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Functions of freedom: privacy, autonomy, dignity, and the transnational legal process.

"Freedom is just another word for nothing left to lose, Nothing don't mean nothing honey if it ain't free, now now." Janice Joplin, Me & Bobby McGee (1971) (1)

ABSTRACT

What is the function of freedom for the transnational legal process? This Article answers this question through the lens of the ongoing Ukrainian crisis and the deeply inconsistent international legal arguments presented by each side of the conflict. These inconsistencies suggest that criticism of international law as purely political pretense has merits. The Article shows that transnational legal process theory can account for and incorporate these facial inconsistencies and thus address the criticism leveled at international law. The

Article proceeds to develop a theory of freedom as a value that is internal to, and necessary for, transnational legal process. This theory of freedom relies not upon the classical liberal understanding of freedom as positive or negative freedom. Instead, it reconstructs freedom around the value of human dignity. The Article concludes that freedom as dignity is a central value of the transnational legal process and that the transnational legal process would cease to function in its absence.
TABLE OF CONTENTS

I. INTRODUCTION
II. THE PROBLEM OF FREEDOM: MIGHT, RIGHT,
    OR PROCESS
    A. When Realpolitik Meets Idealism--The
       Ukrainian Crisis
    B. Might--International Law as
       Realpolitik
    C. Right--International Law as
       Command
    D. Process--International Law as
       Balance
III. WHOSE FREEDOM: STATES, PEOPLES,
OR PEOPLE?
    A. States--Sovereign Equality
    B. Peoples--Self-Determination
    C. People--Individual Freedoms
    D. The Transnational Moment--People
       in Society
IV. WHICH FREEDOM: PRIVACY, AUTONOMY,
    OR DIGNITY?
    A. Privacy--The Concept of Negative
       Freedom
    B. Autonomy--The Concept of Positive
       Freedom
    C. Dignity--The Concept of Civic
       Freedom
V. CONCLUSION: FREEDOM AS THE END OF
BALANCE


I. INTRODUCTION

Just like rival armies from the Middle Ages to Modernity proclaimed that they fought for "God," rival groups in violent uprisings today claim that they fight for "freedom." (2) For instance, in Ukraine, pro-Western forces employ freedom to justify their ouster of an unpopular president; (3) pro-Russian forces invoke freedom to justify their ejection of regional and local governments unfriendly to their cause in Crimea and throughout Eastern Ukraine. (4) Obviously, the same God could not have supported rival sides in war. (5) Perhaps just as obviously, rival groups could not all have freedom on their side, either.

But freedom is not just a slogan. It is a principle invoked by states taking sides in these conflicts to legitimize the behavior of their local champions. (6) Problematically, it is invoked by the same states to support facially inconsistent actions. Thus, the United States and European Union use freedom to legitimize the formation of a government by pro-Western Ukrainian protestors following their ejection of a Pro-Russian President. (7) At the same time, the United States and European Union invoke freedom to condemn actions taken by pro-Russian groups to similar ends in Crimea and Eastern Ukraine as "undemocratic" and the result of "aggression." (8) Russia similarly relies on the concept of freedom and "independence" to support Crimean secession from Ukraine but deems the actions of protesters in Kyiv as inimical to freedom because they are "unconstitutional." (9)

Such apparently inconsistent use of a legal concept by rival sides in a geopolitical conflict highlights a core problem. When sophisticated superpowers like the United States and Russia each make arguments that on close inspection appear to defeat themselves, international legal argument appears little more than pretense. (10) Such exchanges make it look as if international law lacked a means to sort sense from nonsense--acceptable argument from preposterous proposition. (11) Critics of international law have long seized upon this perplexing quality of international legal argument. (12) They submit with some apparent force that international law simply cannot be used as a measure for assessing international behavior; international law is normatively bankrupt. (13)

As discussed in Part II, transnational legal process scholarship provides a means to refute this skepticism. (14) It shows that international law is not a formalist system, as the critique would tacitly suppose, but rather a synthetic meaning-generating process anchored in the norms and values of its participants. (15) As the wealth of transnational legal process scholarship explains, this synthetic process does not prefer any problem solutions because of their greater purity measured by reference to an outside axiom, or policy preference. (16) Instead, this web of problem solutions reflects the entire normative world inhabited by its participants. But this web remains a "legal" rather than a policy process because the web organizes this material in an inherently autonomous manner on the basis of the inductive strength of a proposed problem solution to the web of past legal problem solutions. (17) The apparent contradictions identified by a Koskenniemian critique thus do not speak to the futility of international law but are testament to its richness and vitality. (18)

Through the lens of transnational legal process, there is thus no facial contradiction in the positions taken by the United States and Russia with regard to the Ukrainian crisis. (19) Instead, the United States and Russia argue about which past problem solution the current situation most resembles. (20) In other words, both appeal to our store of cumulative historical experience rather than a purely scientific or metaphysical principle.

