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We undertook the task of preparing a volume on the work of Richard Falk fully cognizant of the fact that it will take more than one book to analyze and assess his significant scholarly contributions to the disciplines of international law and relations, let alone his extensive work as an activist/advocate for social justice. Readers should, therefore, treat this book as a prolegomenon to a scholarly/activist journey that has spanned six decades and is still going strong. In this introductory chapter, we discuss and dissect key formative parameters of Richard’s work and set the stage for the contributions that follow.
Intellectually, Richard stands out as a scholar that defies standard disciplinary classifications. His conceptual optic diverges from those of the dominant paradigms of international relations, namely realism/neorealism, liberalism, and constructivism (though it shares some elements with the latter, especially in its engagement with the social movements literature). The contending assessments of his work reflect this resistance to being pigeonholed: Joseph Nye has characterized Falk’s thought as cosmopolitan,1 where individuals and peoples, rather than states, are key stakeholders and participants in shaping world order; Michael Reisman has suggested that Falk follows the “New Haven School of policy-oriented legal approaches;”2 and Henry Carey once called him a “Grotian eclectic.”3 Clearly, this complicated theorist and policy activist does pick and choose between the norms of the Westphalian system that facilitate what he has termed as “horizontal cooperation” among sovereign states and seek to regulate international conflict. He does follow the New Haven School to the extent that it offers a more productive conception of international law and, especially, in the ways in which law relates to politics and social institutions, in contrast to the very strict compartmentalization between law and the wider realities of international life advocated by the standard positivist-oriented approaches. On the other hand, he is critical of the School’s emphasis on effective control that has served to rationalize US foreign policy priorities and decisions. Falk does support cosmopolitan ideals but remains chary of the danger of cooptation of international norms and standards by the powerful actors at the expense of those whom the said norms and standards have been designed to protect. Still, Falk has, with a large group of colleagues worldwide, advanced notions of world order models reflecting cosmopolitan policy preferences that seek to align states’ interests with those of their people. Such an undertaking will require states to move toward adopting human rights cultures, where counter-hegemonic narratives advanced by social movements seek to construct the parameters of alternative, more socially just and inclusive orders.
Falk departs from both realists and liberals in challenging the notion that the contemporary order is somehow natural and exogenous to intersocietal interactions. Where a statist world order cannot address human wrongs, new dialectical challenges require revolutionary thinking and grass-roots action to counter contemporary injustices. Falk argues that the much-heralded “national interest” cannot serve as a basis for human rights protection because it is premised on hierarchies of power. Unlike the liberals, he does not feel that human rights are just one of many values worth pursuing but rather argues that global cooperation should be primarily aimed at protecting human beings, not state interests as defined by the power holders. To focus on protecting human rights and the international commons is to put human beings and the planet appropriately ahead of the interests of states. Falk argues that the rule of law is necessary, but not sufficient, for justice because it reflects the interests of the dominant states. According to him, the imperative of devoting the material resources of the planet to the promotion of human well-being is clearly implied in the most far-reaching Article (28) of the Universal Declaration of Human Rights, the foundational document of the human rights regime.4
The need to transcend the existing parameters of the international order has been a constant theme in Richard’s work. In his numerous writings, Richard has pointed out the ways in which the current legal order enables structures of dominance, as well as structures of cooperation. This is the result of the dynamic interplay between the vertical and the horizontal dimensions of international law. The vertical dimension is characterized by a selective compliance with international rules and standards in the area of high politics (national security-war and peace issues), as well as in relation to resource-intensive economic and environmental regulations and the implementation of human rights.5 Even in situations of normative advancement, the presence of the vertical dimension is invariably pronounced: for example, in the case of the International Criminal Court (ICC), all the indictments and prosecutions have targeted Africans. No one from the West has been prosecuted in the ICC, nor have proceedings been initiated against Western leaders before their domestic courts. Only weak, defeated, and rogue states that disobey what powerful states want are singled out for criticism or prosecution. On the extremely rare occasions in which international justice mechanisms have turned their attention to western powers, as when the ICC Appeals Chamber gave authorization to the Prosecutor to investigate alleged war crimes and crimes against humanity in Afghanistan linked to Afghan, Taliban, and US troops,6 the reaction was fierce. The US Administration via an Executive Order imposed sanctions on senior ICC officials, including Chief Prosecutor Fatou Bensouda.7
