Judge Rosalyn Higgins’s Keynote Address at the 100th Annual ASIL Meeting, which can be seen here, revels in what she describes as one of the “key phenomena” of our age: the “unavoidable complexities of our discipline.” In her wide-ranging speech, Judge Higgins drew connections between what she identified as the abiding characteristics of contemporary international law—wider subject matter, deeper content, greater judicial forums for elaboration—and the role of international legal scholars. The relevant passages of Judge Higgins’s remarks include the following:

When I read the AmericanJournal, and listen to presentations at the Annual Meetings, I am regularly struck by how issues that I find extraordinarily difficult are apparently clear-cut to others. Protagonists in the great contemporary debates of today appear to find the answers apparent—even if this certainty of “the right answer” is held in equal measure by those who hold dramatically opposing views.

…

The problem is rather about choosing between options. International law has never been about the automatic and mechanical application of a single “rule” governing a situation. We now have an ever thickening and deepening corpus of law. The decision-maker has several norms among which to choose, in any given situation, the appropriate governing law.

…

[W]hen does “creativity” in the face of adverse circumstances cross the line into the unpermitted? . . . If strict construction won’t give the answer, and the attainment of values (or the assessment of motives) must be part of the analysis but still will not provide the whole answer, how do we know when we have passed from “unforeseen, but legal” to “illegal”?

…

Could the ranks of marvelous young scholars please step back from the specifics of the particular situation they are addressing—where the bright-line answers are apparently so clear to them—and think about these conceptual issues? . . . I would like to see more on these massively important issues, which work has to be decoupled from advocacy on very contemporary legal issues.

There are several ways to understand what Judge Higgins meant. She was identifying a need for deeper theoretical thinking within the discipline. She was warning against over-confidence or advocacy disguised as scholarship. As a student of Oscar Schachter, maybe she was recalling his admonition that international law “is not a scientific discipline in the same sense as physics or chemistry,” and that those engaged in this enterprise must always be sensitive to the national interests, philosophic, and political attitudes of its diverse practitioners.[1] Perhaps she was, in her characteristically humble way, subtly criticizing a Society that had, only a day before, passed a resolution that laid out, in seven simple paragraphs, the lines between legality and illegality and purported to find clear bright lines—the “right answers”—with respect to how to conduct the “war” on terror with little acknowledgement of the complex underlying options or competing values.

Judge Higgins concluded her speech with a final, seemingly unrelated, tribute to the ASIL as a group that has been as welcoming to the “wildest variety of views” as it was to her when, as a young foreign doctoral student she was nonetheless welcomed into the Society’s midst and never made to feel an “outsider.”

Judge Higgins’s conclusion was not mere politesse. Her final remarks connect with the rest of her text. What makes the American “Society” of International Law worthy of its name is the degree to which it permits societal relations among international lawyers who hold, often intensely, divergent points of view. Whether one turns to dictionary definitions of “society” or political scientists’ definitions of “epistemic community,” the crucial aspect is the notion of a group of persons joined together for a common purpose or by a common interest. Judge Higgins’s reminder that contemporary international law serves competing values and lacks (apart from jus cogens) clear methods for choosing among these, or for distinguishing conscious breach from purported new rule, adds another layer of meaning to these terms. Judge Higgins is suggesting that to be worthy of the name, our Society needs to be a cultivated one that encourages and welcomes civil discourse among those with “heterogeneous” perspectives and that is, therefore, more likely to “balance out those particularistic influences and avoid the misperceptions an omissions that accompany them.”[2] She is suggesting that we best fulfill our mission if we welcome those members who may have a different set of priorities (as between, for example, protecting human dignity and preserving the security of the person) or who evaluate the legitimacy of government actions along different axes.

Judge Higgins is not suggesting that any of us abandon our deep-seated beliefs. She is not suggesting that Society members cease taking principled stands or stop advocating “bright line” rules, including with respect to how the “war” on terror is conducted. Her proclamation that “we need not only the confident assertions on each side of the dividing lines of specific intellectual battles of the last 5 years, but, above all, a methodology that will . . . distinguish what is new but permitted from what, at the end of the day, has to be deemed unlawful” are not the words of a realist relativist or a post-modern nihilist. Judge Higgins recognizes a continuing need for both “confident assertions” of what the law permits and for unwavering proclamations about what should always remain illegal. To this extent, Judge Higgins may not have been intending to criticize either the passage or the content of the ASIL resolution approved during our 100 th meeting.

But Judge Higgins did intend, I think, to remind us that our Society enjoys a precious niche. She was suggesting that the ASIL remains an invaluable asset to international lawyers so long as it retains the quality that she saw when it welcomed her, despite her citizenship and youth (and, she might have added, her gender): a place that welcomes both self-confident “right” answers and earnest self-reflection; a forum for attempting to resolve concrete contemporary problems and for wrestling with the field’s enduring dilemmas (as between apology and utopia); a critical place that genuinely furthers the “common intellectual enterprise” of an “invisible college” honed on a “continuous process of communication and collaboration.”[3]

Her gentle ribbing of those who find clarity where she sees ambiguity is apt at a time when, as many have noted, U.S. cultural/ideological wars are becoming institutionalized—whether through rival media outlets for news (Fox v. CNN) or ideologically drawn congressional districts. The ASIL that Judge Higgins celebrates in her final paragraphs is one that, unlike some talk radio or television commentary, does not oversimplify or sensationalize. It is a place where those united for a common purpose always keep this common purpose in mind, even in the midst of heated debates, and try not to portray opponents, fellow members of the “invisible college,” in terms that preclude further discourse or societal relations—unlike, say, the rival books of Al Franken and Ann Coulter. It is not a place where members routinely call each other “liars” or “traitors” (as do Franken and Coulter). It is a genuine Society that promotes discourse across ideological and other divides without suggesting that discourse, like the law itself, ever can be truly dissociated from power or politics. But while the Society is a refuge from the uncivil, strident partisanship characteristic of much of U.S. society (and that increasingly paralyzes its government), it is not a refuge from the real world. It can be collegial without being bland; scholarly and engaged. It is, in short, a “Society” as complex as the field to which it is devoted.

[1] See Oscar Schachter, “The Invisible College of International Lawyers,” 72 Northwestern Univ. L. Rev. 217, at 218 (1977).

[2] See Schachter, supra, at 223.

[3] See Schachter, supra, at 217.