LAW WITHOUT NATIONS? WHY CONSTITUTIONAL GOVERNMENT REQUIRES SOVEREIGN STATES

Vol. 16 No.2 (February 2006), pp.182-188

LAW WITHOUT NATIONS? WHY CONSTITUTIONAL GOVERNMENT REQUIRES SOVEREIGN STATES, by Jeremy A. Rabkin. Princeton, NJ: Princeton University Press, 2005. 350pp. Cloth. $29.95 / £18.95. ISBN: 0-691-09530-2.

Reviewed by Paul Carrese, Professor of Political Science and Director, Academy Scholars Program, US Air Force Academy. Email: paul.carrese [at] usafa.edu. Views expressed are the author’s alone, and not those of any government agency.

The complexity of post-Cold War globalized life and the efforts of human rights and global governance advocates together have produced a striking prominence for international law in recent decades. The victors of the Second World War developed a fragile consensus on the need for some general re-commitment to the law of nations and especially laws of war, albeit not so idealistic a commitment as their Wilsonian predecessors. These tentative steps set in motion intellectual and political currents about modern international law that now have provoked substantial political controversy – and, with Jeremy Rabkin’s help, some academic controversy. Rabkin, a professor of political science at Cornell University, has argued in books and articles over the past decade that the new conception of international law as supra-state governance goes too far, obscuring the basic reality that state sovereignty (to include negotiated treaties) is the best foundation for domestic liberty and constitutional government. His LAW WITHOUT NATIONS emphasizes the political philosophy and jurisprudence he finds at the root of these debates about how to best structure international relations and political economy.

Rabkin gave greater weight to the latter in THE CASE FOR SOVEREIGNTY (2004), addressing the trans-Atlantic disagreement about the recent Iraq war and debates about American unilateralism versus European multilateralism or globalism. These foreign policy and international relations issues occasionally take center stage in this sequel, but here Rabkin mostly examines the jurisprudential and constitutional underpinnings of an American political spirit of independence and exceptionalism – from the ancient Western resistance to empire, to Bodin, to Locke and the Declaration of Independence. This is a timely and provocative work, not least because Rabkin elaborates the minority view on law and government among American and European academics, especially in law schools and the social sciences. What predominant school of thought should not appreciate a serious critique or counterargument? That said, at points he undermines his own status as honest gadfly by falling into the same polemical tone now widespread in American scholarly debates about law, constitutionalism, and judicial power. Perhaps his defense is that a direct challenge to powerful domestic and international elites – lawyers and judges, as well as advocates for human rights and environmentalism in NGOs, IGOs, and academia – cannot avoid engaging the partisan dimensions to their intellectual projects. [*183]

LAW WITHOUT NATIONS primarily addresses legal theory but traverses a wide territory of other subjects in doing so. Rabkin recognizes that the salience of his investigations into Bodin or Blackstone rests upon more pressing debates – about the relative status of the United Nations and American power in the post-9/11 world, or the International Criminal Court, or the citation of foreign law in US Supreme Court constitutional interpretations. Similarly, he must mention debates in international relations theory about realism versus liberal internationalism, or neoconservative arguments for aggressive democratization versus Kantian diplomacy toward a global consensus, or the trope that American unilateralists are from Mars while European multilateralists are from Venus. The strongest undercurrent here, however, is Rabkin’s earlier work in public law concerning constitutional interpretation and what constitutes judicial activism. Indeed, the fundamental jurisprudential approach of LAW WITHOUT NATIONS is originalism, and further, the positivism of Hobbes and Locke, for the fundamental principles at stake for Rabkin are constitutional government and the liberty and rights it serves. He defends Westphalian sovereignty, under which binding international law requires the consent of governmental parties through treaties or unquestioned custom, because this is a prerequisite for constitutional government on the American model. Against the advocates of Kantianism in international affairs and Progressivism in American constitutional law, Rabkin reaffirms the original conception of the Framers, that the rule of law established and enforced by a capable government, deriving its powers from the consent of the governed, is the best way to protect the rights and security of individuals. A corollary to this original constitutionalism is a foreign policy of independence in which a sovereign, duly constituted government, dedicated to liberty, carefully undertakes international commitments.

