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LAW
POWERANDINTERNATIONAL
A hundred years ago, the AmericanJournal ofInternational Law (AJIL) was founded by a
group of publicists who believed that international law could abolish (or at least substantially
diminish) the role of power in world affairs.So deep was this belief that it often servedas a back-
ground operating assumption in international legal scholarship and did not even require dis-
cussion. But since 1940, dozens of articles in the Journal have focused on the relationship
between law and power. Indeed, many AJIL articles have been written by scholars and prac-
titioners whose life work has focused on power and international law- how power constrains
international law (or dooms it to irrelevance),how the powerful can harness international law
to their ends, and how international law may autonomously reconfigurepower in its own right.
This essay elaborates and analyzes the range of stances on the relationship between power
and international law that have appearedin theJ ournalin the last century. While views of the
relationship between power and international law are diverse, and many approaches straddle
heuristic lines, they can be grouped into four intellectual movements. Each major intellectual
movement may be seen as a reaction to the ideas that preceded it, and each may be better under-
stood in the context of international developments contemporaneous with their emergence.
While most of the intellectual movements born since 1980 originated in political science, eco-
nomics, or sociology, all have eventually found their way into the pages of theJournal. In recent
years,each majormovement has evolved to employ elements from earliertheoretical traditions.
Part I distills "classicallegal thought." Classicistsgenerallybelieved that power and coercion
could become farless prominent in world affairsthrough the development of international law.
The early twentieth-century classical legal thinkers who founded the Journal, and some con-
temporary thinkers, including many legal positivists, consider law and politics to be intrinsi-
cally and appropriatelyseparate realms of inquiry.
Part II analyzesrealistreactions to classicism.With Fascist aggressionin the late 1930s, real-
ism emerged to launch an epistemological, heuristic, and normative attack on the classical
approach.While realismgenerallyviews international law as a reflection of the interestsofpow-
erful states, and structuralrealism-at its core- denies that international law is consequential,
realists display a range of views, from those who find international law meaningless to those
who find it crucial to understanding state behavior.
The structural realist position (and oversimplifications of other versions of realism)-sug-
gesting that law is little more than a reflection of power- catalyzed decades of reaction, which
attempted to show how international law affects behavior. Part III distills the elements of this
reaction: early efforts to use sociology or the social sciences more broadly; rationalist institu-
tionalism's demonstration that international law is plausibly autonomous; and the application
of liberal theory, usually in conjunction with institutionalism, to show how law affects the
behavior of states, rulers, groups, and individuals.
* Richard
Steinbergis a memberof the Boardof Editors;andJonathanZasloffis Professorof Law,University
of Californiaat LosAngelesSchoolof Law.The authorsthankDavid Caron,JudithGoldstein,PeterGourevitch,
Joel Handler,and KalRaustialafor theirusefulsuggestions.
64
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CENTENNIAL 65
I. CLASSICISM: YEARS
EARLY
THEJOURNAL'S
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CENTENNIAL 67
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OFINTERNATIONAL
JOURNAL [Vol. 100:64
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JOURNAL LAW
OFINTERNATIONAL [Vol. 100:64
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CENTENNIAL 71
II. THREEFACESOFREALISM
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CENTENNIAL 73
Traditional
Realism
ForfortyyearsafterthepublicationofMorgenthau'sAJIL article,traditionalrealism44dom-
inated politicalscientists'and diplomats'understandingsof internationallaw, and infused
muchinternationallegalscholarship.45 ForMorgenthauandothertraditionalrealists,the key
to analyzinginternationallawwasto seeit asa reflectionof boththe interestsof powerfulstates
andnormsheldin commonacrossstates.Hence,abetterscientificunderstanding of how inter-
nationalpoliticsandsocietyworkwasneededto ascertainwhatis meaningfulinternationallaw.
