The Prescient W. Michael Reisman

The Prescient W. Michael Reisman: Analyzing Public Order in His Law in Brief Encounters

By Sherri L. Burr[1]

 

The Yale Journal of International Law was founded fifty years ago as the Yale Journal of World Public Order. The foresighted Professor Michael Reisman, who inspired the creation of the Journal, continues to possess a remarkable capacity to analyze public order challenges that most individuals and scholars might miss or discount as social interactions. In addition to his voluminous work on global encounters, he has been thinking and writing about microlegal systems, or the existence of informal legal structures, for decades.

In Law in Brief Encounters, Professor Reisman discusses the laws of social interaction in essays titled “Looking, Staring, and Glaring,” “Standing in Line and Cutting In,” and “Rapping and Talking to the Boss.”[2] In all three essays, he studies the processes and techniques of social stabilization in everyday human encounters, which, taken together, constitute human attempts to create order in public lives. His analysis can be viewed as foreseeing the public order problems that inhere in today’s world, as failures to obey microlaw have led to increasing macrolegal sanctions.

Professor Reisman maintains that individuals gather visual information about others “facilitated by a microlegal system that permits some looking at others while protecting them from intrusive staring through the application of an effective enforcement system.”[3] According to Professor Reisman, these microlaws are norms that the population intrinsically understands without the need for written rules. Indeed, he writes, “The norms are not only uncodified but often operate below levels of overt consciousness.”[4]

In his introduction to Law in Brief Encounters, Professor Reisman explains that he became interested in this topic when, early in his teaching career, he was sent to Peru and found himself staring at an Indigenous woman who glared back at him.[5] When staring is met with glaring, usually the individual corrects his behavior by dropping his eyes and avoiding further contact. In this brief encounter, Professor Reisman surmises, the norms of human behavior prohibit staring, the sanction is glaring, and the result is a correction of the offending behavior.[6]

As Professor Reisman reflected on the exchange, he realized that he was not confronted more directly for his stares because “the visual exchange had occurred within a microlegal system, with a shared recognition of the governing norm, shared acknowledgement of its violation, application of an understood and adequate sanction, and, as a direct result, correction of the offending behavior.”[7] While some norms develop differently in a variety of cultures, others seem surprisingly familiar. Staring in Peru could be considered as rude as staring in the United States.

If I broaden the concept of microlegal norms to the international plane, suppose one country amasses troops and tanks on another country’s borders as if poised to invade. If the other country responds by amassing double the troops and tanks at its border as a countermeasure, this might be considered equivalent to the social interaction of a glare. The first country may correct its behavior by withdrawing its troops, indicating that the second country’s counter-response worked. No war breaks out, and public order is restored.

Professor Reisman also maintains that in certain encounters staring is acceptable, depending on the context.[8]  He writes, “Norms of widely varying content may be appropriate in widely varying contexts. Transposed to other contexts, those norms will impede the fulfilment of the purposes of the exchange and the realization of more general social values.”[9] To continue the broader hypothetical mentioned above, there may be contexts where a country may amass troops on another country’s borders and not be met with a counter-response. One example might be if the second country suffered a massive earthquake and requested help. The first country’s troops might be sent to the second country’s border to await permission to enter to provide assistance. This context validates the behavior of the first country.

At the micro level, Professor Reisman provides examples where rules are different for looking at people with infirmities than looking at foreigners. “Malformed or retarded children accompanied by adults may not be stared at. Indeed, they are . . . part of that tragic category of social invisibles,” he writes.[10] Foreigners, on the other hand, “may be stared at, but they will be treated as social invisibles if they seem in some way ominous or threatening.”[11]

I agree with both propositions. I have been stared at all over the world. In some cases, I stared back. When I gave a lecture about international copyright law to the Japanese Professional Photographers Society, I was not only stared at but constantly photographed. In this context, I had consented to the attention, although I was taken aback by how disturbing it was to have flashbulbs go off (the equivalent of a glare) as I was trying to present my topic. After I completed my lecture tour, I traveled by bullet train to northern Japan so I could take in Mount Fuji, one of Japan’s most magnificent sites. In line to board a tram, I marveled at the face of an elderly Japanese woman. I was attracted to the serene beauty in her face and wondered about the life that she must have led to retain such elegance into her eighties. She stared back. I smiled and, using hand gestures, asked for permission to take her picture. She consented. It is the response of the other, be it a smile, glare, or acceptance of the situation, that solidifies the microlegality of the encounters within public order.

