"Legality" in International Relations
I have been recently intrigued by the penetration of a new terminology--that of legality--into the arena of international relations scholarship. Let's probe a couple of relevant recent examples.
Robert Tucker and David Hendrickson recently wrote "The Sources of American Legitimacy" in my favorite journal, Foreign Affairs. Of course Tucker and Hendrickson both have my utmost respect; they are both professors at prestigious universities who teach subjects of utmost relevance to the subject of their article. The essential thesis is that America's invasion of Iraq was the final straw of a massive erosion of legitimacy that has been going on since the end of the Cold War.
Tucker & Hendrickson list four "pillars" of post-war U.S. legitimacy, after first defining the word as arising "from the conviction that state action proceeds within the ambit of law." The four pillars, briefly summarized, are as follows:
1. Consistent adherence to international law
2. Commitment to "consensual modes of decision-making
3. A reputation for "moderation in policy"
4. The preservation of "peace and prosperity within the community of advanced industrialized democracies"
The article's coherence is impaled on the fourth pillar, as Tucker & Hendrickson seek to discredit Robert Kagan's Paradise and Power thesis (namely, that the U.S. Hobbesian superpower is the only thing that makes the European Kantian paradise possible), while admitting that "it was not unreasonable to attribute the long peace to the persistence and stability of U.S. power." They reinforce this suggestion with a statement that "the widespread response within the free world was gratitude for the salvation wrought by the United States and the belief that U.S. power was both necessary and rightful--was, in short, legitimate." In case I missed something, the fourth pillar of U.S. legitimacy as the authors have described it, is essentially Kagan's thesis.
The chief objection I present to the article, however, is its first pillar--obviously very entwined with the second, for the sake of clarity. The rest of the article is infused with a language of legality: "illegal or unilateral conduct," "the United States proposed, illegally, to enforce itself," "exceptions to legal conduct." The Iraq invasion is deemed "illegal" a variety of times, as is the NATO bombing of Kosovo (classified as "illegal and illegitimate" ! ), and even the invasion of Grenada during the Reagan administration.
All this is to say, legality is defined by U.N. Security Council sanction, deliberate and clear. Naught else can be considered legal on the international scene. I object forcefully.
To a realist, of course, the vibrant verbosities of Drs. Tucker & Hendrickson are simply the Kantian follies of an ivory tower that has not yet splashed into the mud of the real world. The penultimate two sentences of the article prove this incontrovertibly: "Ultimately, however, the importance of legitimacy goes beyond its unquestionable utility. Certainly the leaders who earned the United States' reputation for legitimacy...believed it to be a good in itself (emphasis mine)." Kant scholars will recognize this phrase from Grounding for the Metaphysics of Morals. However, unique to the post-modern age is the use of legal terminology to speak of international relations.
What is really going on here is a departure from the traditional understanding of law, namely a command for human conduct with a viable enforcement mechanism. Kofi Annan's recent condemnation of U.S. activities as "illegal," while living off of a salary largely paid by U.S. funding of the U.N., demonstrated that the U.N. conception of legality is one without teeth.
Foundationally, we cannot have a true conception of international legality. International law is a good guiding principal, but nobody is there to enforce it besides the United States. So if the U.S. chooses to forgo the guidance of international law (assuming no fire from heaven falls upon us), then it is international law itself that has proven illegitimate, and not the United States.
Anarchy among nations is a concept difficult to concede. After all, the United Nations has been great about instilling order to the supra-nation-state sphere; look no further than the fact that U.N. membership is traditionally part of the definition of a nation state. But ultimately, no law persists without power of enforcement, and that power is entirely lacking on any level above the nation-state. Problematic, but true.
So my question is, why do people who have actually realized this continue to buy into the language of legality? (Obviously the first answer is politics; the U.N. is useful to have on board when it's possible, so you can't denigrate the utility of its existence when it's not.)
As an example, the other day I attended a lecture by Dr. Jeane Kirkpatrick (hosted by the Foundation for Defense of Democracies, of which I am an undergraduate fellow), a brilliant and dignified lady who everyone ought to respect despite her periodic rhetorical virulence. (She ought to know what she's talking about more than most of the pundits who criticize her, after all--she's been there.) She was, as usual, dramatically irritated by Kofi Annan's most recent criticism of U.S. conduct. The thing that struck me as most profound, however, is that she bought right into the dialogue of legality, suggesting that U.S. action was legal. Her audience watched her methodically jump through the hoops of historical Security Council action to show how action outside of direct Security Council authorization has never been considered illegal.
Realists should consider it a loss on their part that the language of legality appears firmly ensconced on all sides of IR discussion; it seems impossible to justify an international action now simply on the basis of national interest.
In conclusion, the language of legality has inserted itself where it does not belong. The consequences of this semantic drift are ill both for the term itself--which is now diluted by the absence of enforceability--and for the dialogue of nation states.
