ISSN 1062-7421
Vol. 12 No. 2 (February 2002) pp. 109-113.

LEGALIZATION AND WORLD POLITICS by Judith Goldstein, Miles Kahler, Robert O. Keohane, and Anne-Marie Slaughter (Editors). Cambridge, MA: The MIT Press, 2001. 319 pp. Paper $24.95. ISBN: 0-262-57151-X

Reviewed by Eric K. Leonard, Department of Political Science and International Relations, University of Delaware.

In 1982, Stephen D. Krasner edited a special issue of INTERNATIONAL ORGANIZATION that examined the concept of international regimes. That publication became the foundation for the majority of future regime analysis and international institution literature within the field of international relations. With the publication of a new INTERNATIONAL ORGANIZATION special issue, LEGALIZATION AND WORLD POLITICS, scholars of world politics and international law have focused their analysis of international regimes. Instead of analyzing ambiguous concepts like regimes and institutionalization, the authors of this text examine the phenomenon of "legalization," which they describe as "a particular form of institutionalization" (p. 2). According to the authors, the need for analysis of this concept stems from the fact that "the world is witnessing a move to law" (p. 1). I would have to agree. The last decade in world politics has produced two functioning international criminal tribunals, the World Trade Organization, NAFTA, a strengthened European Union, a soon to be functioning permanent International Criminal Court, and numerous other international legal arrangements. Such events necessitate the type of analysis that this text provides us. Therefore, the major strength of this text is its timeliness. That, along with the quality of international relations and international law scholars that contribute to this dialogue, make this text worth reading.

The first three chapters of this volume, not including the introductory chapter, lay the theoretical framework for a discussion of legalization. In these chapters, the authors define legalization, analyze the specific attributes of this concept and differentiate it from institutionalization, examine the variability of legalization (hard to soft law), and discuss the forms of dispute resolution that strengthen international legalization. The next six chapters apply this concept to both institutional regional
arrangements (the European Union, NAFTA, and the Asia-Pacific region) and issue-areas (international monetary affairs, trade, and human rights). Miles Kahler concludes this volume with an analysis of why legalization is preferred in certain contexts and what are the consequences of further legalization.

The touchstone of this volume is the essay by Kenneth Abbott, Robert Keohane, Andrew Moravcsik, Anne-Marie Slaughter, and Duncan Snidal entitled, "The Concept of Legalization." In this essay, the authors define the term legalization and expand on the specific components that constitute this concept. Legalization, as defined in this essay, "refers to a particular set of characteristics that institutions may (or may not) possess" (p. 17). Three components are

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central to an understanding of legalization: obligation, precision, and delegation. The term "obligation" refers to the level of legal commitment that binds the agents; "precision" involves an analysis of the level of ambiguity that surrounds the rules that define the institution; and finally, delegation refers to the amount of authority that the institution grants to third parties. This authority concerns the ability of third parties to implement, interpret and apply rules; resolve disputes; and make future
rules. Thus, legalization is a specific set of components along which international institutions vary. "All legalized regimes are institutionalized . but not all institutionalized regimes are legalized" (p. 12).

Once this definition is in place, the authors proceed to show the variability of the concept. As these authors describe it, legalization can exist as either hard law, meaning full legalization (high levels of obligation, precision, and delegation) or soft law, meaning anarchy (low levels of all three components). In between these ideal types, we have a mixture of hard and soft law, depending on the levels of the three components. Thus, legalization is not a concept that defines one particular type of institution, but has a range from high to low forms. The problem with terming all of these varieties "legalization" is that the distinction between institutions and "legalized" institutions is unclear. If an "institution" (a term that lacks clarity in this volume) has low levels of all three components, such as the Group of Seven, then this institution has low legalization. However, the authors still refer to it as a legalized regime. Thus, what type of institution would the authors not consider
legalized? Is this concept applicable to all institutions? If so, the authors contradict statements made in the introductory chapter that legalization is not applicable in all instances of institutionalization. This problem of clarity may plague the concept of legalization as it has the regime literature of the past two decades.

With a definition of legalization in place, Kenneth Abbott and Duncan Snidal tackle the question of variability in more detail. In their essay, "Hard and Soft Law in International Governance," they argue that international actors are prone to choose softer forms of legalization because of the benefits that this type of law grants them. The greatest benefit of soft law is that such forms of agreement are easier to achieve then hard law agreements. Other benefits include: lowering of contracting costs, alleviating sovereignty costs, dealing with uncertainty, and using soft law as a tool of compromise amongst both public and private actors. According to
Abbott and Snidal, hard law does provide international actors certain benefits, but they are not as significant as those ascertained in soft law agreements. Thus, Abbott and Snidal argue that actors choose "softer forms of legalized governance" because it is a superior institutional solution (p. 38).

One problem with this assertion lies in the authors' definition of soft law. According to Abbott and Snidal, "soft law begins once legal arrangements are weakened along one or more of the dimensions of obligation, precision, and delegation" (p. 38). As a result of this definition, hard law exists in only one of eight forms of international legalization (when obligation, precision, and delegation are high). With seven forms of soft law and only one form of hard law, it is no wonder that more actors choose soft law. The choice in terms of institutional structure is much greater in soft law, thus allowing for a greater number of benefits. A less inclusive

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definition of soft law may have yielded very different conclusions.

