up lawmaking is a subterranean, unchoreographed process of practice externalized as law.
Thus, bottom-up lawmaking empirically exposes the mythical quality of many international law stories, particularly those flowing from the archaically nostalgic descendants of Cold War realism. States, and within states the political leadership, are no longer the universe of international lawmakers - a diverse cast of transnational actors also join the ranks. These transnational actors parade multiple normative forms in addition to the treaty, including understandings, informal gentlemen's agreements, pacts, codes, and court decisions. And finally, international law is not always a matter of deliberate, reflective choice; international law happens, whether the President or political elites will it or not. Thus, international lawmaking emerges as a complex, decentralized, and diverse process, a loosely stitched patchwork of multiple norm-generating communities rather than a predictably centralized process with the President as the steward. Of course, all of these insights grow from New Haven School seeds, which seem to have taken root and blossomed.
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