IALL 2017 Recap: Community Engagement Through the Right of Access to Information: Assuring Inclusion of Marginalized Populations

By Beth Parker

CommunityEngagement

Laura Neuman gives her presentation at IALL 2017. Photo courtesy of Avery Le, October 24, 2017

On Tuesday, October 24, 2017, Laura Neuman, the Director of the Global Access to Information Program at the Carter Center presented IALL 2017’s sixth session, entitled Community Engagement Through the Right of Access to Information: Assuring Inclusion of Marginalized Populations.

Access to information laws have grown tremendously over the last twenty years. Approximately 110 countries have laws regarding the public’s right to have access to information. In 2011, President Barack Obama and leaders from six other countries launched the Open Government Partnership.  Participants are committed to making their governments more open and transparent and providing rights to information.

Ms. Neuman noted that having a definition of what right to access to information actually means is very important in understanding the Access to Information Program. According to Ms. Neuman, the Universal Declaration of Human Rights defined access to information as the “right to information and the right of a person to seek and receive public information.” Public information can be from a government or entity within the government, or information that a private company holds if they receive public funding or provide a public service. Ms. Neuman stated that this definition of access to information is not only a fundamental right but is also a “linking right.” A linking right allows citizens to more fully exercise other rights, such as the right to education, healthcare, and public safety, and to be free from violence. When information flows, the more efficient and effective governments can be for the citizens. This increase in the flow of information allows increased accountability, transparency, and rule of law, and it allows citizens to participate more fully in public life and have a voice. However, there are further challenges that must be overcome to expand the right of access to information.

The easiest part of creating the right to access of information is passing the law. Ms. Neuman argued that it is much more difficult to implement and enforce the law and that this type of law is difficult to make operational. A new right to information law places new requirements and responsibilities on every part of the government and on every public official. Many times there is not sufficient political commitment to move forward with the law.  Why, you may ask? Some reasons include: the lack of institutional capacity, resources, and poor records management. The anticipated demand for information by the citizens may never materialize and can contribute to a lack political commitment to push forward with the operationalization of the law. But, what if the challenges to operationalization were overcome ? How would this access to information affect marginalized populations–especially women?

Across the world women are denied or struggle to get access to information that is necessary for them to support their families, to become economically empowered, and to be free from violence. Ms. Neuman highlighted that 70% of the world’s poor are women with limited economic opportunities. Women represent two thirds of the world’s illiterate; they are affected by corruption and lack the influence and money to obtain rights. Women are also often victims of violence. An estimated 35% of all women have experienced some form of gender-based violence in their lifetime. Ms. Neuman noted that when women have access to information and receive that information their lives can be transformed. She also believes that this transformation melds over into the woman’s family and greater community.

Ms. Neuman spent some time talking about the Access to Information Program that she works on at the Carter Center. She discussed the studies conducted in Liberia, Guatemala, and Bangladesh. Some of the barriers that they discovered for women trying to gain access to information were illiteracy; lack of awareness about the right of information and where to seek information; fear of asking for information; no time; and a lack of mobility. Additionally, the issues of cultures, paternalism, and appropriateness act as barriers for women accessing information. They also asked women in these studies what types of information is most critical for them to obtain economic empowerment, promotion, and protection of rights. The women said that information about education, employment, business (i.e. starting a business), property, women’s rights and justice issues were all very important. The Access to Information Program works with the governments of these countries, as well as the civil society. Their goals are to raise awareness of the problem within the government and to develop innovative tools for getting information to the women. They developed informational facilitators to help increase awareness about the right to access information, to provide training, and to create programs to more easily get information to the women. Ms. Neuman finished off the session with a short video that summed up the entire session nicely: Inform Women. Transform Lives.

