The Law of Peoples. by John Rawls. Cambridge, London: Harvard University Press, 1999

Home , Harvard University Press, The Law of Peoples

University of Miami Law School University of Miami School of Law Institutional Repository

Articles Faculty and Deans

2001 The Law of Peoples. By John Rawls. Cambridge, London: Harvard University Press, 1999. (Book Review) Patrick O. Gudridge University of Miami School of Law, [email protected]

Follow this and additional works at: https://repository.law.miami.edu/fac_articles Part of the International Law Commons

Recommended Citation Patrick O. Gudridge, The Law of Peoples. By John Rawls. Cambridge, London: Harvard University Press, 1999. (Book Review), 95 Am. J. Int'l L. 714 (2001).

This Article is brought to you for free and open access by the Faculty and Deans at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. THE AMERICANJOURNAL OF INTERNATIONAL LAW [Vol. 95 over certainty and judicial enforceability. Al- In the meantime, the ASIL is to be congratu- though he concludes that the ultimate effective- lated for bringing together such a stellar panel of ness of nonbinding norms is still uncertain, Kiss, scholars for this significant venture. With the too-like most of the other contributors-defends nucleus in place, perhaps the first step has now their widespread use as tools in the increasingly been taken toward the assembly of a larger complicated tasks of norm setting and standard scholarly community interested in contributing setting for the world community. to the development of a new and much needed The final chapter of Commitment and Compli- field of study. ance-Edith Brown Weiss's "Understanding Com- DOUGLAS M.JOHNSTON pliance with Soft Law"-begins by stressing the Faculty of Law (Emeritus) need to categorize instruments, both binding University of Victoria, Canada and nonbinding in their form and content, in light of the purposes to be served. This categori- zation would serve, in turn, as a means of gaining The Law of Peoples. By John Rawls. Cambridge, a better, more sophisticated understanding of London: Harvard University Press, 1999. Pp. patterns of compliance and noncompliance. (As viii, 199. Index. $23.95, £16.50, cloth; $16.95, an application of this kind of "functionalist £11.50, paper. theory," the present reviewer's own taxonomic work on negotiated instruments has since been John Rawls, arguably the most important politi- published.") But the further development of cal philosopher writing in the last half century, functionalist taxonomies is only one of several contends in The Law of Peoples that many widely tasks that need to be addressed by an equivalent accepted principles of international law coexist group of scholars working along the cross-disci- easily with a distinctively liberal conception of plinary, multisectoral, and transgenerational right and wrong governmental action in inter- lines of the present volume and its seminal proj- national settings. He suggests that, for states ect. Because of the fundamental and global im- organized in light of liberal premises, their do- plications of such scholarship, it is surely impor- mestic constitutions and modes of public dis- tant to move to the next stage by involving more course oblige, in effect, adherence to a range of scholars from non-Western cultures. Moreover, international norms. Other states, because they the challenge to legal orthodoxy inherent in this reflect "decent hierarchical" assumptions, are kind of scholarship seems to call for a richer similarly constrained. Rawls also argues that "out- blend of social and behavioral scientists-in law states"-states not meeting his definitions of addition to lawyers and political scientists. And "liberal" or "decent"-may be properly subject to the growing importance of nonstate institutions international sanctions for their entirely domes- in the promotion, negotiation, interpretation, tic misconduct. War against "outlaw states" may monitoring, and application of transnational well be just; war against "liberal" or "decent' states only by nongovernmental commitments-not cannot be. States in which liberal developments institutions, but by corporations, as documented are frustrated by adverse economic circum- it by many of the volume's authors-makes stances are owed a "duty of assistance."' of non- essential to involve a larger number The Law of Peoples might someday be grouped participants and observers in future ' academic with writings of Grotius and Kant. This review is of this collaborative sort. Indeed, it projects not the place to explore that possibility? Rawls might be suggested that the "infinite variety" of international law2 reflected in the ever increas- analysis, Rawls inter- diversity of negotiated instruments" would 'Along the way, illustrating his ing jects sharp comments on a surprisingly ide range of be best explored through the development of a topics; for example, conventional and atomic bombing new cross-disciplinaryfield of studies designed to of cities by the United States and Great Britain in World encompass all facets of these phenomena: the War II, the terms within which the Holocaust is relevant for international political theory, and the role of reli- making and maintenance of treaty commitments, gion in the governments of Islamic-majority populations. or "treaty studies." 