            In the macro example mentioned earlier of the first country’s troops at the border, if the second country grants permission to enter its territory, the crossing of the border becomes legal. If the first country’s troops enter without permission, their crossing becomes illegal and can spark a war. Had I taken the photo of the elderly Japanese woman without her permission, that would have been a microlegal violation. The sanctions could have included the glares of all those who surrounded her and maybe even the confiscation of my camera.

In another intriguing chapter, Professor Reisman discusses “Rapping and Talking to the Boss.”[12] Much has been written in recent decades by social scientists about how people talk to each other. Dr. Deborah Tannen’s best sellers You Just Don’t Understand: Women and Men in Conversation and That’s Not What I Meant: How Conversational Style Makes or Breaks Relationships[13] sparked a national conversation on talking styles. In her works, Dr. Tannen discussed how varying conversational styles contribute to misunderstanding.

She illustrates this with a conversation between President Jimmy Carter and Prime Minister Margaret Thatcher. Both leaders agreed Thatcher talked the entire time but disagreed as to why. President Carter left the conversation complaining that “she wouldn’t let him get a word in edgewise.” Thatcher concluded, “This guy is so boring. He hardly said a word.”

Dr. Tannen analyzes the results as a mismatch of talking styles. President Carter’s manners required him to wait until there was a pause in the conversation before he could start talking. Otherwise, having been brought up as a Southern Gentleman, he would have considered it impolite or rude to interrupt her. Prime Minister Thatcher’s approach was to keep talking until interrupted. If President Carter never interrupted her, then he had nothing to contribute, and it was her obligation to keep the conversation going.

While Professor Reisman does not cite Dr. Tannen’s research, he does cite a multitude of other research on talking and conversations. Professor Reisman is most interested in coarchical and hierarchical settings.[14] Like all power relationships, coarchy implies that the parties speak in settings of relative equality, whereas hierarchy refers to the superiority or inferiority of one of the parties.[15] Professor Reisman applies the term “rapping” for coarchical talk sessions and designates “talking to the boss” as referring to hierarchical talk sessions.[16] The boss has “more power with regard to the substantive and procedural rules of the microsituation.”[17]

Under these definitions, Professor Reisman could debate whether the conversation between Carter and Thatcher was coarchical or hierarchical. On the one hand, they both led prominent nations, which would have made them colleagues and imply coarchy. On the other hand, Carter was the leader of the more powerful nation, while Thatcher oversaw a once powerful country that was rapidly deindustrializing at the time.[18] The latter implies hierarchy and that he was the boss.

Nevertheless, Professor Reisman says, “Even when the rules of the hierarchical session are not codified and are largely customary, talkers are conscious of them.”[19] This explains why it violates people’s conceptions of public order to “talk that way to a judge/chairperson/boss/coach/cleric/teacher/parent.”[20] Whether people in these positions might be considered higher ranked has to be contextualized, at least in individual minds. What some might consider inappropriate behavior, others may consider appropriate behavior because of perceived hierarchy. For example, this can occur when a principal talks to a teacher, a dean to a professor, or a former United States President to a lower court judge. In each instance, the former may consider themselves superior to the latter.

Perhaps hierarchical sessions require both parties to recognize there is a subordinate person before they can be characterized as such. Thus, the Carter/Thatcher conversation would have necessitated Thatcher thinking of herself as inferior to Carter or consider him to be the boss because he led an economically more dominant nation. Based on her public persona, it is hard to imagine Thatcher thinking of herself as inferior to anyone. It probably never crossed her mind to pause and wait for Carter to speak. No doubt her response would have been different if she had been addressing Queen Elizabeth II since she was head of Her Majesty’s Government. The hierarchy in that interaction would have been obvious to Thatcher since she was not permitted to sit in the Queen’s presence until invited.

