Theories of international law and politics are a product of their times. They focus on the issues of the day (or of the immediate past) and their assumptions are often the assumptions of the society in which they were born. Perhaps that it is why so many international relations scholars were surprised by the end of the Cold War: Their theories were so informed by bipolarity that they were unable to see the actual changes that would transform the state system. As international relations scholars are re-assessing their theories in a post-Cold War world, lawyers may do the same concerning international legal jurisprudence. Throughout the Cold War, the New Haven School of policy-oriented jurisprudence attempted to describe how law was actually used in the policymaking process and to suggest how it should be used towards the goals of securing human dignity and the spread of free societies. But with the titanic struggle between competing world orders being replaced by parochial fights and feuds, whither the New Haven School? What insights does it have for today's world? Does the New Haven School's theory need to catch up to the practice of international law?
This Article considers the strengths and weaknesses of the New Haven School in light of the competition among multiple conceptions of "world public order" that exist today. As a test case, I will look at the competition on the "grand chessboard" of Eurasia. At one time called the "world island" by geo-strategists, Eurasia today is home to seventy-five percent of the world's population, sixty percent of the global GNP, and contains about seventy-five percent of known energy sources. It is also a geographic space where multiple conceptions of public order, including those of the United States, the European Union, Russia, and Islamic fundamentalists, overlap, interact, and at times compete. This is especially so in the unstable arc of states bordering Russia: from Belarus, Moldova, and Ukraine in the West; down to the Caucasian countries of Georgia, Armenia, and Azerbaijan in the Russian southwest; and ultimately the Central Asian republics of Kazakhstan, Uzbekistan, Turkmenistan, Tajikistan, and Kyrgyzstan to the Russian south.
In Part II, I will introduce the idea of "diverse systems of public order" described in policy-oriented jurisprudence. I will also situate the New Haven School as part of the liberal modernist tradition that attempts to find universal norms and/or techniques to address questions of political or normative conflict. Part III will examine the different public orders in today's multi-polar, multi-normative world. In Part IV, I will propose the concepts of systemic borderlands—states that are the geopolitical crossroads between two or more normative realms—and of normative friction, the process in which competing conceptions of public order interact in these borderland states, as a means of describing the normative interactions in a multi-polar world. Part V will consider examples of systemic borderlands and normative friction in Eurasia. In Part VI, I will propose ways in which the New Haven School can build on some of its own original insights on the existence of diverse systems of public order in light of changes in international politics. As this short Article can only scratch the surface of so many issues, I will also set out questions for further investigation.
Borgen, Christopher J., "Whose Public, Whose Order? Imperium, Region, and Normative Friction" (2007). Faculty Publications. 120.