Morgenthau'sapproachsignaleda shiftin thinkingaboutinternationallawthatseemednew
at the time it appearedand hasrunthroughtheJournalsinceits publication.In point of fact,
asAlfredand DetlevVagtswould latershow,consciousattentionto the relationshipbetween
balanceof power and internationallaw was as old as the Westphaliansystem;moreover,
throughoutmuch of the 1648-1914 period,many juristssaw the internationalbalanceof
powereitheras "anintegralpartof the systemof rulesof the lawof nations"or as a "necessary
preconditionto the existenceof such a law."46Yet noticeof that relationshipseemedto have
40 Such a view appearedin the pagesof the
Journal.See,e.g.,JosefL. Kunz, TheUnitedNationsand theRuleof
Law,46 AJIL504, 504 (1952) ("Thereis no doubt thatwe arein the presentepochlivingin a climateof so-called
'realism';power,not internationallaw, prevailsin the thinkingof many .. .").
41 Thereare,of course,importantdifferencesbetween(American)legalrealismand internationalrealism.For
example,the Americanlegalrealismmovement,which was directedto municipallaw, concentratedon the rela-
tionshipbetweenlawmediatedthroughthe courtsandthe valuesand functioningof relevanteconomicandsocial
communities;whereasinternationalrealismhastendedto concentrateon lawmediatedthroughthepoliticalorgans
of the statewith less interest--until recently--in internationallaw mediatedthroughmunicipalor international
courts.
42 Unlessotherwisenoted,we speakfromnow on only of international realists,andwill specificallyreferto legal
realismif necessary.
43SeeLeoGross,ThePeaceof Westphalia, 1648-1948, 42 AJIL20, 40 (1948) (notingthatthe Westphaliansys-
tem wasone of "ruggedindividualismof territorialand heterogeneousstates,balanceof power,equalityof states,
and toleration").
44 Many referto the traditionof realismpriorto the structuralrealistformulationas "classical," "modern,"or
"neoclassical" realism.See Theoryof WorldPolitics:StructuralRealismand Beyond,in KEOHANE, supranote 11, at
35, 42-43. In the contextof this essay,however,we adhereto "traditional" realismout of concernthatsomeother
termscouldcauseconfusionwith our discussionof classicallegalthought.For two excellentaccountsof prestruc-
tural realism, see JONATHANHASLAM,NO VIRTUELIKENECESSITY:REALISTTHOUGHT IN INTERNATIONAL
RELATIONSSINCE MACHIAVELLI (2002); MICHAELJOSEPHSMITH, REALISTTHOUGHT FROMWEBERTO
KISSINGER(1986).
Lawand theControl
45Forpoliticalscientistsanddiplomats,see, for example,StanleyHoffmann,International
ofForce, in THE RELEVANCE LAW21 (Karl Deutsch & Stanley Hoffmann eds., 1971). See
OF INTERNATIONAL
also GEORGEKENNAN,AMERICANDIPLOMACY,1900-1950 (1951); Clyde Eagleton, InternationalLaw and the
Charterofthe UnitedNations,39 AJIL751, 751 (1945) ("Itwould be gratifyingto be ableto saythatthe Charter
ofthe UnitedNationsestablished,orassured,the reignof lawamongnations;butthe Charterdoesverylittletoward
strengtheningthe law of nations.").
Morerecently,echoesof traditionalrealismby internationallawyersmaybe seen,for example,in FrederickM.
Abbott, TheWTOMedicinesDecision:WorldPharmaceutical TradeandtheProtectionofPublicHealth,99 AJIL317
(2005);MichaelByers,TheSingleSuperpower andtheFutureofInternationalLaw,94 ASILPROC.64 (2000); Ber-
nardH. Oxman, TheFutureofthe UnitedNationsConventionon theLawof theSea,88 AJIL488, 493 (1994).