2See RicHARD TUCK,THE RIGHTs OFWARAND PEACE: POLITICAL THOUGHT AND THE INTERNATIONAL ORDER 2 Johnston, supra note 8. [Editor's note: The book FROM GROTIUS TO KANT (1999). is reviewed2 by Robert E. Dalton, 94 AJIL 204 (2000).] ' For discussions of The Law of Peoples from the per- ' Richard R. Baxter, InternationalLawin 'HerInfinite spective of present-day political philosophy, see Charles Variety,' 29 INT'L & COM. L.Q. 549 (1980). Beitz, Rawls' Law of Peoples, 110 ETHICS 669 (2000); nAnthonyAust, The TheoryandPracticeofInformallnter- Allen Buchanan, Rawls'Law of Peoples:Rules for a Van- nationallnstruments,35 INT'L& CoMp. L.Q. 787 (1986). ished Westphalian World, 110 ETHICS 697 (2000); 2001] BOOK REVIEWS AND NOTES draws upon a vocabulary that, initially anyway, is "modus vivendi, a stable balance of forces only for not especially technical; but he puts seemingly the time being" (p. 45). This educational exer- common terms to use in notably dense and intri- cise augments the analytical construction that is cate ways. The impact of The Law of Peoples out- the distinctive contribution of The Law of Peoples side the precincts of political philosophy will (the reason why support is needed will become depend, to a large extent, upon whether readers apparent later). Two devices, in particular, are find this process of analytical elaboration persua- prominent parts of this construction. sive. Students of international law, in particular, The first is suggested by the book's title. Rawls should regard the Rawlsian analysis as at least distinguishes between governments of states and provocative. It deploys a strikingly limited con- the populations residentwithin state boundaries. ception of international law, seemingly grudging He contends that populaions--"peoples"-and in its account of international human rights and not governments should be treated as fundamen- international organizations, but shows that con- tal entities. But this assertion is carefully limited. ception to possess surprising and strong origins. Rawls does not espouse any strong notion of I will suggest at the close of this review that it is "nationality"--that is, treat particular peoples as relatively easy to fit additional international law in some single important respect homogenous. nearby (as it were) the international law norms He supposes not only that state boundaries are that Rawls singles out, and in the process buttress arbitrary, but that individuals within borders may Rawls's own construction, as well. be diverse in all kinds of ways-religiously, eth- The book has two large parts: "The Law of nically, ideologically, and so on. Rawls believes, Peoples" and "The Idea of Public Reason Revis- even so, that governments may be meaningfully 4 ited." The first part itself repeatedly subdivides. categorized on the basis of how they ordinarily Rawls begins with "Ideal Theory," considering deal with resident populations (which is what he only relations as among liberal peoples and means, methodologically, by the priority of governments; he then extends discussion to peoples versus governments). cover nonliberal, "decent hierarchical" peoples Liberal states are those that treat resident pop- and governments. He next explores "Nonideal ulations as liberal peoples-as populations of Theory," discussing, inter alia, the requirements equally worthy individuals. Such states also treat for just war and the obligations that liberal and the well-being of the population in general as the decent hierarchical states owe "burdened socie- ultimate preoccupation of government; identify ties." The discussion of public reason in the some set of individual interests shared by all (or second large part of the book is complementary. almost all) residents as open only to limited gov- It generalizes, explores further, and defends key ernmental regulation; and tie identification of presuppositions of the argument of the firstpart. ultimately responsible government officers to But it does not add new matter particular to the some direct or indirect process of popular selec- discussion of international norms. tion. Other states are decently hierarchical. They The overall organization of The Law of Peoples treat residents as essentially differentiated-to be is illustrative of the book's form of argument given greater or lesser priority in cases of con- throughout-a cumulating claim, built up from flicting interests-but still treat the interests of a sequence of observations and simplified ac- residents, however ranked, as the ultimate pre- counts. At times, sometimes at length, Rawis occupation of government, and also seek to presents a course in "moral learning," an effort identify those interests through some process of to show that persons living in both "liberal and consultation. Even if a majority population ad- decent societies" will "accept willingly and ...act heres to religious beliefs with strong political upon" international legal norms (p. 44). These Rawls norms, he thinks, will therefore be stable "for the implications-here, treats Islam as para- right reasons," consistent with "reasonable inter- digmatic-the government possesses enough of ests," and more secure than any merely realistic a separate identity to be able to