In 1922 Maxim Litvinov, the Soviet foreign minister, said that “it was necessary to face the fact that there was not one world but two” and “there was no [other] world to arbitrate [between them].” In 1990, however, Gorbachev proposed, in a speech to the United Nations,
to expand the Soviet Union's participation in the controlling mechanisms of human rights under the aegis of the U.N. and within the framework of the European process. We think that the jurisdiction of the International Court in the Hague with regard to the interpretation and application of agreements on human rights must be binding on all states.44
What developments had occurred in international law that reflect this enormous journey?
The international law that led to the Peace of Paris was a reaction to the failure of both Weimar and Versailles: that is, it was a reaction to the domestic consequences of the collapse of a legally constructed state and to the international consequences of the continuation of the Long War precipitated by that collapse. Not simply the laws, but the very state itself of Weimar* was purpose-built, and this obvious fabrication was inevitably contrasted unfavorably with the sentimental, allegedly ancient, customary state of the Wilhelmine Reich (though both were of a very recent consti-tutional order, the nation-state). The Weimar state was discredited by Versailles, which imposed a parliamentary form on Germany; and the failure of Weimar in turn was soon also to discredit Versailles, as it became apparent that the peace settlement had failed and that the war that began in 1914 had persisted beyond 1919.
It has rightly been observed that the international law of the period before the Long War
[saw] intergovernmental and non-governmental organizations playing relatively a minor role on the global stage. Customary law and state practice formed the primary sources of international law which served a largely interstitial laissez-faire function, reflecting vested national interests and leaving large realms of unregulated state activity.45
The Long War, however, introduced a new era, which has been characterized as that of international institutions rather than international law.46 The customary practices of the great state-nations gave way to the codifications of the nation-state, which created the League of Nations and the Permanent International Court of Justice. These products of Versailles reflected the nation-state's characteristic reliance on law. In the most public and historic way possible, however, the League and the PICJ soon proved to be failures.
The San Francisco replay of Versailles had intensified the move toward institutionalizing international law, with not much better results. Harold Koh puts this well:
Following World War II, the architects of the postwar… system posited [a] complex positive law framework of charters, treaties, and formal agreements, [an] intensely regulatory, global framework…. Almost immediately, however, the Cold War era and the intense bipolarity and political realism it fostered rendered this positivistic vision a Potemkin Village.47
The irrelevance of international law to the global, epochal conflict then raging was compounded by changing attitudes toward law itself. Dean Acheson wrote dryly that “[t]hose who devote themselves to international relations… are understandably reticent about the role of law.” They knew, Acheson said, that law was what government officials said it was—no more—and that the study of law was the assessment of what, in fact, authoritative legal decision makers would do when law was invoked as a basis for decision making.* This was hardly welcome news to those international lawyers who hoped to restrain power through law; if law was only what the powerful said it was, how could international law compel a state to do anything that was not in that state's interest? And if that was the limit of the law, what did it contribute beyond the rational assessment of self-interest that would take place anyway?
Out of this intellectual and moral abyss, a half dozen schools of thought emerged, each trying to establish a justifiable yet realistic basis for international law. They began with the classic approaches that had originated with Vitoria and Suarez at the birth of the modern state, but these schools transmuted those inherited approaches in light of the challenge of the Long War and the death of the idea of a jurisprudence that was distinguishable from politics, a jurisprudence that could be found, rather than made (up).
The fundamental approaches that divided thinkers about international law before the twentieth century can be roughly characterized as formalism and naturalism. Formalism focuses on the extent to which legal truths are the result of following arbitrary rules, that is, rules that have no necessary relation to any particular content. The formalist in international law, like Suarez48 or Austin (or Leibniz), derives the truth or falsity of a legal proposition from a fact unrelated to its content. The international law governing, for example, the extraction of minerals from the sea may change its content over time but so long as it is generally recognized by the society of states, it has the status of law. Any particular proposition of law (e.g., states are entitled to the minerals in their littoral waters) is true if the test of general recognition is met. By contrast, the naturalist in international law, like Grotius49 or Bluntschli (or Hume), holds that the relationship between the content of legal rules and the world accounts for their truth or falsity. Legal rules must be in accord with the nature of man, which is part of the nature of the universe. For example, one of the doctrines of jus cogens† holds that slavery is a violation of international law. If a state were to deny this was the case—indeed if two states were to deny this proposition in a treaty between them—the proposition that slavery is against the law would still be true, because it is in accord with the most fundamental human rights that arise from man's capacity for free will. In the case of both naturalism and formalism, the truth of a legal rule is tied to something in the world, but in one case (naturalism) that something has to do with the content of the legal rule, and in the other (formalism) that something has to do with the status of the rule as law, irrespective of its content.50
In the early twentieth century, principally in the United States, the foundations of these two traditions were shaken by a new movement, Legal Realism. One of its founders, Karl Llewellyn, had written in 1930, “What these officials [judges, sheriffs, clerks, lawyers, presidents] do about disputes is, to my mind, law itself.”51 Llewellyn and others then set about showing that it was virtually impossible to account for past decisions by reference to the body of legal rules alone, let alone to predict what officials would in fact do in actual cases in the future. When the move to a society of nation-states took international law away from a small coterie of sophisticated specialists and put it in the hands of mass propagandists seeking justifications for their foreign policies, international law became vulnerable to the disenchantment that arose from the Realist critique of law generally. It was obvious that international law was manipulated to rationalize rules rather than to determine them, that sometimes it was ignored in deference to powerful interests, and that it even appeared indeterminate, leaving its commands to be decided by the changing needs of foreign policy.
Formalism and Naturalism in international law played out in various different attempts to meet the challenge of Legal Realism. Formalism became the source of three schools of thought: Legal Process, Nominalism, and Consensualism. Naturalism served as the source of the New Haven School, Neo-Realism, and what might be called Perspectivism. These families of thought about the basis for international law have, as families do, overlapping memberships, black sheep, father figures, deeply held prejudices about each other, relationships deriving from birth order, inherited traits, exaggerated genealogies, and so on. The distinctions among them have to do with their answers to the two shattering twentieth century questions about international law: if the body of international legal rules cannot uniquely determine the legality of a particular act by the parties it is supposed to govern, how can it be law? And if international law is law, why doesn't it seem to have any effect? Indeed these two challenges, arising from developments in law (the claims of Legal Realism) and strategy (the persistence of the Long War), might be put in a single question: would the history of the twentieth century have been any different if there had been no international law?