But Part II also concludes with a puzzling question: when current events force us to analyze the use of rivaling conceptions of freedom in international legal argument we have to ask does transnational legal process engage merely in strategies of evasion? (21) The fulcrum of the international legal critique is that international law is normatively meaningless because it lacks a value of its own. (22) In fact, transnational legal process theorists such as Harold Hongju Koh appear to concede as much when they reject theories that on their face import a single value or policy preference into the legal process. (23) Critics therefore appear free to argue that this renders transnational process arguments entirely dependent upon politics. (24) The current Ukrainian crisis painfully appears to illustrate their point: one's conception of freedom even as international lawyers appears to depend not upon our legal convictions but upon the side from which we perceive the conflict. International law then does in fact appear to be "singularly useless as a means for justifying or criticizing international behavior" in Ukraine. (25)

The Ukrainian crisis, and others like it, thus illustrates both the difficulty and the importance of the task ahead. To defend transnational legal process theory, one has to identify the value of the transnational legal process--what are scholars engaged in transnational legal process theory actually for? (26) Failing to answer that question makes transnational legal process theory little more than dress up for the foreign policy positions espoused by their respective governments. (27) As this was one of the problems the transnational legal process project sought to resolve, answering this question is of particular importance for the growing number of adepts of this school of thought. (28)

Given the international nature of crises like Ukraine, the first question is whether freedom applies only to states, or whether it reaches peoples or individuals. Part III begins its analysis by addressing this question. It notes that the United States and Russia each argue on the basis of fundamentally inconsistent subjects of freedom. At times, each argues that Ukraine (as a state) is free to discredit the actions of political dissidents. (29) At times, each argues that individuals are free in order to discredit the actions of the central government. (30) And at times, each argues that ethnic groups or peoples have a right to self-determination to trump the rights of both Ukraine and individuals living in Ukraine. (31)

As Part III explains, the transnational legal process accepts each of these facially inconsistent arguments as valid legal propositions. (32) This on its face means that the transnational legal process either completely lacks a concept of freedom--and accepts historically based arguments about freedom from any theory of historical importance for the development of international law--or that the transnational legal process can still overcome these deep inconsistencies. (33)

Part III provides a basis for reconciliation. Transnational legal process accepts that each of these arguments are relevant but does so through the lens of personal freedom. (34) Transnational legal process reconciles these competing positions because it views persons not as atomistic individuals but instead as citizens and members of a wide variety of communities. (35) Transnational legal process accepts arguments about the freedom of the state (i.e., Ukraine) and the freedom of peoples (e.g., ethnic Russians and ethnic Tatars) because they, too, reflect personal liberty. (36) A person living in a state that is occupied or otherwise coerced by its neighbor or is part of an oppressed ethnic minority sensibly should claim that he or she lacks freedom. In other words, the transnational legal process submits that there is tension because each person feels a similar tension or conflict when "Freedom," capital "F," is threatened. (37)

Part IV turns to the question of what this new-found personal freedom means. Traditionally, conceptions of freedom in political theory are defined as "positive" freedom (freedom to) (38) and "negative" conceptions of freedom (freedom from). (39) Part IV showcases how the United States and Russia in their arguments about the Ukrainian crisis indiscriminately use arguments from the two principal rival conceptions of freedom recognized by modern political theory--negative freedom (freedom from), and positive freedom (freedom to). Again, it appears that the transnational legal process is at an impasse--it seeks to incorporate two normative values that are ultimately logically incommensurable.

Part IV submits that a process theory can embrace such incommensurability without giving up a substantive conception of freedom. It explains that the transnational legal process incorporates both views of freedom--negative and positive--through the lens of human dignity. Human dignity reflects both the right of the person to be respected by others and the need to cooperate with others as a process participant. (40) The Article reconstitutes this lens of human dignity by incorporating humanist thought reintroduced to contemporary political theory by historians such as J.G.A. Pocock and classical philosophers such as Martha Nussbaum. (41)

The Article contributes to the growing transnational legal process literature by providing the first inquiry into what its core value, its conception of freedom, is. The Article concludes that transnational legal process has such a value--and that this value, human dignity, has further significance. The Article's focus upon human dignity ultimately rejoins transnational legal process scholarship with Myres McDougal's, Harold Lasswell's, and W. Michael Reisman's "old" process school. (42) Both transnational legal process and the old school ultimately defend the value of human dignity. But whereas the old school seeks to do so through external justification, transnational legal process ultimately can provide an internal justification for human dignity. (43) This switch in perspective further cements the value of human dignity to transnational law as its quintessential precondition--and thus permits the rather startling proposition that without human dignity transnational law simply ceases to exist. (44) It is thus the absence of transnational law that leads to the dystopian vision of pure politics painted by the critiques of international law--not transnational law.

