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Published online by Cambridge University Press: 02 November 2016
This article examines Roger Fisher's scholarship in international law in the decades prior to the publication of Getting to Yes. Fisher engaged with the same major questions as other international law scholars during the Cold War, but his scholarship was distinguished by the degree to which he grappled with the cutting-edge social science of the mid-century. Even as Fisher collaborated with game theorists and nuclear strategists to understand the theory of conflict, he maintained a critical view of the basic assumptions of game theoretic analysis – defending certain normative elements of the methodology even as he denied its descriptive claims. Subsequent work sought to generate robust descriptions of the role of law in international decision-making during crises. Fisher's normative and descriptive studies of the role of law in such crises led directly to Getting to Yes, creating a body of ‘meta-game theory’ that situated formal studies of conflict within a lawyer's understanding of dispute resolution. Fisher's engagement with social scientists helps illuminate current methodological debates in international law by highlighting the stakes of these theoretical questions and the tensions between scholarship and practice in international law.
1 R. Fisher and W. Ury, Getting to Yes (1981).
2 See, for example, J. Goldsmith and E. Posner, The Limits of International Law (2005).
3 From Harold Lasswell in 1970: ‘For years we have been told that the legalistic approach to the legal process is unnecessarily sterile and that a new birth of relevance calls for full account to be taken of the findings and procedures of the rapidly expanding social and behavioral sciences. Proclamations of the importance of this development are not rare.’ See H. Lasswell, ‘Introduction’, in W. Gould and M. Barkun, International Law and the Social Sciences (1970), xv. See also Abbott, K., ‘Modern International Relations Theory: A Prospectus for International Lawyers’, (1989) 14 Yale Journal of International Law 335;Google Scholar Slaughter, A., Tulumello, A. and Wood, S., ‘International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship’, (1998) 92 AJIL 367.CrossRefGoogle Scholar
4 See J. Ohlin, The Assault on International Law (2015), 9–14.
5 See, for example, Klabbers, J., ‘The Relative Autonomy of International Law or The Forgotten Politics of Interdisciplinarity’, (2005) 1 Journal of International Law & International Relations 35.Google Scholar
6 See Ohlin, supra note 4, at 13; Goldsmith and Posner, supra note 2, at 15. The field of international relations is much broader (see Pollack, M., ‘Is International Relations Corrosive of International Law?’, (2013) 27 Temple International and Comparative Law Journal 339 Google Scholar, at 354–65), and this article does not intend to address the breadth of that scholarship. Its focus is on a few episodes in the history of the relationship between international law and international relations in the 1960s and 1970s.
7 See, for example, P. Erickson et al., How Reason Almost Lost Its Mind: The Strange Career of Cold War Rationality (2013).
8 The terms were set in M. Koskenniemi, The Gentle Civilizer of Nations (2001), 497–508. It has been critiqued, such as by Moyn, S., ‘The International Law that is America’, (2013) 27 Temple International and Comparative Law Journal 399.Google Scholar
9 For precursors in the policy sciences, see W. Thomas, Rational Action: The Sciences of Policy in Britain and America, 1940–1960 (2015).
10 Fisher's co-author, William Ury, described Getting to Yes as reworking the 1979 text International Mediation into ‘a general book on negotiation for . . . anyone who has to negotiate’. See Ury, W., ‘In Memoriam: Roger Fisher’, (2013) 126 Harvard Law Review 898 Google Scholar, at 899–900.
11 See, for example, Fisher, R., ‘What about Negotiation as a Specialty?’, (1983) 69 ABA Journal 1221.Google Scholar
12 For an overview, see Kennedy, D., ‘The Mystery of Global Governance,’ (2008) 34 Ohio Northern University Law Review 827 Google Scholar, at 836–40.
13 Astorino, S., ‘The Impact of Sociological Jurisprudence on International Law in the Inter-War Period: The American Experience’, (1996) 34 Duquesne Law Review 277.Google Scholar
14 W. Friedmann, The Changing Structure of International Law (1964), 76–7.
15 C.W. Jenks, A New World of Law? A Study of the Creative Imagination in International Law (1969), 279–80. In language that begs repeating, Jenks defined the requirements for legal reconstruction as ‘freshness of mind, earthiness, and a sturdy idealism’, see ibid., at 21.
16 Friedmann, supra note 14, at 50.
17 Ibid., at 57–8.
18 Ibid., at 369.
19 Ibid., at 46–7.
20 McDougal, M. and Lasswell, H., ‘The Identification and Appraisal of Diverse Systems of Public Order’, in McDougal, M. et al. (eds.), Studies in World Public Order (1987)Google Scholar, 3 at 5 (essay originally published in 1959).