LEGAL PROCESS
The advocates of the International Legal Process School begin with the answer to the Legal Realist challenge given by Henry Hart, whose influential work, The Legal Process (with Albert Sacks), initiated an entire movement in American jurisprudence. Hart sought to change the focus of jurisprudence from the substantive rule finding so much in evidence in nineteenth century treatises on law to the process of creating precedent. It's not what judges do, Hart told us; it is how they do it. Granting the Legal Realist's argument that assessing the substantive fairness of a particular outcome is a matter of ideology, Hart's approach holds that fairness will nevertheless result if methods of legal decision making that all parties concede to be fair are scrupulously adhered to. That adherence, not the substantive fairness of the rules, will in turn deliver legitimacy, and legitimacy will bring about compliance. Thus the International Legal Process School denies that law is altogether manipulable by the parties—and thus it retains its distinction from politics—because the legal process is distinct unto itself,* and is assessed by legal, not political, standards.
The Hart and Sacks materials that dealt with U.S. domestic law had emphasized the interaction of institutions and procedures. When Abram Chayes, Thomas Ehrlich, and Andreas Lowenfeld published a set of case materials on international law, these were self-consciously styled on the Hart and Sacks work. Like the earlier case materials, they cut across doctrinal lines, including case studies drawn from international business as well as public international law and those arising from the acts of international organizations as well as the acts of states. The authors met the Legal Realist attack on international law head-on: they explicitly asked, “How and how far do law and lawyers and legal institutions operate to affect the course of international affairs?” and, anticipating their own answer to this question, they added, “What is the legal process by which interests are adjusted and decisions are reached on the international scene?”52
Hart's jurisprudence, however, was highly court-centered. The legal process was legitimate because the conscientious work of judges, rendering dispassionate judgments based on neutral, general principles derived from precedent, seemed to provide an answer to the Legal Realist's insight that the substance of the principles themselves could not be explained on a neutral basis, nor the scope of their application—their generality— justified on distinctly legal grounds. The role of courts and the availability of sanctions that render courts powerful were, however, far less in evidence on the international scene. Here, the International Legal Process advocates offered a startling defense of the analogy of their subject to that of Hart and Sacks: domestic law was not, in fact, as court-driven as it might appear. Much constitutional law was, for example, not reviewable by courts53 and therefore the near-absence of judicial process in the international arena was not fatal to the Legal Process theory. Analogous institutional methods of constraining power by professionalizing the habits of officials were at work in both systems, domestic and international. Diplomats and senior officials also profited from the legitimacy conferred by well-understood rules, dispassionately applied.
But if the practical benefits of compliance with international law— predictability, mutuality, inertial continuity—were the basis for its operation, then presumably adherence to law would be abandoned when even greater benefits ran in the opposite direction, that is, toward noncompliance. That made legitimacy nothing more than a by-product of convenience. The international wing of the Legal Process School, by stressing the real-world forces making for coherence in and accommodation to law, sacrificed Hart's claim that legal process was fair not because it was efficient and effective but because it treated parties equally. By contrast, in the real world of international affairs, the relative weight and influence of the parties was supposed to be a determinative factor: that's what made the real world “real.”
CONSENSUALISM
Outside the United States, one school of thought overwhelmingly dominates international law. I have chosen to call that school—which to most of its adherents seems so authoritative, so indisputable, that the term school seems inappropriately sectarian—consensualism because it holds that the content of international law depends wholly (or almost entirely) on the consent of states. Because states are the only entities capable of endowing international law with authority (on this view), only law created by states can legitimately bind them; and because states are sovereign, they can only be bound by that law to which they consent. To the challenge posed by the Legal Realists, the Consensualist replies that the entire approach of Legal Realism is parochial. Of course international law does not have the structures of compliance that domestic law does and therefore to the provincial mind might appear not to be law, just as snails or sweetbreads might not appear to be food to someone accustomed to the sort of cuisine found at McDonald's.
A system of law designed primarily for the external relations of states does not work like any internal legal system of a state… As regards [the question of] international law as “law,” the arguments of the critics [seize] upon… the topic of sanctions and compliance without recognizing the historical, structural and functional differences between legal systems within states and the international legal system as the necessary starting point of analysis. After all, there is no reason to assume that the international legal system must, or should, follow the historical models of centralized systems of national law… A horizontal system [like that of international law] operates in a different manner from a centralized one…54
To the critic's point about the apparent failure of compliance with the legal order, the Consensualist has a suave and disarming reply. Because the international legal order is solely composed of those rules consented to by states, it is, ipso facto, usually complied with although its domain is more modest than those persons might wish who seek to use international law to reform states or coerce them into adopting particular policies. In any event, “spectacular cases of violation of international law, which attract the attention of the media more than regular conduct, are exceptional and should not be confused with the ordinary course of business between states.”55
Consensualists share a fundamental premise: because international law is made and implemented by states, the consent of states, as manifested in their original intentions memorialized in explicit or implicit agreements, is the only basis on which rules may legitimately be said to govern state behavior.
Both parts of this premise, however, are under intense attack: the first because it seems to fly in the face of the increasing role of international organizations and the development of doctrines of human rights in international law that accord a legal role to the individual; the second, because the current behavior of states is a much surer guide to their attitudes about the propriety of governmental acts than an hypothesized “original” intention at some earlier time, even if that intention could be determined with accuracy (which is seldom the case).
There are answers to these objections. To the first, it might be observed that international organizations are to a large extent dependent upon the territorial entities—states—that fund them, carry out their mandates, and permit them to operate within their jurisdictions; this goes for the NGOs (nongovernmental organizations) as well, who exist at the sufferance of states, despite the occasional press release of the NGO that appears to suggest that it is the other way around. After all,
[o]nly states can be members of the United Nations, only states are entitled to call upon the U.N. Security Council if there is a threat to international peace and security, only states may appear in contentious proceedings before the International Court of Justice, and only states can present a claim on behalf of a national who has been injured by another state if there is no treaty [an agreement confined to states] to the contrary.56
To the second objection, the Consensualist replies with alarm that to abandon the edifice of the law in favor of chasing after the current political practices of states is to abandon what is useful and distinctive about the law: that it provides a standard by which current state practices are to be judged. A constant revision of these standards in order to bring them into congruence with discrepant behavior sacrifices this role; it allows “acts that would otherwise appear delinquent [to be] alchemized into harbingers of revised standards.”
