Archive for
February, 2008

McCain’s Presidential Eligibility and the Constitution Outside the Courts

by Peter Spiro

So You are Thinking About an LL.M.

by Roger Alford

Leap Year and Customary International Law

by Roger Alford

Number 19 — And Rising…

by Kevin Jon Heller

The Moral Stages of Why Nations Obey International Law

by Roger Alford

Saadi — The Ban on Torture Is Absolute

by Kevin Jon Heller

Can President Obama Withdraw the U.S. from NAFTA?

by Julian Ku

Yes, Virginia, Waterboarding Does Violate International Law

by Kevin Jon Heller

Exxon v. Baker and the Sources of Federal Maritime Law

by Roger Alford

European Court of Human Rights to Decide Saadi v. Italy

by Kevin Jon Heller

Is Kosovo Part of Serbia?

by Kevin Jon Heller

In California, Immigrants Commit Fewer Crimes

by Kevin Jon Heller

FSIA and a Jus Cogens Exception for Acting Within the Scope of Authority

by Roger Alford

Would You Vote for Billy the Kid?

by Kevin Jon Heller

Haynes Leaving DOD

by Duncan Hollis

The Use and Abuse of Nuremberg by the Bush Administration

by Kevin Jon Heller

Our Foreign Relations Constitution

by Roger Alford

Second Circuit Rejects Agent-Orange Alien Tort Statute Lawsuit

by Julian Ku

Facebook — the Future of Political Activism?

by Kevin Jon Heller

ICC Refuses to Lift LRA Arrest Warrants

by Kevin Jon Heller

Scott Horton on Military Commissions

by Kevin Jon Heller

Uganda and LRA Agree to Domestic War Crimes Court

by Julian Ku

Colonel Morris Davis to Testify — for Hamdan!

by Kevin Jon Heller

Is There Such a Thing as Good Sovereigntism?

by Peter Spiro

The World Votes for Obama

by Peter Spiro

Crimes, War Crimes and the War on Terror

by Duncan Hollis

Tony Arend’s Legal Analysis of Kosovo’s Declaration and Defining a “People”

by Chris Borgen

The Succession of Kosovo and Minimum Public Order

by Tai-Heng Cheng

[Tai-Heng Cheng is Associate Professor of Law at New York Law School. His most recent book is State Succession and Commercial Obligations.]

I am grateful to Roger Alford for inviting me to share some thoughts on the recent developments in Kosovo.

On February 17, 2008, Kosovo’s parliament voted to declare independence from Serbia. This unilateral declaration accelerated the international decision-making process on the status of Kosovo, and requires a collective international response.

As Julian Ku noted on Opinio Juris earlier this week, decision-makers and scholars should examine their “policy preferences” regarding whether to support the succession of Kosovo from Serbia. I would add that should the international community decide to accept Kosovo’s succession claim, international actors should manage the consequences of succession to minimize disruptions to world public order and protect the human rights of all parties involved.

Appraising Kosovo’s Succession Claim. Chris Borgen has accurately pointed out that states have to decide whether or not to recognize Kosovo as an independent state. If I understand Professor Borgen’s post, in his view such recognition is merely declarative and not constitutive. If Kosovo meets the criteria for statehood, then non-recognition does not invalidate its statehood. This view might find some support in the Convention on Rights and Duties of States, concluded on December 26, 1933 in Montevideo. Article 1 of the Montevideo Convention suggests the criteria for statehood: “The state as a person of international law should possess the following qualifications: a ) a permanent population; b ) a defined territory; c ) government; and d) capacity to enter into relations with the other states.” None of these four criteria explicitly depend on recognition.

As a practical matter, however, if a substantial number of states reject Kosovo’s succession claim by withholding recognition, these states would be hard pressed (although not absolutely precluded, if the unique status of Taiwan provides any indication) to enter into diplomatic relations with Kosovo, to conclude treaties with it, or to grant it sovereign immunity independently of Serbia. In such a situation, regardless of whether scholars think Kosovo has become a state, it would not be able to fully function as a state in the international system. The reality is therefore that recognition serves a key constitutive function in the process of succession.

