International Law in a World of Liberal States

International Law in a World of Liberal States

Anne-Marie Slaughter¹

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International law and international politics cohabit the same conceptual space. Together they comprise the rules and the reality of `the international system', an intellectual construct that lawyers, political scientists, and policymakers use to describe the world they study and seek to manipulate. As a distinguished group of international lawyers and a growing number of political scientists have recognized, it makes little sense to study one without the other.

In keeping with this tradition, this article seeks to develop an integrated theory of international law and international relations. Previous efforts in this vein fall into several categories. Myres McDougal and Harold Lasswell, progenitors of the New Haven school, used a theory of domestic politics and domestic law to rethink the nature and definition of international law. The international legal process school, pioneered by scholars such as Abram Chayes and Louis Henkin, sought to explore and take account of the actual impact of international legal rules on international political processes, from crises to routine decision-making. The task was to determine to what extent law shapes `how nations behave'.²

Both of these approaches were developed in response to ongoing work in political science. The young discipline of international relations surged to respectability on the tide of Realism, proffering a hard-boiled code of conduct for the Cold War and disdaining the dangerous moralism of international law. International lawyers thus faced the `Realist challenge': the claim that law was simply irrelevant to international politics. McDougal and his disciples offered a theoretical response; international legal process scholars sought to establish more empirical connections between international legal rules and foreign policy decision-making.

A third approach - the one pursued here - turns back to the discipline of international relations itself for inspiration. It takes the `law in context' injunction seriously and acknowledges the capacity of many international lawyers for nuanced political analysis. Nevertheless, instead of canvassing the political dimensions of various international legal problems, it looks first to the discipline charged with thinking and theorizing systematically about State behaviour in the international system. Neither law nor politics may be a science, but international relations theorists have a comparative advantage in formulating generalizable hypotheses about State behaviour and in conceptualizing the basic architecture of the international system.

This approach would look first to the congruence between the image or model of the international system that implicitly or explicitly informs international law and the models used by international relations theorists. As political scientists, these scholars are concerned with the empirical validation of these models. Who are the primary actors in the international system? What are the primary determinants of their behaviour? To the extent that the resulting evidence disconfirms assumptions embedded in the models used by international lawyers, international law and international politics will become increasingly divorced. If, for instance, the primary actors in the system are not States, but individuals and groups represented by State governments, and international law regulates States without regard for such individual and group activity, international legal rules will become increasingly irrelevant to State behaviour.

The inquiry in this essay thus begins not with classical international law, but with the dominant positive analytical framework shared by both international lawyers and political scientists - Realism. Part I outlines the basic tenets of Realism and introduces the principal alternative to Realism in international relations scholarship - Liberalism. Liberalism and Realism proceed from different fundamental assumptions about the international system: assumptions about the identity of the primary actors in that system, the relationship of those actors to State institutions, and the primary determinants of State relations with one another. International lawyers seeking to develop integrated theories of international law and international relations must take the Liberal critique seriously, examining the ways in which Liberal assumptions conflict with assumptions underlying traditional international law.

The most distinctive aspect of Liberal international relations theory is that it permits, indeed mandates, a distinction among different types of States based on their domestic political structure and ideology. In particular, a growing body of evidence highlights the distinctive quality of relations among liberal democracies, evidence collected in an effort to explain the documented empirical phenomenon that liberal democracies very rarely go to war with one another. The resulting behavioural distinctions between liberal democracies and other kinds of States, or more generally between liberal and non-liberal States, cannot be accommodated within the framework of classical international law.

The project here, consistent with an overall commitment to a new generation of interdisciplinary scholarship, is to reimagine international law based on an acceptance of this distinction and an extrapolation of its potential implications. Part II distills various factors that political scientists have correlated with the `liberal peace', factors that can be translated into assumptions about political and economic relations among liberal States. Part III introduces the concept of a world of liberal States, acknowledging the distance between such a world and the present international system but arguing that the hypothesis may nevertheless describe an important dimension of the current system.

Part IV constructs a model of international law based on a hypothetical world of liberal States, integrating assumptions about relations among such States with the broader assumptions of Liberal international relations theory. It focuses first on relations among individuals and groups in transnational society, hypothesizing a set of voluntary norms selected by these actors but facilitated by States. The second level of law assumes the disaggregation of the State into its component political institutions - courts, legislatures, executives and administrative agencies - and examines the principles governing transnational interactions among these institutions. The third level examines the origin, form, negotiations and enforcement of inter-State agreements among liberal States. At each level the model seeks to define the relevant body of rules and doctrines that would be included in a definition of international law in a world of liberal States, and to introduce concepts and tools of analysis specific to relations among liberal States.