 

Sounds Good in Theory: An Initial Foray into Reading Primary Law in French and Spanish by Examining Constitutional Provisions

By Katherine Orth

In my previous post in the Acquiring Foreign Languages series, I provided a mid-semester progress report of my “French for Reading” and “Spanish for Reading classes.”  At times, I’ve found it difficult to balance the coursework for these classes with my self-designed FCIL supplemental practice tasks.  I decide to start reading primary law in small, manageable increments by focusing on a few specific constitutional provisions of Francophone and Hispanophone countries.

Exams are Looming

I work in an academic law library.  Every year without fail, more students fill our reading room as soon as the calendar page changes from October to November.  The students arrive earlier in the morning and stay later in the evening.  Over the course of the day, their laptops become increasingly surrounded by class notes, flash cards, and study aids (not to mention water bottles, coffee cups, and food wrappers).

After I graduated from law school, I thought I was finished with the grind of exam preparation.  Yet I now find myself preparing for the Foreign Language Proficiency exams in French and Spanish that await me later in November.  Like the law students, my desk has a teetering pile of class notes, assigned readings, and study aids on it.  Like the law students, I enter November with a bit of trepidation.

Cursed with Living in Interesting Times

I’ve already encountered some aspects of legal terminology in French and Spanish, first by reading children’s guides to lawmaking in foreign jurisdictions, and later by reading United Nations Security Council Resolutions.  I’m eager to start reading primary law in French and Spanish, but I’d like to take it in small, manageable pieces.

Julienne Grant’s recent thought-provoking post on DipLawMatic Dialogues provided the seeds of inspiration for my next FCIL research practice task.  In describing the Catalonian referendum and the subsequent forceful response by the Spanish government, Julienne highlighted the constitutional arguments emanating from both Madrid and Barcelona.

Article 155 of the Spanish Constitution authorizes (subject to legislative approval) “all measures necessary” against acts taken by an autonomous region that are “seriously prejudicial” to the national interest.  This Article – which has been described as the “nuclear option” – got me wondering about how many of the world’s constitutions have similar provisions, and what kind of language is utilized in these provisions.

Take it From the Top

ConstituteThere are over fifty countries that have either Spanish or French as the national language.  Some of these countries, such as Canada, have dealt with questions of secession in recent years.  For my “Article 155-type” search, I’m making use of the website Constitute, an initiative of the Comparative Constitutions Project.  Constitute is a platform that enables the researcher to conduct full-text searches across national constitutions through word and phrase, or subject matter searches.

Constitute provides annotated, unofficial English-language translations of the world’s constitutions.  In my previous tasks, I’ve gone straight to the original Spanish- and French-language documents.  This time, I conduct searches within Constitute — by terms and phrases, and by using the topic filters – in order to seek out the provisions in English.  Later, I’ll examine the provisions within the original French or Spanish constitutional texts, focusing on the language that different countries use to describe the rights and obligations of both governments and citizens.

For this task, I’m not concentrating on the substantive content of the constitutional provisions.  Instead, I’m searching for and parsing out subtle variations in word usage.  The task is so engrossing that I periodically find myself losing focus from exclusively French- and Spanish-language returned results.  For example, when a keyword search of “autonomous” returns results including the constitutions of China and Spain, I was very tempted to compare the pertinent provisions from those countries’ constitutions.

In Other News . . .Screenshot-2017-11-6 News in Slow French Learn French Online

Reading foreign languages can be tiring, particularly when my concentration (or motivation!) is at a low ebb.  When this happens, I try to ease the strain by visiting websites that combine listening and reading practice.  Every week or so, I check out the News in Slow Spanish and News in Slow French websites.  Listening to a news story or commentary on current events while reading the accompanying French- or Spanish-language transcript is both informative and relaxing.  Translations appear by hovering the cursor over the text, eliminating the need to rely on context or consult a dictionary.  These sites are primarily subscription-based, so free content is limited, but they are updated every week.

Regular study and practice is essential at this point in the semester.  Keep calm and carry on!