This Article concludes that this new appraisal of the functions of freedom in the transnational legal process provides a measure by which to judge which party may legitimately label itself a champion of freedom. In the Ukrainian context, this analysis reveals that while there are no angels in foreign policy, the U.S. claim to protect freedom is by and large stronger than that of its Russian counterpart. The U.S. claim takes (more) seriously the right of those most affected by geopolitical decisions to participate in their making. (45) It is, in this case at least, by and large less cynical and destructive of the transnational legal process than the exercise of empire by military and paramilitary force.

II. THE PROBLEM OF FREEDOM: MIGHT, RIGHT, OR PROCESS

The Ukrainian crisis shows the limitations of axiomatic theories of freedom in international law. (46) The arguments advanced by both the United States and Russia rely on arguments drawn from inconsistent Realpolitik and idealist axioms in order to make sense of the ongoing crisis. (47) In fact, it is not currently feasible to create an account that draws on a single axiom to resolve the problem--the theoretical premises of Realpolitik and idealism are incommensurable. (48)

The state of legal arguments about Crimea's annexation by the Russian Federation following the ouster of a pro-Russian Ukrainian president by popular protests in Western Ukraine thus presents fertile grounds for the critics of international law. (49) Relying on Marti Koskenniemi's critique of international law, they submit that international law is at best powerless in resolving, and at worst complicit in creating, the current crisis. (50) The basis for this critique is the inability of international law to form a single common normative denominator. (51) Instead, all actions can be legally defended, and all actions can be legally impeached. (52)

The obvious retort to these critics is that truth lies not in a unique common denominator but in a balance of competing principles. (53) Instead of making all arguments measurable on a single scale, this balance assumes that law as process reflects the incommensurable values of its participants. (54) Process, in other words, must permit the striking of a balance without providing a linear scale. (55)

As this Part will conclude, process theory makes such balancing of incommensurable values possible. It creates an inductive structure which can compare whether, to paraphrase Justice Scalia, a line is longer than a rock is heavy. (56)

While process theory can compute an outcome in such scenarios, and thus compute whether the legal arguments advanced by the United States are more plausible than the legal arguments advanced by Russia, it raises the question whether it can only do so because it is ultimately agnostic about value. This Part will thus leave us to answer a deeper question: does the transnational legal process of decision making simply determine a "winner" in the legal contest between Great Powers or does it tell us something about freedom in a truly pluralist world order?

A. When Realpolitik Meets Idealism--The Ukrainian Crisis

At first blush, it appears that the arguments regarding the Ukrainian crisis advanced by the United States rely upon an idealistic conception of freedom and that the arguments advanced by Russia rely upon a notion of freedom drawn from Realpolitik. According to this intuitive narrative, the United States supported Ukrainian protesters from late 2013 to enforce human rights norms and defend the freedom of the Ukrainian people against allegedly unconstitutional acts of their government. (57) Similarly, when Russian forces invaded Crimea and Crimea held a referendum to secede from Ukraine, the United States stood vocally in the way of Realpolitik, that is, Russia's attempt to create new conditions on the ground by forcibly taking control of Crimea and, as it then appeared, Eastern Ukraine more generally. (58)

Russia, on the other hand, at first blush looks like the cynical champion of Realpolitik. During the protests of pro-Western demonstrators, Russia emphasized the right of Ukraine's then pro-Russian government to deal with its internal affairs free from Western interference. (59) Similarly, the arguments supporting the Russian annexation of Crimea were premised in effectiveness--a vote in favor of the annexation having occurred, albeit in the presence of Russian special forces walking the streets. (60)

This narrative, while convenient, is imprecise. Careful analysis of the statements of the United States and Russia shows that the United States and Russia each rely on arguments grounded in Realpolitik and arguments grounded in an idealistic view of international law. (61) The arguments advanced by each the United States and Russia thus appear to be mired in self-contradiction: they defend effectiveness when their respective side holds the upper hand and human rights when it does not, without acknowledging the fundamental problem such inconsistency creates.

For instance, the United States relied heavily upon Realpolitk following the ouster of Ukrainian President Yanukovych in late February 20 1 4. (62) Almost immediately, the United States supported the newly formed government on grounds of effectiveness--President Yanukovych fled the country. (63) Success in overthrowing the prior government at its simplest level was the mark of its legitimacy. (64) The United States position in this instance had to rely upon effectiveness. Just prior to the ouster of President Yanukovych, the United States and the European Union on the side of the protesters and Russia on the side of President Yanukovych had negotiated a constitutional solution to end the internal standoff. (65) This negotiated solution foresaw that President Yanukovych would remain in power. (66) The ouster of President Yanukovych within days of reaching this agreement thus deviates from the theme of constitutional, rule-of-law based reform previously endorsed by the United States. (67)