22 See generally M. McDougal and F. Feliciano, Law and Minimum World Public Order: The Legal Regulation of International Coercion (1961). See also M. McDougal, ‘International Law of Human Dignity’, in McDougal et al. (eds.), supra note 20, at 1000.
23 Ibid., at 1000–5.
24 M. McDougal, ‘The Comparative Study of Law for Policy Purposes: Value Clarification as an Instrument of Democratic World Order’, in McDougal et al., (eds.), supra note 20, at 947, 948.
25 In Duncan Kennedy's periodization of legal consciousness, the rise of ‘the social’ corresponds to the period from 1900–1968, with policy analysis as one manifestation of this approach to law. See Kennedy, D., ‘Three Globalizations of Law and Legal Thought: 1850–2000’, in Trubek, D. and Santos, A. (eds.), The New Law and Economic Development: A Critical Appraisal (2006), 19.CrossRefGoogle Scholar
26 See Gould and Barkun, supra note 3, at 230; see also Cohen, A., ‘Negotiation, Meet New Governance: Interests, Skills, and Selves’, (2008) 33 Law and Social Inquiry 503.CrossRefGoogle Scholar
27 Letter from H. Dillard to R. Fisher, 8 December 1964, Roger Fisher Papers [RFP], Harvard Law School Special Collections, Box 1, Folder 2.
28 See Eskridge, W. Jr., and Frickey, P., ‘The Making of The Legal Process ’, (1993) 107 Harvard Law Review 2031 CrossRefGoogle Scholar. On the relationship between facts and values in legal process, see Eskridge, W. Jr., ‘Nino's Nightmare: Legal Process Theory as a Jurisprudence of Toggling Between Facts and Values’, (2013) 57 St. Louis University Law Journal 865.Google Scholar
29 A. Chayes, T. Ehrlich and A. Lowenfeld, International Legal Process (1968). See also O'Connor, M.E., ‘New International Legal Process,’ (1999) 93 AJIL 334 Google Scholar, at 336–7.
30 Letter from R. Fisher to H. Dillard, 5 November 1964, RFP Box 1, Folder 2.
31 Letter from R. Fisher to H. Dillard, 16 December 1964, RFP Box 1, Folder 2.
32 Fisher, R., ‘Review: Law and Policy in International Decisions’, (1962) 135 Science 658, at 659 Google Scholar. Whether or not Fisher accurately read McDougal is another matter.
33 See G. Schwarzenberger, The Legality of Nuclear Weapons (1958), 59: ‘[A] treaty outlawing the use of even the whole “family” of nuclear weapons would be grotesquely incongruous to the challenge confronting us. As hitherto, the world powers would continue to prepare themselves for the contingency that the other side would break its solemnly pledged word, and everything would remain exactly where it was before’.
34 See Fisher, R., ‘Bringing Law to Bear on Governments,’ (1961) 74 Harvard Law Review 1130 CrossRefGoogle Scholar, at 1140.
35 Fisher, R., ‘Enforcement of Disarmament: The Problem of the Response’, (1962) 56 Proceedings of the American Society of International Law at its Annual Meeting 1 CrossRefGoogle Scholar, at 10.
36 See Boasson, C., ‘The Place of International Law in Peace Research’, (1968) 5 Journal of Peace Research 28 CrossRefGoogle Scholar, at 30; see also Brownlie, I., ‘Some Legal Aspects of the Use of Nuclear Weapons’, (1965) 14 International and Comparative Law Quarterly 437.CrossRefGoogle Scholar
37 See, for example, the movie Dr. Strangelove or: How I Learned to Stop Worrying and Love the Bomb (1964).
38 See, for example, F. Kaplan, Wizards of Armageddon (1983).
39 See, for example, Boulding, K., ‘Is Peace Researchable?’, (1963) 6 Background 70.CrossRefGoogle Scholar
40 See T. Schelling, The Strategy of Conflict (1980), 14–15.
41 Ibid., at 83.
42 Ibid., at 160.
43 See B. Russell, Common Sense and Nuclear Warfare (1959).
44 Schelling, T., ‘The Threat of Violence in International Affairs’, (1963) 57 Proceedings of the American Society of International Law at Its Annual Meeting 103 CrossRefGoogle Scholar, at 106.