IALL 2017 Recap: CDC: From AIDS to Zika: Law as a Determinant of Health

By Jessica Pierucci

cdc_speaker1

Matthew Penn, JD, MLS, Director of the Public Health Law Program at the CDC’s Office for State, Tribal, Local and Territorial Support, gives his talk at IALL 2017.

On Tuesday morning, October 24, 2017, IALL Annual Course attendees learned about the connections between public health and the law from Matthew Penn, JD, MLS. Mr. Penn serves as director of the Public Health Law Program (PHLP) in the Centers for Disease Control and Prevention’s (CDC) Office for State, Tribal, Local and Territorial Support. He was an instant hit with the IALL audience when he started by sharing that he’s a librarian, eliciting cheers from the room.

After the cheers died down Mr. Penn continued by introducing the crowd to legal epidemiology. This framework, coined “legal epidemiology” in 2012, focuses on scientifically studying “law as a factor in the cause, distribution, and prevention of disease and injury.” He then shared that PHLP conducts studies using this framework and is one of the first programs of its kind in the U.S. PHLP encourages connections between those working on public health law at the state, tribal, local, and territorial levels to encourage improvements through increased information sharing.

cdc_legalepislide

Two historical examples illustrate the impact of law on public health. First, in the 1850s London experienced a cholera outbreak. Many believed cholera was spread through the air, but John Snow, a physician, believed cholera was spread through water. After some investigation he determined the source was likely the Broad Street water pump. Dr. Snow was able to persuade the local authorities to remove the handle of the Broad Street pump, thus disabling it and halting the spread of the disease.

Second, in the late 1800s New York City’s streets had a major sanitation problem. Enacting municipal laws on sanitation, the first of their kind according to Mr. Penn, dramatically cleaned up the streets. Before and after photos showed the crowd the laws’ impact.

One focus of legal epidemiology at PHLP is on legal mapping studies. These studies involve coding the law, often at the state or local level, to uncover differences in public health laws over time and across regions then comparing that data to health data looking for connections and trends. Mr. Penn discussed two notable legal mapping studies to show the power of these tools. First, one study mapped changes in Florida motorcycle helmet laws and compared them to changes in motorcyclist mortality rates. The study showed a marked decrease in mortality rates when full helmet laws were in place and an increase when repealed, revealing law as a factor in the health of Florida motorcyclists.

cdc_ebola_map

Compare this map from December 2, 2014 to the August 31, 2015 map.

Second, the CDC studied and issued guidance on Ebola screening and monitoring policies when asymptomatic U.S. residents returned from providing aid to Ebola impacted regions abroad. The CDC also issued maps coding the response across U.S. states as compared to the CDC guidance. Mr. Penn scrolled between four versions of the map issued in December 2014, January 2015, February 2015, and August 2015, demonstrating that state policies shifted with each new map. He explained how publication of the maps influenced these state-level changes by increasing the visibility of each states’ response to the public and lawmakers.

Mr. Penn’s examples and discussion of the tools of legal epidemiology demonstrated his thesis that one of the most significant determinants of public health is the law. The law touches our lives daily from laws requiring safety features on cars dictating what cars look like today to smoking bans in restaurants becoming self-executing as we now just expect to not be exposed to smoking in U.S. restaurants. Mr. Penn closed by sharing that he believes legal epidemiology will get us from where we are now to where we want to be.

IALL 2017 Recap: Global and Local Challenges to Refugee Protection

By Anne Burnett

Professor Silas Allard kicked off the Tuesday, October 24, 2017 programming at the IALL Conference with a timely presentation on the current challenges facing asylum seekers in the United States. He is the Associate Director of the Center for Law and Religion and Harold J. Berman Senior Fellow in Law and Religion at Emory University. With graduate degrees in law and religious ethics, his work focuses on issues of migration and human rights.