Similarly, and understandably given the facts, the Russian position relied upon idealist arguments. The very justification for Russian involvement is principally a defense of constitutional government in Ukraine. (68) Russia submitted both that it intervened at the behest of the constitutionally elected government of Ukraine and that it acted to protect ethnic Russian populations against possible excesses against that population by a rogue government. (69) Both of these arguments echo internationalist legal arguments developed precisely to combat Realpolitik. (70) The Russian position in this instance had to rely upon internationalist arguments. A theme constantly struck by Russia is that the West inappropriately involved itself in Ukrainian internal affairs. (71) Russia therefore could not rely upon effectiveness in order to support its own intervention without conceding the right of the United States and the European Union to do the same. The intervention permitting the arguments on the basis of effectiveness thus needed an internationalist justification in its own right. (72)

A nuanced appraisal of the United States and Russian positions shows that each relies upon facially inconsistent arguments. Both assert that the effectiveness of measures favoring their interests legitimize these measures. (73) But both also assert that legitimacy does not depend upon effectiveness but upon rights-based norms. (74) Problematically, these rights-based arguments significantly undercut critical portions of their respective initial positions. Taking the rights-based argument seriously, the United States position regarding the removal of President Yanukovych and the prosecution of Ukraine's fight to regain control of Eastern Ukraine and Crimea are deeply suspect; Russia appears correct that the overthrow was unconstitutional, potentially in violation of a negotiated truce, and that the Ukrainian strategy in both Eastern Ukraine and Crimea disproportionately, and thus illegally, targets the civilian population. (75) But taking rights-based arguments seriously, Russia does not have a leg to stand on, either. The declaration of independence of Crimea and its annexation by Russia, along with the support of uncontrollable militia wreaking havoc in Eastern Ukraine to the point of apparently shooting down a civilian airliner "by mistake," do not live up to the rights-based arguments espoused by Russia. (76)

The Ukrainian crisis thus appears to fit the mold of the Koskenniemian critique of international law. The critique submits that all international legal argument relies upon combining fundamentally inconsistent propositions, some based purely upon effectiveness, state will, and state power, others based upon a conception that effectiveness, state will, and state power must obey external norms to be legal and legitimate. (77) The Ukrainian crisis thus appears to be one more recent example of the critique's claim that international law is fundamentally meaningless in assessing and resolving international disputes. (78) How all parties involved to date have behaved themselves in the crisis would tend to lend intuitive credibility to that claim.

B. Might--International Law as Realpolitik

"I will make it legal." (79) This claim by a fictional upstart Senator dealing with an international crisis describes a common conception of international law. (80) What is "law" is what people get away with. (81) To determine what is law is simply to follow Realpolitik, power, or might.

Contrary to what one might believe, this view of Realpolitik has a cogent legal and theoretical view of, and place for, freedom. Following the temptation to treat Realpolitik as simply the opposite of lawfulness would thus be incorrect. It, in turn, would be simplistic to deem all parties in the Ukrainian crisis to be in violation of their international obligations whenever they fail to observe a relevant rights-based norm. This conclusion would fail to reflect the current state of international law.

Doctrinally, legal conceptions of Realpolitik can rely upon the doctrine of "effective control." (82) According to this doctrine, "a government in effective control of the territory is generally accepted as the representative of the population within that territory even if it has assumed power through violent or otherwise undemocratic methods." (83) The implications of power politics are unmistakable:
   The international order's attribution of sovereign independence to
   established territorial political communities thereby has
   traditionally entailed (to put it most bluntly) the right of each
   to fight its civil war in peace and to be ruled by its own thugs.
   Insofar as it is perceived as little more than an imprimatur for
   'might makes right' at the local level, this 'effective control
   doctrine' is manifestly offensive to a rule of law sensibility.
   (84)


Such doctrinal precepts rely upon a theoretically cogent view of freedom. (85) The Realpolitik view of freedom was developed by the early leading "realist," Thomas Hobbes. (86) To Hobbes, freedom was a matter of the assertion of will. (87) Such assertion of will was not "free" in the sense of being a matter of free choice; the will was mechanically determined. (88) The assertion of will therefore was little more than the effectuation of externally conditioned impulses. (89) These impulses are broadly reducible to the avoidance of aversion and the satisfaction of appetites. (90) Freedom was simply the absence of external physical constraint. (91) Freedom did not describe the absence of interference with internal impulses. (92) To Hobbes, such a conception would have been absurd as all internal impulses were by definition equally mechanistically predetermined by the outside world. (93) To the extent a person makes a choice, asserts his or her will, it is thus a given that outside circumstances predetermined the decision. (94) Freedom describes the absence of physical incarceration--and little else. (95)

Applying Hobbes to international Realpolitik, we thus arrive at the principle of effectiveness. In true Hobbesian fashion, it does not matter whether there is any outside pressure brought to bear on civil society in order to inform which "thug" would rule. (96) The only question, through the prism of Hobbesian freedom, is one of least aversion: which thug is most likely to provide relative security, which thug is more like the storm likely to destroy the ship of state. (97) A decision to submit to a thug who promises such relative security--no matter on what material basis--thus would be perfectly free. (98)