46AlfredVagts& Detlev F. Vagts, TheBalanceofPowerin InternationalLaw:A Historyofan Idea,73 AJIL555
(1979). The Framerswereacutelyconsciousof the relationshipbetweeninternationallaw and balance-of-power
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74 THEAMERICAN OFINTERNATIONAL
JOURNAL LAW [Vol. 100:64
Structural
Realism
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ESSAYS 75
TheRealist-Institutionalist
Hybrid
Not all thosewho call themselves"realist"believethat law is inconsequential.Traditional
realistsdid not go thatfar.And for most theoristsof powerandinternationallaw- including
mostcontemporary mainstreamrealists,suchasKrasner-the purestructuralrealiststancewas
short-lived.58Indeed, in the verysamevolume in which the purestructuralrealiststanceon
internationallawwaspresented,a competingapproachto internationallawwasintroduced,"
suggestingthat internationallaw could facilitatecooperationby statesand that international
law is thereforeconsequential.This approachchartednew paths,one of which has becomea
third,hybridizedline of realistthought.
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76 THEAMERICAN LAW
OFINTERNATIONAL
JOURNAL [Vol. 100:64
LAWMATTERS:
III. INTERNATIONAL RATIONALIST-
SOCIOLOGICAL,
AND LIBERAL
INSTITUTIONALIST, RESPONSES
andInternational
Sociology Law
60LLOYD THEWORLD:POWER
RULING
GRUBER, INSTITU-
ANDTHERISEOFSUPRANATIONAL
POLITICS
TIONS
(2001);Richard
H. Steinberg,
IntheShadow
ofLaworPower?
Consensus-Based
Bargaining in
andOutcomes
the GATT/WTO,
56 INT'LORG.339 (2002).
H. Steinberg,
61 Richard TheProspects
forPartnership: to Transatlantic
Obstacles
Overcoming PolicyCooperation
in Asia, in PARTNERS
ORCOMPETITORS? THEPROSPECTS ON ASIAN
COOPERATION
FORU.S.-EUROPEAN
TRADE213 (RichardH. Steinberg& BruceStokeseds., 1999).
62Steinberg,
supranote60.
63 Geoffrey R.DanielKelemen,
Garrett, & HeinerSchulz,TheEuropean
Courtof NationalGovernments,
ustice,
in theEuropeanUnion,52 INT'LORG.149 (1998);RichardH. Steinberg,JudicialLawmaking
andLegalIntegration
at theWTO:Discursive, 98 AJIL247 (2004);HeinerSchulz,ThePolitical
andPoliticalConstraints,
Constitutional,
Foundations MakingbytheEuropean
ofDecision 99ASILPROC.
Courtofjustice, 132(2005).Foracompetingview,
seeLaurenceHelfer& Anne-Marie TowardaTheory
Slaughter, 107YALE
SupranationalAdjudication,
ofEffective
L.J.273(1997);Laurence
R.Helfer&Anne-Marie WhyStatesCreate
Slaughter, International Response
Tribunalh:A
toProfessors andYoo,93 CAL.L. REV.899 (2005).
Posner
64 STEPHEN
D. KRASNER,
SOVEREIGNTY: 73-219 (1999); RichardH. Steinberg,
HYPOCRISY
ORGANIZED
TheTransformation
ofEuropean TradingStates,in THESTATE AFTER STATISM (JonahLevyed.,forthcoming
2006).
supranote64,at14-20;Richard
65 KRASNER, WhoIsSovereign?
H. Steinberg, 40 STAN.J.INT'L L.329 (2004).
66 DavidKennedy
arguesthatinternational
lawbecameobsessivelyprocessorientedduringthisperiod.David
Kennedy,A NewStream LawScholarship,
oflnternational 7 WIS.INT'LL.J.1 (1988).
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ESSAYS 79
RationalistInstitutionalism
Rationalist institutionalism may be considered the core of the "rules matter" reaction to
structuralrealism. This approach emerged in the political science literaturein the early 1980s
but found its way into the international law literature only at the end of that decade. Using a
structural realist approach, some international relations theorists had interpreted history to
arguethat hegemons createworld order through international institutions, but that those insti-
tutions and order collapse as power diffuses in the international system.77By the 1980s, evi-
dence of diffusion of power in the contemporary world system had surfaced:in contrast to the
earlypostwaryears, now the United States increasinglyhad to sharepower with Europe in gov-
erning the GeneralAgreement on Tariffs and Trade and the InternationalMonetary Fund, and
in containing the Soviet Union. Yet international institutions and order were not collapsing.