Policy-makers in each state should consider the consequences of granting or denying recognition to Kosovo. The Security Council reaffirmed in Resolution 1244, a Chapter VII decision, an international commitment to “substantial autonomy and meaningful self-administration for Kosovo.” Withholding recognition might encourage Serbia to resist this international decision. Granting recognition would compress the time frame for a negotiated settlement on the international consequences of Kosovo’s succession, thereby probably precluding seamless transition like the disintegration of Czechoslovakia in 1991, or the transfers of Hong Kong and Macau to China in 1997 and 1999, respectively. But it would achieve the policy-goal of providing Kosovo with autonomy and self-administration.

Managing the Impact of Kosovo’s Succession. Should the world community generally accept Kosovo’s claim to statehood, the international community must manage the disruptions to preexisting international arrangements.

There are currently few, if any, crystallized rules regarding the effects of state succession on preexisting international obligations. Every succession has unique variables and intense political pressures that have precluded the formation of customary law through consistent state practice and opinio juris. The Vienna Convention on Succession in Respect of Treaties of 1978 has entered into force, but lacks widespread ratification and binds only its handful of signatories. The Vienna Convention on Succession in Respect of State Property, Archives and Debts of 1983 was so controversial that it never entered into force.

Human Rights. In the absence of international legal rules on succession, Kosovo should rapidly accede to preexisting multilateral treaties, especially constitutive human rights treaties. This would minimize disruptions to the international human rights program, affirm Kosovo’s commitment to prevent the repetition of human rights abuses inflicted on Kosovars, reassure its Serbian minority, and, importantly, confirm its capacity to enter into treaties and its status as a state.

Investment Treaties. Serbia’s Investment and Export Protection Agency reports that Serbia has entered into 34 bilateral investment treaties, including with the USA, UK, Germany, France, Austria, Italy, and Greece. In 2007, it also ratified the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. Kosovo should rapidly confirm through bilateral exchanges of diplomatic notes that Serbia’s BITs bind Kosovo, subject to modifications that may be necessary to accommodate Kosovo’s economic circumstances. If the World Bank will permit it, Kosovo should also confirm the continuity of the ICSID Convention. This strategy will help to further consolidate Kosovo’s attainment of statehood, and help minimize disruptions to the international economy.

External Debt. There is also the thorny issue of Serbia’s debt, estimated at $25 billion in November 2007. In the current volatile global economy, markets will need reassurance that this debt will be repaid. In past successions, such as the dissolutions of the Soviet Union and the Socialist Federal Republic of Yugoslavia, creditors have initially proposed that the successor states assume joint and several liabilities for preexisting debt. Eventually, however, they accepted in negotiated settlements proportional allocations of debt among successor states, and substantial debt reduction or rescheduling to accommodate the limited economic capacities of the new states.

Annex VI of the Ahtisaari Plan, to which Professor Borgen has referred in his prior blog post, proposes a negotiated settlement between Kosovo and Serbia. Under this negotiated settlement, “allocated external debt shall become a liability of Kosovo where the final beneficiary is located in Kosovo; non-allocated external debt shall be apportioned to the parties according to a proportional key to be established by agreement between the parties, in cooperation with the International Monetary Fund.” In a statement before the House Committee on Foreign Affairs, U.S. Under Secretary for Political Affairs Nicholas Burns assumed that Kosovo would share a burden of Serbia’s debt. He also noted that that the President’s 2008 budget included $151 million in aid to Kosovo, and anticipated three times that amount in international contributions from other donors.