Robert Tucker and David Hendrickson recently wrote "The Sources of American Legitimacy" in my favorite journal, Foreign Affairs. Of course Tucker and Hendrickson both have my utmost respect; they are both professors at prestigious universities who teach subjects of utmost relevance to the subject of their article. The essential thesis is that America's invasion of Iraq was the final straw of a massive erosion of legitimacy that has been going on since the end of the Cold War.
Tucker & Hendrickson list four "pillars" of post-war U.S. legitimacy, after first defining the word as arising "from the conviction that state action proceeds within the ambit of law." The four pillars, briefly summarized, are as follows:
1. Consistent adherence to international law
2. Commitment to "consensual modes of decision-making
3. A reputation for "moderation in policy"
4. The preservation of "peace and prosperity within the community of advanced industrialized democracies"
The article's coherence is impaled on the fourth pillar, as Tucker & Hendrickson seek to discredit Robert Kagan's Paradise and Power thesis (namely, that the U.S. Hobbesian superpower is the only thing that makes the European Kantian paradise possible), while admitting that "it was not unreasonable to attribute the long peace to the persistence and stability of U.S. power." They reinforce this suggestion with a statement that "the widespread response within the free world was gratitude for the salvation wrought by the United States and the belief that U.S. power was both necessary and rightful--was, in short, legitimate." In case I missed something, the fourth pillar of U.S. legitimacy as the authors have described it, is essentially Kagan's thesis.
The chief objection I present to the article, however, is its first pillar--obviously very entwined with the second, for the sake of clarity. The rest of the article is infused with a language of legality: "illegal or unilateral conduct," "the United States proposed, illegally, to enforce itself," "exceptions to legal conduct." The Iraq invasion is deemed "illegal" a variety of times, as is the NATO bombing of Kosovo (classified as "illegal and illegitimate" ! ), and even the invasion of Grenada during the Reagan administration.
All this is to say, legality is defined by U.N. Security Council sanction, deliberate and clear. Naught else can be considered legal on the international scene. I object forcefully.
To a realist, of course, the vibrant verbosities of Drs. Tucker & Hendrickson are simply the Kantian follies of an ivory tower that has not yet splashed into the mud of the real world. The penultimate two sentences of the article prove this incontrovertibly: "Ultimately, however, the importance of legitimacy goes beyond its unquestionable utility. Certainly the leaders who earned the United States' reputation for legitimacy...believed it to be a good in itself (emphasis mine)." Kant scholars will recognize this phrase from Grounding for the Metaphysics of Morals. However, unique to the post-modern age is the use of legal terminology to speak of international relations.
What is really going on here is a departure from the traditional understanding of law, namely a command for human conduct with a viable enforcement mechanism. Kofi Annan's recent condemnation of U.S. activities as "illegal," while living off of a salary largely paid by U.S. funding of the U.N., demonstrated that the U.N. conception of legality is one without teeth.
Foundationally, we cannot have a true conception of international legality. International law is a good guiding principal, but nobody is there to enforce it besides the United States. So if the U.S. chooses to forgo the guidance of international law (assuming no fire from heaven falls upon us), then it is international law itself that has proven illegitimate, and not the United States.
Anarchy among nations is a concept difficult to concede. After all, the United Nations has been great about instilling order to the supra-nation-state sphere; look no further than the fact that U.N. membership is traditionally part of the definition of a nation state. But ultimately, no law persists without power of enforcement, and that power is entirely lacking on any level above the nation-state. Problematic, but true.
So my question is, why do people who have actually realized this continue to buy into the language of legality? (Obviously the first answer is politics; the U.N. is useful to have on board when it's possible, so you can't denigrate the utility of its existence when it's not.)
As an example, the other day I attended a lecture by Dr. Jeane Kirkpatrick (hosted by the Foundation for Defense of Democracies, of which I am an undergraduate fellow), a brilliant and dignified lady who everyone ought to respect despite her periodic rhetorical virulence. (She ought to know what she's talking about more than most of the pundits who criticize her, after all--she's been there.) She was, as usual, dramatically irritated by Kofi Annan's most recent criticism of U.S. conduct. The thing that struck me as most profound, however, is that she bought right into the dialogue of legality, suggesting that U.S. action was legal. Her audience watched her methodically jump through the hoops of historical Security Council action to show how action outside of direct Security Council authorization has never been considered illegal.
Realists should consider it a loss on their part that the language of legality appears firmly ensconced on all sides of IR discussion; it seems impossible to justify an international action now simply on the basis of national interest.
In conclusion, the language of legality has inserted itself where it does not belong. The consequences of this semantic drift are ill both for the term itself--which is now diluted by the absence of enforceability--and for the dialogue of nation states.
posted by Brian at 1:05 PM
0 comments