Perhaps Professor Reisman’s various theses tap into ethics, values, and norms that, when shared, underlie how members of a society, or a segment of society, interact. His theses can be challenged by questioning whether we can really call this law. Isn’t this just basic social interaction? If deserving of dissection, should these interactions perhaps be reserved for researchers in social sciences, like Deborah Tannen, to unpack?

And yet, in American society, several instances show that where microlegal norms are not obeyed, they lead to macrolegal consequences. Consider the examples of teenagers who were shot after one knocked on the wrong door while seeking to pick up his brother, another opened the wrong door in a parking lot because the car looked like hers, and another drove up the wrong driveway. Had the shooters in April 2023 simply inquired into the perceived transgressions before pulling gun triggers, they would have ascertained that the persons had erred. Public order equilibrium could have been restored with apologies. Because the shooters did not inquire at the micro level about the alleged transgressions, all of them were indicted for felonies at the macro level of law.

In his last chapter on “Amending Microlaw,” Professor Reisman writes, “The answer is simple for Historicists, who view law not as the product of conscious choice by a society’s current members but as the outcome of processes of growth largely shaped and constrained by previous generations or historical forces.”[21] While his definition validates his research, it also can point to the consequences when society’s current members no longer share the same concept of appropriate behavior under microlaw.

If you view law as a series of formal rules that are promulgated by elected bodies or decreed by judges, then Professor Reisman’s book is not for you. You might read his chapter on “Standing in Line and Cutting In” as a discussion of social norms that everyone knows.[22] Therefore, why write, let alone read, about them? After all, everyone usually learned the rules requiring you to line up and take turns in kindergarten. Perhaps the one adult exception, Professor Reisman notes, might be for pregnant women who may be moved to the front of the line for a public toilet.[23] On public buses, trains, and subways, individuals also give up seats to the elderly and handicapped. Some chivalrous men, who were raised in environments similar to President Carter’s, may even yield seats to women they perceive as ladies. But when people don’t follow social norms or microlaws, you end up with individuals who shoot first only to have to later answer questions posed by law enforcement officers investigating their disastrous public interactions.

If, on the other hand, you view law as a process of norms shaped by societal expectations, then Professor Reisman’s ideas will fascinate you. It is precisely the harsh sanctions—such as shooting violators who skip ahead in lines—that lead to the conclusion that people have microlegal expectations about how queues are formed. Queues are politely formed in England, for example, and violators are not subject to grave consequences. In the United States, however, the sanction for skipping ahead in a line could be harsh.

While some might argue that the distinction between microlaw and microlegal sanctions becomes a bit blurred when applied to the example of queuing in the United Kingdom and the United States, I disagree. While both countries share the fact that queuing is considered a microlaw, the citizens in the United Kingdom are more likely to respond to a violation at the microlegal level, whereas in the United States there have been violent responses to what should be considered micro violations. Perhaps this can be considered what happens when guns become more ubiquitous in a culture, as they are in the United States.

Indeed, we now have the term road rage to refer to car drivers who get so upset when someone cuts ahead of them in line that they start shooting. Many of these bullets have cut short the innocent lives of children who were merely riding in backseats as their parents drove.

Professor Reisman’s research reveals that a member of the Israel Knesset introduced a measure in 1997 to amend the criminal law to include a section for “Failing to Stand in Line,” with a punishment of three months’ imprisonment.[24] Professor Reisman analyzes this bill as an attempt to regulate an activity at a macro level when microlegal sanctions are perceived as failing to correct inappropriate public behavior. Professor Reisman published his book in 1999. Since that time, certain public behaviors display the failure of microlegal sanctions and have necessitated the promulgation of additional macrolaws.

In his concluding chapter, Professor Reisman concedes that microlaw has been called etiquette or positive morality, and thus it has not been viewed as law by jurists.”[25] His “objective is to alert and sensitize legal scholars and the diverse official and nonofficial custodians of the private sphere to the effect that microlegal arrangements have on key aspects of individuals’ lives.”[26]

As societal norms continue to fail to instill appropriate behavior, Professor Reisman’s book Law in Brief Encounters may be viewed as prescient. Without microlegal sanctions to correct violations, macrolaw must step in to curb ever more radical behavior both at national and international levels. The themes explored by Professor Reisman have, indeed, become more relevant today as United States society confronts diminishing societal returns as more people ignore microlegal sanctions, leading to horrific human behavior. An increasing number of individuals resort to violence to counter what should have been viewed as minor infractions of micro norms of expected public behavior.