The strongest counterpunch to the pure realist claim that international institutions and
international law were inconsequential came from Robert Keohane's explanatiornwhy inter-
national institutions were not collapsing, even as U.S. power was declining. Keohane used a
rationalist logic that built on the same assumptions employed by structuralrealism:states are
the fundamental units of analysis in an international system characterizedby anarchy. Under
those conditions, international institutions could facilitate cooperative, positive-sum out-
comes that would not otherwise emerge. Keohane's paradigm was the prisoners' dilemma,
which he (and others following him) argued was a metaphor for much of international life.
Robert Axelrod had shown that the prisoners'dilemma could be solved by iteration:repetition
of the game led to cooperation.78 Keohane argued that international organizations, creatures
of international law, could provide venues for the repeatedinteraction that would yield a coop-
erativesolution. More generally, international institutions could reduce transaction and infor-
mation costs. Such information sharing favors cooperation, reduces uncertainty about inten-
tions, and facilitates international stability.79
In making that argument, Keohane never used the word "law,"but it is hard to overestimate
the impact of his rationalist insight on subsequent analyses of the relationship between inter-
national law and power. Political scientists began using rationalism to identify means by which
international law could facilitatecooperation that would otherwise not occur. Some earlywork
showed how simple games could be used as metaphors for the kinds of cooperation problems
that could be solved by international organizations and international law.
In 1989 KennethAbbott imported these argumentsinto internationallaw discourse,80 setting
off a chain reactionof rationalistanalysesby internationallaw scholars.Others expresslyshowed
how economics could be usedto understandinternationallaw.81Dozens of internationallegalrules
and institutionswere subsequentlyexplainedby games in internationallaw journals.82
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80 THEAMERICAN LAW
OFINTERNATIONAL
JOURNAL [Vol. 100:64
Liberalism
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82 THEAMERICAN LAW
OFINTERNATIONAL
JOURNAL [Vol. 100:64
IV. CONSTRUCTIVISM:
IDENTITIES, RELATIONSHIP
AND THERECIPROCAL
INTERESTS,
LAW
BETWEENPOWERAND INTERNATIONAL
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ESSAYS 83
importance of power in the material sense depends critically on the social milieu in which the
state exists. It is all ideas, all the way down.
Wendt himself does not go so far, instead advancinga "softer,"modern constructivist theory
that accepts the powerful influence of objective material forces in world politics and holds that
states exist prior to international discursive praxis.103This researchprogram has brought him
criticism from hard constructivists'?4 but has had a significant impact on international rela-
tions theory.'05 Wendt concedes that states are real entities, but-instead of merely claiming
that ideas are more fundamental than material interests in constituting states' behavior-he
argues that ideas construct the very material interests upon which neorealist theory hinges.
Depending upon whether Hobbesian, Lockean, or Kantian ideas predominate, identical
groups of state formations can produce widely divergent results. There is no internal logic
underlying the system:what matters is international culture. Although Wendt does not explic-
itly say so, his theory implies that international law helps determine the nature of this culture.