Any initiatives toward a more just and inclusive international order should, according to Richard, be imbued with a culture of human rights. In his work, human rights are defined broadly, as nearly everyone says they should, but then he proceeds to analyze them in pieces. Falk advances arguments about the indivisibility and equality of rights, while engaging the political forces that affect human rights law-making and implementation. His approach, marked by guarded optimism, remains ever realistic to the core. He is concerned with the congeries of political-economic forces that affect the rule of law; in this context, he sees the dangers preventing their implementation, and, at the same time, seeks to identify new opportunities for their realization. Falk’s perspective on the evolution of human rights covers both norm development and implementation. He goes well beyond class or racial structures and places primary emphasis on the “independent variables,” to use the social science vernacular, of the state, secularism, markets, and social movements, including NGOs, liberationist “true religion,” and individual leaders of conscience as positive causal factors. However, Falk also sees the other side of each of these factors. His complex arguments present un-lawyer-like even-handedness in acknowledging the capacity for retrenchment in the relevant actors, institutions, and processes. While his emphasis on unrestrained states, markets, and secularism leads to a focus on the West and the US, Falk also explains how many tyrants in the developing world endanger human rights through these same mechanisms and processes. His concern is with the most needy/vulnerable humans, often not the unit of analysis in mainstream IL/IR. While he is open to inter-civilizational dialogue, he also argues that the fundamentalists, whether they be Christian, Hindu, Muslim, or corporate CEOs, should not dominate the discussion.
Falk draws his insights from a very diverse set of sources: from international law to individual examples, from Hindu mystics to the establishment media, from Mahatma Gandhi to Hans Kung. While his lack of parsimony may never be associated with the vanguard of social science, Falk exemplifies the ongoing need for historically and philosophically oriented scholarship informed by and responsive to the most pressing issues on the global agenda. Over the long run, his contributions to human rights scholarship may prove to be much longer lasting than the latest textual deconstructions or statistical regressions. And, unlike many scholars, Falk not only does not engage in theory development or critique for its own sake but is intellectually honest and so committed to the cause of change as to admit when he has been wrong or has changed his mind. For Richard, theory is a means, not an end.
Falk’s intellectual engagements and commitments have been largely unchanged over the past four decades. He has explained his motives and sentiments with persistent clarity:
I have been deeply influenced over the years by varying degrees of encounter with a range of faith traditions … As a result my approach to politics and law never altogether felt comfortable with either the ethics or epistemology of scientific humanism, and even less so with the prevailing orthodoxy of political realism...the Vietnam War was as much a test of character as a time of turmoil and political challenge … It was a confirmation of my childhood truth that I belonged with the dissenters, the weak, and those being victimized and not with the rich and powerful, the policy makers and the established order. But it also confirmed the borderless reality of empathy and human solidarity. And it confirmed my understanding of patriotism as demanding the citizen to act on the basis of conscience, and not to treat obedience and deference to the state as political virtues.8
As already noted, Falk has been one of the leading critics of the current international order. He understands the cause of the problems clearly and the possibilities that inhere in a “post-Westphalian order” and a “Gandhian stage of human history.” He follows Mark Twain and “reads the weather forecast before praying for rain.”9 Not only does he realistically assess the obstacles and opportunities for reform but he locates the transformational potential in alternative conceptualizations of these very obstacles: “globalization from above” by capital, the unaccountable sovereign state, and extreme secularism. His ultimate vision is not radical; he would eschew the elimination of the market, the state, and secular society in favor of reforms consistent with human rights norms and standards and greater influence from social forces from below (his notion of “globalization from below”).
Such a future for humanity would be post-secular without being anti-secular, and post-nationalist without being anti-nationalist. In such a context, the state as the guiding mechanism for most lives would refashion itself to serve the cause of humane governance. Although this visionary future has admittedly a dream quality at present, the alternative acceptance of current dominant trends would ensure a nightmarish future.10
Taking the Law of Humanity Seriously
Within the international law academy, one of the main criticisms of Falk has been his lack of clarity about the sources of law. His aspiration of defining and implementing the law of humanity is difficult to reconcile with an ever-changing international society marked by dialectical competition among states and social movements with their differing interests, ideas, and efforts and by the various ways in which dignity and justice can be pursued in a world with many different avenues for rectification. Yet, Falk suggests that there is both a process and a set of ideals which have autonomous claims on the international legal order, as distinct from what states have established as binding.