Professor Reisman’s work is also relevant as the United States confronts a four-score inflection point in the 2020s. Since the 1780s (during the Revolutionary War fight for independence from Great Britain), I submit that the country has faced threats to its democracy approximately every eighty years. In the 1860s, the country split apart when the North and South fought the Civil War. In the 1940s, the country joined Europe and Asia in fighting fascism to oust authoritarian leaders in Germany (Hitler), Italy (Mussolini), and Japan (Hirohito).

The United States once again faces threats to its political structure, as Heather Cox Richardson details in her book Democracy Awakening: Notes on the State of America.[27] A 2024 leading candidate for President openly said that he would like to be “dictator for a day” as he has often expressed admiration for authoritarian leaders in Russia, Turkey, and North Korea, among others. Such statements are reminiscent of the cautions that Founding Father Benjamin Franklin expressed. When asked, “What kind of a government have you given us?” he famously replied, “A Republic, if you can keep it.” A republican government is one led by people through representatives and not a king, queen, emperor, or other sovereign. In other words: it is a democracy.

Professor Reisman’s prescient work illustrates that democracy begins at the micro level in everyday interactions between citizens. While some might confuse violent responses as the new microlaw, I argue that in certain contexts among those prone to violence in an increasing violent culture within the United States what should have been a microlegal response to certain situations becomes, instead, a violent one.

When microlaw devolves into “shoot first, ask questions later” scenarios, the stage becomes set for societal decline into chaos, which can lead some to long for authoritarian leaders promising to restore order at micro and macro levels. Let’s heed Professor Reisman’s prophetic analysis and remind people of their microlegal obligations to maintain public order before tyranny not only knocks on, but enters, democracy’s door.

[1] Sherri L. Burr is the Dickason Chair and Regents Professor of Law Emerita from the University of New Mexico School of Law. She received her J.D. in 1985 from Yale Law School, where she took several classes from Professor Reisman. She considers him a mentor. In addition to teaching International Law at the University of New Mexico, Professor Burr has taught International Business Transactions, International Entertainment & Sports Law, and International Entertainment Law during summer programs in Barcelona (Spain), Guanajuato (Mexico), Innsbruck (Austria), and Madrid (Spain). She is the author or co-author of 32 books. Her 27th book, Complicated Lives: Free Blacks in Virginia, 1619-1865 (Carolina Academic Press, 2019) was nominated for the Pulitzer Prize in History. Her public service includes serving as president of the International Law Section of the Association of American Law Schools and as a member of the Executive Council of both the American Society of International Law and the International Law Society (American Branch).

[2] W. Michael Reisman, Law in Brief Encounters 21-148 (1999).

[3] Id. at 1-2.

[4] Id. at 9.

[5] Id. at 1-20.

[6] Id. at 1.

[7] Id.

[8] Id. at 49.

[9] Id. at 50.

[10] Id. at 48.

[11] Id.

[12] Id. at 97-148.

[13] Deborah Tannen, You Just Don’t Understand: Women and Men in Conversation (1990); Deborah Tannen, That’s Not What I Meant! (1986).

[14] Reisman, supra note 2, at 104.

[15] Id.

[16] Id. at 106.

[17] Id. at 107.

[18] See Jim Tomlinson, Deindustrialisation and ‘Thatcherism’: Moral Economy and Unintended Consequences, 35 Contemp. Brit. Hist. 620 (2021).

[19] Reisman, supra note 2, at 107.

[20] Id.

[21] Id. at 150.

[22] Id. at 51-96.

[23] Id. at 82.

[24] Id. at 71.

[25] Id. at 174.

[26] Id. at 176.

[27] See Heather Cox Richardson, Democracy Awakening: Notes on the State of America (2023).

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