The risk incurred, however, is that political actors will simply ignore a body of doctrine that increasingly departs from their interests. The Consensualist accepts this risk, underscoring the difference in mission between the Consensualist and other post – Legal Realist thinkers: the former does not seek to be a political adviser; rather he wishes to “preserve law's contribution to order by protecting its autonomy from ephemeral shifts in power and interests,”58 even if it means appearing irrelevant. The Consensualist has one powerful arrow in his quiver—the ability to make governments squirm, to embarrass them, to require them to play the hypocrite before their publics—and he is reluctant to give up this high moral ground. The Legal Realist's reply concedes that, as la Rochefoucauld said, “hypocrisy is the compliment that vice pays to virtue,”59 but asks “what good are compliments”?
There are, however, also very practical reasons why this particular school, so much ridiculed in the United States, is far and away the most dominant form in the world generally. One reason why the Consensualist position appears so unrealistic is that it treats the consent of all states equally, ignoring their relative positions of influence. This has the consequence of requiring a breadth of consensus to change international law that is very difficult to achieve and that gives marginally less powerful states a more influential role than those schools of international law that look to the behavior of the most powerful state as determining the content of legal rules. I think this in part accounts for the fact that outside the United States much of what Legal Realism regards as the “basic legal myth” still flourishes in international law. Not only European scholars60 in international law, but also Asian scholars and commentators have been reluctant to depart from the traditional, Consensualist view of international law as located and determined rather than decided upon.61
NOMINALISM
The original intention of the states who are parties to a treaty or to a tacit understanding (as with custom) is binding in international law because that intention represents the scope of the states' consent. This is the basis for consensualism. But to what precisely did the parties consent? Not to their intentions, for states seldom have precisely the same intentions. Rather like partners in a marriage of convenience they share the same bed but dream different dreams. The parties consent to a text, however, regardless of what intentions, if any, they may have shared. Indeed as a predictor of behavior, the original intentions of the parties begin to decay as soon as the moment of consummation has passed. If international law is extrapolated from the behavior of states, then their once-consensual agreement on a matter must be counted an increasing irrelevancy because “original intention has no intrinsic authority”62 save what states choose to endow it with. Because the society of states is still in session, if intentions are to govern there is no reason to deny that society the authority to determine the propriety of a state's acts and omissions according to the present intentions of that society. But to do that is to accept that international law is no more than what states at any moment wish it to be.
A different approach to the problems posed by Legal Realism avoids the pitfalls of intentionalism by directing us to the text—for that is what the parties have agreed to, regardless of their intentions or their subsequent regrets. This approach can be termed nominalism.
The creed of the Nominalist might be put this way: Statecraft, long before there were written constitutions, found a role for written agreements.63 Texts do not replace the networks of norms, conventions, and institutions that help to manage international relations and are so prized by legal process theorists, but formal writing in the diplomatic idiom does provide an economical and relatively unambiguous way for political leaders to commit themselves and their posterity, a necessity precisely because intentions may change. Besides this, written commitments catalyze a public dialogue over proposed commitments by the state. Such a dialogue can coalesce the public and its leadership around these commitments or prevent the state from making undertakings it cannot or should not fulfill.
It is true that “international law, like all law, involves the pursuit of social ends through the exercise of legitimated power and that in this sense it is reasonable to consider it as an aspect of the broader political process influenced by the factors that operate in politics generally.”64 But law is not the same as politics, for the set of rules that law comprises is binding on the political process, that is, accepted “as a means of independent control that effectively limits the conduct of the entities subject to the law.”65 Thus Oscar Schachter, a leading Nominalist in international law, rejects the Legal Realist's conclusion that international law is simply what states do. If we were to accept that state practice, and not the substance of legal rules, legitimates state action, then we would have sacrificed the binding, normative element of law. It seems as though we must then either put this element back in (as do the New Haven School personalities with whom Schachter was once associated) by empirically locating the normative nature of legal rules in a survey of the universally shared norms of the world's political cultures, or do without it, thus rendering law no more than an eccentric garnish, 66 like a classical allusion in a modernist poem. The Nominalist, however, locates this normative element in texts, and supports his position by pointing to the empirical fact that states are indeed most likely to restrain themselves when bound by specific treaty language. This is the Nominalist cosmology—a universe in which legal rules can be distinguished from both statements about the world (e.g., states happen to observe the three-mile limit) and moral statements (e.g., for the good of all, states ought to observe the three-mile limit). While there are areas of the law—including the regulation of force, the right to self-determination, the economic rights and duties of states, and extraterritorial jurisdiction— where “the ratio of specific rules to general principles is low,” these are areas largely bereft of binding texts and, for this reason, are appropriate for the admixture of policies and practices.67
One example of this approach can be found in the debate over the legal parameters of armed intervention. The United States has argued that because sovereignty arises from the people, states that repudiate that popular basis—by denying democratic forms, or by practicing terror against their own populations—forfeit their claims of sovereignty and are therefore subject to lawful intervention by other states. Both the Haitian and Panamanian interventions* can be legitimated on this basis. Yet the texts of the U.N. Charter, numerous treaties, and U.N. resolutions explicitly proclaim the territorial integrity of states and their right of independence without qualification. For Schachter, the idea that “wars washed in a good cause such as democracy and human rights” do not violate these explicit textual prohibitions demands “an Orwellian construction of those terms.”68
Text-based Nominalism is to be distinguished from the Legal Process School by its recognition that the normative force of the law is not to be found in legal procedures, but in the creation and application of substantive legal rules that “necessarily involve conditions, determinants and values that fall outside the law.” At the same time, Nominalism is also quite different from Consensualism. For example, in the dispute over whether the special military agreements contemplated by Article 43 of the U.N. Charter are a precondition to the forming of military forces for missions endorsed by the U.N. Security Council—a dispute that arose over Desert Storm operations against Iraq—the two approaches came to different conclusions. An historical, consensualist account, reflecting the intentions of the framers and ratifiers of the Charter, would appear to require such agreements.69 Schachter concluded, however, that the fact that there is “no explicit language in Article 42 or Article 43… preclud[ing] states from voluntarily making armed forces available to carry out the resolutions of the Council [validly] adopted under Chapter VII” permitted the use of these forces.70
THE NEW HAVEN SCHOOL
Oscar Schachter posits this hypothetical: Suppose the U.N. Charter's unanimity rule for action by the Security Council were to be challenged on the ground that this rule was not, after all, compatible with the higher values of peace and security, as was shown countless times during the Cold War when the Soviet veto thwarted action by the Security Council. Suppose the network of treaties making up the Law of the Seas were to be held inconsistent with the fundamental goal of the freedom of the sea. Or imagine that one were to attack the decision of the International Court condemning Iran in the Tehran hostage case as invalid “by asserting it gives effect to diplomatic immunity, a ‘secondary' international policy rather than to national sovereignty, a ‘fundamental' goal.” There is no treaty, no legal rule, no precedent that cannot be unseated by an appeal to higher values— which is a way of saying that law is replaced in such analysis by policy. The object of this hypothetical exercise71 is to ridicule gently the New Haven School, 72 which exalts the fundamental values of world order as the indispensable guide to determining and applying international law.