Would that this book develops a wider readership among the American and international elites in academia, the media, NGOs, and IGOs who comprise “transnational civil society,” for here is a serious statement of all that cosmopolitanism and post-modern humanism must overcome in their quest for a more just global order. A dose of Rabkin (requiring many a spoonful of sugar) would help sharpen their arguments and tactics, or prod them to moderate their cause to make it more effective. My own scholarship lies closer to Rabkin’s perspective of originalism, and here one could argue that he only partially presents the Framers’ understanding of the American constitutional commitment to abide by the law of nations and a more principled role in relations among states. An originalist of an even odder stripe than Rabkin might further note that the most influential sources for this more complex, balanced constitutionalism, Montesquieu and George Washington, receive mention here but not their due place. Moreover, if Rabkin had incorporated such a dose of originalist, diplomatic sugar from a Frenchman and a general – think of it! – he might have done fuller justice to the most surprising [*184] but still plausible claim of his book: that however imperfect the American constitutional order may be, there is no better record for achieving and spreading, through Westphalian means, the very ends of liberty, equality, and basic security sought by more progressive or post-modern models of law and right.

LAW WITHOUT NATIONS opens by assessing the conflict between Europe and America in recent decades over visions of international affairs and international law, and posing a question to Europeans that hints of Derrida: what’s wrong with difference? In one sense, Rabkin means only to taunt the post-structuralist school, for his bleak defense of American exceptionalism stems from Huntington’s thesis on a clash of civilizations. Indeed, Rabkin takes that one step further: recent centuries reveal competing strands of Western civilization, rooted in rival philosophies, and America should recall its pride in splitting from Europe two centuries ago. This calls to mind Gertrude Himmelfarb’s delineation of distinct ROADS TO MODERNITY (2004) in the British, French, and American Enlightenments, in which she praises America for perfecting British moderation while avoiding the extremism of the French philosophes (or, most of them – Montesquieu excepted). In Rabkin’s version, one intellectual path has led continental Europeans to seek equality and peace through higher levels of administration and expertise, even to supra-sovereign international structures of bureaucracy and juridical law. Europeans may charge Americans with imperialism today, but the concept is not American in origin and, long before Voltaire’s advocacy of enlightened despotism, continental thought and practice has been dominated by achieving or fending off utopian visions of empire, right into the twentieth century. Americans, in contrast, place liberty above all and seek this through a sovereign constitution and a complex politics and civil society. Being more skeptical and traditional in their views of human nature and power, a trait Rabkin traces both to Athens and Jerusalem, Americans adopt separation and balancing of powers in domestic politics and also wariness of international projects for perpetual peace – and thus, a commitment to self-defense.

Upon this foundation Rabkin argues that Americans should stick with constitutional self-government and resist the charms of global governance under new conceptions of pooled sovereignty, or newly-minted “customs” of international law developed by legal elites outside traditional treaty negotiation and ratification. In effect this is a defense of separation of powers and a reminder of why America traditionally applied it to both the domestic and international spheres. The original American aversion to judicial activism – as subverting the consent of the governed and the legitimacy of law – means that there cannot be a robust international judicial power unless, by traditional treaty processes, the executive and/or legislative powers of sovereign states have made a binding law and empowered courts to adjudicate it. The core argument of LAW WITHOUT NATIONS explores the foundations of these constitutional [*185] principles in early modern political philosophy – Bodin and Locke – and their influence in turn on the jurisprudence of Blackstone and the Enlightenment theorists of a modern law of nations, especially Grotius and Vattel. In one sense these analyses might appeal only to political theorists or intellectual historians, but Rabkin regularly notes the connections to the American framers or recent controversies about international law or sovereignty. These modern social contract theorists view humans as naturally separate and prone to conflict, and therefore develop law and sovereignty to provide for basic security. Once transmitted to the American framers, their theories inform skepticism about government protecting individual rights if far removed from consent or untethered from positive law: in the original conception, constitutional forms or means are as important as ends. This, combined with the argument that constitutionalism requires originalism, is Rabkin’s most distinctive contribution.