Whether of the modern or postmodern variety, constructivism connects deeply with sophis-
ticated critical legal studies (CLS) theorists. Many CLS theorists contend that a central role of
lawyerslies in the productionof ideology,106therebyadvancinga significantrolefor interna-
tionallawyersin creatingthebasicframeworkof the internationalsystem.Yetthelinksbetween
constructivismand criticallegalstudiesrun more deeply,for both systemsof thoughtreflect
a profoundhostilityto the ideathat "laws"(i.e., assumed"natural"orderingprinciples)drive
a system.Constructivism'sattackon such lawsof the internationalsystemcloselyresembles
CLS'scontemptfor the lawsof the market.The moreradicalstrainin eachschoolarguesthat
referenceto suchlawsobscuresthe essentiallyideologicalnatureof beliefin them, and holds
out hope of a thoroughgoingtransformationof social life, whether domestic or international."'7
haveuseddiscourseanalysisto dissectthelanguageof internationallaw
Someconstructivists
in orderto understandits internalsystemsof signification(e.g., the relationshipsand binary
oppositions between signs), the ways it is productive or reproductive of things defined by the
discourse(e.g., who is authorizedto speakand act, what practicesarelogicallyand properly
implemented),andthe wayit changesandinteractswith otheroverlappingdiscourses.'o8 For
example,David Kennedy'sanalysis of law
international discoursesuggeststhat international
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ESSAYS 85
rise to the movement.117Similarly, this approach has been used to explain how a network of
lawyers in New York, Washington, and a few European capitals developed the international
system of private commercial arbitrationand replicate that system's practices."18 Used in this
way, constructivism may accessibly explain many recent developments in international law,
particularlythose that can be seen as advanced through the norm entrepreneurshipof NGOs.
V. CONCLUSION:POWER,LAW,ANDTHEDECLINEOFISMS
When thisJournalwas founded a century ago, power was not accounted for in international
law analysis.Now it cannot be ignored. World War II and the rise ofbehavioralism confronted
international lawyerswith discord between the mandates of international law and the behavior
of states. In its pure form, realism taunted international lawyers with the claim that interna-
tional law was inconsequential. Since the appearanceof the realistchallenge, no positive claim
about international law- e.g., how it has developed or will develop, or the extent to which it
is effective- could be made safelyunless it accounts for power, and no meaningful prescription
could be offered unless it meets a standard of political feasibility and sustainability. Consid-
erations of power are here to stay.
At the same time, today, unlike a century ago, there is an understanding of the conditions
and mechanisms that may enable international law to affect behavior autonomously. Most
commentators areconfident that international law has at least some autonomous power. Struc-
tural realism engendered a reaction that has distilled precise mechanisms by which interna-
tional law can cause outcomes that would not otherwise occur. Rationalist analyseshave iden-
tified several functions performed by international law that facilitate cooperation, such as
reducing information and transaction costs, establishing focal points for state behavior, and
constituting credible commitments. Liberalanalyseshave been combined with institutionalist
arguments to show how individual and group incentives and opportunities may be trans-
formed by alternative institutional structures and processes. Sociology, psychology, and lin-
guistics explain how international law may cognitively and normatively reinforce views about
the identity of appropriateactors, the nature of appropriatebehavior, and the identities of those
who act and do not act in international affairs.At the same time, we now command a range
of quantitative methods and modeling techniques for understanding the relationshipsbetween
law and power. In short, there is now a heterogeneous set of metatheories and tools for under-
standing the autonomy and limits of international law.19
In her essay in this issue, Lori Damrosch examines what is uniquely "American"about the
AJIL'sfirstcentury.120To some extent, the mix of theoretical orientations found in theJournal
is uniquelyAmerican. In jurisprudence,the theoretical movements identified here clearlydrew
from domestic legal theories (although each has its foreign and international counterpart):clas-
sicism in American law and international law; legal realism and international realism; socio-
logical jurisprudence and the New Haven School; legal process theory and both the New
Haven School and international legal process; critical legal studies and constructivism. While
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86 THE AMERICANJOURNALOF INTERNATIONALLAW [Vol. 100:64
rationalisttheoreticalstrains-structuralrealism,rationalistinstitutionalism,formalmodel-
ing, and quantitativeanalysis-may be found in workdone in othercountries,thesestrains
havefaredparticularly wellin theUnitedStates,perhapsbecauseneoclassicaleconomicsis seen
by manyin the UnitedStatesasthe mostsuccessfulbranchof the socialsciences.121 Construc-
tivismseemsto havebeenembracedmorewidelyin Europethanin the United States.122 And
classicallegalthoughthas neverlost its currencyoutsidethe United States.