frame its policies in secular terms. Andrew Kuper, Rawlsian GlobalJustic4 28 POLITICAL For Rawls, these categories are notjust descrip- THEORY 640 (2000). tive, but decisively normative. They suggest a 4 The first part elaborates and reworks an earlier principle of self-censorship akin to the "original essay, seeJohn Rawls, The Law ofPeoples, in ON HuiAN RIGHTs: THE OxFoRD AMNESy LECTURES (Stephen position" and "veil of ignorance" famously put to Shute & Susan Hurley eds., 1993). The second part work in his 1971 book, A Theory ofJustice.Govern- reproduces an article Rawls had also previously pub- ments that adopt liberal or decent hierarchical lished. SeeJohn Rawls, The Idea ofPublicReason Revisited, 64 U. Cm. L. REV. 765 (1997). approaches may assert only those interests that THE AMERIGANJOURNAL OF INTERNATIONAL LAW [Vol. 95

derive from the well-being of their peoples as ting to a position of inferiority or domination" modeled in the one way or the other States are (p. 121). Liberal or decent governments, in not understood differently in international and other words, could properly agree to (or other- domestic perspectives. Governmental interests wise accept) acts of other states because they unrelated to peoples-such as the interests of would have no grounds for objecting if the governments in their own prestige vis A vis other organization of government and people-the governments-are irrelevant across the board. only concern, Rawls posits, that each government This view of governmental interests does not understands other governments as necessarily imply, though, that for Rawls all the different possessing-is not put at risk. Governments interests that populations possess are, in fact, would plainly have grounds, however, to protest equally pertinent. Nominally liberal or decently acts that threaten constitutional integrity. hierarchical populations might be notably wolf- Two corollaries, I think, follow. First, because ish at times-caught up in jingoist claims to all governments involved could accept adverse empire, in la gloire or ideas of manifest destiny, acts that meet the Rawlsian test, "tit for tat" or in racial or religious hatred. But these inclina- arrangements would be utterly noncontroversial. tions are irrelevant from the perspective of Rawls does not proclaim the end of international peoples considered as liberal or decently hierar- politics. Second, the idea of reciprocity, on this 6 chical. The only underlying common interests account anyway, acquires at least some of its of peoples are their shared commitments to lib- persuasiveness from assumptions about the usual erality or decent hierarchy. magnitude ofeffects and the duration of relevant These agenda restrictions make it possible for time periods. Adverse effects produced by one Rawls, at least in dealing with liberal and decent government are not likely to threaten the liberal hierarchical peoples and states, to characterize or decently hierarchical organization of a second some disputes as effectively false conflicts, as government and population if the effects are not implicating no legitimate substantive issues. In in themselves so dramatic or if, over a relevant such cases, the interests that governments may period of time, they will likely be offset. rightly seek to advance, he is able to argue, are The Law of Peoples thus supplies an explanation sufficiently restricted that one government can for "It]he absence of war between major estab- frame no arguments against the acts of another lished democracies"--which Rawls describes as government that count (within the Rawlsian being "as close as anything we know to a simple system) as objections. Not all conflicts are false, empirical regularity in relations among societies" however. Acts of one government might ad- (pp. 52-53).' The point of war is to force "sub- versely affect at least some interests of some of mission"; its initiation cannot, therefore, be de- the peoples represented by other governments, fended in terms acknowledging the norm of even in instances in which the acting govern- reciprocity. But Rawls means to do more. Taken ment is ostensibly addressing only the needs of together, his two central notions here-the pri- (some of) its own population. The possibility of ority of peoples and requirement of reciproc- dispute remains even within the liberal or decent ity-organize a distinctive account of public reason. Within its terms, liberal or decent hierarchi- perspective that The Law of Peoples adopts. cal peoples and governments have no reason not Rawls deploys a second device-a revised ver- to accept familiar principles of international sion of the familiar idea of reciprocity-that law-principles that Rawls readily translates, provides a way tojudge the importance of actual moreover, into terms consistent with his empha- conflicts between states. "[I] n proposing a princi- sis on peoples as primary and governments as ple to regulate the mutual relations between secondary. He refers, in particular, to the free- peoples, a people or their representatives must dom and independence of peoples; their obliga- think not only that it is reasonable for them to tion to adhere to treaties and other undertak- propose it, but also that it is reasonable for other ings; the relative equality of peoples and their peoples to accept it" (p. 57). Proposals meet this status as parties to binding agreements; their requirement if they "ask[] of other societies only duty of nonintervention; their right of self-de- what they can reasonably grant without submit- fense; their obligation to honor human rights; their obligation to restrict their conduct in war- 5 See alsoJOSEPH RAZ, THE MoRALrry OF FREEDOM 38-69 (1986). 