45 Ibid., at 107.
46 Ibid., at 108.
47 Ibid.
48 See, for example, Galtung, J., ‘A Structural Theory of Aggression’, (1964) 1 Peace Research 95.CrossRefGoogle Scholar
49 See D. Kennedy, International Legal Structures (1987), 198.
50 See J.L. Gaddis, Strategies of Containment: A Critical Appraisal of Postwar American National Security Policy (1982), 151.
51 Ibid., at 171–2.
52 See generally H. Kahn, On Escalation: Metaphors and Scenarios (1965).
53 Gaddis, supra note 50, at 235–6.
54 Kahn, H., ‘Nuclear Proliferation and Rules of Retaliation’, (1966) 76 Yale Law Journal 77 CrossRefGoogle Scholar, at 86. He allowed that ‘some allowance might be made for responsible authorities to avoid at least the most rigid kind of “city-for-city” retaliation’, see ibid., at 88.
55 Fisher, R., ‘Fractionating Conflict’, in Fisher, R. (ed.), International Conflict and Behavioral Science: The Craigville Papers (1964), 91.Google Scholar
56 See R. Falk, Legal Order in a Violent World (1968), 80.
57 Letter from R. Fisher to F. Eimer, 14 January 1976, RFP Box 31, Folder 6.
58 Kahn, supra note 52, at 260.
59 Ibid., at 261.
60 Letter from R. Fisher to R. Birmingham, 7 May 1974, RFP Box 35, Folder 1.
61 See Stone, J., ‘Law, Force, and Survival’, (1961) 39 Foreign Affairs 549 CrossRefGoogle Scholar, at 551: ‘The refusal by states to accept third-party judgment in that wide range of conflicts which most threaten international peace is a stark fact of life. And no hopes for a rule of law, however eloquently expressed, are likely to make it disappear.’
62 Fisher, supra note 55, at 106.
63 Ibid., at 103.
64 Kahn, supra note 52, at 150.
65 Bordone, R., ‘In Memoriam: Roger Fisher’, (2013) 126 Harvard Law Review 875 Google Scholar, at 876.
66 R. Fisher, Dear Israelis, Dear Arabs: A Working Approach to Peace (1972), 3.
67 See Burton, J.W., ‘“Peace Research” and “International Relations”’, (1964) 8 Journal of Conflict Resolution 281 CrossRefGoogle Scholar, at 285.
68 See Boulding, K., ‘The Role of Law in the Learning of Peace’, (1963) 57 Proceedings of the American Society of International Law at Its Annual Meeting 92 CrossRefGoogle Scholar, at 94.
69 R. Fisher, Notes on Schelling's What is Game Theory?, 1966, RFP Box 69, Folder 20.
70 Ibid.
71 Letter from R. Fisher to S. Eberhard, 22 June 1976, RFP Box 31, Folder 6.
72 R. Fisher, ‘Introduction’, in Fisher (ed.), supra note 55, at 1.
73 A. Rapoport, ‘Critique of Strategic Thinking’, in Fisher (ed.), supra note 55, at 211, 212.
74 Ibid., at 223.
75 Ibid., at 227. Another vivid example was Kahn's analysis of the Strangelovean ‘Doomsday Machine,’ in which the device's perceived strategic advantages indicated ‘that the way we talk about these weapon systems is wrong’. He observed that ‘Except for some intellectuals, especially certain scientists and engineers (a curious exception that may reflect some inadequacies in technical education) who have overemphasized the single objective of maximizing the effectiveness of deterrence, the device is universally rejected. It just does not look professional to senior military officers . . . and it looks even worse to senior civilians. The fact that more than a few scientists and engineers do seem attracted to the device is disquieting’. See Kahn, H., ‘The Arms Race and Some of its Hazards’, (1960) 89 Daedalus 744 Google Scholar, at 748.
76 Rapoport, supra note 73, at 228.
77 Ibid., at 228.
78 Ibid., at 229 and 233. On this naturalization of the enemy, see Galison, P., ‘The Ontology of the Enemy’, (1994) 21 Critical Inquiry 228.CrossRefGoogle Scholar
79 A. Waskow, ‘Nonlethal Equivalents of War’, in Fisher (ed.), supra note 55, at 123, 139.
80 See S. Ghamari-Tabrizi, The Worlds of Herman Kahn: The Intuitive Science of Nuclear War (2005). Fisher proposed surgically embedding nuclear launch codes in the heart of an aide, requiring the President to ‘look at someone and realize what death is – what an innocent death is. Blood on the White House carpet’. Friends at the Pentagon responded that ‘Having to kill someone would distort the President's judgment. He might never push the button.’ See Fisher, R., ‘Preventing Nuclear War’, (1981) 37 The Bulletin of the Atomic Scientists 11 CrossRefGoogle Scholar, at 16. Alex Wellerstein notes the contradiction inherent in the combination of ‘the coldly logical and the deeply emotional’ at the heart of deterrence. See A. Wellerstein, ‘The Heart of Deterrence’, Restricted Data, 19 September 2012.