SilasAllardOct2017

Professor Silas Allard, Associate Director of the Center for Law and Religion and Harold J. Berman Fellow in Law and Religion, Emory University, gives his talk “Global and Local Challenges to Refugee Protection”

Prof. Allard addressed recent claims by Attorney General Jeff Sessions that the United States asylum application process is rampant with fraud and abuse. He provided a brief introduction to the “expedited removal” process whereby immigration officials rapidly deport undocumented non-citizens without a hearing. To avoid violating the non-refoulement obligations of the Refugee Convention of 1951, the United States allows non-citizens to seek access to the asylum claim process via a “credible fear review,” in which the immigration official conducts an interview to determine whether the applicant’s claim of fear is credible. It is this “credible review” process that the Attorney General claims is rife with fraud. He states that applicants are committing fraud by even applying for asylum under the credible fear standard because their fear is not legally sufficient.

The speaker then discussed displacement causes, such as climate change and gang violence, that the Refugee Convention does not specifically list. AG Sessions omits from the definition of a refugee the fear of persecution due to “membership of a particular social group,” which includes victims of domestic violence, the LGBTQ community, and, in some countries, gang activity. In fact, the AG considers the arguments by “smart attorneys” about gang recruitment and oppression, especially in Central America, to be abuse of the U.S. asylum process.

Prof. Allard provided some eye-opening statistics about related local challenges to refugees in the Atlanta area. Nationally, the percentage of successful asylum claims was 43%. The percentage changes dramatically depending on which immigration court hears the asylum claim. The percentage of asylum claims approved by the Atlanta Immigration Court in 2016 drew a gasp from the audience: 2%. Prof. Allard is particularly interested in the “judge factor” feeding into this startling statistic. He stated that one judge in the Atlanta court granted only 80 of 3,000+ asylum applications over a 6-year period. This same judge granted zero asylum applications from Guatemalans. When asked about these statistics, the judge stated that applicants in Georgia just do not have good claims. Prof. Allard pointed to a court watch program where observers found that the judges in the Atlanta Immigration Court exhibited disinterest and hostility to applicants. One judge analogized immigrants to a person coming to a house in a mask while waving a knife.

The presentation ended with Prof. Allard stating that the global challenge is also the local challenge: a narrow, legalistic interpretation of the Refugee Convention as manifested by both the Attorney General and by the judges in the Atlanta Immigration Court. He suggested that, while the Refugee Convention could be flexible and able to deal with the ever-changing causes of displacement, the global and local tendencies to focus on the narrow confines of the Convention indicate that perhaps we need a new international law framework to deal with newer challenges, such as climate change and gang violence.

During the Q&A session, an attendee who self-identified as an asylum grantee from a wealthy family stated that she had often wondered what role the socioeconomic status of an applicant plays in the outcome of an asylum application in the United States. Prof. Allard answered that applicants with sufficient funds and with experience navigating sophisticated procedures in their home countries are able to hire counsel, post bond, avoid detention, and navigate the process much more easily than those lacking these resources. While not a surprise, this answer brought a somber end to the session.

Introducing…Carlos Andrés Pagán as the November 2017 FCIL Librarian of the Month

Carlos Andrés Pagán (FCIL photo)

1. Where did you grow up?

I was born, and mostly raised, in Mayagüez, Puerto Rico. Growing up, I also lived in North Florida (Jacksonville) and South Florida (Boca Raton), where I went to elementary school to learn English. As an adolescent, I was fortunate to have the opportunity to travel abroad extensively, including tours in: South America, Australia, and Europe. I count these trips as part of my upbringing because they significantly shaped and defined my development from childhood to young adult.

2. Why did you select law librarianship as a career?

Between April 2013 and August 2015, I served as the Executive Director of the Puerto Rican Academy of Jurisprudence and Legislation. From that position I was responsible for the supervision of the Academy personnel, as well as the direction of its multiple agendas, including the editing of the Academy Law Journal and the oversight of two key research projects on Puerto Rico’s legal history. The first focused on the recovery, editing, and publication of the civil sentences of the Real Audiencia Territorial de Puerto Rico, the highest court during the Spanish Regime’s presence on the Island. For the second project, I published and edited a book on the legislative records of the Cámara de Delegados de Puerto Rico, the first elected representative body of Puerto Rico. This work made me realize how a career as a legal researcher and librarian is a marvelous way to practice law and that’s when I decided to enroll in library school.