Kosovo would be well-served by commencing debt negotiations with Serbia’s creditors immediately, regardless of whether Serbia is willing to negotiate with Kosovo at this point in time. This would signal to capital markets that Kosovo is a responsible sovereign state and help ensure access to further funds, which will be critical for Kosovo’s sustainable development. The risk that Serbia’s debts will debilitate Kosovo is limited by the availability of substantial international aid, as well as the trend in recent successions to negotiate debt repayment on reasonable terms. Creditors ultimately have no interest in imposing such onerous conditions that the successor state defaults.

In making these recommendations, I acknowledge Robert Sloane’s warning, in his thoughtful essay, “The Policies of Self-Determination: Harmonizing Self-Determination and Global Order in the Twenty-First Century, 30 Fordham Journal of International Law 1288, 1316 (2007), that policy-makers should not allow a focus on the global commercial dimensions in state succession to “obscure or minimize other fundamental values at stake.” The analysis here of next steps in the Kosovo situation is necessarily preliminary. Nonetheless, I hope I have outlined what Henry Perritt has described in 25 Wisconsin International Law Journal 129 (2007) as “a constructive approach to working out the complicated succession issues embedded in a decision over the final status of Kosovo.”

CNN Makes a Boo-Boo

by Kevin Jon Heller

Consular Relations With Filipino Dancers

by Roger Alford

Bush’s Indefensible Comments on Peacekeeping in Darfur

by Kevin Jon Heller

Peter Spiro, Beyond Citizenship: American Identity After Globalization

by Peggy McGuinness

Kosovo’s Declaration: Analyzing the Legal Issues of Secession and Recognition

by Chris Borgen

Barack Obama — Red Diaper Baby?

by Kevin Jon Heller

International Law and Kosovo’s Independence: Assessing Resolution 1244

by Chris Borgen

Does Kosovo’s Independence Violate International Law?

by Julian Ku

Did the President’s Lawyers Tell Him to Shoot Down the Spy Satellite?

by Duncan Hollis

Wikipedia Resources on Kosovo

by Chris Borgen

Bloggers and Courage

by Roger Alford

Europe’s Newest State (?)

by Chris Borgen

More on Films, Intelligence Studies, and International Law

by Chris Borgen

More on Waterboarding and Reasonable Reliance

by Kevin Jon Heller

The Coming Immigration Revolution

by Roger Alford

Final Thoughs on Discussion of How International Law Works

by Andrew Guzman

As this it my final post in connection with this discussion of my book, How International Law Works, I want to thank Opinio Juris for giving me this opportunity, and the commentators for so thoughtfully sharing their opinions. Much of the discussion has been about the methodology used in the book, and as I have had my say on that subject in my several prior posts I will not dwell on it now.

Let me instead mention a couple of things that I hope the book has achieved or will achieve as more people get the chance to read it. I hope the book provides a foundation for further rational choice analysis of international law. I, for example, have recently been working on international tribunals, a subject that is not covered in detail in the book. More could be said from a rational choice perspective on just about any international law topic.

I also hope the book contributes to the discourse between international law and international relations. These fields have grown closer in the last twenty years, and I think both have benefited. This book seeks to address both sides of this narrowing divide, and hopefully is useful to both.

I very much want this book to also speak to more traditional international law scholars. There is no natural tension between conventional views of international law and rational choice. It is true that rational choice, because of its emphasis on reasoning from assumptions can sometimes seem abstract and disconnected from reality, but that is exactly why it is important to have constant reminders of the need to address real question and real puzzles. A rational choice approach, it seems to me, strengthens the study of international law in part because it provides theoretical underpinnings with which international law and legal scholars can respond to critics, analyze hard questions, and debate the role and workings of the field.

The world needs international law now, perhaps more than ever before. Problems from climate change to nuclear proliferation to hunger to disease to terrorism will only be solved with the help of international legal structures and institutions. Whatever else international law scholars do, we need to be thinking about when international law can help with these problems and what structures or approaches are most effective. We, need, in short, to think very hard about how international law works.