The central chapter, on “The Diplomacy of Independence,” sketches an intellectual history of American foreign policy and the law of nations from 1776 to the Cold War, aimed at defending the current Bush Administration policies after the 2001 terrorist attacks. Rabkin offers a strong case that America’s truest policy, given its constitutional tradition, is neither isolationism nor crusaderism, but the defense of its own liberty. This is less original but still important, since historians and theorists of American foreign policy and especially of the shifting fortunes of Washington’s “Farewell Address” have addressed many of these points – most recently works by Spalding and Garrity (1996), and Meade (1997). Rabkin’s particular contribution is that America’s adherence (with some deviations) to a middle ground, avoiding isolation but also adventurism or utopian globalism, follows the logic of its foundations in constitutionalism and sovereignty as indispensable for protecting rights and collective liberty. However, the brief portrait of Washington’s 1796 address, the first great statement of American foreign policy, over-emphasizes the realist strains in the founder’s advice. Washington did warn about “permanent” alliances, especially with more powerful states, even as he recognized that our commercial character invariably would draw us into world politics and that temporary alliances would be needed. Rabkin omits, however, the elements of Washington’s counsel that balance this: that America should “[o]bserve good faith and justice towards all nations” and cultivate “peace and harmony with all,” since “[r]eligion and morality enjoin this conduct.” The larger moderation of Washington’s statesmanship, and his view of our constitutionalism, dictated that America should engage with the world as “our interest guided by our justice shall counsel” – which gives greater place to interest than neo-Kantians might prefer, but sees a higher standard of justice than realists or strict Westphalians could accept. Washington called all generations of Americans to “give to mankind the magnanimous and too-novel example of a people always guided by an exalted justice and benevolence.” Indeed, “every sentiment which ennobles human nature” recommends the American effort to achieve this higher justice, even if [*186] “temporary advantages” might be lost. One can also note that our judicial tradition which forecloses “advisory opinions” arose because of Washington’s scrupulous care for the law of nations (also a theme in the Address) – for this is why he requested a ruling from Chief Justice Jay and the Supreme Court about our precise obligations under treaties with France and Britain.

This fuller picture does not contradict Rabkin’s basic argument about constitutionalism and sovereignty, but it does complicate it. A more moderate position at the founding might indicate more complex policies or at least a more subtle rhetoric today. Of course, the same challenge arises for today’s advocates of the judicializing of international affairs: how reasonable is it to press ahead with the ambition to legalize and bureaucratize world affairs at the expense of state sovereignty when, as Rabkin shows, this may well involve gambling away a legal capital that has achieved greater liberty and equality for more people than any other jurisprudence or political philosophy? Some might at least take pause given Rabkin’s argument that there is a tinge of lawlessness inherent in pushing radically new conceptions of international law, and they might gain some understanding of the reaction from sovereign nation states and specifically Anglo-American constitutionalism.

