THE PERILS OF GLOBAL LEGALISM

Vol. 20 No. 9 (September, 2010) pp.503-508

THE PERILS OF GLOBAL LEGALISM, by Eric A. Posner. Chicago : University of Chicago Press, 2009. 296pp. Cloth $29.00 ISBN: 9780226675749.

Reviewed by Benedict Sheehy and Donald Feaver, Graduate School of Business and Law, RMIT University, Melbourne Australia.

Eric Posner’s THE PERILS OF GLOBAL LEGALISM is both a laudable and interesting work that contributes an important and rather sobering perspective towards understanding of the status and function of international law within the international order. Its strengths are its logical argument, which flows well throughout the book, its broad research tapping many areas of international law, a crisp writing style and an innovative, empirical approach drawing from a variety of sources. A further strength of the work is the hard look Posner’s takes at some of the claims of international law’s ardent supporters that produces a rather discouraging analysis of the present state of international law -- not to mention its trajectory. Its weakness, however, is that the sober analysis has a polemic quality which results from pitting his critical positive inquiry against the more orthodox normative analysis of the international legal system and its development.

Posner sets himself the important task of determining “when international law works and what its limits are” (p.xv). Using a traditional positive legal analysis combined with a neorealist international relations framework supported by economic rational choice empiricism, he re-iterates the argument that nation states only comply with international law when it is in a nation’s self interest to do so. As a consequence, international law’s efficacy is limited by the same constraint. The powerful nation states, he asserts, undertake a cost-benefit analysis to determine the logic of compliance.

He develops his work by contrasting his perspective on international law against the position of the “global legalist” and then testing these claims against the evidence. In the first chapter “The Utopian Impulse in International Relations” Posner describes the nature of the problem as a collective action problem of global dimensions. He next suggests that there are two alternative solutions: some form of integration, political economic, or ideological; or the creation of a global legal order. The latter response he refers to as global legalism: a world wide legal system composed of a court and black letter law, a “law without government.” He sees this legalism is made up by rules, both substantive and procedural, and judges who have adopted the philosophy of classical liberalism. Posner says legalism requires “not just faith in judges; [but] . . . faith in the law” (p.22). The faith appears to be based on the assumption that the stability and prosperity found in developed countries is the direct outcome of the legal system and by derivation, “governance by judges may be superior to plausible alternatives”(p. 23). It is against this view of “global legalism” that he develops his argument. [*504]

In the next chapter “The Flaws of Global Legalism” Posner develops his critique. He notes that faith in legalism results from the institutional arrangements that allow law to work as it does in developed countries; however, he also notes that developing world lacks the necessary institutional arrangements requisite for global legalism to work. These missing arrangements are three-fold: first, the lack of a legislative body, second the lack of a body for enforcement, and third, a lack of a court system. The particular problem says Posner, is that states follow international law only as it advances their self-interest – as posited by rational choice theory. The resulting problem as he notes, is that international law perpetrates “existing power imbalance and ugly political realities that exist in most states” (p. 39).

Chapter three, “Defending Global Legalism,” sets out global legalists’ defence and Posner’s response. Posner’s global legalists, like Harold Koh and Anne-Marie Slaughter, propose that international law is complied with by force of habit or pressure or interests of individuals, and accordingly propose a more realistic approach to analyzing compliance with international law by utilising the disaggregated state. Global legalists object to a model of the unitary state in international relations as it ignores the roles played by government officials, NGOs, domestic and international courts, and multi-lateral regulatory agencies that drive compliance through a variety of norms. However, Posner rejects them in favour of a unitary state model. Posner rejects the disaggregated state in favour of a unitary model of the state because it allows a simplified model from which one can produce predictable hypothesis about why states make and comply with international law.

In the chapter which follows “Globalization, Fragmentation, and the Law,” Posner investigates the purported decline of the nation state and the space that it creates for international law. Posner examines the underlying cause for nation states’ compliance. He argues that certain public goods are more readily obtained on large economies of scale, and sets about to prove his point with examination of a number of cases. His concern about the decline of the nation state, however, is not that it creates space for international law. Rather, he argues that the decline undermines international law’s potential because international law relies on states for its creation and enforcement. At this point, Posner begins to slip into the economist’s common logical error of begging the question: assuming what one is trying to prove. In this case, Posner assumes the nation state acts exclusively from self-interest defined as the material wealth and security of citizens (p.78) and claims to have proved it.