C. Right--International Law as Command

The philosophical origin of rights-based arguments raised by all sides in the Ukrainian crisis confirms our intuitive conclusion: rights-based arguments are diametrically opposed to Realpolitik. (99) Tracing the genealogy of rights-based international legal arguments leads us to a radically different view of freedom. This view of freedom takes choice seriously in the sense that it is premised in safeguarding choice, the right to choose, against political and social compulsion. (100) Such a view is irreconcilably different from the Hobbesian account of freedom. (101) All attempts to find a common denominator between rights-based and effectiveness-based norms in international law made relevant by the facially inconsistent arguments used in the Ukrainian conflict are thus destined to fail. Consequently, the critics of international law appear to be making a dangerously valid observation when they submit that international legal argument in the context of the Ukrainian crisis and beyond is ultimately self-defeating and absurd. (102)

Doctrinally, rights-based academics submit that as a matter of international law the unconstitutional overthrow of government is ultimately illegitimate. (103) The government that emerges from it cannot rightfully be recognized. (104) Nor can many of its actions. (105) In order to be legitimate, according to these arguments, control must be more than effective. (106) It must satisfy certain external criteria. (107) These criteria are ultimately normative--they set out what states ought to do, how they ought to act rather than how they habitually do act. (108) These normative commands counterbalance and contain Realpolitik. (109)

Just as the Realpolitik position is indebted to Hobbes, the normative internationalist position is indebted to John Locke. (110) Locke's theoretical project was to counter Realpolitik. (111) To Locke, freedom requires not only an application of will as it did for Hobbes. (112) Rather, it requires that any choice to be free must be made without outside compulsion. (113) The choice is free only to the extent that it is not driven by physical coercion or fear of physical coercion. (114)

This conception of freedom led directly to the Lockean social contract. The social contract had to be entered into freely. (115) This freedom required that the subjects of the state delegated authority (and the limits of authority) to the State rather than the subjects simply submit to the arbitrary power of the state outright. (116)

This move by Locke directly contradicted Hobbesian Realpolitik. One Locke scholar summarizes the root of this disagreement as follows:
   Hobbes' rejection of the philosophical premise of Locke's natural
   executive power is obviously connected to his concern to establish
   the rational and moral grounds for absolute sovereignty. To
   Hobbes.... [t]he contract forming political society is a product of
   consent, but this act of consent is not the efficient cause of
   sovereign power. Rather the sovereign derives his or her authority
   by virtue of being the single uncontracted agent watching over
   society while retaining his or her natural freedom entire. (117)


To Hobbes, freedom permitted individuals to subject themselves completely to thugs out of a hope of protection. (118) To Locke, any such choice would be by definition unfree because it was the subject of force or fear and thus void the social contract based upon consent so obtained. (119)

Applying the Lockean conception of freedom in a revolutionary context such as Ukraine, choices made under gunfire, or threat of military action, are always inherently suspect. (120) They are prone to involve precisely the kinds of situations where a reasonable person may well not feel safe--and thus constrained by outside events to assent to political actions that he or she would not have otherwise agreed to. (121)

This doubt is the stronger in the context of a constitutional democracy. (122) Democracies would provide the people with a relatively efficacious mechanism to change governments and government policy in an ordinary manner. (123) To the extent elections are not accompanied by tactics of thuggish intimidation, their results are a far better gauge of the free will of the governed. Thus, the notion that unconstitutional change is nevertheless legitimate would undergo strict scrutiny under this theory of freedom--and would lose to the extent the malcontents have not lost confidence in the constitutional form legitimating the actions of their government but simply in the actions of their government. (124) Right and might thus appear poised at an impasse--they appear on their face incommensurate. (125)

D. Process--International Law as Balance

The conceptions of freedom underlying the arguments made by all parties in the Ukrainian conflict rely upon incommensurable comprehensive theories of value. (126) They cannot be reconciled logically or by means of formal dialectics. (127) When such reconciliation or development is impossible what remains is balance. (128)

But incommensurability creates significant problems for balancing, too. It deprives balancing of a unit. As Justice Scalia remarked:
   Having evaluated the interests on both sides as roughly as this,
   the Court then proceeds to judge which is more important. This
   process is ordinarily called "balancing," but the scale analogy is
   not really appropriate, since the interests on both sides are
   incommensurate. It is more like judging whether a particular line
   is longer than a particular rock is heavy. All I am really
   persuaded of by the Court's opinion is that the burdens the Court
   labels "significant" are more determinative of its decision than
   the benefits it labels "important." Were it not for the brief
   implication that there is here a discrimination unjustified by any
   state interest, ... I suggest an opinion could as persuasively have
   been written coming out the opposite way. (129)


Is it possible then to achieve a balance without a common unit of measurement? Can balance incorporate or compare incommensurable values?