The New Haven School is an informal collegium that resulted from the remarkable collaboration between Harold Lasswell, a polymath social scientist, and Myres McDougal, a Legal Realist law professor at the Yale Law School and academic empire builder of whom Clive would have been envious.
By the mid-1930s Legal Realism had successfully discredited the image of lawyers and judges mechanically finding the law and unreflectively applying it. The result was a widespread disillusionment with legal institutions as they came to be seen as more politicized and therefore less detached than had hitherto been believed. But whereas the three schools previously discussed each attempted to restore legitimacy to law and deflect the Legal Realist's indictment through a series of avoidance maneuvers, the New Haven School robustly embraced the fundamental insights of Legal Realism.
To the Legal Realists, law was “too filled with conflict… leaves too much open… too much to be decided” for legal rules to completely control a decision.73 Yet it was this mechanistic, formulaic image that had sustained the law's prestige in the era of the state-nation. If there were choices to be made—inevitable, ineluctable, inescapable choices—then axiomatic legitimacy could not be accorded whatever decision was made.
As Michael Reisman, the scion of the New Haven School dynasty, 74 put it, McDougal and Lasswell—the School's patriarchs—undertook a “constructive operation… in the world community shattered by World War II precisely because the classical system [of world order] and the classic legal tradition were not working.”75 Richard Falk, the Absalom figure in this drama and another second-generation spokesman for the New Haven School, noted:
The McDougal and Lasswell undertaking can be regarded as converting the core insight of legal realism into a comprehensive framework of inquiry, including the provision of a normative rudder… dedicated to the promotion of human dignity—by which to assess the relative merits of opposing lines of argument…76
But of course Legal Realism did not simply fail to provide “a normative rudder”—it denied the very possibility of one, apart from one arbitrarily chosen (or unconsciously adopted). As a result, the New Haven School's helpful proposal of a golden rule by which to assess all other rules has proved to be the most controversial part of its program. That program does indeed co-opt, as Falk argues, the core insight of Legal Realism: that law is more than a collection of rules and that it is a continuous process of “authoritative decisonmaking.”* But in addition to its descriptive dimension (which is wholly consistent with the program of the Legal Realists) the New Haven School has a prescriptive dimension (which breaks new ground). The latter reflects the ethical norms of the parliamentary nation-state, not the scientistic ethical detachment of Legal Realism (even though it sometimes, unfortunately, adopts its locutions).
The New Haven School descriptive program depicts a process of law creation and application that aims to clarify the choices made by decision makers. Lawyers are assigned the role of “experts in making and helping others to make rational choices about law.”77 Instead of merely summarizing the available precedent, the New Haven School attempts to analyze the factors that led to particular precedents and to posit various alternatives, using empirical studies where possible. The purpose of any process of legal decison making is to allocate resources according to the values of the community. The objective of the New Haven School analysis is to allow the decision maker to maximize the degree to which these desired values are in fact reflected in the ultimate allocations.
So far we have the program of the Legal Realists: to enable decision makers to maximize social values, 78 going beyond the casual assemblage of anecdotal evidence confirmed by precedent and aiming instead at a systematic assessment of the empirical bases for all policy alternatives. McDougal, however, wished to ground this assessment in a particular set of values: specifically he wanted to measure all international law against the goal of promoting a world order founded on the fundamental principles of human dignity. This is the prescriptive side of the New Haven School program. McDougal subtly insinuated this prescription into the Realist program by claiming to have empirically determined the expectations of the community whose values law is supposed to promote.
For international law, McDougal held that the relevant community is that of the entire “earth-space” in which people interact. Far from concluding that such a space includes communities of incompatible value systems, 79 the New Haven School identifies a common goal, human dignity. The realization of this common goal requires, as a practical matter we are told, a free, democratic, parliamentary nation-state.
Schachter is wittily dubious about this “empiricism” and attempts to turn the argument, as we shall see, into a textual one. He writes:
But how does one discover the values that some four billion people actually hold? McDougal has no great difficulty. He finds without any research but quite plausibly that the “overwhelming numbers of people of the world” want peace, security, respect, the right to determine their own destinies. These aspirations are summed up as the values of human dignity… A cynical critic may question the assumption that these values are universally shared. It is not only that they are rejected by many repressive regimes; it is also evident that peoples everywhere manifest aggressive tendencies, show contempt for different faiths and cultures, seek to dominate and coerce others. Can we say on a purely empirical basis that respect for the worth of an individual is a value held by most peoples?… The important fact for law and international politics is that these “higher” values have been accorded normative status by their inclusion in authoritative instruments [the texts of treaties, conventions, declarations, etc.] that have been accepted by virtually all of the world's governments… Their normativity also has a legal character inasmuch as they are embodied in legal principles expressed in such authoritative instruments as the U.N. Charter and other major treaties.80
It is easy to see the distinction between Schachter's reliance on texts and McDougal's program. McDougal, too, realized that the values of human dignity can “be found in expressions in the U.N. Charter, the Universal Declaration of Human Rights,” and other documents. But while for Schachter this is what gives humane values their legal authority, for McDougal their presence in legal documents was merely evidence of the ethos of humanity underlying those documents. “The ‘precedents, treaties, and established legal concepts' to which Professor Schachter refers are of course relevant, but they are relevant only for the policies they express.”81
McDougal maintained that there was an ethos present in the society of states—the drive to win and secure human dignity—and this proved a decisive insight in the Long War between the parliamentary nation-state and its Communist foes. He correctly saw that there was no middle ground.
