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Negotiation as Law’s Shadow:
On the Jurisprudence of Roger Fisher
Amy J. Cohen
Editors’ Note: The author reviews the life work of one of negotiation’s most famous scholars, and reveals a wholly new observation. Roger Fisher, she argues, did not understand negotiation as primarily something that happens in the shadow of the law. Rather, based on his years thinking about international conflict, Fisher offered a theory of negotiation as a form of legal ordering and, by extension, a theory of law as a form of negotiation—one with enduring relevance for dispute resolution today.
The Physician’s Desk Reference provides medical practitioners with important contextual information, such as regulatory warnings, indications and contraindications, about the prescriptions they dispense to people in the world. This contribution to the Negotiator’s Desk Reference follows suit. There is perhaps no more influential negotiation practitioner—with no more set of influential negotiation diagnoses and prescriptions—than Roger Fisher. Fisher’s classic, Getting to Yes, co-authored with William Ury, has a circulation in the millions in more than 30 languages (Wheeler and Waters 2006). And as Fisher made clear in a response to a criticism of the book, he is far more concerned with “what intelligent people ought to do than with ‘the way the world is’” (Fisher 1984: 120). That is, Fisher dispenses prescriptions, leaving it to others to make visible some of the embedded assumptions and normative commitments that underlie his advice—that is, to provide an explanation of the chemical constitution of the remedies on offer, if I may draw out this desk reference analogy just a bit more.
In the spirit of a reference work that aims to enable practitioners to consider when, why and under what conditions they should dispense a particular prescription, this short essay describes one foundational element of Fisher’s negotiation advice. This element, perhaps surprisingly, is Fisher’s theory of the function and purpose of law. Fisher, we shall see, understood negotiation as a form of legal ordering. What I thus call Fisher’s “jurisprudence of negotiation” should help practitioners evaluate the normative desirability of negotiation—at least as Fisher understood it—not simply as a set of skills and techniques but rather as a kind of legal process applied to private and public conflicts across local, national, and transnational scales.
So what does Roger Fisher, an international lawyer and law professor as much as a world-famous theorist and practitioner of negotiation, think about law? From simply reading Getting to Yes, one might conclude that he thought about it very little. In Getting to Yes, law features in brief and sporadic ways. When Fisher and Ury describe objective criteria, they list “what a court would decide” alongside market value, scientific judgment, and tradition (Fisher, Ury, and Patton 1991: 85). What law is and whether it is a special or distinct criterion is not discussed. To the contrary, the list presents law as simply one tool among many—coequal with the market, various sources of authority, and private norms. Fisher’s earlier work, however, suggests that he had an explicit theory of law as a special approach to conflict resolution—a theory left implicit in his later writings, but that, I argue, informed his practices of negotiation in important and intrinsic ways.
To make sense of how Fisher’s theory of law evolved, it is worth revisiting some of the international jurisprudential debates of the 1960s of which Fisher was a part. Like many international legal scholars of his day, Fisher engaged a pressing legal question: why do states comply with law? To answer this question, he began by rejecting John Austin’s classic theory of law as a command of the sovereign backed by force (Austin 1873; Fisher 1961: 1131). The Austinian view was marshaled by legal scholars who argued that international law is not “real” law that demands compliance. In a 1961 Harvard Law Review article, “Bringing Law to Bear on Governments,” Fisher claimed it was “woolly thinking” to draw a sharp distinction between domestic law as real and international law as not. He argued that in practice, states regularly limit themselves via legal rules even in the absence of compelling sovereign force. This is because, Fisher ventured, of a mix of rational incentives and a moral commitment or belief in law. Law, he concluded, affects what states do when it serves states’ interests and instantiates their beliefs.
At the same time, however, Fisher also challenged the realist international relations approach of Myres McDougal as overemphasizing or collapsing law into state policy (Fisher 1962). McDougal, Fisher’s con....
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Alberstein, M. 2002. Pragmatism and Law: From Philosophy to Dispute Resolution. Burlington, VT: Dartmouth.