In the fifth chapter he examines the implementation of international law in domestic courts. He notes the compliance of courts with international law is wholly subject to the executive branch in government. In other words, there is no “international law” extant, in the sense of controlling the state, apart from domestic decisions about compliance. The legal institutions necessary for international law to work do not exist and are unlikely to exist with current nation state sentiment. [*505]

The second part of the book investigates the place of un-embedded courts in the international system. Posner proposes viewing them as adjudicative institutions that function and exist at the pleasure of the state, and as truly international courts that are beyond state power and interests – the global legalist claim. In “International Adjudication: its Promise and Problems” Posner examines the judgments of various international adjudicative bodies and the rates of compliance with those judgments. Posner concludes that there is a decline in the use of those bodies by nation states over time as the compliance with their judgments declines. He provides various statistical tables to demonstrate this.

In chapter 7 titled “The Fragmentation of International Justice,” Posner examines the efficacy of international courts and tribunals. He reviews the IACHR, GATT and WTO regimes, ECHR, ECJ and the Law of the Sea Tribunal. He argues that contrary to global legalists, who see these bodies as leading to an international court system, the plethora of bodies are evidence of the political realities of courts being created and followed to the extent they advance individual state’s self-interest. These adjudicative bodies, he argues, are captive of the large powers who use and abandon them as it suits their agendas. Further, as they require certain institutional infrastructure as well as competent, independent judges, they are unlikely to achieve the universal aspirations set for them by global legalist. While his empirical analysis of the courts' work and efficacy are intriguing and a worthwhile contribution to understanding their work, his explanation is less so. The variety of potential causes and reasons extend well beyond the scope of nation-state self-interest narrowly conceived. It is not that Posner is unaware of the variety of political, economic and other influences; rather, it is view that rational choice offers a better explanatory mechanism with testable hypotheses.

Chapter 8 addresses the special case of Human Rights at international law. Unlike most other international law, human rights are not state rights and allow the application of international law to individual humans. While the rhetoric about the trials addressing international human rights issues, such as those of Nuremberg and Tokyo, the ICTY and the ICTR, and the ICC, and the treaties mandating respect for those rights may lead to the suggestion that they are effective in creating respect for human rights, Posner points out the many and wide spread human rights abuses that have and continue to occur throughout the world to the current events in the Sudan. This breach of international human rights law, says Posner, is evidence that international law is not about to save citizens from state abuse where the interests of those states place other state based objectives, such as state security, above those of the individual rights.

The last chapter, examines the implementation of international law largely by American courts. Posner chooses the interesting and pertinent example of climate change litigation and later, the same issue in the context of the US Alien Tort Statute also called the Alien Tort Claims Act (28 U.S.C. § 1350). Posner shows how the courts' work has been clearly subject to state political interests and as a result [*506] international law has failed to introduce any significant innovations into the American legal system.

Even though there is a great deal of merit in Posner’s analysis because it provides a sobering counterpoint to the more orthodox normative approach to international law, some readers will find this book oddly frustrating. The frustration stems from the work’s failure to take account of major facets of international law that fall outside of his narrow framework. The frustrating result is that the work’s undoubted merit becomes too highly focused on his polemic intention contra the ‘global legalists.’ By pitting his positive analysis of international law against the much more normative ‘global legalist’ position, chronic ideological and contextual frictions thread their way through his analysis. Posner’s analytical approach is akin to the firing of a relentless ideological barrage between realist and constructivist international relations theory.

When viewed from this perspective, Posner’s work suffers from three fundamental weaknesses. The first weakness is systemic in nature. Whereas Posner views international law as static and limited to black letter treaty type instruments, international law has evolved rapidly both jettisoning older varieties while taking on new. The evolution of international law over the past century has been impacted by the increasing pace of the globalization over the last half century. The acceleration of globalization particularly since the end of the Second World War, has given rise to issues and problems that require coordinated intergovernmental action. In addition, the increasing intensity in movements of capital, goods and people is also giving rise to imperatives to develop rules regimes that transcend the nation state. New forms of international rule formation that do not conform to traditional conceptualizations of law and rules have emerged as a result of the global demand for certainty and stability. These nascent forms seem to have escaped Posner.

