Operation »Enduring Freedom« and the Fragmentation of International Legal Culture
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Kredel, N. (2006). Operation »Enduring Freedom« and the Fragmentation of International Legal Culture. Comparing US Common Law and Civil Law Perspectives on the International Use of Force. Duncker & Humblot. https://doi.org/10.3790/978-3-428-51949-1
Kredel, Nicolas. Operation »Enduring Freedom« and the Fragmentation of International Legal Culture: Comparing US Common Law and Civil Law Perspectives on the International Use of Force. Duncker & Humblot, 2006. Book. https://doi.org/10.3790/978-3-428-51949-1
Kredel, N (2006): Operation »Enduring Freedom« and the Fragmentation of International Legal Culture: Comparing US Common Law and Civil Law Perspectives on the International Use of Force, Duncker & Humblot, [online] https://doi.org/10.3790/978-3-428-51949-1
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Operation »Enduring Freedom« and the Fragmentation of International Legal Culture
Comparing US Common Law and Civil Law Perspectives on the International Use of Force
Schriften zum Völkerrecht, Vol. 163
(2006)
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Abstract
In legal discourse, culture matters. The current debate an the international use of force experiences a transatlantic divide between the US and Continental Europe. This divide can be explained by the fragmentation of legal culture. Continental-European civil law and US common law culture fundamentally differ with regard to the role of the judicial process, the method of legal reasoning, the general paradigm of legal analysis, the value of neutrality, and the required degree of formalism. In the field of the international use of force, cultural differences shape international legal discourse an a theoretical and on a methodological plane. Traditionalist theories and methodologies are shaped by a Continental-European civil law culture. Reality-oriented theories and methodologies are informed by US common law culture. Natural law-based approaches reflect a civil law culture on the theoretical, a US common law culture an the methodological plane. These cultural differences prejudice legal opinions on the legality of international forceful action, catalyze opposing views as to the continued validity of the UN Charter system, and accommodate opposing worldviews on the role of international law in international relations. To bridge the transatlantic divide, international lawyers must adapt their argumentative style to the cultural conventions of their transatlantic audience.
Table of Contents
| Section Title | Page | Action | Price |
|---|---|---|---|
| Preface | 7 | ||
| Overview | 9 | ||
| Content | 11 | ||
| Part 1: Introduction | 17 | ||
| A. Caveat: Limitations of a Bipolar Approach to Legal Culture | 23 | ||
| B. Working Hypothesis – Theory and Method as Genotype and Phenotype of Legal Culture | 25 | ||
| 1. Method as the Phenotype of Legal Culture | 25 | ||
| 2. Theory as the Genotype of Legal Culture | 28 | ||
| Part 2: Civil Law v. U.S. Common Law Culture – A Comparative Analysis | 30 | ||
| A. “Consumers” v. “Producers” – The Role of the Judicial Process | 31 | ||
| B. Deduction v. Induction – The Way of Legal Reasoning | 35 | ||
| C. Logic v. Policy – The Paradigm of Legal Analysis | 39 | ||
| 1. Civil Law: The Primacy of Logic | 39 | ||
| 2. US Common Law: The Lawyer as a Policy Maker | 42 | ||
| 3. Summary | 47 | ||
| D. Neutrality v. the Market of Opinions – Procedural Law and Academic Tradition | 47 | ||
| E. Form v. Freedom – Formal Constraints in Legal Analysis | 49 | ||
| 1. Civil Law | 49 | ||
| 2. US Common Law | 52 | ||
| 3. Summary | 56 | ||
