Vol. 14 No. 9 (September 2004), pp.692-694

FROM ‘9-11’ TO THE ‘IRAQ WAR 2003’:  INTERNATIONAL LAW IN AN AGE OF COMPLEXITY, by Dominic McGoldrick.  Oxford and Portland, Oregon: Hart Publishing, 2004.  396pp.  Paper $36.00 / £18.00.  ISBN:  1-84113-496-1.

Reviewed by Mark J. Harris, Jurisprudence and Social Policy, University of California, Berkeley.  Email:  mjh@berkeley.edu.

A Domestic Bias In Law and Society Research?  An Important Step In The Right Direction

FROM ‘9-11’ is a book for everyone concerned with the influence of terrorism, the Bush administration, and the war in Iraq on international institutions and international law.  Dominic McGoldrick provides a practical, detailed look at the international decision-making process after the attacks on the United States and a concise, clear history of the flurry of international lawmaking immediately after the bombing of the World Trade Center and the Pentagon.  McGoldrick helps frame an essential question of our time: “In what shape has the War on Terror left the liberal international order?  After a euphoric moment at the end of the cold war, have we emerged into a world where international law – human rights, the laws of war, the rights of prisoners are less meaningful than they were before?”

Alongside the fine discussion of the legal and political issues at play, the author also attempts to introduce a theoretical framework that may have broad application in social science as well as law.  Chapter 1 suggests that “complexity theory” may be useful in understanding how recent events may have radically shifted international arrangements and the international legal regulation of war.  In particular, borrowing from John Urry’s GLOBAL COMPLEXITY, McGoldrick aims to investigate whether or not the attacks on the US were a “tipping point” for a sea change in the international legal system. 

Tipping points involve, according to Urry’s definition, “[t]hree notions:  that events and phenomena are contagious, that little causes can have big effects, and that changes can happen in a non-linear way but dramatically at a moment when the system switches” (p.8).

Later, McGoldrick states (quoting Paul Berman, TERROR AND LIBERALISM), “Here, in any case, was the great, frightening truth of all modern history, laid out for everyone to inspect again – the great truth that vast consequences flow from inconsequential-seeming causes, and that a systemic logic does not govern world events, and that chance occurrences frame the largest of phenomena: in this case, the chance occurrence that, at a moment of supreme crisis, the world’s most powerful person happened to be George W. Bush” (p.158).

The use of complexity theory as an organizing feature is the least successful aspect of FROM ‘9-11’.  Unfortunately, McGoldrick does not explain exactly why complexity theory would be useful, whether or not it might have predictive value for social scientists and policymaking, nor does he provide any further examples, save the one about [*693] President Bush (above).  Discussion of the theory lasts about 10 paragraphs.  Moreover, the discussion of complexity theory in this piece only involves tipping points; there is no further explication of other useful tools complexity theory might provide.  FROM ‘9-11’ is, however, persuasive in arguing that this theoretical paradigm deserves more attention despite the theory’s scant treatment.  It is difficult to deny, of course, that the chance ascension of George W. Bush to the presidency is a clear example of a seemingly small event with extraordinarily important consequences.

Chapter 2 is a concise summary of events that led from the attack on the World Trade Center to the war in Iraq.  Unfortunately, the chapter does not offer much in the way of new information on how or why the administration was able to so successfully convince the American public that Iraq was somehow related to 9/11, but it serves as a comprehensive overview and the references are an excellent resource for further reading.  This chapter is the most useful for those readers interested in a concise history of events after 9/11 and will serve admirably in both undergraduate and graduate courses. 

Chapters 3 through 5 are the most satisfying of the book.  Unlike many recent books on the War on Terror, Iraq, or international law, this book takes a nuts-and-bolts approach to international lawmaking.  In these chapters McGoldrick describes the interplay between the international legal order and politics in a time of crisis, and clarifies the viewpoint of international lawyers on the War on Terror and the war in Iraq.

Chapter 3 is a useful overview of existing international institutions dedicated to counter-terrorism and will provide any researcher a helpful roadmap in pursuing further research in the field.  It follows with a discussion of the application of international humanitarian law to some US policies, including those on enemy detainees, the Patriot Act, and the establishment of military tribunals.  Furthermore the chapter includes a perhaps-too-brief discussion interpreting international human rights law in conflict situations. 

Chapter 4 analyzes the legal, moral, and political debates surrounding the decision to go to war in Iraq.  The discussion includes the Security Council’s Resolution 1441, the absence of a directly authorizing resolution to go to war, the “material breach” argument, arguments for intervening on humanitarian grounds, as well as George W. Bush’s new doctrine of “pre-emptive self-defense.” Chapter 5 serves as a clear explication of the US legal arguments for war, the relationship between the UK and the US, and the domestic machinations of both countries on the decision to go to war.

Chapters 6 and 7 discuss the ramifications of legal and political developments (as well as developments on the ground) for a variety of subjects, including the democratization of the Middle East, the role of the United Nations in the 21st century, and the relationships between the European Union and the United States.

Chapters 3 through 7 would make a fine supplement to an introductory course in public international law for law students, especially considering the generous [*694] appendices of international legal documents.  These include President Bush’s address to the United Nations General Assembly in November 2001, Hans Blix’s briefing delivered to the Security Council in February 2003, 14 Security Council resolutions on Iraq dating back to 1990, and several policy statements by UK, US and UN officials.  Chapters 3-7 would also be useful to a political science course on international institutions, and even undergraduates studying international relations. 

McGoldrick accomplishes something he did not set out to do with his book, too.  There are several brief suggestions about the political relationships between international lawyers and their allegiances to the current international order, the role of lawyers in shaping international political decisions, and the framing power of law for domestic audiences. 

For instance, McGoldrick suggests that international lawyers have a conservative bias regarding the existing international legal system and therefore are likely to deny crises or fundamental shifts within it.  This is an intriguing suggestion on any number of fronts, especially given the Bush administration’s insistence that some international legal categories, like “prisoners of war,” have been rendered meaningless in the context of global terror.  This proposition about the conservative bias of international lawyers could be fruitfully subjected to empirical analysis, as could claims of the Bush administration.

This kind of analysis might help law and society scholars understand the political role(s) international lawyers have in maintaining or running the international order.  This sort of analysis might also help illuminate the relationship between international legal actors or international law and domestic law and politics.  Indeed, one of the most productive areas of scholarship, legal consciousness, seems particularly suited to study these phenomena. If legal consciousness scholars were so inclined, we might address critical questions such as 1) How do international lawyers matter in a globalizing age? 2) How do concepts like “human rights,” “prisoner of war,” or “torture” mobilize (or fail to mobilize) social movements? and 3) How does the international legal system shape domestic politics?

In short, even though McGoldrick did not specifically intend to do so, in this reviewer’s opinion FROM ‘9-11’ highlights a profound domestic bias in current American sociolegal research.  It is hard to know exactly why this is true – probably due to weak interest in international public law in law schools, absence of training in international institutions for many social scientists who study law, and so on – but the overwhelming majority of law and society research, even in this globalizing age, simply does not take the international legal order seriously.  This alone makes the book worth reading. 

REFERENCES:

Berman, Paul.  2003. TERROR AND LIBERALISM.  New York: W.W. Norton.

Urry, John.  2002.  GLOBAL COMPLEXITY.  Cambridge: Polity Press.

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Copyright 2004 by the author, Mark J. Harris.