Process theory on its face provides a means to achieve such a balance. (130) It relies upon a synthetic meaning-creating process to understand how these conceptions of freedom relate to one another. (131) It then determines which argument, viewed in its totality, is most successful in comparing its claim factually to past instances in which freedom was a cognizable legal argument. (132)

Such a synthetic meaning-creating process functions like a language. (133) Instead of consulting an axiomatic definition, a synthetic process makes connections between the new event or situation and past experiences. (134) For example, when determining whether a cinematically-produced massive multiplayer online game (MMO) really is a movie or a game, it makes little sense to look to a definition of a movie or the definition of a game. (135) The cinematically produced MMO will meet elements of both definitions. (136) It is "a recording of moving images that tells a story and that people watch on a screen or television." (137) But it is also "a physical or mental activity or contest that has rules and that people do for pleasure." (138) In the case of an MMO, a participant in the relevant process would look for examples of similar movie experiences to an MMO--perhaps attempts at movies in which the audience can determine which ending will be shown. (139) Our process participant would also look for examples of similar game experiences to an MMO. (140)

For instance, assume for a moment that such a dispute concerned George Lucas and his agreement with 20th Century Fox relating to the Star Wars franchise entered into in 1973. (141) Hypothetically, assume that George Lucas had not retained the right to both merchandising and sequels at that time, but simply to "games and toys" based on the movie. (142) In (2012), Lucas releases Star Wars: Old Republic, a story-based MMO involving voice acting, cutting edge animation, and a cinematic story arch for those who persevere long enough to play to higher character levels. (143) Looking at an MMO in today's environment, there are multiple generations of both story-based videogames and role playing games available for comparison. (144) The relationship between Star Wars: Old Republic and games therefore is comparatively strong.

But what if we had to determine what George Lucas and Fox intended in (1973) with regard to a fictional agreement to permit Lucas to market games? (145) How would the change in time change the interpretation of "game" or "movie?" In that context, today's computer games would appear as even more outrageous science fiction than Lucas' famous Death Star. (146) Dungeons and Dragons, the world's most famous role playing franchise, had not yet premiered its first tabletop game (it would appear in (1974)). (147) But during the same time frame, an interactive movie--Kinoautomat--was first screened in 1967 at the Montreal Expo and rescreened in San Antonio in 1968, Prague in 1971 and 1972, and at the Spokane Expo in 1974. (148) Different experience meaningfully changes the balance whether Star Wars: Old Republic meaningfully is a game or a movie.

Once the process participant has determined the population of analogues and the relationship between a new item and these analogues, the process participant can make a judgment whether the MMO is more of a movie or more of a game. (149) The MMO then becomes internalized in the broader "world," Lebensform, of our process participant. (150)

These examples show that while the abstract definitions of what constitutes a game or movie would not have changed, at all, their interpretation--their meaning--could in fact radically shift. (151) This observation confirms what we intuitively know already: our worlds are not governed by abstract constants, or units of measurement, but much more by our own interpretation of a pool of relevant experience. (152) We understand by placing items in context, not by engaging in metaphysical lexicography. (153)

This process operates analogously to transnational process scholarship. The process begins with interaction. (154) In the George Lucas example, this "interaction" is the (fictional) dispute between Lucas and his movie studio whether Star Wars: The Old Republic is a movie or a game. (155) This interaction "forces an interpretation or enunciation of the global norm applicable to the situation." (156) The goal of interpretation is "not simply to coerce the other party, but to internalize the new interpretation of the international norm into the other party's internal normative system." (157) In the context of the George Lucas example, the interpretation that the MMO is a game (or movie) is internalized because the participants internalize MMOs in an existing norm structure made up of their past experience. The norm to call MMOs "games" or "movies" thus is not the result of external norm-based compulsion but of internalized understanding.

Process theory submits that each internalization of a new situation, each instance of understanding, changes the normative world of the participant. (158) The substance of the participant's universe is different after each interaction. (159) For instance, the universe in our example is enriched both by the MMO and the new connection between MMO and past instances of movies and games.

By approaching balance in this manner, process theory can answer Justice Scalia's criticism. (160) In the context of the MMO example, it is a comparison whether something is more of a movie or more of a game rather than whether a particular line is longer than a particular rock is heavy. But both comparisons look not to a common unit of measurement, but balance the belonging of a particular object in light of the strength of its relationship to incommensurable values.

In the context of the MMO example, we saw how that balancing works without a unit measurement. (161) It contextualizes MMOs by reference to existing factual examples of games. It is possible to judge which characteristic of MMOs (or interest of litigants) is more important by the overall factual analogy. (162) While each factual analogy is driven by completely different standards, it is possible to compare these analogies by reference to the closeness in family resemblances between each analogy and the relevant closest test sample. (163) Process permits judgment, balance, by placing each specific case to be analyzed within the map of earlier experiences that have already been processed.