| F. Summary Analysis – Common Law v. Civil Law | 56 | ||
| Part 3: Legal Culture and the International Use of Force – Examining a Transatlantic Divide | 59 | ||
| A. Legal Culture and the International Use of Force – Theoretical Approaches | 62 | ||
| 1. Traditionalist Positivism, the International Use of Force, and Legal Culture | 63 | ||
| a) Traditionalist Positivism’s General Assumptions About International Law | 67 | ||
| (1) The Objective of International Law Analysis | 67 | ||
| (2) Distinct Normative Power and Efficacy of International Law | 68 | ||
| (3) Third-Party-Determination of Legality/Justiciability | 70 | ||
| b) Traditionalist Positivism and the Prohibition of the International Use of Force | 71 | ||
| (1) The Prohibition of the Use of Force, Voluntarism and ius cogens | 71 | ||
| (2) The Prohibition of the International Use of Force in a Hostile Reality | 73 | ||
| (3) The Prohibition as a Positive Commitment towards a Value Hierarchy | 76 | ||
| c) Summary | 77 | ||
| 2. Universal Natural Law and the Use of Force: The Just War Tradition and Legal Culture | 78 | ||
| a) War in Antiquity and the Middle Ages: The Bellum Iustum | 79 | ||
| b) The Totalitarian Experience: Reemergence of Natural Law in Criminal Proceedings | 81 | ||
| c) Contemporary Natural Law-Based Approaches to the International Use of Force | 82 | ||
| (1) The Just War Tradition, Realism and Positivism | 82 | ||
| (2) The Just War Tradition and the Presumption Against Violence | 85 | ||
| d) Summary | 86 | ||
| 3. Reality-Oriented International Legal Theories and Legal Culture | 89 | ||
| a) The Realists: Denying a Valid Prohibition of the International Use of Force | 90 | ||
| b) Policy-Oriented Jurisprudence: The “New Haven School”, Its Disciples, and the Prohibition of the International Use of Force | 93 | ||
| (1) Original Policy-Oriented Jurisprudence | 93 | ||
| (2) New Haven-Influenced “Positivists”? | 96 | ||
| (3) Summary | 98 | ||
| c) International Law/International Relations Theory and the Prohibition of the International Use of Force | 100 | ||
| d) Economic Analysis of International Law and the Prohibition of the International Use of Force | 104 | ||
| e) The Newstream: Postmodern International Law and the Prohibition of the International Use of Force | 107 | ||
| (1) Deconstructivism and the Prohibition of the International Use of Force | 108 | ||
| (2) ‘Exit Strategies’ from Deconstruction and the Prohibition of the International Use of Force | 110 | ||
| (3) Summary | 113 | ||
| 4. Summary Analysis | 114 | ||
| a) Theories on the International Use of Force and Legal Culture | 114 | ||
| b) Theories on the International Use of Force and the US-Continental Stereotype | 116 | ||
| B. Legal Culture and the International Use of Force – Methodological Approaches to Operation“ Enduring Freedom” | 117 | ||
| 1. Preface: The Facts of 11 September 2001 and Operation “Enduring Freedom” | 119 | ||
| 2. Traditionalist Positivist Methodology and Legal Culture | 124 | ||
| a) The Structure of Traditionalist Analyses of Operation Enduring Freedom | 125 | ||
| b) UN-Charter-based Methodologies | 127 | ||
| (1) UN-Charter-Based Methodologies, Legal Culture, and the US-Continental Stereotype | 128 | ||
| (a) The Formalists: Conventional Charter Interpretation | 129 | ||
| (b) Subsequent Practice Modifying the Charter Provisions | 134 | ||
| (c) Post-Charter Customary International Law Modifying Charter Provisions | 136 | ||
| (d) Summary | 138 | ||
| (aa) Charter-Based Methodologies and Legal Culture | 139 | ||
| (bb) Charter-based Methodologies and the US-Continental Stereotype | 143 | ||
| (2) UN Charter-based Methodology and Outcome | 144 | ||
| (a) Analyses Regarding “Enduring Freedom” as illegal | 144 | ||
