Vol. 9 No. 11 (November 1999) pp. 502-505.

FOUNDATIONS OF WORLD ORDER: THE LEGALIST APPROACH TO INTERNATIONAL RELATIONS, 1898-1922 by Francis Anthony Boyle. Durham, NC: Duke University Press,1999.

211 pp. Cloth $54.95. ISBN 0-8223-23643-8. Paper $18.95.

Reviewed by Sanford R. Silverburg. Department of Political Science, Catawba College.

An attempt to establish a world order by American international law practitioners at the critical turn of the 20th century is the subject of serious discussion by Illinois University School of Law Professor Francis Boyle. The author's ultimate task, for which this effort is the first part,is a description and analysis of legal order in the 20th century. A critical analysis of this book reveals the author's superlative intellectual origins: Richard Baxter for international law, and Louis Sohn and Leo Gross for international law and organization. Each of these men was a luminary in his respective field. Their interests poured their influence into the author's formal educational training. Before these specialists at the graduate level, the author received broad training in history and political science from his great mentor Hans Morgenthau.

The study can be broken down into three parts. There is the opening theoretical setting, a set of case studies, and an appended essay that appeared previously as a part of a festschrift for Boyle's doctoral dissertation advisor at Harvard, Stanley Hoffmann. It is important to understand, at least in the context of the message of the book, that attorneys, because of their training, tend to view phenomena as advocates and sometime as crusaders. Boyle fits this pattern.

Boyle looks at "documents" as they related to the conduct of U.S. foreign policy during the first quarter of the 20th century (actually from 1898 to 1922), an important period of development by the Republican-controlled government. During this period a new economic control appeared under the guise of a legal order framed by law and international organization and a public appeal characterized as a reduction of the level of disorder, violence, and force on the globe.

The text is introduced with a critique of "political realism." Power politics and Machiavellianism are linked in such as way as to connote the favorable use of violence and is common to "than solid empirical research" (p. 7). To give credence to the soft side of law and organization is to invite disaster, Boyle asserts.

A chronology is introduced with President Wilson's popularly known 14 Points, delivered to Congress without mention of the origin of the political content of the message, emerging as it did from the previous Democratic party convention's platform. From Wilson's native moral legalism came the systemic upheaval and the corruption of global violence known as World War II.

Page 503 begins here

Early on, the reader is set up to read the more profound measure to follow. The Treaty of Versailles, all agree, was imposed upon the vanquished Germans was "in contravention of Wilson's express promise given to induce surrender," (p. 9) as if the United States was a power in position to force the European axis to succumb. War, it is assumed by Boyle's rhetoric, is an unacceptable political tool when the talks about the "ill-gotten gains" (p. 9) of the war's victors. The American legalist-moralist approach was purposely and intentionally within the context of an American school of law, positivist in nature, as set out by the British legal theorist Lassa Oppenheim. The American approach was propounded as in a counter-distinctive approach to the Austinian natural law school of thought that was a precursor to the "functional integrationist" school that emerged in the post-World War II era.

Most telling is the prescriptive notion that helps explain some of Boyle's more provocatively advocated positions. He thus argues that:

Stubborn adherence to sovereign consent for legitimization has created a stark predicament for international legal positivism as the world enters the next millennium. Today the nations of the world are striving to cope with the progressive evolution of a system of international relations that needs to move away from the notion of sovereign consent-precisely because the sanctification to each one of the participants in the international system-and towards its replacement by the principle of consensus founded on reciprocal expectations of state behavior. (p. 15)

However, this position is unworkable for Boyle without a more specific indication of what does work for a wider array of circumstances for longer periods of time.

Boyle offers a dynamic characterization of unknown American international law spokespersons for the period under review. Political elites, who assumed that law was a component of their respective strategies, were to use force globally to achieve "its imperialistic enterprises" (p.16). The simple argument is that Americans used international law to rationalize their diplomacy.

American international lawyers, it is implied by Boyle, were cut from the same bolt of cloth as Rudyard Kipling. As a product of western European culture, Americans were meant to be the protectors of people of color. These people were the now prominent purveyors of a new American ideology espoused by the Republican Party whose vision of the American future was, to use a term currently in vogue, modern. With a broad swipe, Boyle argues:

To be sure, large-scale co-optation of the scales of American international lawyers during this historical era by all branches of the U.S. government was to be expected because of their critical relevance to the management that was simultaneously striving to reconcile the inexorable demands of a newly launched imperialism with the tenacious pull of the traditional deep-seated is isolationism. (p. 17)

To be sure, Boyle does far more than fulminate. He is, if nothing else, a truly gifted teacher of the law. He sets out the methods by which American legalists sought