81 Rapoport, supra note 73, at 236.
82 Ibid., at 234–5. See also Shubik, M., ‘Some Reflections on the Design of Game Theoretic Models for the Study of Negotiation and Threats’, (1963) 7 Journal of Conflict Resolution 1 CrossRefGoogle Scholar, at 2.
83 R. Fisher et al., Coping with International Conflict (1996), 13.
84 Brennan, D.G., ‘Strategy and Conscience’, (1965) 21 The Bulletin of the Atomic Scientists 25 CrossRefGoogle Scholar, at 27.
86 Brennan, supra note 84, at 29.
87 Boulding, K., ‘The Ethics of Rational Decision’, (1966) 12 Management Science B–161CrossRefGoogle Scholar, at 162.
88 Rapoport, A., ‘Lewis F. Richardson's Mathematical Theory of War’, (1957) 1 Conflict Resolution 249 CrossRefGoogle Scholar, at 298. Elsewhere, he wrote that ‘the ethics of science must become the ethics of humanity. I hold this view because I do not believe that one can separate either knowledge of what is from desires of what ought to be, or means from ends’. See Rapoport, A., ‘Scientific Approach to Ethics’, (1957) 125 Science 796 CrossRefGoogle ScholarPubMed, at 798.
89 Letter from D. Cavers to D.G. Brennan, 8 July 1965, RFP Box 2, Folder 2.
90 Ibid.
91 Letter from R. Fisher to S. Melman, 27 October 1969, RFP Box 34, Folder 18.
92 Letter from D. Cavers to D.G. Brennan, 8 July 1965, RFP Box 2, Folder 2.
93 Brennan, supra note 84, at 30.
94 Horowitz, I.L., ‘The Conflict Society: War as a Social Problem’, in Becker, H. (ed.) Social Problems: A Modern Approach (1966), 695.Google Scholar
95 Letter from R. Fisher to W. Gum, reviewing I.L. Horowitz's ‘The Conflict Society’, 30 March 1965, RFP Box 1, Folder 1.
96 See Patton, B., ‘In Memoriam: Roger Fisher’, (2013) 126 Harvard Law Review 890 Google Scholar, at 891: ‘Roger thought Harvard should change its motto from “Veritas”, the singular “truth”, to “Partial Truths and Illuminating Distortions”.’ On the ‘God's-eye’ view and situated perspectives generally, see Haraway, D., ‘Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective’, (1988) 14 Feminist Studies 575.CrossRefGoogle Scholar
97 Fisher, supra note 72, at 4.
98 Letter from R. Fisher to D. Bell, 8 March 1974, RFP Box 35, Folder 1.
99 See Erickson, supra note 7.
100 R. Fisher, International Conflict for Beginners (1969), xv–xvi.
101 Other studies have situated problems in international law within complex historical and political contexts; see O. Korhonen, International Law Situated: An Analysis of the Lawyer's Stance Towards Culture, History and Community (2000). However, situated analysis as a form of legal scholarship (see J. d'Aspremont, Epistemic Forces in International Law (2015), 6–8) remains distinct from bringing scholarly notions of situatedness to bear on legal practice.
102 Problem-centricity is itself problematic. The loaded term ‘problem-solving’ is often read as being in some way technocratic; emphasis is placed on the solving, assuming that the definition of the problem remains stable. Under this reading, problem-solving is read as precluding the possibility of critically appraising the ‘problem’. See Charlesworth, H., ‘International Law: A Discipline of Crisis’, (2002) 65 Modern Law Review 377 CrossRefGoogle Scholar, at 382.
103 Michael Barkun made a related point at the 1971 ASIL roundtable: ‘Law-in-action is never as satisfactorily viewed from the top as from the bottom. We learn far more about American law by riding around in police cars than by listening to oral arguments before the Supreme Court. And it is an equally good bet that we would profit more by examining the day-to-day functioning of an embassy, law firm, or foreign ministry than by expending the same energies on a critical Security Council debate or on World Court litigation.’ See Barkun, M., ‘The Social Scientist Looks at the International Law of Conflict Management’, (1971) 65 AJIL 96 Google Scholar, at 100.