Twelve Angry Men Who Came In From the Cold

by Chris Borgen

Revisiting Missouri v. Holland

by Duncan Hollis

Why Isn’t There More Soft Law? A Response to Raustiala

by Andrew Guzman

In How International Law Works I grapple with the question of how states make the trade-off among the various features of agreements, including hard and soft law. I am not sure I agree that Kal’s empirical puzzle actually exists, but let’s assume it does and see why that might be so. A very similar question is discussed in the book – why are dispute resolution procedures almost never used in soft law agreements? The argument in the book (pp. 157-161) is very close to what follows.

One possible explanation for why we do not see many large, high-profile multilateral agreements can be seen by imagining a move from a soft-law agreement with few clear substantive obligations (e.g., the Rio Declaration) to an agreement that involves a greater level of commitment. One can imagine doing this in two ways (in fact, there are more than two, but let’s keep it simple). First, the states could stick with a soft law form, but provide more specific obligations. States would not be legally bound, but there would be a clear statement of what is expected of them. A failure to live up to the agreement would have some costs, though presumably less than the costs of violating the same agreement if it were a treaty. Second, states could leave the language unchanged but turn the agreement into a treaty. This would leave obligations somewhat vague and therefore give states some flexibility in how they behave while still claiming compliance.

Kal’s empirical claim raises the question of why we don’t see more of the first category (soft law with clear terms) and less of the second (treaties with vague terms), at least in some high-profile contexts. Why was the Vienna Convention for the Protection of the Ozone Layer a vague treaty rather than a soft law instrument? A partial answer comes from thinking about what sort of state preferences would yield that result. We expect this outcome if we assume that states prefer to increase their level of commitment by increasing the formality of the promise rather than its precision. This suggests that the choice of hard law offers a better cost-benefit trade-off to states than does the choice of more exact language. This, of course, begs the question of why they have that preference, and I do not have a satisfying response. The good news is that there is a lesson to be learned here. Perhaps Kal’s empirical puzzle is not such a puzzle at all, but instead tells us something we did not previously know about state preferences and the trade-offs states face.

Raustiala Reply

by Kal Raustiala

Andrew’s reply makes a good point. I share his skepticism about my proffered explanation for the choice of hard law over soft law. The problem is that we have an empirical puzzle that demands explanation, and we lack a good one. If there is a better explanation than the one I put forward, I have not yet seen it.

The puzzle is that under Andrew’s theory we ought to see lots of soft law agreements. To some degree we do, and there is a selection bias problem to boot: soft law agreements are not always listed in the usual treaty databases, and thus it is hard to know how many there are. However, it seems hard to argue that there are more multilateral soft law agreements than hard law agreements. And it is clearly the case that major multilateral negotiations more frequently result in a hard law agreement, and when they do not they are usually viewed as failures.

The landmines issue is a good example. Spurred on by NGOs, landmines regulation advocates convinced many governments to negotiate a major agreement. That agreement resulted not in a soft law accord but a treaty. We observe this pattern again and again. Some big UN meetings do yield soft law accords (e.g., the Rio Declaration of 1992) but again, advocates in the area generally deride these as weak and vacuous. So I think the puzzle remains: why so few soft law accords? As I noted in my first post, we see many soft law accords in technocratic areas that are not politically salient, such as banking. That is consistent at least with the theory that domestic/civil society preferences might be playing some role in the choice between the two. But it is certainly plausible that other factors are at play, or that I am entirely wrong about this.

Let me briefly comment on something else Andrew said. He wrote that international law is perhaps just as oxymoronic as soft law, in that the former lacks coercive enforcement of the sort we see in the domestic context. Yet it is interesting to note that in constitutional law we don’t see very much coercive enforcement either. When President Truman lost in Youngstown, what forced him to comply with the ruling? It certainly wasn’t that the military threatened to lock Truman up if he failed to follow the Supreme Court.