History is encoded in our institutions. McDougal sought to read that code by means of his meticulous if sometimes tedious lists. The history he read there united the basis of the legitimacy of the parliamentary nation-state (its commitment to individual dignity) with its strategy (to achieve a world order in which this commitment was not under mortal threat). But this position was not “compelled” by legal argument, no matter how passionately McDougal adhered to it.
The New Haven School has been controversial throughout this era. Thomas Franck has disparagingly written of “vogue-ish legal thinking, dominated by the school of policy science, [which] has professed its normativity even while advancing a theory of creative interpretation of positive law that is nihilist in all but name, thus pitting the descriptive and prescriptive aspects of the School against each other.”82 Louis Henkin has criticized the School's view of law as a policy process by noting that it is a view of law “not as is but always as becoming… The law is what God, or the United Nations, or History… will say—later—in judging what nations had done in the light of context and consequences.”83 But no criticism was quite as furious as that which came from the staunch anti-Communist Dean Acheson.
NEOREALISM
Pollack concluded in 1987 that
American legal realism reached the zenith of its popularity in the first half of the twentieth century. Its supporters included many of the leaders in legal education, the judiciary, and the bar. This popularity, however, declined rapidly, and today the theory is without important representation.84
This statement can only be true if the author intended to exclude virtually all senior officials working in the U.S. national security establishment. As Acheson put it in a scathing attack on McDougal:
Those who devote themselves to international relations in foreign offices at what is disparagingly called “the working level” are understandably and wisely reticent about the role of law. This, however, is not true of academicians who write about it and teach it…. When former Justice… Hughes bluntly… said that the Constitution is what the Supreme Court says it is, the lawyers were not too shocked, although they pretended that they were.85
Acheson was referring to one of the sacred texts of Legal Realism, the remark86 by Chief Justice Charles Evans Hughes—also a former Secretary of State—that appeared to concede Karl Llewellyn's point that law is a matter of what decision makers decided it to be. Moreover, Acheson accurately (I believe) represented the attitudes of many diplomats and officials that international law is little more than a pretentious irrelevance. George Kennan, whom we may take to speak for the career foreign service and other military and intelligence professionals, shared this view. I will not quote at length Kennan's celebrated attack on international law, because Acheson is a more influential figure in this matter, perhaps because Acheson, unlike Kennan, was trained as a lawyer and became a distinguished partner at Covington and Burling. More importantly, he was “present at the creation” not only of the doctrine of containment, NATO and the Marshall Plan like Kennan, but also of Legal Realism. A protégé of then-professor Felix Frankfurter at the Harvard Law School, Acheson was selected by Frankfurter, a leading Realist, to become law clerk to Supreme Court Justice Louis Brandeis, a leading icon to Legal Realists. Brandeis, Acheson would later say, “had taught him to be both a pragmatist and an empiricist,” the prescriptive and descriptive embodiments of Legal Realism.
In 1949, President Truman appointed Acheson secretary of state. His immediate task was to complete the process of bringing Germany and Japan into the society of states. In both cases, Acheson worked to qualify the sovereignty of the formerly fascist states where he ardently sought the development of democratic institutions. He was apparently heedless of the arguments from international law that these states had the right to develop their own security structures as they saw fit by virtue of their sovereignty, arguing instead that “world structure and order” demanded these invasive restraints. Because it was a matter of the stakes at risk in the Long War, which went to the heart of the constitutional existence of the parliamentary nation-state, Acheson believed American action on these questions could not be governed by any international legal rule. After all, the society of states that created such rules takes its legitimacy from its constituent states; how therefore could that society insist on the application of rules that might be fatal to its leading members? He later wrote:
I cannot believe that there are principles of law that say we must accept destruction of our way of life… [when] the power, position and prestige of the United States ha[s] been challenged by another state… [L]aw simply does not deal with such questions of ultimate power… No [international] law can destroy the state creating the law. The survival of states is not a matter of law.87
Note the structural basis for this argument—that international law is created by a society of states that draws its constitutional power from its constituent members, and thus cannot impose legal rules that undermine the constitutional vitality and survival of the states themselves. It is impor-tant to distinguish this form of argument from the merely prudential—that it is simply wiser not to follow such legal rules—because although structural arguments have a prudential component, their terms basically are set by a constitutional structure and the inference that any legal rules thus derived must cohere with that structure. This principle provides the goal against which the prudence of any particular means is measured.*
The Neo-Realist finds something in the structure of international relations—its organization around states, their drive for power, their varying and often conflicting national aspirations, the differences in strength among them, the lack of a common morality—from which, given certain commonsense assumptions about strategic behavior, legal rules can be inferred. For example, consider the syllogism: (1) the constitution of the society of states provides for the sovereignty of all members; (2) thus there must be at least one thing that a state alone can decide for itself (there may be more) or states would not be sovereign; (3) determining one's vital interests is one item that must be for the state alone to decide because, as a practical matter, if this determination were in other hands the state would cease to be sovereign as all its other decisions could be manipulated or dictated. From this argument a legal rule regarding the admissibility of self-defense can be inferred—“A state always has the right to act on behalf of its vital interests—that is, those interests without which it would cease to be able to perpetuate its society's way of life.” This is in contrast to an argument that adduces reasons extrinsic to the structure of the society of states, either drawn from morality (“Some means of defending vital interests are inherently immoral and thus legally indefensible, for example, the use of nuclear weapons”) or from efficiency (“An arms embargo can legally be imposed on a state—like Bosnia—despite its sovereignty if the import of arms would only prolong a war whose outcome is foreordained”) or from some other, nonlegal parameter.