3. When did you develop an interest in foreign, comparative, and international law?

Coming from Puerto Rico, a mixed-law jurisdiction, where common law and Spanish civil law intertwine, I have always been fascinated by the study of foreign and international law.

4. Who is your current employer? How long have  you worked there?

I work at the amazing Boston University School of Law’s Fineman and Pappas Law Libraries! I started working there this past August and, so far, I love it!

5. Do you speak any foreign languages?

I am fluent in Spanish (native). I also read Portuguese and Catalan. I picked up Catalan while studying my Bachelor of Laws at the University of Barcelona in Catalonia and I owe learning Portuguese to my many friends from Brazil.

6. What is your most significant professional achievement?

Receiving my LL.M. degree from Harvard Law School (HLS) allowed me to work in close concert with a highly diverse group of students. I had the privilege of serving as an LL.M. Class Representative in HLS’s Student Government, and was a member of its Diversity and Inclusion Committee. In the Diversity and Inclusion Committee, I was involved in numerous projects, ranging from research on faculty hiring practices to actions making HLS a safer and more inclusive environment for the LL.M. LGBT community. For my contributions, I was recognized with the Dean’s Award for Community Leadership.

7. What is your biggest food weakness?

Mofongo de Platano Verde y Maduro (traditional mashed plantains green and sweet); no doubt about it.

8. What song makes you want to get up and sing/dance?

Suavemente from Elvis Crespo. But honestly, I dance to most salsa and merengue songs out there. I really love dancing; I guess it’s my Caribbean heritage/DNA.

9. What ability or skill do you most wish you had (that you don’t have already)?

Flying planes.

10. Aside from the basic necessities, what is one thing you can’t go a day without?

Dark-roast coffee (no sugar, no milk.) If it comes from my family’s coffee plantation (located in the main mountain range in Puerto Rico), even better!

11. Anything else you would like to share with us?

I can’t wait to see you all at next year’s AALL’s Baltimore conference!

 

Spain Fractured: Some Thoughts on the Catalonian Crisis

By Julienne E. Grant

La Rojigualda

La Rojigualda: the official flag of Spain

I began a still ongoing love affair with Spain when I was 19.  It started one night in a 2nd class train compartment in August 1981. I was travelling from Paris to Madrid to begin my year of study abroad, and the Guardia Civil stormed in after midnight at the French-Spanish border demanding passports. I somehow found this whole scene romantic.  I also recall joyously poking my head out of the train window at dawn as the Spanish landscape flew by, drenched in that wonderful saffron hue that seems to only be part of the color spectrum of Spanish sunrises.  When I arrived in Madrid, I was young, without much life experience, and my classroom Spanish bore no trace of the Castilian accent that I would later acquire.  During the next ten months, I ventured to almost every corner of Spain—living life to the fullest, a willing participant in what Spaniards now nostalgically refer to as La Movida.  I was hooked.

As much as I was enjoying my foray into Spanish culture, however, I became acutely aware that there were disconcerting undercurrents flowing beneath the surface of Spanish society. Spain’s democracy at that time was young and fragile, and the rule of law tenuous;  the nation had just emerged from the Franco dictatorship (1939-1975), and the country’s 1978 Constitution was less than three years old when I landed in Madrid.  Lieutenant Colonel Antonio Tejero had briefly commandeered Spain’s Congress of Deputies with a pistol just six months before my arrival.  One month after I started classes, Pablo Picasso’s politically charged painting, Guernica, returned to Spain from the U.S. (Picasso had mandated that his masterpiece not be brought back to Spain until democracy was restored in his homeland).  The Guardia Civil escorted the piece from the Madrid airport, and it was then displayed behind bulletproof glass in a building just three blocks from my apartment.  Many Spaniards wondered if the painting’s homecoming was premature.