The emergence of non-state rule regimes (such as the Court of Arbitration for Sport) and the proliferation of soft law norms (such as INCOTERMS) that fall outside traditional conceptualizations of what constitutes law are important illustrations of the nascent nature the international legal order. Posner, however, does not seem to allow any latitude in his definition of international law for this nascent character. He views international law in a neo-realist and traditional positivist way. Rather than viewing the explosion (and consequent lack of uniformity) as evidence reinforcing the nascent nature of international law, he views it as evidence of failure. Posner’s positivistic analytical framework results in his analysis taking on a static quality. Not only is it a misguided framework for a dynamic context, but more importantly, it misses a wide swath of other forms of international regulation. The net result is that his conclusions end up misrepresenting both the dynamics and the character of the international legal order.

Finally, Posner’s use of data is specious. For example, he examines the use of international arbitration over the past century and notes that its use has undergone a dramatic decline in recent decades. Rather than stating that one [*507] explanation for this decline is the creation of alternative and more effective international dispute resolution institutions, he attempts to attribute this decline to some sort of lack of confidence in international legal machinery. Similarly, he points to the decline in the number of treaties negotiated and ratified over the past several decades as further evidence of a decline in the confidence of the international legal system. However, there are several alternative explanations for this phenomenon that explain it as well if not better.

First, following World War II, there was an explosion in treaty-making activity relating to the agenda surrounding the codification of essential principles of international law. Although there is much work in this regard left to be done, and a great deal of work has been accomplished a slowing in pace has occurred. At the same time, the conventional international treaty is not the only form of international instrument. Many more alternative ‘soft law’ mechanisms have developed over time which represent a starting point, in many cases, of the hard law formation process. Instruments such as the UNIDROIT General Principles of Contract Formation, bodies such as the ICANN - Internet Corporation for Assigned Names and Numbers or even the Universal Declaration of Human Rights are all examples of the plethora of ‘soft law’ (non-treaty) instruments and bodies that have significant impact on international public and private behaviour, and properly should be considered as international law. Finally, there have been a variety of transnational approaches which have addressed issues traditionally undertaken at an international level such as bi-lateral and multilateral trade agreements which most international law scholars would consider as international law (even though it would not fall within the scope of Posner’s definition).

Posner begins with the assumption that there are only two methods of solving international problems through law and that can explain the development of international law – the creation of an international constitution, or the creation of an international judiciary. He states that the aspiration to solve global problems with a global government is doomed to failure because to do so requires creation of an international, global constitution. Creating such a constitution is an insurmountable problem for a variety of reasons, but primarily because the political necessities preclude such a solution. The legalist alternative, solving global problems by resort to the judiciary is equally misguided, Posner argues, because of a similar lack of agreement on norms, rules but especially the nature, role and power of courts. Given that neither the international constitution nor the global judiciary is likely to work, Posner is left with his preferred alternative of rational choice theory.

As a result, he sees the issue as a conflict between those who see international law as merely instrumental for state interests as opposed to those who see international law as substantive set of inviolable rights which are in some sense “constitutional.” He argues that his evidence is conclusive: international law will thrive only in those contexts in which it advances state interests and wither where it is in conflict. [*508]

At its core, Posner’s argument is a political one. His argument is found in the theme of the danger of relying on international law to solve global problems. Indeed, he titled the book “Perils of Global Legalism.” What is the peril? Posner puts little effort into explicitly arguing this point. Essentially, his point is that it is perilous to place one’s hope on conservative out of touch judges applying rules of questionable legitimacy to remedy global problems (p.115). While this point may bear some validity, his deeper concern is that relying on international mechanisms will undermine some uniquely American things such as a “love” of democracy (p.227), and American sovereignty. The myths: 1) that America is democratic (and uniquely so) and 2) no other nation on the planet so desires democracy are contrary to reality and a disservice to the debate. While this is not the forum for a discussion of American democracy, the American nation was created on the backs of slaves, the dispossession of native Americans, and the denial of political rights to women, the poor and others.[1] It has grown through wars against American imposed regimes by various nations who fought for rule by democratically elected local leaders. Americans are not some unique species and so it is not appropriate to be skeptical of efforts to constrain them to international agendas.

While this criticism may seem tangential to Posner’s work, it goes to the foundations of its basic premise – the production of an objective, testable theory of the development of international law. If he need not attend to other explanations and types of international law, he is able to justify American rejection of international law norms, support its unilateral and at times violent foreign policy, and general disregard of other non-American interests except where they coalesce with those of America. The end result is that by restricting his definition of international law to all but the most narrow of definitions, and examining it as a static system, he fails to develop a robust explanatory model of international law and its actors.

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