The model developed is advanced as a hypothetical positive model. To the extent it holds, however, it poses a set of normative challenges for international lawyers. Part V concludes with a preliminary effort in this vein, re-examining the norm of sovereignty in a world of liberal States. A central pillar of the positive model is the conceptualization of the State as a disaggregated entity composed of its component political institutions. Could the norm of sovereignty be similarly disaggregated? The discussion in this part sketches the potential form and substantive bases for complementary norms of judicial, legislative, and executive sovereignty in a world of liberal States.

The project in this essay is a thought experiment - a largely deductive effort supplemented with inductive illustrations - designed to generate a hypothetical model of international law based on a set of assumptions about the composition and behaviour of specific States. Its ultimate value must await empirical confirmation of specific hypotheses distilled from this model. At the same time, however, the explicit articulation of this model may cast a different light on current phenomena identified as exceptions to the classical model. Christoph Schreuer, for instance, has recently proposed a new paradigm for international law. He acknowledges, however, that in articulating his proposed paradigm he draws on examples from Western Europe, the archetypal community of liberal States.³ He may thus be proposing a paradigm that assumes underlying conditions prevailing only in those States.

The very idea of a division between liberal and non-liberal States may prove distasteful to many. It is likely to recall 19th century distinctions between `civilized' and `uncivilized' States, rewrapped in the rhetoric of Western political values and institutions. Such distinctions summon images of an exclusive club created by the powerful to justify their dominion over the weak. Whether a liberal/non-liberal distinction is used or abused for similar purposes depends on the normative system developed to govern a world of liberal and non-liberal States. Exclusionary norms are unlikely to be effective in regulating that world.

More generally, however, these concerns raise serious questions, questions that must and will be addressed if the insights generated by hypothesizing a world of liberal States prove capable of capturing significant aspects of actual relations among liberal States. For the moment, to the extent that a distinction is empirically supported, rather than normatively proclaimed, international lawyers have an obligation at least to assess its implications. A genuine commitment to interdisciplinary scholarship - to improving the conceptual fit between international law and politics - demands no less.

I. Liberalism and Realism in International Relations Theory

Scholars of international relations generate a wide range of theories to solve the problems and puzzles of State behaviour. Each `theory' offers a causal account of a particular outcome or pattern of behaviour in inter-State relations in a form that isolates independent and dependent variables sufficiently precisely to generate testable hypotheses. At a higher level of generality, however, these theories can be grouped into different families or `approaches' based on a set of positive assumptions about the international system as a whole.⁴ From these very general assumptions spring a host of more specific theories seeking to explain specific international events or phenomena, from the causes of war to the dynamics of international negotiation. Each of these theories can be disputed on its own terms, on the basis of inaccurate empirical data or faulty logic. Alternatively, the entire family of theories can be challenged on the ground that the underlying assumptions about the international system are either wrong or unhelpful.

This part sets forth two of the most common approaches in international relations theory: Realism and Liberalism. Political scientists would find the versions presented here overly simplified and distilled. Yet as presented, each approach gives rise to a distinct `mental map' of the international system, specifying the principal actors within it, the preferences (or motives) driving those actors, and the constraints imposed on those actors by the nature of the system itself. The following discussion presents Realism and Liberalism in terms of their competing assumptions along these three axes.

A. Realism

The dominant approach in international relations theory for virtually the past two millennia, from Thucydides to Machiavelli to Morgenthau, has been Realism, also known as Political Realism. Realists come in many stripes, but all typically share the following assumptions. First, they believe that States are the primary actors in the international system, rational unitary actors who are functionally identical. Second, they assume that State preferences, ranging from survival to aggrandizement, are exogenous and fixed. Third, they assume that the anarchic structure of the international system creates such a degree of either actual conflict or perceived uncertainty that States must constantly assume and prepare for the possibility of war. In this context, outcomes of State interactions are typically zero-sum and thus are determined by relative power. For Realists, power is the currency of the international system. States interact with one another within that system like billiard balls: hard, opaque, unitary actors colliding with one another.⁵

To grasp the defining characteristics and theoretical force of Realism, it is necessary to understand not only what it includes within its analytical framework, but also what it excludes: national ideologies, from nationalism to fascism to communism; domestic regime type, from democracies to dictatorships; and transnational actors, from multinational corporations to non-governmental organizations (NGOs). International norms serve only an instrumental purpose, and are likely to be enforced or enforceable only by a hegemon. The likelihood of positive-sum games in which all States will benefit from cooperation is relatively low.

