My Dearest Gentlefolk,
This unseasonably warm Monday morning brings us to Hans Morgenthau, a leading voice in the post-World War II response to the "legalist-moralist" approaches to international law that captivated many legal scholars and statesmen during the preceding half-century. Morgenthau, along with Edward Hallett Carr and George F. Kennan, was dedicated to a project of rejecting "utopian" and "idealistic" approaches to the crafting of international legal standards or norms, in favor of a "recognition" of "realpolitik". A core tenant of this approach is characterized by Morgenthau as follows:
"Governments ... are always anxious to shake off the restraining influence which international law might have upon their international policies, to use international law instead for the promotion of their national interests, and to evade legal obligations which might be harmful to them. They have used the imprecision of international law as a ready-made tool for furthering their ends. They have done so by advancing unsupported claims to legal rights and by distorting the meaning of generally recognized rules of international law.
"Thus the lack of precision, inherent in the decentralized nature of international law, is breeding ever more lack of precision, and the debilitating vice, which was present at its birth, continues to sap its strength."
Hans J. Morgenthau, Politics Among Nations: The Struggle for Peace and Power ___ (1948).
As recognizable as this form of argument has become, it continues to beg some very troubling questions. What is special about governments that makes them uniquely eager to "evade" those requirements of law that they find disagreeable or inconvenient? If the ambiguity of international law makes it particularly "ready-made" for serving the ends of government, then those "ends" must be articulable without reference to the legal rules they misuse (i.e., there must be some relatively stable distinction between the "tool" and the "end" for which it is deployed). Is this so clearly the case? If claims of legal right have gone "unsupported", or the meaning of legal principles has been "distorted", then it must be the case that there is both a definite manner in which legal right ought to be supported (or justified), and a definite meaning to "recognized" international legal rules. Is this sufficiently clear to support a charge of rhetorical whimsy or "distortion"? Finally, are any of these characteristics really attributable to the "decentralized" nature of international legal rule-making and enforcement? Surely we have grown sufficiently skeptical of the Hobbesian thesis (that government must speak with one voice if it is to be a government at all) to believe that Morgenthau's challenge does not also apply to domestic law, particularly in federal or democratic states.
The be fair, Morgenthau recognized that the international legal realm suffers far greater rhetorical liberty, and far more profound abuses of logic, than normally afflict the domestic legal realm. But there is nothing to suggest that these criticisms render the international legal realm any less "legal" by the comparison. Indeed, the one fact that interrupts such a "realist" critique of law is that legal rules do effect the way in which people in general, and governments in particular, attempt to explain what it is that they do, and why they are right for doing it. More profoundly troubling for the realist critique, the content of legal rules cannot be cleanly distinguished from the interests national leaders attribute to their office, or statesmen attribute to their states. There is an inevitable cross-fertilization of content from one to the other.
Morgenthau correctly recognizes that our reading of a "rule" or legal principle is colored by our "national interest", and that we sometimes consider the latter important enough to override a rule that cannot be intelligibly reconciled to it. But the obverse is just as important: we sometimes know our "national interest" only by the compass drawn for us by the plain meaning of international legal rules. Let us not forget that a government is personal, and not merely institutional. And persons know themselves, know their ends, know what is at stake, by a complex interaction of many linguistic, social and cultural forces, all of which touch on and are incorporated into the fabric of law. Although the process of incorporation is not well understood, it must at least be recognized that international "actors" are as human as the rest of us, and the law is no less "law-like" as a result.
David Robert Foss
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© 2000 David Robert Foss
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