Earlier in his career, Richard looked especially at the logic of jus naturale as the basis for structuring, under certain circumstances, state behavior. In his study on Human Rights and State Sovereignty, Richard examined a series of competing logics which he identified as sets of propositions “about what ought to happen with respect to the exercise of authority in the world political system.”11 Among these is the naturalist logic whose defining characteristic is that the basis of human rights is independent and prior to politics “it is the essential ground for claiming that human rights are universally valid.”12 More recently, Falk has also drawn from many other legal, quasi-legal, and universal sources, which have become more institutionalized in positive law. At the same time, he has reserved autonomous consideration for religious and cultural differences, both in goals and in means. In so combining universal law with legitimate culturally informed interpretations of established norms and standards, he avoids paradigmatic squabbles that absorb many human rights scholars. For Richard, the law can no more be divorced from its purpose if it is to have authority, than it can be advanced on rational grounds alone.
In his examination of human rights issues, Richard draws upon a variety of sources: the UN Charter, World Court opinions, natural law, and, in some instances, medieval Catholicism, Hinduism, and any of the other great religious traditions. He has a term for the approach, called “reconstructive postmodernism,” but the other eclectic roots are also present, as he practices what he also associates with one of his heroes, Hugo Grotius. Critics might label his approaches as vague as those of the New Haven School. Yet, his concern for dignity is not with the vagaries of definition but with the possibilities of its realization. And it is in this context that one should analyze and assess Falk’s contributions to the discipline: not only as an attempt to understand the challenges facing a more just and inclusive world order but as a moral imperative to transform existing structures and practices of domination and exclusion.
At the risk of some overgeneralization, especially in light of the magnitude of Richard’s scholarly output, one can arguably conclude that what stands out is his unyielding commitment to human rights. For Falk, human rights consist not only of the core legal texts but also of the principles that he once called naturalism and more recently fit into the rubric of the “law of humanity.” In many ways, the World Order Models Project of the 1970s and 1980s constituted efforts to build initial guideposts to induce the world community to promote and protect human rights: an endeavor in which the agency of global civil society would be critical. For Falk, the law of humanity is “treating each person on earth as a sacred object.”13 Advocates of the law humanity need to make their case
in two critical settings: the UN and the media … the two sites of struggle, or battlefields, wherein the prospects of global civil society and the law of humanity are likely to be determined in the years ahead … And who is to say that its realization is less likely than the emancipation of Eastern Europe seemed a decade ago?14
Richard’s commitment to the counter-hegemonic, emancipatory potential of international law finds one of its most potent expressions in teleological readings and interpretations of the relevant concepts, texts, processes, and practices; in particular, interpretive lenses that seek to assess the contributions of state and non-state practices in the context of constructing the desired, as opposed to reaffirming the already existing, world order. A good example of this is his advocacy of the principle of universal jurisdiction, a principle premised on prosecutions on the basis of the enormity of the crimes committed, as opposed to the very traditional grounds of territoriality and nationality. Richard wrote thoughtfully about the importance of the Pinochet case in the context of his advocacy of the Princeton Principles on Universal Jurisdiction. Nevertheless, his passionate advocacy of universal jurisdiction and its potential for globalizing accountability did not constrain his analytical insights into the problems confronting such an undertaking:
it (the Pinochet case) may serve as a defining, if ambiguous precedent, for an expanding activist role for domestic courts with respect to challenging those forms of international criminality done under color of authority by the state … Such a regime in relation to such serious crimes….is beset … by the divergencies associated with a decentralized world order of distinct sovereign states exhibiting dramatically uneven records of adherence to the rule of law.15
As this chapter and several of the contributions to this volume indicate, Richard’s work has resisted standard disciplinary labels or identification with particular schools of thought. His eclecticism, however, is not arbitrary but guided by his normative commitments. Falk draws from postcolonial theory to emphasize how the periphery continues to be subjected in geopolitics by structures established a century ago. He utilizes postmodernism to debunk prevailing ideas ab...