B. Liberalism

A principal alternative to Realism among international relations theorists is Liberalism.⁶ As in the domestic realm, Liberal international relations theories have been characterized repeatedly as normative rather than positive theories. The best known Liberal theory in this category is Wilsonian `liberal internationalism', popularly understood as a program for world democracy. As used here, however, Liberalism denotes a family of positive theories about how States do behave rather than how they should behave. Efforts to reduce Liberalism to a set of core assumptions that can be stated as succinctly as their Realist counterparts are ongoing among a growing group of contemporary political scientists.⁷ I draw here primarily on one particular version developed by Andrew Moravcsik.⁸

If Realists focus on States as monolithic entities in their interaction with other States within an anarchic international system, Liberals focus primarily on State-society relations. The first Liberal assumption is that the primary actors in the international system are individuals and groups acting in domestic and transnational civil society. Thus where Realists look for concentrations of State power, Liberals focus on the ways in which interdependence encourages and allows individuals and groups to exert different pressures on national governments.⁹ Second, Liberals assume that the `State' interacts with these actors in a complex process of both representation and regulation. Goverments are assumed to represent some subset of individual and group actors. The fact and process of representation, however, entails regulation of the activities of all social actors, both those represented and those that are not represented. Thus where Realists assume `autonomous' national decision-makers, Liberals examine the `nature of domestic representation ... [as] the decisive link between societal demands and state policy'.¹⁰ Third, Liberals assume that the nature and intensity of State preferences, determined as the aggregation of the preferences of individual and group actors represented in a particular State, will determine the outcome of State interactions. Thus where Realists model patterns of strategic interaction based on fixed State preferences, Liberals seek first to establish the nature and strength of those preferences as a function of the interests and purposes of domestic and transnational actors.

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1 Professor of Law, Harvard Law School. Formerly Anne-Marie Burley. I am grateful to Lea Brilmayer, Walter Mattli, Andrew Moravcsik, Robert Keohane, Joseph Weiler, and David Wippman for helpful comments. Sarah Fandell provided her customary excellent research assistance. Finally, thanks are due to the Russell Baker Scholars' Fund and the Herbert and Marjorie Fried Faculty Research Fund at the University of Chicago Law School. A more fully documented version of this essay will appear in a forthcoming volume of recent contributions to the European Journal of International Law.

2 For an overview of these earlier efforts to integrate international law and international relations, see Slaughter Burley, `International Law and International Relations Theory: A Dual Agenda', 87 AJIL (1993) 205.

3 Schreuer, `The Waning of the Sovereign State: Towards a New Paradigm for International Law?', 4 EJIL (1993) 447, 469.

4 The nature of these assumptions privileges the relative explanatory power of broad classes of causal factors, such as the distribution of power in the international system, international institutions, national ideology and domestic political structure.

5 This is the classic Realist metaphor first used by Arnold Wolfers. A. Wolfers, Discord and Collaboration: Essays on International Politics (1962) 19-24.

6 I use `Liberalism' here and throughout this paper as a term of art to refer to Liberal international relations theory. As Andrew Moravcsik has argued, the elements of this theory do indeed flow out of the political theory and philosophy that we call `liberalism'. However, the transposition of liberal analytical assumptions from the domestic to the international realm is complicated. For present purposes it makes more sense to try and understand international Liberal theory on its own terms as a self-contained alternative to Realism. See A.M. Moravcsik, Liberalism and International Relations Theory (Center for International Affairs, Harvard University, Working Paper No. 92-6, 1992).

7 See Moravcsik, supra note 5; See, e.g., Deudney, `Binding Powers, Bound States: The Logica and Geopolitics of Negarchy', Paper presented at the International Studies Association, Washington, D.C., 28 March - 2 April 1994; Zacher, Matthew, `Liberal International Theory: Common Threads, Divergent Strands', Paper presented at American Political Science Association, Chicago, IL, 3-6 September 1992; Keohane, `International Liberalism Reconsidered', in J. Dunn (ed.), The Economic Limits to Modern Politics (1990) 155; Nye, `Neorealism and Neoliberalism', 40 World Politics (1988) 235; Risse-Kappen, `Ideas Do Not Float Freely: Transnational Coalitions, Domestic Structures, and the End of the Cold War', 48 International Organization (1994) 185; Powell, `Anarchy in International Relations Theory: The Neorealist-Neoliberal Debate', 48 International Organization (1994) 313.

8 Moravcsik, supra note 5.

9 The phenomenon of `interdependence', defined as a situation in which two or more nations each depend on the other, whether symmetrically or not, by virtue of trade and investment patterns, population flows, or even cultural and other social exchanges, can be analyzed from either a Realist or a Liberal perspective. Realists focus only on the impact of interdependence on the power differential between the nations concerned, whereas Liberals analyze it as an international social phenomenon.

10 Moravcsik, supra note 5, at 11.

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