We could multiply the instances easily; anytime a federal court orders a government agency to do X or not do Y, why does the executive branch follow the court and obey the law? Again, it cannot be coercive power that explains it, since the executive wields the coercive power. The point here is that the difference between international law and domestic law is not always very great, and in fact may be illusory in some instances—instances that are at the core of our domestic legal system. It is worth bearing this in mind as we think about how international law works.

Treaties and Soft Law Stories, A Reply to Raustiala

by Andrew Guzman

Kal’s comment raises some interesting questions about the nature of international law and what it means to be a treaty rather than soft law. He juxtaposes hard law and soft law, as I did in my opening comments. Let me suggest another comparison – hard law in the international context and domestic law. The contrast here is stark and obvious – domestic law usually comes with the potential of coercive enforcement while international law rarely does. So based on that comparison, you might say that not only is the term “soft law” oxymoronic, as Kal says, but so is the term “international law.” International law does not “bind” a state in anything like the way domestic law binds domestic actors. The point here is that whatever soft law is, and whatever international law is, worrying about whether they should be called “law” makes little sense unless we know what “law” is. How International Law Works is, in significant part, an effort to help us understand what international law is.

Kal argues that there may be more to the distinction between hard and soft law than my book suggests. He says that governments pay a lot of attention to whether or not an agreement is legally binding under international law. Clearly states do worry about the legal status of agreements, but they also worry about a bunch of other things as well. Soft law agreements (Helsinki Final Act, Basel Accord, Universal Declaration of Human Rights, cooperation agreements in competition law and securities, etc) are common and often appear to generate high levels of compliance. So I think I am a little less persuaded than Kal that there is a bright line dividing treaties from soft law.

That is not to say that I think there is no difference between the two. I would quibble with Kal’s statement that I believe it is “not very significant” whether an agreement is hard or soft law. Differences of degree are nevertheless differences, and I think it does increase the level of commitment when states enter into treaties.

There is a literature in both law and political science about why states choose treaties rather than soft law, and some of it focuses on the domestic implications of treaties. I largely agree with the suggestion in this literature (and in Kal’s post) that these domestic effects matter. To prove it to you let me quote from my book: “Perhaps the most important influences on the decision [to choose hard law rather than soft law] are the domestic law implications of selecting a treaty. This is certainly the most conventional account of the choice between hard and soft law, and is surely an important influence on the decision.” (p. 145). So I agree with the importance of these effects. This is an area in which work by legal scholars, informed by the existing international relations literature, could make a big contribution.

I find Kal’s second hypothesis – that some domestic constituencies prefer hard law over soft law because they think international law is quite a bit like domestic law and so want to see “real” treaties – more problematic. The argument would have to go something like the following. Human rights groups like Amnesty International lobby to get human rights treaties drafted, and to get states to join. They have a strong preference for treaties because they, in effect, confuse international law and domestic law, and so think that a treaty is much more effective, relative to soft law, than it actually is. It is implausible to think that Amnesty itself is fooled in this way, so we have to back up a step and look to those that support Amnesty. So it must be those that contribute time or money to Amnesty who are fooled in this way, and the folks that run Amnesty International pander to the preferences of that population, even when doing so does not serve the goal of advancing human rights. So the story ultimately relies on an assumption that the public is both the engine that drives outcomes (a treaty rather than soft law) and is fooled. But of course we can explain any actual or imagine outcome through this line of argument. If, for example, we observed that states seem to enter into soft law agreements more often than theory predicts, the explanation would be that the public just wants to see that the agreement contains desirable substantive terms and that the difference between a treaty and soft law is lost on them. Indeed, something very close to this argument is sometimes advanced to explain human rights treaties – the states that sign realize that the treaties will have little impact, but they sign anyway because domestic constituencies want to see that their governments are working to improve human rights and the treaties fool those domestic groups.