In the United States,classicismmaybe gone, but it is not forgotten:manyrationalistinsti-
tutionalistandliberalargumentsechothe classicists'confidencein internationallaw.Contem-
porarypublicistswith faithin the autonomyof internationallegalinstitutionscommonlypro-
claim that interdependencehas transformedthe internationalsystem,123that absolutegains
predominateover relativeones,124that internationalcommunitynormscan transcendcon-
flictsof interestsandvalues,125andthatthe failureof internationalinstitutionssimplyreflects
incompleteevolutionratherthana fundamentalmismatchin an anarchicsystem.126While in
manywaystheseargumentsechothepast,clearlogicsnowstandbehindmanyof theclassicists'
intuitionsand often convincingempiricalstudiesillustratethose logics.
The plethoraof approachesfor understandinghow internationallaw mattersis comple-
mentedby the diversityof analystsconsideringthe relationshipsbetweenpowerand interna-
tionallaw.In theJournal'sfirstthirtyyears,mostof itscontributorswerewhiteAmericanmen,
mostlypractitioners. In thelastfewdecades,theAJILhasopenedup to authorswitha substantially
greaterrangeof experiences, to includea substantially
diversifying higherproportionthanbefore
of women,foreignnationals,andscholars.As Damroschdocumentsin heressay,127the rangeof
insightsandviewsappearing in theJournalhasbeenbroadenedby thisdiversity.
This heterogeneityof heuristics,contributors,methods,andtechniqueshasfundamentally
shiftedthe waymost observersarenow tryingto understandthe relationshipsbetweenpower
andinternationallaw.A halfcenturyof effortsto buildmetatheoriesthatexplaintheautonomy
and limits of internationallaw have paid off, and continuedeffort to build such theories
remainsimportantandultimatelycentralto understanding internationallaw.Yetmetatheories
havetheirlimits. Few believethat internationalrelationsareactuallydefinedby an anarchic,
ideal-typicalstateof natureruledby rawpowerandviolence.And no one believesthatwe live
in a purelycooperativeworldcharacterized by internationallawandorder.None of the meta-
theoriesof the lastcenturyhavebeen ableto deliverthe knockoutblow that some mayhave
once thoughtpossible.No one tryingto understandinternationalrelationscanignorepower,
orlaw,orthe state,orcivilsociety,ornorms,orlanguage.Increasingly,the greatmetatheories
eitheroperatein the background,or lend themselvesto a consciousengagementacrossisms,
with a focuson midlevelanalysisof internationallegalandpoliticaldevelopmentsusinghybrid
theories.
Hence, as suggestedabove,each of the main orientationsidentifiedabovenow has a sub-
stantial- or dominant- campthat uses a combinationof heuristicsto understandinterna-
tionallaw. It is increasinglythe modalpositionof today'srealiststo use elementsfromboth
realismand rationalistinstitutionalism,althoughboth traditionaland structuralrealismstill
121
StanleyHoffmann,An AmericanSocialScience:InternationalRelations,DAEDALUS, Summer1977, at 41.
122
PhilippeC. Schmitter,Seven(Disputable)ThesesConcerningthe Futureof"Transatlanticized" or "Glob-
alized"PoliticalScience(rev.Oct. 2001) (unpublishedessay,IstitutoUniversitarioEuropeo,on filewith authors).
123
ROBERT O. KEOHANE & JOSEPH S. NYE,POWER ANDINTERDEPENDENCE (2d ed. 1989).
124
KEOHANE, supranote79.
125Franck,
Legitimacy,supranote 113.
126CHAYES & CHAYES, supranote 75.
127Damrosch,
supranote 120.
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2006] ESSAYS
CENTENNIAL 87
pervade many international law analyses pertaining to security matters.128 Similarly, as sug-
gested above, it is increasinglycommon to see hybridized arguments employing liberalismand
institutionalism, particularlyto explain developments in international economic and human
rightslaw. Constructivists arealso using hybridized approaches,some blending a constructivist
orientation with liberal analysis (described above), and others blending it with realist analy-
sis.129 Some commentators vary the theoretical tradition they employ depending on the prob-
lem being addressed,130 and others employ complex frameworkswith a myriad ofvariables that
echo the approaches of sociological jurisprudence or early postwar frameworks. Quantitative
analyses of the development and effect of international law, which demand controlling for
alternativeexplanations, also reflect this complexity.'31 Metatheory is necessaryto our under-
standing of the social forces that shape international law and behavior, but with only meta-
theory we would miss the complexity of international phenomena, risk forsaking their expla-
nation, and limit the effectiveness of associated prescriptions.