104 The recent controversy regarding Harold Koh's position as a visiting professor at NYU suggests the need for robust scholarship on the role of advising a state on matters of international law. See, for example, R. Goodman, ‘Advancing Human Rights from Within: The Footsteps of Harold Koh’, Just Security, 10 April 2015. Appropriately enough, within contemporary scholarship, Koh's transnational legal process comes the closest to explaining how advising works. See Koh, H., ‘Transnational Legal Process’, (1996) 75 Nebraska Law Review 181 Google Scholar, at 207.
105 R. Fisher, Points of Choice (1978), 28.
106 Ibid., at 21.
107 Fisher, supra note 66, at 2. This invocation of Machiavelli recalls Koskenniemi: ‘The fantasy position of the managerialist is that of holding the prince's ear – hence the anxious concern for concrete results, insistence on the policy-proposal at the end of the article.’ See Koskenniemi, M., ‘The Politics of International Law – 20 Years Later’, (2009) 20 EJIL 7 CrossRefGoogle Scholar, at 15. But for Fisher, the purpose of keeping the prince in mind is not to drive towards immediate implementation of solutions, but rather that analysis must always keep a specific decision-maker in view, and be explicit about how that choice of decision-maker informs the character of the solutions considered.
108 Fisher, supra note 66, at 2.
109 Although Fisher did not flesh out this thought in detail, the idea of using theory to understand facts – inverting the traditional empiricists’ command to understand theory in light of underlying facts – seems to reflect Thomas Kuhn's influential observations from The Structure of Scientific Revolutions concerning the theory-ladenness of facts, cutting-edge theory in the mid-1960s.
110 Fisher, supra note 66, at 9–10.
111 Ibid., at 10.
112 Letter from R. Fisher to M. Lachs, 6 May 1974, RFP Box 35, Folder 1.
113 Fisher, supra note 66, at 51–8.
114 Ibid., at 10.
115 Ibid., at 5.
116 Ibid., at 12–13. He observed that ‘[t]he most interesting aspect of the exercise was that of putting myself first as an adviser to one party and then as an adviser to another’. See Letter from R. Fisher to M. Lachs, 6 May 1974, RFP Box 35, Folder 1.
117 Fisher, supra note 105, at 7.
118 Ehrlich, T., Cyprus, 1958–1967 (1974), 41, 120–1Google Scholar. See also G. Abi-Saab, The United Nations Operation in the Congo 1960–1964 (1978), 198–9.
119 Ehrlich, supra note 118, at 142–3.
120 R. Bowie, Suez 1956 (1974), 98–9.
121 Ibid., at 115.
122 Ibid., at 140-1.
123 Fisher, supra note 105, at 73.
124 Ibid., at 69.
125 Ibid., at 23–4.
126 A. Chayes, The Cuban Missile Crisis (1974), 101.
127 Ibid., at 101.
128 Ibid., at 102–3.
129 Ibid., at 103.
130 Fisher, supra note 105, at 23.
131 Ibid., at 20.
132 Chayes, supra note 126, at 153.
133 As he described in a letter to a former student, teaching international law at the University of Connecticut, ‘[o]ne would like students to learn not so much about law as how to deal with law and how to use law in dealing with problems . . . An essay on the nature of bicycle riding by one who cannot ride a bicycle is similar to all too many papers by law students’. See Letter from R. Fisher to R. Birmingham, 7 May 1974, RFP Box 35, Folder 1.
134 Letter from R. Fisher to D. Bok, 6 May 1977, RFP Box 31, Folder 3.
135 Ibid.
136 See Letter from R. Fisher to K. Deutsch, 3 April 1974, RFP Box 35, Folder 1.
137 H. Raiffa, Negotiation Analysis (2007), 1.
138 Report of the Harvard Negotiation Project, 31 March 1981, RFP Box 68, Folder 18.
139 See Mnookin, R., ‘In Memoriam: Roger Fisher’, (2013) 126 Harvard Law Review 886 Google Scholar, at 889.
140 Raiffa, supra note 137, at xi–xiii.
141 In the 1980 edition of The Strategy of Conflict, Schelling lamented the slow progress toward creating this discipline: ‘In putting these essays together to make the book [in 1960], I hoped to help establish an interdisciplinary field that had then been variously described as “theory of bargaining”, “theory of conflict”, or “theory of strategy”. I wanted to show that some elementary theory, cutting across economics, sociology and political science, even law and philosophy and perhaps anthropology, could be useful not only to formal theorists but also to people concerned with practical problems. . . The field that I hoped would become established has continued to develop, but not explosively, and without acquiring a name of its own.’ Schelling, supra note 40, at v–vi.