This act of situating an event within a broader set of experiences explains how apparently incommensurable interests relate to each other. The interests are only analytically incommensurable. (164) The interests as a matter of definition concern very different ultimate values. These values lack a meaningful common denominator. (165) But they are still historically and socially related.

For instance, we can compare Ovid's Metamorphoses to Shakespeare Romeo and Juliet from a historical perspective despite the fact that one is an epic poem and the other a tragic play, one written in Latin and other written in English, one written for literati and the other for a general audience. (166) As matter of common analytical measure, they have nothing in common. As a matter of historical accident, they have everything in common. (167) Shakespeare weaves Ovidian themes into the heart of the Elizabethan Renaissance and in so doing changed the sensibilities of Englishmen and women forever. (168) This observation makes sense from the point of view of a literary social process. (169) It makes no sense from Justice Scalia's antiseptic jurisprudential perch. (170)

From a social perspective, our very understanding of the tragedy of a play like Romeo and Juliet depends upon our ability to inhabit multiple incommensurable social worlds all at once. (171) Choice is tragic (rather than stupid) because we understand the powerful gravitational force of conflicting values, or social roles, in a given situation. (172) In Romeo and Juliet, Romeo's obligations (1) of friendship to Mercurio, (2) to abide the laws of Verona, and (3) to protect his new wife's family conflict when Tybalt and Mercurio duel. (173) Should Romeo protect his newly minted cousin by marriage from Mercurio? (174) When Tybalt kills Mercurio, should Romeo avenge his friend? (175) Or should Romeo abide by the law and let the Prince punish Tybalt? (176) Or should Romeo protect Juliet's beloved cousin from the law? (177) Once Tybalt kills Mercurio, it apparently is no longer possible for Romeo to meet the demands of all of his social roles--he either avenges his friend, or he abides the law, or he protects his cousin. (178) We understand this pull because we can imagine being in a similar situation. (179) Process theory precisely does not blindly ignore that people frequently act in the context of such conflicting values. (180) And that interaction with others requires mediation between these values rather than an all out choice of one over the other; (181) process does not deny the tragedy of choice but provides a means to choose, eyes wide open. (182)

Process theory therefore can make perfect sense of balancing international legal norms. In the context of Ukraine, it does not matter that the arguments of the United States and Russia each continue to rely upon inconsistent and incongruent premises, that is, Realpolitik and constitutional justifications. (183) As participants in the practice of international law, process theory posits that we intuitively understand that these arguments seek to establish family relationships between each side's respective legal arguments about the Ukrainian crisis and past instances in which similar civil strife became a matter of international legal concern. (184) In this vein, the arguments of Russia draw on the Kosovo example to lend global credence to its claims that Crimea appropriately seceded from Ukraine. (185) They further rely upon older claims of pan-Slavic protectionism against Western incursion for a more regional audience. (186) Finally, it contextualizes the Ukrainian revolution in Kyiv as illegitimate by reference to behind the scenes Western intervention in the domestic political process of a country suiting its geopolitical interests. (187)

The United States on the other hand evokes other examples, most centrally the break-up of the Soviet Union and President Yeltsin's rise to power in Russia. (188) For more local consumption, it further links the events to human rights narratives of civil rights movements and popular political protests. (189) Finally, it contextualizes Russian presence in Ukraine as aggression--with obvious parallels to Soviet incursions into Budapest and Prague. (190) These arguments thus do not treat Ukraine as analytical legal problem to be resolved by the application of a "freedom rule." (191) They seek to situate Ukraine in a broader context of the international legal discourse itself. (192) By doing so, both the United States and Russia attempt to persuade participants to internalize the current conflict in a different manner--and draw diametrically opposed normative conclusions concerning it. (193)

Process theory resolves the dispute by comparing the strength of family resemblance between the respective arguments, on the one hand, and our internal web of past freedom norm applications, on the other hand. (194) These arguments thus seek to make relevant the whole of range of freedom norms to strengthen family resemblance rather than to focus on a single axiomatic argument--an axiomatic argument that never is reflected in all its purity in past instances of norm application. (195)

In this sense, the transnational legal process can make sense of freedom in the context of the past practice of transnational law. (196) This practice, of course, is heavily defined by historical accident--that is, the store of experience or cases studied by transnational law practitioners. (197) Freedom in this sense ceases to be a value with any claim to exclusivity and simply becomes one of many--a data point in the larger historical fabric. (198) The worst of the critique of international law thus is, at first, averted.