| (b) Analyses Asserting the Legality of “Enduring Freedom” | 147 | ||
| (c) Analyses Holding for Forceful Action Against Al-Qaeda, but not Against the Taleban | 150 | ||
| (d) Summary | 151 | ||
| (3) Summary – UN Charter-Based Methodology | 153 | ||
| c) Alternative CIL-Based Methodology and Legal Culture | 154 | ||
| (1) Justifying “Enduring Freedom” by Necessity | 156 | ||
| (2) Intervention by Invitation | 157 | ||
| (3) Piracy – Terrorists as New Subjects of International Law | 158 | ||
| (4) Forceful Self-Help/Reprisals/Retaliation | 159 | ||
| (5) Summary | 161 | ||
| d) Summary Analysis – Traditionalist Methodology, Legal Culture and Outcome | 163 | ||
| (1) Traditionalist Methodology and Legal Culture | 163 | ||
| (2) Traditionalist Methodology and the US-Continental Stereotype | 163 | ||
| (3) Traditionalist Methodology and Outcome | 164 | ||
| 3. Natural Law-Based Methodology and Legal Culture: The Just War Tradition | 166 | ||
| a) Determining Which Cause is Just | 168 | ||
| (1) Just Cause as Defined by the Responsible Authority | 168 | ||
| (2) Just Cause as the Smallest Common Denominator | 170 | ||
| b) Limits on the Conduct of War | 172 | ||
| c) Summary Analysis – The Just War Tradition, Legal Culture, Stereotypes and Outcome | 172 | ||
| (1) The Just War Tradition and Legal Culture | 173 | ||
| (2) The Just War Tradition and the US-Continental Stereotype | 174 | ||
| (3) The Just War Tradition and Outcome | 175 | ||
| 4. Reality-Oriented Methodology and Legal Culture | 175 | ||
| a) “Policy-Guided” Methodology – Between Positive Law and Policy-Decisions | 177 | ||
| b) Policy-Oriented Methodology – The New Haven School and Its Disciples | 183 | ||
| (1) New Haven Scholars and Forceful Counter-Terrorism | 184 | ||
| (2) New Haven’s Disciples: Legal Realist “Positivism” | 187 | ||
| (3) Summary Analysis | 188 | ||
| c) Interdisciplinary Methodology – International Relations Theory, International Law and “Enduring Freedom” | 191 | ||
| d) Realist Methodology and “Enduring Freedom” | 193 | ||
| e) “Reconstructive” Legal Feminism and “Enduring Freedom” | 196 | ||
| f) Summary – Reality-Oriented Methodologies | 200 | ||
| (1) Reality-Oriented Methodologies and Legal Culture | 200 | ||
| (2) Reality-Oriented Methodologies and the US-Continental Stereotype | 202 | ||
| (3) Reality-Oriented Methodologies and Outcome | 203 | ||
| 5. Summary Analysis – Operation “Enduring Freedom”, Methodology, and Legal Culture | 203 | ||
| a) Legal Culture and Method | 204 | ||
| b) Legal Culture, Method and the US-Continental Stereotype | 205 | ||
| c) Legal Culture, Method and the Outcome of Legal Analysis | 206 | ||
| C. Conclusion – The Fragmentation of International Legal Culture: A Reason for the Transatlantic Divide | 207 | ||
| 1. Legal Culture shapes Legal Theory on the International Use of Force | 208 | ||
| 2. Legal Culture shapes International Lawyers’ Method of Legal Analysis | 208 | ||
| 3. Reality does not always confirm the Cultural Stereotype | 208 | ||
| 4. Legal Culture shapes the Outcome of Legal Analysis | 209 | ||
| 5. Civil Law Culture tends to preserve, US Common Law Culture tends to undermine the Charter System of Collective Security | 210 | ||
| 6. Civil Law Culture tends to accommodate a Kelsenian, US Common Law a Hobbesian Worldview | 211 | ||
| Part 4: The Fragmentation of Legal Culture and Future Transatlantic International Legal Discourse | 214 | ||
| A. Cultural Fragmentation and the International Legal Discourse | 214 | ||
| B. Bridging the Transatlantic Divide – Taking Legal Culture Seriously | 218 | ||
| Abstract | 224 | ||
| Zusammenfassung | 225 | ||
| References | 242 | ||
| Press, Speeches | 256 | ||
| Documents | 260 | ||
| Table of Cases | 261 | ||
| Index | 262 |