7 The now-classic statement of these propositions is 6 Point of view-the possibility of differences in Michael W. Doyle, Kant, Liberal Legacies, and ForeignAf- point ofview-is thus a foundational premise for Rawls. fairs &II, 12 PHIL. &PUB.AFF. 205 & 323 (1983). 2001] BOOK REVIEWS AND NOTES time; and their duty to assist other peoples living International human rights are depicted in The in unfavorable circumstances (Rawls sees this last Law of Peoples as including only a skeletal subset duty to be the most controversial item on the of the individual rights ordinarily acknowledged list). Notably, within this account, international by liberal states. "Human ights ... express a law figures as unobjectionable rather than as special class of urgent rights, such as freedom affirmatively justified. Usual international law is from slavery and serfdom, liberty (but not equal fallout, its acknowledgement a product of the liberty) of conscience, and security of ethnic straitenings of Rawlsian public reason. Equally groups from mass murder and genocide" (p. 79).' notably, it is domestic constitutional arrange- These rights "set a necessary... standard for the ments that do the restrictive work, that constrain decency of domestic political and social institu- states to acquiescence in, and therefore contrib- tions" (p. 80). Limiting the set of international ute to, the persistence of international law. The consequences of this approach are espe- human rights is, in part, necessary in order to cially dramatic for analysis of the law of war, group together liberal and decent hierarchical and governments; Rawls cannot, for international human rights, and any interna- peoples tional duty of assistance. The Law of Peoples at example, recognize an international right to democracy.9 But this limitation in the scope of times relies upon the sympathies of liberal and a corollary of the idea of decent peoples for other peoples. For govern- human rights is also reciprocity: liberal and decent governments may ments that take their cues from popular con- to acts that put at risk cerns, such fellow feeling is pertinent. But there properly respond only their own liberal or decent constitutions. Inter- is also a strong "reason of state" line of argument. There are, for Rawls, no reasons that lib- national human rights are not therefore irrelevant, however, within the Rawlsian scheme. Acts eral or decent hierarchical states can assert that wouldjustify war with each other. Other states- of a government, in dealing with its own people, promise danger for other states if those acts within his terms, "outlaws"-might not suffi- of "urgent rights." That ciently limit their governmental agendas and amount to infringements the only international human might therefore pursue courses of action too exis, since for Rawls derive from the premises of treme to be brought within the assumptions of rights are those that reciprocity. Liberal or decent hierarchical gov- liberal or decent domestic constitutional ar- ernments could properly act to counter outlaw rangements, a government's failure to treat ambitions-even to the point of waging (mor- people within its borders in keeping with inter- ally) just defensive wars. The conduct of these national human rights (as he defines them) is a wars, Rawls thinks, should remain as true as hallmark of an outlaw regime and is also a threat act of aggression possible to the organizing premises of the prose- to-and a once-removed against-liberal or decent hierarchical peoples cuting governments, and thus should respect the the borders of other states. Outlaw gov- basic distinction between governments and peo- within ples. He believes that outlaw regimes-he ex- ernments, in dealing with their own peoples, plores in some detail the "demonic" case of the signal what other states might expect. "Outlaw and dangerous; all people Nazi perpetrators of the Holocaust-do not states are aggressive more secure if such states change, ordinarily represent a sufficiently independent are safer and popular will to justify equation of states and or are forced to change, their ways" (p. 81). peoples. Acts of war should aim first at outlaw Sanctioning such states for their domestic hu- governments themselves, next at their military ' Rawls also presents a fuller list, but again empha- forces, last of all at civilian populations, and then sizes limits: only if the populations in particular instances Among the human rights are the right to life (to have plainly aligned themselves with their gover- the means of subsistence and security); to liberty nors. This hierarchy provokes the book's sharply (to freedom from slavery, serfdom, and forced occupation, and to a sufficient measure of liberty critical account of the firebombing of Dresden of conscience to ensure freedom of religion and and Tokyo, and of the atomic destruction of thought); to property (personal property); and to Hiroshima and Nagasaki, in the final phase of formal equality as expressed by the rules of natu- ral justice (that is, that similar cases be treated World War I. Rawls believes that, at that stage similarly). (P. 65, footnotes omitted) especially, German andJapanese peoples could 9 For discussion of such a right, see THOMAS M. not have been equated with their leaders. FRANc, THE EMPOWERED SELF 263-75 (1999). THE AMERICANJOURNAL OF INTERNATIONAL LAWVl [Vol. 95