Page 504 begins here

to bring about a structured world order, which would include arbitration, adjudication, and ultimately, codification. It is during the period under review, 1907 to be exact, that the American Society of International Law was created with a publication outlet, the AMERICAN JOURNAL OF INTERNATIONAL LAW. Also emerging from the complexities of the Spanish American War were the League of Nations and Permanent Court of International Justice. Coupled with a new American military prowess, United States foreign policy learned to justify force with law as the country was forced onto the world scene. America, Boyle argues, extended its new imperialism under the guides of extending American democracy primarily in the Western Hemisphere. This feature distinguished it from a European imperialism that was global in nature. There is, however, little attention given to the Platt Amendment that did much to establish America as a regional hegemonic power. Arbitration was the conflict resolution method of choice, building on the Hague System. Here Boyle most certainly contributes to an understanding of the current international legal system with a thorough examination of the establishment of the Court of Arbitral Justice and Permanent Court of International Justice (PCIJ). The movement outward into the European political scene through legal structures and instruments is credited as a positive portrayal of American legalists but whose efforts are depreciated against the backdrop of an isolationist Senate.

American international lawyers, who might have rationalized US military intervention in Latin America, did so for expediency because there was no long- term national interest in do so. Therefore, there was a motivation to establish a western hemispheric school of thought that could be distinguished from the international legal heritage. As with other discussions, Boyle intermingles the pejorative with the high value. One finds a clear and perceptive analysis with value-judgment laden language with claims of "United States manipulation and abuse of the OAS" and a "U.S.-concocted plan to rob the Sandinistas of their final victory under the auspices of the OAS." (p. 121) Imperialism is thus combined with the establishment of a regional legal court system. The approach is likened to Michelangelo's contention that to know the beauty of the human form, one had to plunge his hands into the gore and guts of the person's innards. It was the U.S. Secretary of State James Blaine who gets credit for bringing representatives of the American states together in Washington to create a system that would prevent war. However, Boyle cannot permit a positive intent to go unblemished, and he argues, "[t]he primary motivation was to better promote U.S. economic penetration of the economies of Latin America" (pp. 104-5). The meetings ultimately result in the creation of the Organization of American States (OAS) after World War II.

At the end of the period under study, Boyle looks at the miasma of the post- World War I era. America had played a role in the Great War. At home, the country's industrial power was finally in control by its own citizens and the president wanted the country engaged in international norm setting. America's European allies sought extrication from wartime commitments filed in secret treaties. Boyle begins an analysis of the Wilson administration's handling of world affairs with the "Bryan Peace Plan" developed through the diplomacy of Secretary of State William Jennings Bryan. The proposal ends with the U.S. entry into the war in 1915 and Bryan's subsequent resignation.

Because of U.S. neutrality

Page 505 begins here

legislation beginning in 1794 and made "permanent" by congressional legislation in 1818 (p. 127), U.S. entry into armed conflict, to assist England and France, was first based on a notion of the right to trade that was rapidly transformed by the Wilsonian morality of democracy over autocracy. At this point Boyle is at his weakest as he delves, gingerly, into the politics of international law-making in the post-World War I era.

Prior to World War I there was an attempt to create international legal institutions and instruments that would institutionalize a stable legal order producing, in turn, a harmonious political order. After the war, there was a more formal attempt taken with the creation of the League of Nations, legalizing morality by outlawing war. This norm-creating venture evolved -- or devolved -- into a policy of seeking arms control and disarmament.

In attempt to determine why World War II erupted, Boyle notes, correctly, "[t]he breakdown of world order1914 was definitely not caused by international law and international organizations, let alone by a U.S. legalist foreign policy that promoted them" (p. 149). Exactly, and world order was not restored until after 1945 and the end of the World War II. However, Boyle attempts to determine the "causes" for this second conflict.

What Boyle offers is an intricately and comprehensively, if not always convincing, saga of American foreign policy that ought to offer American diplomatic historians more than a casual opportunity for reflection and refutation. Most of the material presented is done so in a rather staid manner, considering the image the author maintains as a crusader-qua-legal advocate. There is always a problem in historical methodology, this reviewer would argue, when the observer periodizes. When does a phenomenon begin? Professor Boyle is interested in the development American legal practitioners of legal institutions in the 20th century, and that is fine. He has chosen as an underlying theme an economic focus that at one point in time was characterized as "imperialist," and carries with it a strong pejorative connotation. These two layers, however, are artificially affixed. If condemnation of "imperial" designs is in order than why not begin with theMexican-American War (1846-1848), a 21-month involvement incurring 11,000 American casualties, rather than the Spanish-American War (1898) in which the United States was involved for a four-month period and resulted in 5,000 casualties. Why begin the discussion of the creation of an international legal tradition in the 20th century? What is the importance when viewed as a part of an historical wave of trend? The gravamen here is meant to be invalid because the real substance of Boyle's work is the development of international instruments. In terms of American foreign policy, because legal institutions are examined this book is a new contribution to our

understanding of the United States foreign policy of this time, in contrast to the effort of Frank Klingberg (1996). However, the value of his work, I fear, will be diminished and discounted by counter-revisionism.