Arguments that rely on an unsophisticated but powerful public start to look like arguments that rely on unsophisticated policy makers, since the latter become a pass-through for the goals of the former. If it is assumed that the public (or other important domestic constituencies) think of international law as similar to domestic law, we are very close to an assumption that the public has a preference for compliance with international law generally. If this is acted on by decision-makers, we have recreated the traditional assumption that states have a propensity to comply with international law. This is a long-standing view among international law scholars and practitioners, and it retains significant support. For reasons explained in the book and familiar in debates about international law, I think it is a good idea to think about international law without making this assumption. For the same reasons I am reluctant to make assumptions about democratic constituencies that recreate the propensity to comply.

Raustiala on How International Law Works

by Kal Raustiala

The conversation thus far has been interesting, but I want to bring up some new issues that we have not yet discussed. I have long been interested in how international agreements work, in part because since the end of the Second World War (at least) international agreements have been the most significant source of international law, and in part because this is one of the more natural areas of overlap between international legal theory and international relations theory. For a long time both fields studied the same topic, but used different nomenclature: “regimes,” “treaties,” “institutions,” and so forth. Regime was the label preferred in IR circles, but as the late Abe Chayes often said, at the core of almost every regime is a treaty. Indeed, he claimed that political scientists were basically just afraid to use “the L word.” That fear is generally gone now, and one of the results is that we have an increasing supply of papers on the topic of how agreements actually work and why they look the way they do.

Andrew’s book delves into these topics on a number of fronts. I want to focus briefly an issue he raises in his opening post: the distinction between hard law and soft law. At one level is this is a narrow question about why we see different types of international agreements and what difference these types make.

At another level, however, this topic is emblematic of a larger issue, or claim, at the heart of Andrew’s approach. For the most part his analysis of international law proceeds as if “law” does not matter very much. What does matter is commitment, and he explores the different ways states make commitments and, most importantly, the ways they make those commitments credible to other actors. Law per se is not all that important to this discussion. Consequently, whether an agreement is soft law or hard law is, in his view, not very significant. As he says in his opening post, “there is no stark difference between the two.”

I find the term soft law largely oxymoronic. But to make things easier, I will use it here. Let’s first consider whether there is really is little difference between hard and soft law in terms of effects. The standard lawyers view is that a hard law agreement is more meaningful (more “binding”) than a soft law agreement. But since international law lacks the enforcement mechanisms of domestic law, what binding means in this context is hard to say.

For Andrew the answer is more commitment. He suggests that hard law is really no different than writing down a treaty on special red paper that everyone agrees means that a commitment is really, really serious. But at the same time he points out that the stringency of commitment can be varied by manipulating a whole host of treaty design features and by staking reputation in other, extra-treaty ways. As a result, whether an agreement is hard or soft doesn’t really matter all that much; it is the overall level of commitment that matters. It is definitely worth thinking about whether this claim is correct—that “law” in the international system is really just a way of saying, “I really mean it this time.”

To some degree I think he is right. In other work I have made similar claims to his about the design of treaties (see e.g. Form and Substance in International Agreements, AJIL 2005). But one problem with Andrew’s approach is that there is substantial evidence that governments pay a lot of attention to whether an agreement is legally binding or not, and they are very careful about labeling, or at least signaling, which is which. And since they possess other levers—other treaty design features—that enable them to calibrate the level of commitment, it isn’t clear why the hard law/soft law distinction matters so much to states, at least in Andrew’s worldview.

In short, the empirical behavior of governments suggests that there is some difference between the two that matters more than his theory suggests it should. The question is, from a rational choice perspective, what is the difference? First, a legally-binding commitment often leads to significant domestic effects, such as the need to get legislative approval. Governments have an incentive to choose hard or soft law in part because of these domestic legal effects. These effects are largely left out of his analysis, but they are clearly important.

Second, it may be that domestic actors, civil society, and other “constituencies for cooperation” think that international law is quite a bit like domestic law, and so naturally want to see “real” treaties rather than soft law substitutes. Governments rationally supply these treaties. There is some evidence for this claim; soft law agreements seem most common in technocratic areas in which domestic political groups don’t really have a strong presence. But this claim requires some further assumptions about these constituencies being unsophisticated about international law, and these claims maybe aren’t all that warranted.