LEstelada

L’Estelada: the unofficial, pro-independence flag of Catalonia

As I personally witnessed, the early post-Franco years tested the strength and overall viability of Spain’s emerging democracy, and its newly-minted constitutional and institutional framework. That framework is again being challenged, almost 40 years later, in the streets of Catalonia.  Although Catalonians have always demonstrated a striking sense of autonomy (and have vied for independence before), the tension between this intensely proud northeastern region and the Spanish central government has reached a critical point.

On October 27, the Parlament de Catalunya approved a unilateral Declaration of Independence, which prompted the Spanish Prime Minister, Mariano Rajoy, to sack members of the Government of Catalonia. Mr. Rajoy also dissolved the 135-member Parliament, and set new regional elections for December 21.  And for the first time since the popular approval of the 1978 Constitution, the Spanish government invoked Article 155 –the “nuclear option”–which empowers it (upon approval of the Senate) to “take all measures necessary” if an autonomous community “acts in a way that is seriously prejudicial to the general interest of Spain.” Armed with Article 155, the Rajoy administration retracted Catalonia’s devolved powers and imposed direct rule. Reports yesterday morning (October 30) indicate that some of the deposed members of the Catalonian government, including Carles Puigdemont, have fled to Brussels to escape sedition charges.

Whether Catalonia’s unique regional attributes, including its language, warrant such an arduous and punishing attempt at nationhood, I can’t say. What I can say, however, is that the Catalonian government’s recent efforts to pave the way to independence have been illegal under current Spanish law.  For years, Mr. Rajoy’s Partido Popular, the two Rajoy administrations, and the Catalonian government have been fighting in the Constitutional Court over the validity of “right to decide” legislation.  And for years, the Constitutional Court has determined those regional laws are unconstitutional.  This holding from the Court’s December 2, 2015 judgment (on Catalonia’s Resolution 1/XI) perhaps sums up the Court’s jurisprudence most suitably: “An Autonomous Community’s Parliament cannot set itself up as a source of legal and political legitimacy, unlawfully taking matters into its own hands in order to violate the constitutional system on which its own authority is based.”

The Constitutional Court was no different in its approach to the Rajoy government’s challenge to Law 19/2017 (September 6, 2017), which set the stage for Catalonia’s controversial Oct. 1 Referendum on Self-Determination. After suspending the Law on September 8, the Court ultimately struck it down in a unanimous October 17 decision, effectively voiding the October 1 vote. As reported by El País on Oct. 17, the Court opined that the Law “‘encroaches upon state powers on referendum-type consultations, and violates the supremacy of the Constitution, national sovereignty and the indissoluble unity of the Spanish nation.’” As the Court noted, under the Spanish Constitution (Article 92.1), “referendums may only be held at the national, not regional, levels” (El País, Oct. 17). The opinion also addressed the Parliament of Catalonia’s attempt to legitimize the Referendum based on “international legislation and jurisprudence” (Law 19/2017). The Court didn’t buy that argument either.  The idea that international law applies in Catalonia’s case has also been debunked by numerous international and Spanish scholars, including the Spanish Association of Professors of International Law and International Relations.

La Senyera

La Senyera: the official flag of Catalonia

The fact of the matter is that the Catalonian secessionists don’t have the law on their side. Almost 40 years ago, Catalonians themselves signed on to a Constitution that is “based on the indissoluble unity of the Spanish nation, the common and indivisible country of all Spaniards” (Article 2), and as confirmed by the Constitutional Court, does not sanction a regional plebiscite on independence. Nor does the Constitution allow an autonomous community, such as Catalonia, to unilaterally declare independence, as it did on Friday.