The final theoretical chapter examines the third principle of legalization, delegation. Robert Keohane, Andrew Moravcsik, and Anne-Marie Slaughter analyze the phenomenon of international courts and tribunals that delegate dispute resolution powers to a third party. Upon undertaking this analysis, the authors provide their readers with a more detailed understanding of delegation. They discuss three dimensions of delegation: independence, access, and embeddedness. Independence refers to the ability of the court to adjudicate without state interests' influencing their decisions. Access entails the amount of influence non-state actors can have
over the agenda of the court. Embeddedness is concerned with the ability of the court to implement its decisions without government action. The result of analyzing these three dimensions of delegation is an understanding that two distinct forms of dispute resolution exist: interstate and transnational.

Interstate dispute resolution refers to tribunals and courts in which states designate the adjudicators, control access to the resolution process, and act as the primary causal mechanism for implementation of the decisions of the court. Transnational dispute resolutions are "more open to individuals and groups in civil society" (p. 74). States are no longer fully in control of the court and its proceedings, thus allowing for a more inclusive, less state-centric form of international justice.

Clearly, dispute resolution proceedings of a transnational nature are more "legalized." This is because: 1) adjudicators in a transnational tribunal are more independent in their legal decision-making abilities; 2) a greater number of actors have access to the judicial process; and 3) the implementation of judgments is not dependent on state actors. The implications of this conclusion are that transnational dispute resolution systems tend to increase legalization, while constraining the actions of states. In short, this form of transnational institutions "insulate(s) dispute resolution to some extent from the day-to-day political demands of states" (p. 104). I feel that normatively, such a conclusion bodes well for institutions like the newly forming International Criminal Court (ICC). This is because if the conclusion of this essay holds true, then transnational dispute resolution systems, like the ICC, should be less politicized then interstate ones.

The next six chapters attempt to apply the concept of legalization to specific institutional arrangements. The first three examine regional arrangements. Karen Atler focuses her analysis on the European Union (EU) as an example of high legalization. However, her discussion also extends to the implications that domestic political and judicial institutions have on international legalization. Atler's inclusion of domestic influences on the legalization process in the EU is a nice addition to the theoretical framework already described. Such analysis provides readers with a fuller understanding of the legalization process by showing the complex nature of
this concept.

Frederick Abbott's essay examines NAFTA, which he concludes has a lower form of legalization than Atler found in the EU. According to Abbott, although obligation and precision are high in NAFTA's design, delegation is not. This is not to say that some higher degree of legalization has not occurred, but in the case of NAFTA, these instances are limited.

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Finally, Miles Kahler's article cites an example of low legalization or possibly institutionalization absent of legalization. His analysis of the Asia-Pacific region explores three different organizations: the Association of Southeast Asian Nations (ASEAN), the ASEAN Regional Forum, and Asia-Pacific Economic Cooperation (APEC). Kahler's essay completes the analysis of regional case studies and fills out the spectrum of legalization variance. This spectrum of cases is a very positive attribute of this text because it shows the ability of employing this concept to examine all forms of legalization, not just hard law.

Following the regional forms of legalization, this volume considers the impact of legalization on three different issue-areas. Beth Simmons begins this section with an exploration of the international monetary system, most notably the rules that surround the International Monetary Fund. The central question that Simmons wants to understand is the reason why international actors comply with the hard commitments made at Bretton Woods. One crucial component of this compliance, according to Simmons, is the desire by governments to "avoid reputational costs associated with reneging on legal obligation" (p. 190). This conclusion appears to validate some of Abbott and Snidal's arguments made earlier in this volume.

Judith Goldstein and Lisa Martin then turn our attention to trade liberalization, an issue-area that most scholars would associate with a high form of legalization. Although Goldstein and Martin do agree that the international trade regime has evolved into a highly legalized regime, they do not consider the consequences of this process to be completely positive. Negative consequences do emerge from high levels of legalization and the international community must consider this before proceeding to implement future legalized institutions.

Human rights law in Latin America is the final case of legalization that this volume examines. Ellen Lutz and Kathryn Sikkink examine three norms of international human rights law in Latin American throughout the 1990s. Lutz and Sikkink view these norms (the right to democratic governance, the prohibition against torture, and the prohibition against disappearance) as a primary causal factor for compliance, as opposed to the legalized status of each norm. This is not to discount the importance of legalization, but what Lutz and Sikkink point out is that the level of compliance is constituted not only by high levels of legalization, but also by norms.

Miles Kahler's concluding chapter engages two key questions: 1) why are legalized institutions preferred in certain contexts and not in others? 2) What are the consequences of legalization? In this essay, Kahler shows that a crucial factor in addressing both of these questions is the consideration of domestic politics. Domestic political demands often shape the choices of international actors, thus becoming a primary causal factor for legalized institution formation. Kahler concludes his piece by asserting that although certain aspects of legalization may grow in the future (in particular access), all signs point to a lack of delegation in non-economic issue-areas. If we combine this final assertion with Abbott and Snidal's definition of soft law, then we must conclude that the future of legalization will more then likely take the form of soft law.

This volume contributes to the existing literature on international law in two

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fundamental ways. First, the editors make a real attempt to show the relationship between politics and law. For these authors, the future of world politics is closely intertwined with the premises of international law. Because of this relationship, the essays in this volume advocate the need to address both fields of study if we are to adequately understand the global communities "move to law." Second, this volume attempts to re-focus the regime literature that has wallowed in a state of murkiness and confusion for two decades. This is not to say that a certain amount of clarification is not still necessary for the concept "legalization" (most notably on the differentiation between legalized and non-legalized institutions). However, this volume is a step in the right direction. Legalization is an interesting and engaging concept whose relevance appears to be growing. If scholars of both law and politics engage this concept, it should lead to a rich and fruitful literature concerning international cooperation arrangements.

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Copyright 2002 by the author, Eric K. Leonard.