If all this seems to suggest limits on international law as science, it signals the forceful return
of international law as law, that is to say, as a disciplined craft requiring practicalwisdom and
sophisticated judgment.132 The finest practitioners of international law have less resembled
chemists with equations than decision makersglimpsing through a glassdarklyto guide human
affairsagainst the brute fact of conflict and a fierce desire for cooperation. They have all oper-
ated with a keen consciousness of the primacy ofpower and the inevitability ofconflict, yet have
also skillfully developed cooperative institutions for the betterment of humanity. Dean Lang-
dell, after all, was wrong: law is not a science; the lawyer'smaterialsare not all found in printed
books; and law cannot divorce itself from politics.133 World politics is not a mere struggle of
all against all; neither is it gliding toward progressive cooperation.'34
128 Thisis notto suggest thatrationalist institutionalism is unusedin thesecurity field.See,e.g.,JamesD. Mor-
row,TheLawsof War,Common Conjectures, andLegalSystems Politics,31 J. LEGAL
in International STUD.41
(2002).
129 See,e.g.,NicoKrisch, International Lawin TimesofHegemony: Unequal PowerandtheShaping oftheInter-
national LegalOrder,16 EUR.J. INT'LL.369 (2005).
130Compare, e.g.,DavidD. Caron,WarandInternationalAdjudication: onthe1899PeaceConference,
Reflections
94 AJIL4 (2000),withDavidD. Caron,TheInternational Whaling Commission andtheNorthAtlanticMarine
MammalCommission: TheInstitutional Risksof Coercion in Consensual 89 AJIL154 (1995).
Structures,
131
See,e.g.,OonaHathaway, DoHumanRightsTreaties Makea Difference? 111YALE L.J.1935(2002);BethA.
Simmons,TheLegalization oflnternational Monetary Affairs,54 INT'LORG.189 (2000).
132
Cf C. WilfredJenks,Craftsmanship in International Law,50 AJIL32 (1956).Ournotionof international
legalcraftsmanship differssomewhat fromthatofJenks: hedistinguished sharplybetweenoffering opinionstojus-
tifythenationalinterestandbuildinga solidfoundation forinternational law,forthrightly arguing thatthe"com-
pleat"international lawyershoulddothelatter.Wecontend,on thecontrary, thatinternational lawyers mustlook
to developcooperative international institutions withoutdoingviolenceto theinterestsof powerfulstates:the
WorldTradeOrganization, theMontreal Protocol, andtheWorldBankmightserveasusefulexamples. Ignoring
nationalinterestin deference to universalism is a recipeforinternational legalfailure.
133 Thisalludes to a famousLangdellian catechism:
[A]lltheavailable materials of thatscience[law]arecontained in printedbooks.... [T]helibrary is ... to us
allthatthelaboratories of theuniversity aretothechemists andphysicists,allthatthemuseumofnatural his-
toryis to thezoologists, allthatthebotanical gardenis to thebotanists.
Christopher Columbus Langdell, Address to theHarvard LawSchoolAssociation (Nov.1886),quoted inARTHUR
E. SUTHERLAND,THE LAWAT HARVARD175 (1967).
134"[I]tis themarkof aneducated
manto lookfor in eachclassof thingsjustso farasthenatureof
precision
thesubject it isevidently
admits; foolishtoacceptprobable
equally reasoningfromamathematician andtodemand
froma rhetoricianscientificproofs."ARISTOTLE, ETHICS,bk. I, ch. 3 (W. D. Rosstrans.,Clar-
NICOMACHEAN
endonPress1908).
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