For the moment, at least, it appears that Mr. Rajoy’s administration has bought some time by calling for early elections. With some of the hard-core secessionist politicians “out of town,” citizens of Catalonia will hopefully have a chance to sort things out politically and select a new Parliament—its composition representing a current and accurate picture of what the majority of Catalonians want. (According to CNN, “A new poll suggests that political parties backing independence would not win a majority if elections were held today” (October 30, 2017)). That is not to say, however, that the 1978 Constitution itself does not need to be tweaked to prevent a crisis like this from occurring again.

As a devout Hispanophile, watching this drama unfold has been heartbreaking. The crisis is tearing the country apart, and it’s damaging Catalonia’s economy, as businesses flee and tourists stay away. Whatever the next few weeks and months bring, Spain does not need to move backwards; Picasso’s Guernica is finally on display now in Madrid unshielded. It is time for the country’s politicians to work together to compromise and utilize the law and its malleability to ensure that the nation continues to move forward.

 

Book Review: The Philosophy of Customary Law

By Susan Gualtier

philsophyofcustomarylawJames Bernard Murphy, The Philosophy of Customary Law (Oxford University Press, 2014). 160 p. Hardcover $83.00.

As someone with more than a passing interest in customary law, I looked forward to reading The Philosophy of Customary Law, by James Bernard Murphy, Professor of Government at Dartmouth College.[i]  In this book, Murphy posits that custom must be analyzed in terms of “two more basic logical concepts: convention and habit.”[ii]  He then offers a historical overview of four philosophers who have examined the concept of custom (Aristotle, Suárez, Bentham, and James C. Carter), highlighting how each built upon or reacted to his predecessors’ work.  Murphy includes a brief epilogue at the end of the book, in which he offers a few of his own thoughts on customary law.  Unfortunately, although the premise of the book seemed promising, I was disappointed in the execution.  Murphy largely ignores the legal framework for understanding customary law, and is more interested in the theory of human behavior more generally. He reaches no useful conclusions regarding customary law, at least from a practical standpoint, and it is unclear what this book can contribute to the discussion of customary law.

Despite its title, The Philosophy of Customary Law deals relatively little with customary law as we know it.  Most of the discussion of contemporary customary law occurs in the book’s introduction, where Murphy entirely ignores tribal, indigenous, and other customary law systems, instead minimizing the importance of customary law to that of a “gap-filler” only occasional referenced by Western common law courts in situations where no written law applies.  International custom merits a single paragraph in the introduction.  Murphy waves away the need to describe or differentiate for the reader the specific ways in which custom can comprise or inform the law.[iii]  Similarly, he dismisses what most of us will recognize as a critical element of establishing customary law, whether international or domestic: the subjective requirement that states or individuals observe a custom because they believe or intend it to have the force of law (“Instead of distinguishing the objective usage from the subjective attitudes of participants, I propose to distinguish the habitual (individual) dimension of custom from the conventional (social) dimension of custom.”[iv]).

It is unclear whether, by so openly dismissing the basic framework of customary law analysis, Murphy intends to create a groundbreaking new way of thinking about customary law, or if he simply cares more about philosophizing than about the practicalities of legal analysis and application.  I hoped that the four main chapters of the book, each of which deal with a different philosopher and/or school of philosophical thought, might shed more light on his purpose and provoke me to think differently about customary law.  The first chapter focuses on Aristotle and his distinction between ethos, which might be characterized loosely as habit or second nature, and nomos, which might be characterized as either convention or law–and more specifically, according to Murphy’s etymological analysis, “convention stemm(ing) from an act of deliberate stipulation.”[v] Noting Aristotle’s identification of nomos with logos (reason), Murphy states, “As applied to custom, Aristotle’s close identification of nomos and logos seems odd. … Customs seem to arise from human conduct but not from any deliberate design.”[vi]  But is that the case?  Murphy seems to see “deliberate design” as a process limited in time – a transaction rather than an evolution.  It is arguably not very difficult to see the connection between ethos and logos if you consider the subjective requirement that participants in a customary law system believe that a custom constitutes a legal requirement or intend for it to do so.  It is Murphy who has severed the connection between reason and custom, and who then seems to take issue with Aristotle’s use of nomos to describe both social convention and law.  Murphy cites enough commentators that I (not being a student of philosophy myself) believe him when he states that Aristotle’s language is often unclear.  However, I was struck by what seemed to be a resistance to the idea that the development of custom could be intentional or rational, which seems to indicate a limited perception of, or perhaps a limited respect for, the richness and potential efficacy of customary law.