man rights abuses is therefore akin to just war; Although The Law of Peoples does not much indeed, Rawls acknowledges the possibility that discuss the possibility, there are obviously other domestic human rights abuses could warrant use system builders besides religion. Nationalism, in of force against an offending government. Benedict Anderson's famous phrase, generates A similar analysis underlies the duty of assis- "imagined communities."" Sometimes, the re- tance that Rawls describes. "A government's al- lated notions of race, ethnicity, or gender work lowing people to starve when it is preventable similarly-even, potentially, across state bound- reflects a lack of concern for human rights, and aries. There are, we all also know, economic sys- well-ordered regimes ... will not allow this to tems. Perhaps the "specter of Communism" has happen" (p. 109). Even in the absence of deeply receded into the past. But participants in con- felt concern for the fate of other peoples, liberal temporary international market economies, for and decent states might properly prefer a world example, may also proceed on the basis ofmodes in which there were more states of their own of thought that aggregate individual transactions kind: recognition of reciprocity would become and that lead the participants tojudge the results routine, and the need to anticipate extreme con- and consequently to develop larger agendas- duct would diminish. Aid to governments and seeking various forms of distributive justice, for peoples blocked by economic or other address- example. States may find it difficult not to take able circumstances becomes prudent defensive seriously such agendas, and thus governments policy-just like punitive responses to domestic may become implicated in the conflicts between human rights violations. market "winners and losers." Environmental, The analysis that Rawls sets forth is, I think, ecological, and public health concerns argnably obviously vulnerable in at least one important prompt an analogous politics. respect. A large part of a population might adopt Systematic agendas could conceivably over- a strongly systematic (Rawls uses the term "com- whelm liberal, decent arrangements of the sort prehensive") view of their own well-being and therefore understand seemingly separate matters that Rawls depicts-but this Armageddon, at least, as interconnected parts. If so, a representative is not a likely prospect at present. The more government-either liberal or decent-might interesting question concerns the consequences feel obligated to proceed on the same assump- for The Law of Peoples of a kind of punctuation- tion. Specific acts of other governments could the possibility that liberal or decent hierarchical therefore appear to possess a larger significance, peoples and states either will sometimes act as to threaten general popular commitments, and, prompted by systematic concerns or other stim- accordingly, to loom disproportionately large, uli difficult to defend in liberal or decent terms, notwithstanding the mitigating effect of the or will confront other states that are (for the mo- principle of reciprocity. Rawls, of course, is well ment, at least) little constrained by liberal or aware of this risk. He argues that at least in the decent reciprocity. Rawls is, of course, aware of case of liberal peoples and governments, the this possibility," He tends to focus his own atten- social and political arrangements generate their tion, however, on extreme departures from own sensibility, one that values tolerance of dis- liberal and decentinternational order. Consider- agreement and that also reduces the appeal of ation of Nazi Germany and discussions of right "all or nothing" agendas. Religious concerns- responses to true outlaw states do not, itseems to which are, for Rawls, the paradigmatic source of me, come to grips with the likely more frequent systematic unease-may at least sometimes be problem. Ifoccasional departures from liberal or addressed, albeit obliquely, in terms that are also decent norms of reciprocity by themselvesjustify part of secular political vocabularies. Conse- hostile action-action that in the circumstances quently, governments that act in conformitywith may not always be perceived as tit for tat-The secular norms-such as reciprocity-may be able Law of Peoples would appear to authorize a sur- to portray their conduct as religiously unprovoca- prisingly edgy, tumultuous international politics. tive. It is this possibility that Rawls underscores both in his discussion in the latter part of the 10 BENEDICT ANDERSON, IMAGINED COMMUNIIES: book of the relationship of religion and public REFLECTIONS ON THE ORIGIN AND SPREAD OF NATIONAL- reason in liberal societies, and in his construc- ISM 5-7 (rev. ed. 1991). tion of the model of the decent hierarchical state " His sense of the requirements of a liberal state, in (notably, he depicts its exemplar as Islamic). particular, is at times quite rigorous. Arguably, the United States does not pass muster (see pp. 48-51). 2001] BOOK REVIEWS AND NOTES