It was Acheson who brought Paul Nitze to the State Department. As director for policy planning, Nitze became the principal author of NSC-68, which firmly established a version of the doctrine of containment for which Kennan's famous Long Telegram* was, in retrospect, an overture. NSC-68† contained as its centerpiece a quotation from the Federalist Papers (#28), the most important legal document construing the U.S. Constitution and itself a rich mine of structural arguments about the relation between constitutional law and strategy.
There continues to be a debate, much of it revolving around NSC-68, about which country, the United States or the USSR, was responsible for the Cold War.88 From the perspective of the present work, the two sides in this debate both manage to be wrong, claiming, respectively, that the United States started the war or that the Soviet Union did. The Cold War didn't “start”; rather the Long War never stopped. The United States bears responsibility for this, because the U.S. made “the move to war,” continuing the Long War, when it refused to acquiesce in Soviet expansionism. The key event was the invasion of South Korea, which was part of a general Soviet strategy.‡
In June 1946, Litvinov told an American correspondent that if the West granted all of Stalin's demands, “it would lead to the West being faced, after a more or less short time, with the next series of demands…” owing to “the ideological conception prevailing here that conflict between the Communist and capitalist worlds is inevitable.”91 There was “nothing” the United States could do to satisfy the Soviet Union, he told Averell Harriman. Until North Korea invaded the South, however, Truman refused to endorse NSC-68 and to increase military spending. In 1948, the administration had limited defense expenditures to $15 billion for 1950 and beyond, whereas NSC-68 had called for budgets more than twice that size. After the Korean invasion, the defense budget leaped from 5 percent to 12 percent of U.S. GNP. Acheson was the figure who made the strategy of NSC-68 into reality, orchestrating the effort to persuade the U.S. Congress to fund the military buildup and the Marshall Plan.
Yet Acheson was not a popular figure in Congress or in the country. Partly it was his habit of speaking too sharply (and too epigramatically) about his contemporaries. Adlai Stevenson, Acheson remarked, “had a third-rate mind that he can't make up.”92 The years Chester Bowles had spent doing advertising had created in him “a permanent deformity like the Chinese habit of footbinding.”93 The people Dulles brought to the State Department when he succeeded Acheson as secretary “always seemed to me,” Acheson said, “like Cossacks quartered in some grand city hall, burning the paneling to cook with.” Partly it was his demeanor: great success in law school often conveys to young men who achieve it a certain haughtiness owing to their discovery that they are easily measured as superior to other brilliant young men at a way of thinking that is supposed to encompass all human endeavor.94 Acheson's trans-Atlantic accent sounded like a phony affectation to Midwestern ears, an image enhanced by his waxed mustache and his tweeds. Perhaps the most famous remark about Acheson was made not by his mentors Brandeis and Frankfurter, but by Senator Hugh Butler of Nebraska, who said, “I look at that fellow, I watch his smart-aleck manner and his British clothes and that New Dealism in everything he says and does, and I want to shout, ‘Get out! Get out! You stand for everything that has been wrong in the United States for years.’”95
No one would have said that about Myres McDougal, with his large bearlike figure and green eyeshade, more reminiscent of Roscoe Pound and the country store than of the Metropolitan Club. Though in fact McDougal's politics—with their redistributionary objectives, goals of racial equality, and statist definitions of property—were well to the left of Acheson's, McDougal's genuine warmth and affection for people made him less a target of personal attack than did Acheson's imperious manner. When Acheson attacked McDougal over U.N. sanctions against Rhodesia (Acheson had called the U.N. an “international orphan asylum”), the tone of his assault makes one wince, and although he accused McDougal of being “intoxicated by the exuberance of his own verbosity,”96 it is a charge that more closely fits the attacker than the attacked. Acheson claimed that McDougal, in calling for economic sanctions against the white supremacist government of Rhodesia, “would impose upon states in the name of law [his] own subjective conceptions of justice.” In a later memorandum to the Nixon White House, Acheson railed against the “subjugation of Rhodesia to majority rule.”97 “Conscience used to be an inner voice of self-discipline; now it is a clarion urge to discipline others.”98 These remarks illustrate the difference between structural, Neo-Realist perspectives that tend to subordinate all issues to strategic matters (Rhodesia was a functioning, anti-Communist state), and ethical, New Haven School approaches that have the virtue (or the shortcoming) of treating the human rights of every person as equally valuable. Both approaches are to be sharply distinguished from what I will call Perspectivism—the adduction of extrinsic facts about the world, that is, facts not confined to the consti-tutional ethos of the society of states, nor to its constitutional structure—in order to resolve the Legal Realist's dilemma. That dilemma may be expressed thus: how do we restore legitimacy to law when it is subject to everyone's interpretation, and especially that of the deciders who create it and demand that the rest of us obey? The hard-working practitioners of American diplomacy, like their counterparts in law firms, may have an answer to this dilemma: they embrace it, and relish the fact they happen to be the deciders, but this is not a welcome solution to everyone else, and certainly not to Perspectivists.
PERSPECTIVISM
There are fundamental goals of the society of parliamentary nation-states that are often in conflict: sovereignty, democracy, human rights, and self-determination are examples. A state that denies human rights to its citizens can be subject to humanitarian intervention by other states in order to vindicate those rights, but this compromises sovereignty; a state that promotes democracy can, through the democratic operation of majoritarian elections and legislative action, end up denying rights to minorities; a national people that is permitted to create a state inevitably entraps persons who would have been in a majority in a differently drawn territory, or who become permanent, insular minorities in the one that actually comes about. McDougal refers to certain goals in conflict—such as peace versus justice, or freedom versus order—as antinomies that are in fact complementary and can be harmonized by reference to the overriding ethos of the constitutional order of the society of parliamentary nation-states, the dignity of man. But he appears unwilling to recognize that in some cases—perhaps the most important cases—there are other goals (such as the four mentioned above) that can never be wholly satisfied in the natural world of scarcity.99 Like McDougal, Acheson recognizes the rueful truth of Llewellyn's claim100 that for every legal maxim a countermaxim can be found, but also like McDougal, he has a preferred value, strategic security, that overrides all others, and that can be derived from the constitutional structure of the society of states within which international law must operate.