Austin, J. 1873. Lectures on Jurisprudence, or, The Philosophy of Positive Law, (ed. R. Campbell) London: J. Murray.
Cohen, A. J. 2008. Negotiation, Meet New Governance: Interests, Skills, and Selves. Law and Social Inquiry 33(2): 501-562.
Cohen, A. J. 2009. Revisiting Against Settlement: Some Reflections on Dispute Resolution and Public Values. Fordham Law Review 78(3): 1143-1170.
Dorf, M. C. and C. F. Sabel. 1998. A Constitution of Democratic Experimentalism. Columbia Law Review 98(2): 267-463.
Ellickson, R. C. 1991. Order Without Law: How Neighbors Settle Disputes. Cambridge, MA: Harvard University Press.
Fisher, R. 1961. Bringing Law to Bear on Governments. Harvard Law Review 74(6): 1130-1140.
Fisher, R. 1962. Law and Policy in International Decisions. Science 135: 658-660.
Fisher, R. 1964a. Fractionating Conflict. In International Conflict and Behavioral Science, edited by R. Fisher. New York: Basic Books, Inc.
Fisher, R. 1964b. Intervention: Three Problems of Policy and Law. In Essays on Intervention, edited by R. J. Stanger. Ohio State University Press.
Fisher, R. 1969. International Conflict for Beginners. New York: Harper & Row.
Fisher, R. 1978. Points of Choice. Oxford: Oxford University Press.
Fisher, R. 1979. International Law: A Toolbox for the Statesman. California Western International Law Journal 9: 472-484.
Fisher, R. 1984. Comment on “The Pros and Cons of Getting to Yes.” Journal of Legal Education 34: 120-124.
Fisher, R., W. Ury and B. Patton. 1991. Getting to Yes: Negotiating Agreement Without Giving In, 2nd ed. New York: Penguin.
Fiss, O. W. 1984. Against Settlement. Yale Law Journal 93(6): 1073-1090.
Fuller, L. L. 1978. The Forms and Limits of Adjudication. Harvard Law Review 92(2): 353-409.
Fuller, L. L. 1971. Mediation—Its Forms and Functions. Southern California Law Review 44(2): 305-339.
Mansbridge, J. 2009. Deliberative and Non-Deliberative Negotiations. Cambridge, MA: Harvard University, John F. Kennedy School of Government.
McDougal, M. S. 1956. Law as a Process of Decision: A Policy-Oriented Approach to Legal Study. Natural Law Forum 1(1): 53-72.
Menkel-Meadow, C. 1985. For and Against Settlement: Uses and Abuses of the Mandatory Settlement Conference. UCLA Law Review 33: 485-514.
Menkel-Meadow, C. 2004. The Lawyer’s Role(s) in Deliberative Democracy, Nevada Law Journal 5: 347-369.
Mnookin, R. H. and L. Kornhauser. 1979. Bargaining in the Shadow of the Law: The Case of Divorce. Yale Law Journal 88(5): 950-997.
Rogers, N. H., R. Bordone, F. E. A. Sander and C.A. McEwen. 2013. Designing Systems and Processes for Managing Disputes. New York: Walters Kluwer Law & Business.
Sander, F. E. A. and S. B. Goldberg. 1994. Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an ADR Procedure. Negotiation Journal 10(1): 49-68.
Simon, W. H. 2004. Solving Problems vs. Claiming Rights: The Pragmatist Challenge to Legal Liberalism. William and Mary Law Review 46: 127-212.
Susskind, L. E. and J. L. Cruikshank. 1987. Breaking the Impasse: Consensual Approaches to Resolving Public Disputes. New York: Basic Books.
Susskind, L. E. and J. L. Cruikshank. 2006. Breaking Robert’s Rules: The New Way to Run Your Meeting, Build Consensus, and Get Results. New York: Oxford University Press.
Ury, W. L., J. M. Brett and S. B. Goldberg. 1988. Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict. San Francisco: Jossey-Bass.
Wheeler, M. and M. J. Waters. 2006. The Origins of a Classic: Getting to Yes Turns Twenty-Five. Harvard Negotiation Law Review 22(4): 475-481.