Rawls relies on "statesmen" to manage problems propriate domestic constitutions: Rawls need not like this last one. But it is also possible, I think, to posit any particular role for international agen- frame a more general response. A better result cies. Institutions-even ones as encompassing as might obtain if states adopted a quantitative the United Nations-figure simply as means of version of the principle of interpretive charity (as expressing state understandings. Nongovernmen- they probably already do). It may be that, on tal organizations seem to be beside the point. It occasion, momentarily systematic states act in is not necessary, moreover, for international law ways that, even if not likely to be soon repeated, itself to undertake the sometimes difficult effort cannot be interpreted as other than unequivocal of characterizing states as liberal or decent. 3 acts of war. But hostile, systematically prompted, International principles are in their own terms one-time acts short of war do not always demand entirely general, and may be argued about and a punitive response even if, as in the case of a put to use as such, even though their persistence thoroughgoing outlaw regime, such a response is a by-product of particular state arrangements. might be readily justified. After all, the real The narrow substantive scope ofRawls's discus- accomplishment-and what is really at stake-is sion has drawn much criticism. 4 The restricted the stability and therefore the persistence of the domain of international lawjustified in The Law overall framework of peaceful relations that is ofPeoples, however, is not preemptive-need not, accepted by liberal and decent hierarchical states as it were, occupy the field. I reach this conclu- and peoples. If states only intermittently depart sion through a somewhat roundabout way. Rawls from liberal or decent hierarchical expectations, leaves an obvious, provocative gap in his account. sharply punitive responses may not be necessary. Although he draws repeatedly on World War II If states are liberal or decent often enough, for illustrations, he largely ignores the Cold War. and therefore deal with each other often enough In one respect, of course, itis easy to understand within the familiar terms of international law that why-a period in which two regimes tend to treat Rawls seeks to reinforce, international norms ought each other as systematic opposites is not likely, it to be sufficientlywell established to at least some- would seem, to leave a history useful in elaborat- ing a defense of international law premised on times constrain momentarily systematic states, if the existence of numerous and independent lib- only for reasons of tactics. In any event, viola- eral or decent states. But the Cold War is also tions of international law will occur within a often thought of (and remembered) in a rather context that also calls attention to the possibility different way. The adversaries typically found- of conformity, for other states or in other circum- and felt themselves under pressure to find-ways stances." Interpretive charity also suggests that to isolate or accommodate particular conflicts, to states that are not ordinarily liberal or decent anticipate and appreciate each other's reactions, need not, in every case, be treated as outlaws. We and to negotiate quid pro quos. The deterrent ef- might imagine a category ofintermittently liberal fect (for both sides) of nuclear weapons worked or decent states. Sufficiently free-standing acts of very much like liberal or decent order-motivat- these states-when judged as meeting Rawlsian ing both sides to work out modes of dealing tests-could be understood to contribute to the characterized by something very much like a reinforcement of international norms, and should sense of reciprocity. 5 There was, moreover, an- therefore trigger corresponding responses from other relevant aspect of the Cold War. Opposition other states. drove both sides to articulate, repeatedly and at Adjusting the approach of TheLaw ofPeoplesin considerable length and depth, critiques of each this way highlights the contribution that Rawls other's systematic pretentions, as well as defenses of each side's own claims. Sensitivity to makes to our thinking about international law. critique He presents something very much like an exis- " Concerning this difficulty, see Anne-Marie Slaugh- tence theorem. Given enough states that act often ter, LawAmongLiberalStates:Liberallnternationalism and enough as liberal or decent states, familiar norms theAct of State Doctrine,92 COLUm. L. REv. 1907 (1992). 14 See, e.g., WILLLAM TWINING, GLOBALISATION of international law will be observed often enough AND LEGALTHEORY69-75 (2000); seealsosourcescited supra to remain relevant in practice. This argument is note 3. a notably parsimonious one. It supposes only ap- 15 See, e.g.,Jonathan Schonsheck, NuclearStalemate: A SuperiorEscapefromtheDilemmas ofDeterrence,20 PHIL. & PUB. Ar. 35 (1991); Abram Chayes, An Inquiry into the 12 See generally ANTHONY GIDDENS, THE CONSTITU- Workings of Arms Control Agreements, 85 HARV. L. REV. TION OF SociEn' 41-92 (1984). 