Perspectivists attempt to overcome what they believe to be the inherent cultural, class, and other biases in such overriding approaches, whether they are McDougal's or Acheson's, noting that these biases are especially evident in international law
when the higher goals are determined by the particular policies of a national state…. That [national elites] tend to regard their national state's conduct and policies as more conducive to achieving universal ideals is understandable. Sentiments, education, information sources and deeply rooted affinities are likely to prevail over the claims of distant, uncongenial societies.101
One might argue that the post-Versailles order is actually designed to give expression to such biases: by transposing to the international level the respect for the individual that structures the liberal, parliamentary domestic order, the system denies an external standard by which it is to be judged, regardless of whether this standard arises from the states themselves. Like the liberal constitutions of parliamentary nation-states that seek to allow each person to pursue his or her own path to happiness and fulfillment, international law in the current era, as Louis Henkin has observed, “is designed to further each state's realization of its own notion of the Good.”
The agnosticism of such a system toward particular substantive values is irksome to some. While they frankly concede the Legal Realist's argument that legal rules are indeterminate, they wish to bring external, nonlegal preferences to bear in order to resolve the indeterminacy problem. I will mention three prominent alternatives, but they are treated very cursorily because their impact on the international law of the society of nation-states has thus far been quite marginal. These alternative views are offered as exemplars of how an external standard, located in the world but not in law, might be applied.
One such option is feminism. A central feminist argument is that the international legal system is patriarchal, hierarchical, militarized, and masculinized. It has been urged102 that the practices of warfare favor men's lives over women's because the rules for combatants, who are almost exclusively men, tend to be better developed and better enforced than the rules governing the use of air power, which is often directed against civilian targets. The crucial dichotomy in law between the public and private that, on the level of the individual state, tends to cloak violence against women by privatizing it, on the international level protects the denial of human rights when these abuses are committed by nonstate, “private” actors.103 There is some doubt as to whether feminists from different societies share the American feminist agenda, but there can be little doubt that violence against women, their suppression as political actors, and their economic subordination are phenomena found in every society, and that, moreover, issues relating to the family and children are largely neglected in international law.
Another external standard comes from Islamic fundamentalists who have been outspoken in their condemnation of Western values, explicitly including international law. Perhaps because the world of Wilson and House sought to project onto the globe a legal system in which states bore the same relation to international law as individuals did in the United States to domestic law, considerations of religion were excluded from international law.104 This is not to say that Islamic notions of international legal rules have been excluded; during the International Court of Justice litigation over the Western Sahara, Islamic legal arguments were presented to the effect that the Polisaro insurgents in Morocco constituted a lawful state according to Islamic rules and that they therefore were entitled to self-determination. Rather it is that the basic supposition of international law in the era of the nation-state has been that shared substantive religious belief is not a prerequisite to common understanding. All nation-states, regardless of their religions, are equally bound to the international order.
Islamic scholars, who locate legal authority with God, cannot so easily separate law and belief. The public international law solution of order without shared belief is not available to [them] insofar as their work is informed by Islam. The arguments they make within Western categories are not authoritative to a Muslim. The arguments they make from Islamic authority do not confront the political organization of the contemporary world.105
Yet law is argument—or, to put it another way, the modalities of legal argument determine how legal propositions are deemed true or false; to be outside these modalities is to be beyond legal discourse. That, of course, is what all externalist projects have in mind: to find a perspective outside the law from which to evaluate it and thereby to justify it when it corresponds to the preferences of that perspective.
A third alternative is proposed by the “critical analysis” school of jurisprudence. The title of Martii Koskenniemi's essay “From Apology to Utopia: The Structure of International Legal Argument” is suggestive of this approach.106 International law, in this view, either amounts to an apology for state acts (legitimating international behavior) or it dissolves into utopianism (which is “incapable of providing a convincing argument on the legitimacy of any practices”). In either case, international law is “singularly useless as a means of justifying or criticizing international behavior.” This charge is certainly true. Indeed law itself, though it can legitimate, cannot justify its practices.107 Koskenniemi argues that an international lawyer should be “committed to reaching the most just solution in the particular disputes he is faced with.” This will require “sociological enquiries into causal relationships and political enquiry into acceptable forms of containing power.”
Whether or not such a program rests on inquiries in which one can have supreme confidence, 108 one can hardly be insensitive to the hunger for an external standard by which to assess the justice of our acts.
There are of course several other options in the Perspectivist portfolio. I have not mentioned the law and economics movement, 109 communitarianism, 110 or the theories and terminologies of Ronald Dworkin, 111 John Rawls, 112 or Jürgen Habermas, 113 which have been so fruitful for jurisprudence at the noninternational level. I have only tried to give a sample of what a Perspectivist sort of approach is like.
As a postscript to this tour d‘horizon of the post–Legal Realist approaches to interpreting and applying the law of the society of parliamentary nation-states, I would make two observations. The first, which I indicated at the beginning of this section, is that these six alternatives are simply contemporary versions of Formalism and Natural Law. The Legal Process, Nominalist, and Consensualist schools have in common the belief that, as Brierly put it, “[n]othing can be law to which states have not consented,”114 although they differ in precisely how to determine that to which states have in fact agreed. Their primary jurisprudential task is the identification of what must be obeyed; hence their concern with locating the legitimate sources of law. The New Haven School, Neo-Realists, and Perspectivists all find something in the world, outside law itself, that validates international law, though they strongly differ as to what that something is, and what relation it must have to law in order for a legal rule to be legitimate. Their primary concern is the problem of making political choices; 115 hence their attention to facts extrinsic to the law that prompts, but does not decide, such choices. All these approaches are efforts to respond to the challenge of the Legal Realist, and none is necessarily the captive of the Left or the Right.116
My second concluding note is perhaps somewhat more novel, but it is in accord, as will be obvious, with the entire history portrayed in Book II. These six schools of international law track the six modalities of U.S. constitutional law, for as we have seen, international law is built out of the constitutional law of states and the international constitutional order of this period has been in part the work of American leaders, from Colonel House to Dean Acheson, who seized world leadership from the society of state-nations and then created, with the leaders of the other parliamentary nation-states, the coalition that fought and won the Long War.