But this conclusion does not at all help to clarify if the transnational process has any independent value. (199) Quite to the contrary, it suggests that the transnational legal process must lack such value. (200) Any use of value would undermine what process is about. (201) It would appear to force what is currently an experience-based, synthetic process of meaning creation to become a deductive value-applying calculus. Thus, the question: has process theory pushed freedom--the value people from Cato to William Wallace to Patrick Henry were willing to die for--to the vanishing point? Has it engaged merely in another strategy of evasion to delay the Koskenniemian critique's inevitable conclusion that all law is politics by different means? (202)

III. WHOSE FREEDOM: STATES, PEOPLES, OR PEOPLE?

Given the international legal nature of the Ukrainian crisis and others like it, the first question is who should be free. (203) There are three plausible candidates. Freedom can apply to states, (204) it can apply to peoples, (205) and it can apply to people. (206)

As the Ukrainian crisis shows, transnational legal arguments about freedom invoke all three of these dimensions at the same time. Both the United States and Russia rely upon state-based freedom, accusing the other of inappropriately interfering in Ukrainian internal affairs. (207) Russia also relies upon the right of areas with majority ethnic Russian populations, such as Crimea, to declare their independence. (208) This argument moves from states as the appropriate subjects of freedom and looks instead to peoples as having the legally cognizable right to be free. (209) Finally, both the United States and Russia rely upon individual freedom by arguing that the United States interfered in the Ukrainian constitutional process or that Russia is seeking to thwart the will of the people in the streets with brute force. (210)

The Ukrainian crisis also shows that these arguments meaningfully conflict. A pure statist view ignores that ethnic groups and individuals are frequently oppressed. (211) A view premised exclusively in the freedom of peoples would seem to permit a tyranny of the majority over dispersed ethnic minorities. (212) A conception of the primacy of individual rights renders national borders and community attachments largely irrelevant. (213) The challenge thus is this: for transnational legal process to value freedom in its own right rather than simply make sense of assertions about freedom for a given case in light of conflicting norm attachments of its participants, the transnational legal process must conceptualize freedom in a way that incorporates all of these apparently conflicting subjects. (214) Freedom must be an individual right and a social norm all at once. (215) If the transnational legal process fails to do so, freedom in the transnational legal process becomes an empty shell even before we ask any questions about its substance: we would not even be able to identify to whom this mysterious freedom applies let alone what it means. (216)

A. States--Sovereign Equality

Freedom in international law traditionally applies to states. (217) International law classically is the law of state-to-state relations. (218) Transnational legal process scholarship does not deny that it applies to this realm. (219) Quite to the contrary, state-to-state conduct is a fixed axis for its application. (220)

State-based freedom in orthodox international law operates in three interrelated ways. First, freedom refers to the absence of an international hegemon. (221) No state could dictate to another state what it ought to do simply by virtue of status. (222) States are thus free in the sense that they are equal--they are not subject to any other. (223)

Second, classically a state cannot be bound by an international legal rule to which it did not in some form consent. (224) Most obviously, in the law of treaties obligation is a matter of state assent. (225) Similarly, customary international law is premised in objective state conduct and subjective state belief that its conduct follows a rule, which is indeed legally binding. (226) Even though custom might bind a state that did not expressly assent to the customary rule, classic international law constructs tacit consent from the state's failure persistently to object to the rule. (227) While less clear, it appears that a state should be able to opt out of general principles of law recognized by civilized nations. (228) That states cannot be bound by a rule to which they did not agree flows directly from sovereign equality. States are free because they cannot be made to do anything against their will. (229)

Third, it guarantees that international law cannot interfere in the domestic affairs of any state. (230) The domestic affairs of a state are its own to organize as it pleases. (231) Paternalistically, the family father is freest in his own home--so the state in its own territory. (232) This view of freedom dovetails most clearly with the Hobbesian view of liberty. (233) The state is sovereign, meaning that it is not obligated to anyone. (234) It can act with complete freedom because it cannot be made to do anything against its own will. (235)

Perhaps unsurprisingly, this view of freedom casts sovereigns in a dystopian "state of nature." (236) A state has no obligation to anyone--its own subjects, other states, other states' subjects--unless that state has assented to the obligation. (237) This gives free reign to states to "persuade" each other to consent so long as they have not agreed to some limits on their rights to persuade in the law of war or some other conventional or customary rule. (238) Similarly unsurprisingly, this view is closely associated with Realpolitik, (239) Its rhetoric of equal freedom simply masks equal impunity. (240) If there is no rule binding the state other than the one the state agreed to, a state is prohibited from blockading, embargoing, or bombarding another only if it agreed to refrain from blockading, embargoing, or bombarding. (241) In this sense, one state's freedom precisely would not end at the tip of its neighbor's nose. (242)
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Title Annotation:I. Introduction through III. Whose Freedom: States, Peoples, or People? A. States - Sovereign Equality, p. 471-505
Author:Sourgens, Frederic G.
Publication:Vanderbilt Journal of Transnational Law
Date:Mar 1, 2015
Words:7660
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