Diffusion and Focus in International Law Scholarship

Although the advent of the Chicago Journal of International Law is a welcome event, that fact may not be obvious to all followers of international legal scholarship. After all, there are well more than seventy international law journals already being produced in the United States alone.1 A complete list would be hard to compile, and in the end would still be uninformative, because of the simple fact that many international articles regularly appear in general law reviews. Moreover there are many distinguished journals published outside this country.2 Even if parochialism can be forgiven in some areas (though it is hard to say which ones), surely it has no place in a field devoted to reaching across national boundaries. The new Chicago Journal must therefore find its place not only among its U.S. counterparts, but in the broader crowd of journals devoted to international matters. Even in making this point, however, the biggest problem for international legal scholarship should be apparent. Which "international" things should the Journal be addressing: classic public international law? Classic comparative law? The law of international organizations? The law of regional groups such as the European Union or the Asia-Pacific Economic Conference? Domestic laws addressed to international issues? National laws regulating international transactions? Beyond those questions of subject matter are questions of audience. At one extreme, the study of international law is a highly philosophic inquiry that delves into topics such as the meaning of sovereignty and the meaning of law itself. At the other extreme, international law may conjure up the problems of the American lawyer trying to practice in Tokyo, Beijing, or Paris, or the complexities of setting up a joint venture that will be entitled to operate in Brazil. The audience interested in reading about the latter set of issues may not have much overlap with the audience fascinated by the former. Naturally enough, international legal scholarship has reflected the diffuse nature of the subject matter it nominally addresses. Recently the American Journal of International Law published papers from a symposium on Method in International Law, which explored such approaches as positivism, policy-oriented jurisprudence, international relations theory, feminism, and economics.3 The Yale Journal of International Law offered an article by Jeffrey L. Dunoff and Joel P. Trachman on Economic Analysis of International Law,4 and another recent issue of the American Journal of International Law had as its lead article, The Contemporary Law of Superior Responsibility, by Was Bantekas, which examined the painfully topical issue of the degree to which high-ranking military officers have a "command responsibility" pursuant to which they are liable for their subordinates' crimes.5 These are all important contributions to an understanding of the international legal order. Indeed, the recent attention to methodology may throw light on the vexing question of whether there even is something that can be called an international legal order as opposed to a political or social order. Skeptics (particularly those from the legal realist tradition who see law in terms of raw power) have questioned the aptness of the term "law" for the set of principles that govern relations among nations. This criticism may have been well-founded, or understandable, in the past. Nevertheless, the more rigorous methodologies now being brought to bear on international law show great promise of beginning to reveal what deserves to be called "law" in the international realm and at the same time of helping to develop the law further. Legal scholarship in general reflects much the same variety of perspective and audience, of course: it runs the gamut from the most abstract and theoretical examination of the nature of law to the how-to-do-it articles and surveys that are useful to the practicing lawyer in need of continuing legal education. …