International Law as Fundamental Justice: James Brown Scott, Harold Hongju Koh, and the American Universalist Tradition of International Law

I am delighted to have an opportunity to respond to Harold Hongju Koh\u27s excellent Childress Lecture of October 3, 2001, at the Saint Louis University School of Law. It has been my great pleasure to know Harold since we were young lawyers in the 1970\u27s, and most especially during the 1996-97 academic year when we were together on the Law Faculty at Oxford. Now, as always,my first and soundest instinct is to associate myself fully with Harold. I embrace his commitment to human rights at home and abroad, and applaud his dream for the globalization of freedom. Great American lawyers like Harold have been concerned with what we now know as international law even before 1789, the momentous year that marked not only the entry into force of the U.S. Constitution, George Washington\u27s first administration, the French Revolution and, perhaps a little less dramatically, the denomination and delineation of international law, a new term created by the fertile imagination of that Oxford graduate and utilitarian philosopher, Jeremy Bentham. Harold\u27s commitment to a globalization of freedom belongs, I believe, to a very important part of our international law tradition that I sometimes call American universalism, though it might also be more controversially denoted naturalism. Whatever the nomenclature, this tradition notably includes the nineteenth century American advocates of an international court David Low Dodge, Noah Worcester, William Ladd and Elihu Burritt whose efforts saw fruition in Woodrow Wilson\u27s World Court. Lately, thumbing through James Brown Scott\u27s 1922 Cases on International Law, it struck me that the preface to this influential casebook might not only serve as a useful illustration of what I mean by the American universalist tradition in international law, but also highlight Harold\u27s own commitment to high principle. The preface to Scott\u27s Cases looks back on the style and substance of the first century and a half of America\u27s acquaintance with international law, looks forward to developments that took place in the American perception and practice of international law in the next tumultuous eight decades and, of course, reflects the sentiments of an influential member of the American legal profession in the early 1920\u27s, a time when we were recuperating from the military, political, economic and legal exhaustions of World War I and the Peace of Versailles. What shines forth from the preface to Scott\u27s Cases is a commitment to international law as a form of fundamental law. Scott sees it as universal justice, common to all civilized nations that can be molded but not destroyed by the particular practices of states. Scott\u27s commitment to international law as fundamental justice ties his work to the great nineteenth century American universalist tradition of international law, distinguishes it from the sterile positivism and strident policy science that came to characterize so much of American international law thinking in the middle and later twentieth century, and links it to the emerging recommitment of modern American lawyers like Harold Hongju Koh to international law as a universal law, rather than as a mere politics of preference or a shallow reckoning of state consent. Let me proceed by illuminating two basic presumptions about international law that are shared by Harold and Scott and, I think, by other American universalists. First, is a belief that international law is real law because it is practiced as such by judges and lawyers, making international law just as real as municipal law. Second, is a belief that international law is, at its foundation, the same for all peoples; that there are elements of a universal civilization shared by all humanity no matter what their discrete histories or societies