The “modalities” of American constitutional law are the ways in which we characterize a proposition of that law as true or false. The six modalities of constitutional interpretation in the United States are (i) historical (relying on the intentions of the ratifiers of the Constitution); (2) textual (looking to the meaning of the actual terms of the constitutional text as these would be understood by the contemporary “man in the street”); (3) structural (inferring rules from the relationships that the Constitution mandates among its structures—federalism, the three branches of the federal government, etc.); (4) doctrinal (applying rules generated by precedent); (5) ethical (deriving rules from the ethos of the Constitution, described in the Declaration of Independence and elsewhere); and (6) prudential (seeking to balance the costs and benefits of a particular rule according to a parameter—economic, political, or otherwise—extrinsic to the Constitution).117 Other states may use different modal forms of argument—in Iran, religious argument and the sharia, for example, which would not be admissible in the United States forum—and even the modalities currently in use in the United States will change and develop through time.
It will be easily seen that each of the schools of international law discussed can be paired with its constitutional modality: consensual/historical; nominalist/textual; Neo-Realist/structural; Legal Process/doctrinal; New Haven School/ethical; Perspectivist/prudential. One sees these pairings in the willingness of the Consensualist to consult the travaux préparatoires and the constitutional originalist's desire to invoke the Federalist papers; the struggle of Henry Hart and his colleagues to formulate the Legal Process ideology to save doctrinalism in the face of Legal Realism; the efforts of McDougal to identify a universal ethos, the dignity of man, and so on.
The market-state described in Book I will also strive to make its consti-tutional form the template for a constitution for the society of states. How this struggle will play out remains to be seen. Whether we will face another epochal war on the scale of the Long War, I cannot say. But mustn't we try to anticipate what such a constitution would look like and how it might be reconciled to the society of states without a cataclysmic or critically disabling conflict? These issues are the subject of Part III.
In the winter of 1917, an observer standing on the corner of Fifth Avenue and 42nd Street in New York, and watching the persons hurrying up the broad stone steps of the neoclassical public library, would have observed five men who arrived separately but at about the same time each day. Only one man of this group, if any, would have been known to the public; that man was the president of City College, and more importantly, he was the brother-in-law of Colonel House, the most powerful political figure in America outside his alter ego and closest friend, Woodrow Wilson. The other men were also chosen by House: an historian from Columbia University; a rising young journalist from the New Republic magazine; a law partner of House's son-in-law; the director of the American Geographical Society. These five were the inner core of a secret group, codenamed The Inquiry, set up on Wilson's orders to bypass the State Department and formulate America's plans for the postwar world. Before the United States ever entered the First World War House had suggested to Wilson that a body of experts be convened to supply American delegates to the future peace conference with the information they would need.
The staff of The Inquiry was ultimately frustrated in its role. At the Versailles Peace Conference the group was marginalized by the president's isolation and the primacy of more institutional players. In any case, the advice of academics, journalists, and lawyers could hardly have averted the political catastrophe that befell their hopes at the Conference. When Wilson broke with House at the Conference, more was shattered than a remarkable friendship: the American dreams of a nonpunitive peace, of a postwar world order guaranteed by the great powers and built out of the self-determination of national peoples, an economic environment of nondiscriminatory trade practices, a political environment “safe for democracy”—none of this came to pass, in part, but only in part, because the Americans were unable to overcome the mercantile and strategic ambitions of their allies abroad and isolationism and ignorance at home. House wrote, when it was all past, “I wish we had taken the other road… [the peace settlement promised by Wilson to the Germans and to the public].” When the German representatives signed the treaty, the British diplomat Harold Nicholson wrote in his diary, “To bed, sick of life.” Even Lloyd George acknowledged that it was “all a great pity. We shall have to do the same thing all over again [we shall have to fight another world war] in twenty-five years at three times the cost.” John Maynard Keynes, who had been attached to the British delegation, wrote to his mother, “I've never been so miserable… [T]he peace is outrageous and impossible and can bring nothing but misfortune.” The American secretary of state, Lansing, noted his first reactions to the treaty document: “disappointment, regret, depression.”
By contrast, when the Peace of 1990 came to the world all of the great powers knew what must be done. James Baker, who in some ways played the role of Colonel House in a later era as the president's political manager, personal intimate, and international representative, did not need to convene a new version of The Inquiry to determine what the postwar program should be, because it had not essentially changed since Wilson's day. Chastened by another world war, the Cold War, and the nuclear annihilation that threatened them all, the Allies this time did not try to ruin their adversary but endeavored instead to include him in a New World Order. Unlike Lansing, Baker exhilaratedly wrote when he returned from his journey to Paris, “The very nature of the international system as we know it [has been] transformed.”118
With the Peace of Paris, a door closed in human history. The East/West global struggle had divided the whole world as sharply and carefully as Gregory XIII divided the then–New World of the sixteenth century. Now there are many able academics and civil servants working hard on the issue of what sort of new world the twenty-first century will bring into being, and how it will be divided. Surely we need a New Inquiry, for what we need to know is not simply where we are going, but where we are, and, then, where we can go. Governments everywhere are floundering with regard to their security policies. Some have pursued consistent policies, only to find that it has been a relentless pursuit of failure, enhanced by an inability to rethink, but when governments have been inconsistent—and no governments have been more so than the United States and Britain—these governments did not find their way to fresh insights, unless it was the insight that the policy that they have just adopted was one they had recently abandoned.
Does this matter? We are in a time of crisis, and must turn our attention to international terrorism. Why should we pursue thought when action is required? Colonel House had to have answers before his war ended; he didn't know it would continue for seventy more years. Now that the Long War is over, and the Peace of Paris signed, and the possibility of a new war looming, why must we urgently undertake a New Inquiry? Because we are daily making decisions that will structure the kinds of opportunities available to us in the future. “Once in a while a door opens,” wrote Graham Greene, “and lets the future in.” This is such a moment.