This resistance carries into the second chapter, which begins with the statement that “customs are not in general deliberately made.”[vii]  This chapter describes the work of Francisco Suárez, particularly in relation to that of his predecessor, Thomas Aquinas, and seems primarily to take issue with Suárez’s belief that law “expresses the will of the lawgiver.”[viii]  Again, however, much of the argument seems to originate with a limited view of customary law.  Murphy cannot reconcile Suárez’s definition of “law” with his understanding of custom, because he cannot see the individual participants as the lawmakers (“Only an author can form an intention to communicate and customs usually have no author”[ix]), and because he rejects the idea that the participants, either individually or as a group, can exercise reason, intent, or will (“Because customs are not designed or made by any one person, what kind of will or intention do they signify?  No one wills custom into being as a legislator might will a statute into being.  Customs simply arise will-nilly.”[x]).

The final two chapters offer more of the same, although Murphy seems to settle into a more traditional definition of customary law, including its subjective element, during his critique of Bentham.  Nonetheless, he returns to the ideas of “habit” and “convention” toward the end of the chapter in order to conclude that Bentham failed to adequately grasp the concept of custom (“What is largely missing in Bentham’s account is a description of how conventions become habitualized and how habits become conventionalized: the essential nature of custom never comes into focus … customs rest upon a real relation between individual habits and social conventions.  Hence, customs escape the net of Bentham’s logic.”[xi]).  The book ends with a brief epilogue, in which Murphy offers a few of his own reflections on the relationship between custom and law.  However, his primary argument here has little to do with customary law.  Instead, he concludes with the notion that written law should become a matter of custom (or, more specifically, “habit” – or second nature – if we are to use Murphy’s framework.)  In Murphy’s view, “it is better to conform to good laws by customary habit, than by constant recourse to lawyers.”[xii]  This is a fine statement, indeed, but one that, as a conclusion to a book on the topic of customary law, contributes little, if anything, to the field.

It is probable that I simply disagree with Murphy that custom can or should be analyzed through the concepts of habit and convention – or perhaps the book just does not explain how doing so adds to the discussion.  Rather than clarifying or broadening our understanding of customary law, the attempt to boil custom down to these two concepts would seem to limit our ability to work with custom as a legal concept or to form any useful framework for its analysis – an irony, since Murphy states in his epilogue that “[o]ur philosophers of law rightly understand that the puzzles about customary law arise mainly because of inadequate conceptions of custom.”[xiii] Murphy’s purpose appears to be disagreement with previous thinkers for the sake of disagreement (an approach which, incidentally, leads to most of my frustration with the field of philosophy in general).  It is also possible that this book was an academic exercise rather than a sincere attempt to contribute to the study or practice of customary law.

What has always interested me about customary law is how it operates “on the ground” – how it changes and evolves, how it differs based on geography and culture, and how external factors can assist with or complicate its application.  Given that my interest is practical rather than philosophical, I am clearly not the intended audience for Murphy’s book.  Those with a background in legal philosophy might find this book interesting, but it has little relevance to the practicalities of researching or practicing customary law.

[i] James Bernard Murphy, The Philosophy of Customary Law (2014).

[ii] Id. at xiii.

[iii] Id.

[iv] Id.

[v] Id. at 9.

[vi] Id. at 10.

[vii] Id. at 23.

[viii] Id. at 28.

[ix] Id. at 25.

[x] Id. at 41.

[xi] Id. at 87.

[xii] Id. at 124.

[xiii] Id. at 117.