If Rabkin truly wishes to induce moderation in Kantian advocates of globalism, he might also do more to explain how such a “European” view of supra-national sovereignty penetrated America in the 19th century with Progressivism and such exemplars as Wilson and Dewey, offering the first extensive arguments for perpetual peace and global consciousness. Why did the detour develop, and how might some be persuaded to turn back? Similarly, how did an American judiciary and legal community supposedly steeped in Lockean positivism and a narrow view of judicial power develop into a branch that has judicialized our politics and sparked the judicializing of international law and global affairs? My own axe to grind here is that Montesquieu, that French philosopher mostly forgotten or only ceremonially cited today, plays a crucial role in this story. He was the single most authoritative source for the Framers in the 1780s and 1790s when developing our constitution, and he is arguably more of an influence upon Blackstone than either Hobbes or Locke. It is Montesquieu, breaking from his predecessors in liberal philosophy, who elevates the right of nations as one of the basic forms of right or law, along with national law and private law (Montesquieu 1748/1989). He also establishes that liberal constitutionalism requires an independent judiciary. Rabkin overlooks this broader dimension to the liberal tradition and its likely effect on the Founders – and, on the subsequent development of progressivism. Montesquieu is no Kantian, but he also is not a strict social contractarian or atomist. He and his disciple Blackstone ground the law of nations in natural law and see its fundamental principles as preservation and reciprocity – indeed, the Golden Rule. Montesquieu’s criticisms of Roman imperialism (he wrote a history [*187] of the fall from republic to empire, which inspired Gibbon) and of Machiavellian conquest clearly fit with Washington’s balancing of interest and justice. A Montesquieuan like Madison did not need to jump ship to Kantianism for his essay of the early 1790s on universal peace, envisioning an end to wars of conquest. John Marshall, too, emphasized “the great principles of reason and justice” informing the law of nations in such cases as HOGSHEADS and THE ANTELOPE without remotely supporting Dworkinian theories of Herculean judges who dispense a man-made natural law. This points to another concern about Rabkin’s portrait of the founding, which downplays traditional natural law as the foundation for individual rights and constitutional government. He implies that the Roman Catholic tradition, as heir to the Roman empire, is fond of modern schemes of universal rule and that its concept of natural law is putty in the hands of progressives like Dworkin or Human Rights Watch. Perhaps this is why he never cites Mary Ann Glendon’s work rehabilitating the UN Declaration of Human Rights for concerned traditionalists (Glendon 2001). Glendon, however, finds no contradiction in her recent criticism of the use of foreign law by the U.S. Supreme Court to overturn statutes on controversial moral issues, as in LAWRENCE and ROPER (Glendon 2005). All of this suggests that advocates of constitutional sovereignty and traditional jurisprudence may adhere to more complex jurisprudential foundations than Rabkin allows, and, that a case could be made that is more persuasive to those with aspirations to natural and/or international justice.

To be fair, these kinds of concerns also point to the great service done by LAW WITHOUT NATIONS in provoking a debate about first principles so as to address more effectively several pressing quandaries of law and politics. I have not even mentioned the three chapters in the second half of the book that specifically examine the model of Eurogovernance, international human rights law, and international trade agreements and the WTO. Rabkin insists that we need clear thinking about first principles for a world that is startlingly new and dangerous in many ways, but that this in turn will require consideration of traditional principles and established sources. Those who disagree with his views on sovereignty and international law will at least have a chance to clarify and affirm their own foundations, or anti-foundations, as the case may be.

REFERENCES:

Glendon, Mary Ann. 2005. “Judicial Tourism: What’s Wrong with the U.S. Supreme Court Citing Foreign Law.” THE WALL STREET JOURNAL. September 16.

Glendon, Mary Ann. 2001. A WORLD MADE NEW: ELEANOR ROOSEVELT AND THE UNIVERSAL DECLARATION OF HUMAN RIGHTS. New York: Random House.

Himmelfarb, Gertrude. 2004. THE ROADS TO MODERNITY: THE BRITISH, FRENCH, AND AMERICAN ENLIGHTENMENTS. New York: Knopf. [*188]

McDougall, Walter. 1997. PROMISED LAND, CRUSADER STATE: AMERICA’S ENCOUNTER WITH THE WORLD SINCE 1776. Boston: Houghton Mifflin.

Montesquieu. 1748/1989. THE SPIRIT OF THE LAWS. Anne Cohler, et. al. (ed. and tr.). New York: Cambridge University Press.

Rabkin, Jeremy A. 2004. THE CASE FOR SOVEREIGNTY: WHY THE WORLD SHOULD WELCOME AMERICAN INDEPENDENCE. Washington, D.C.: AEI Press.

Spalding, Matthew and Patrick Garrity. 1996. A SACRED UNION OF CITIZENS: GEORGE WASHINGTON’S FAREWELL ADDRESS AND THE AMERICAN CHARACTER. Lanham, MD: Rowman & Littlefield.

CASE REFERENCES:

HOGSHEADS OF SUGAR v. BOYLE, 13 U.S. 191 (1815).

LAWRENCE v. TEXAS, 539 U.S. 558 (2003).

ROPER v. SIMMONS, 125 S. Ct. 1183 (2005).

THE ANTELOPE, 23 U.S. 66 (1825).

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