Venus and Mars Are Alright Tonight

Robert J. Delahunty of the University of St. Thomas School of Law has posted “The Battle of Mars and Venus: Why do American and European Attitudes Toward International Law Differ?” While much has been made as to the U.S. and Europe having different views regarding international law, I think articles such as this one, which try to dig into why we have (supposedly) different views are very important. Delahunty is, in part, responding to a recent article by Jed Rubenfeld. The abstract explains:

The essay analyzes Professor Rubenfeld’s theory, which is framed primarily in terms of the differences between American and European constitutional values, and attempts to weight its merits against those of a theory that focuses instead on divergent political interests.

Rubenfeld’s theory depends on a contrast between two distinct conceptions of constitutional law: one that he calls “democratic constitutionalism,” and the other that he calls “international constitutionalism.” Democratic constitutionalism, which reflects a characteristically American outlook, traces the nation’s
organic law to a founding act of popular lawmaking. International constitutionalism sees constitutional law, not as deriving from an act of democratic self-government, but as deriving from universal, hence transnational, principles and rights…

This, however, is not Delahunty’s view. Rather, he sets out

a theory of the international law divergence between the U.S. and Europe that sounds in interests rather than in values. On this alternative approach, both U.S. and European policymakers and elites use international law instrumentally, to promote and serve competing national interests in various ways.

Finally, the author outlines a possible approach that seeks to reconcile Professor Rubenfeld’s values-based theory with the theory that emphasizes national interests…

Delahunty refers to Robert Kagan’s recent book Of Paradise and Power: America and Europe in the New World Order and I think Kagan has a very astute observation about the nature of European and American relations. At the risk of oversimplifying Kagan’s argument, it goes something like this: international relations is like a castle in the midst of dangersous territory. Within the walls of the castle there is order: merchants are able to trade prosperously and there is a rule of law. Outside of the castle there are wild lands with brigands and marauders. There are also good people who are victimized by those brigands and marauders.

Europe is within the castle walls. It is inward looking and very satisfied that it has found a set of rules that ensure peace and prosperity, at least within Europe. The tough places of the world—swaths of Africa, the Middle East and Asia—are definitely outside the castle walls. They are defined more by wars and famine than by peace and prosperity. The U.S. is neither fully within nor outside the castle. It basically stands on the ramparts. It enjoys the benefits of life within the castle, but it also addresses threats that come from outside the castle. Consequently, it has not incorporated the relatively rigid legalism of those who live their lives within the castle because it needs flexibility to address the problems in the lawless world outside the castle.

The trick, as I see it, is to incorporate more and more of the population from outside the castle into the population that is within the castle…

Geopolitically, the U.S. and Europe are worlds apart. While I am no fan of unnecessary U.S. unilateralism, it is hard to conceive of the hard work of the world—counterbalancing regional aggression, securing oil routes, and such—being done without a U.S. that is willing to intervene. And before people start jumping on me about U.S. aggression in Iraq and so on, realize that I am not using this as a coded way of just talking about the Iraq War (which I think was unnecessary) but rather the sweep of American foreign relations in the past forty years or so. This doesn’t mean the U.S. has not made mistakes, but it does mean that maybe critics should realize that U.S. intervention and, yes, unilateralism, may at times be necessary if the folks inside the castle want to keep enjoying its benefits.

If we want to get beyond this dualist view of the world—castle and bad lands—then we have to start taking more seriously the role of cooperation and institutionalization. Cooperation so that the U.S. is able to get more people taking turns on the ramparts and institution building as a way to socialize those in the badlands to the rule of law within the castle. No lone gunman can do all that. It takes a village. (Sorry, I couldn’t resist.)