905 (1972). THE AMERIGANJOURNAL OF INTERNATIONAL LAW [Vol. 95 may have contributed to at least some changes The Role of Law in InternationalPolitics: Essays in in domestic arrangements and international InternationalRelations and International Law. conduct (school desegregation in the United Edited by Michael Byers. Oxford, New York: States supplies one well-known example)." In- Oxford University Press, 2000. Pp. xvi, 354. deed, liberal political theory itself-in its still- Index. $80, £50, cloth; $22.95, £12.99, paper. current form-emerged in this "as against" setting. For example, the extraordinary worldwide The past decade has seen a growing interest of reception of A Theory ofJustice was, I suspect, at international lawyers in the study and practice of least in part a Cold War phenomenon. Rawls put international politics. While international law forward what was easy to read as a comprehen- practitioners have always been aware of the pol- sive underpinning for (perhaps especiallyAmeri- icy (and political) context of their work, legal can-style) liberal political arrangements. scholarship has not always so clearly reflected the In The Law of Peoples and other recent work, intimate relationship between law and politics. ironically, Raws assigns his own masterpiece an The Role of Law in InternationalPolitics is self-con- only marginal role, precisely because of its sys- sciously exceptional in this respect. Michael Byers tematic tendency. Nevertheless, within an inter- of Duke University Law School has brought national setting that does, by and large, square together a diverse set of scholarly essays that ex- with Rawls's assumptions in The Law of Peoples, amine various aspects of the law-politics nexus in punctuated order-with its sometime departures international relations. from liberal or decent courses of conduct- The volume's title does not adequately pre- remains a real possibility, or so I have suggested. pare the reader for the range of issues and con- In those moments at least, liberal or decent poli- cerns covered in the essays, which touch upon tics may not be free from challenge; defenders myriad themes relating to the changing envi- may not find it sufficient to catalog the deficien- ronment of international lawmaking and gover- cies of systematic adversaries. The Cold War- nance. Actors, processes, structures, and intellec- something very much like its ideological battle- tual agendas all come under scrutiny in this ground, anyway-would from time to time re- eclectic volume. Key questions include: What are appear in microcosm. Liberal assumptions could the sites of international lawmaking in the cur- once more-repeatedly, actually-require ex- rent milieu? What actors are empowered to take tended assertion and defense. part in the norm-making and law-creating pro- In these intervals of conflict, questions of inter- cess? Most generally, how has international law national law, like questions of domestic law, would adapted to a changing global environment? become occasions for registry-sites for the asser- Be warned that this volume is not at all geared tion of competing perspectives. Ajurisprudential toward providing a coherent response to these politics of this sort demands concrete illustra- questions. Rather, it takes on the less ambitious tions of abstract premises; it need not, insofar as but perhaps more stimulating task of presenting it is importantly demonstrative, sharply distin- a disparate set of perspectives that situate inter- guish between local and global opportunities. It national law (and sometimes legal studies gener- might, therefore, readily encompass much of what ally) in its broad social and political context. In Rawls leaves out-all sorts of matters of economic, a very brief introduction that does little to dictate environmental, and human concern-as well as directions or boundaries to the contributions, the design of institutions appropriate for address- Byers suggests that the volume's essays address ing these concerns. (Legal debate, international three major themes: first, the relationship be- and domestic, would within this account look tween the disciplines of international law and much like what it often actually looks like.) Com- international relations; second, the role of state posite argument of this sort would not ground and nonstate actors in the development and international legal order. But pursued success- application of international law; and third, the fully by partisans of liberal or decent premises, it character of international legal norms and rules, would reinforce the relevance of the presupposi- and how these affect state behavior. tions that Rawls identifies as fixing that order. The first of these themes-how the disciplines PATRICK O. GUDRIDGE of international relations and international law University of Miami School of Law relate to one another-gets sparks flying in the early chapters of the book. "Collaboration" between scholars of international relations and inter- 16See, e.g., Mary L. Dudziak, Desegregation as a Cold national law now has enough of a track record to WarImperative, 41 STAN. L. REV. 61 (1988).