There is more to be said about this, of course, but it worth thinking more about what role law per se actually plays in international cooperation and especially in international agreements. This question is a big one.

The Puzzle of Human Rights Treaties

by Andrew Guzman

I confess that I am a little surprised by the focus on methodological issues that has emerged in the discussion of my book. My intention was to adopt non-controversial rational choice assumptions widely used across both law and the social sciences. This approach to modeling behavior is dominant, for example, in both economics and political science. Equally relevant, there is an enormous literature debating the merits and demerits of the approach and the debates on the subject are, by now, well-worn and familiar. I fear that we are simply rediscovering what others, (international relations scholars in particular) have known for a long time. I do not mean by this that questioning the methods I or anyone else uses is out of bounds. But if I have indeed carried out a rational choice analysis of international law without doing violence to that methodology, I hope we can get beyond the question of whether rational choice is useful (it seems everyone agrees that it is) and whether it is the only thing that is useful (nobody thinks so).

Alex’ most recent post addresses the question of how reputation interacts with treaty ratification. As I said in my earlier post, the issue of ratification is an interesting and important one, but not one I focus on in my book. The most natural way to think of the decision to ratify is to imagine a trade in which each country makes a promise in exchange for the promise of its treaty-partner. With human rights treaties, however, this is sometimes not a persuasive explanation. Jeff Dunoff reminded us below that at least some human rights treaties feature a form of compensation in exchange for joining, but I doubt we can explain all treaties in this way. I suggested another explanation in an earlier post – perhaps for many states the cost of joining is very small, meaning the even modest benefits are enough to cause states to join. There was also a discussion of how reputation might influence the ratification of treaties. A country whose reputation understates its willingness to comply with international law (or perhaps with human rights treaties) might, under certain conditions, enjoy a reputational boost by signing a treaty and then complying with it.

All of these explanations, and more, are available to explain participation in human rights treaties. I remain, however, of the view that we lack a good explanation for these treaties generally. It may be possible to explaining them one at a time, but developing “just so” reasons for ratification does not amount to a theory. So where does that leave us? I think it leaves us with a puzzle about why states join human rights treaties. Alex asks if this fact signals a weakness in rational choice theory. That is hard to say. It may be that the solution to the puzzle simply needs to be identified, and that it will be found within a rational choice model. A persuasive critique of a rational choice approach on this basis requires, at a minimum, an explanation of how this puzzle is explained through some alternative methodology.

Reputational Limits Continued

by Alex Geisinger

I thank everybody for their comments regarding the reputational posts. I think this conversation has been excellent up to now and hope this post will add some substance as we approach, what seems to me, to be some agreement regarding the reputational element of rational choice. Before I begin, let me also be clear about my terminology. I agree with Andrew regarding the notion of internalization. To me, internalization is analogous to a preference change within a state (to the extent we assume a state can have a preference). As Andrew points out in his response to my earlier post, I believe there may be many different mechanisms at play in this process. However, given that I take my charge here to be to focus on the explanatory value of Andrew’s rational choice account of international law, I do not fully consider these alternative models.

So, to the extent we are testing the rational choice framework, I move forward with my thoughts in hopes to approach some understanding of the theory’s benefits and limits in the area of reputation. As I understand Andrew’s response, we are in general agreement that some force which we loosely call “reputation” exists and that it probably does a lot of “heavy lifting” when it comes to garnering human rights treaty ratification. I’m not sure there’s agreement on this but it seems fair to at least assume that if reputation affects willingness to ratify in human rights treaties, it also works similarly with regards to other types of treaties and perhaps in other areas of international law. I think, as well, we agree that a very parsimonious rational choice theory cannot fully account for the reputational force or that, at least, Andrew has not provided a full account of the reputational force as it applies to ratification in his book.

If we agree that the reputational force cannot be fully captured in a parsimonious theory, then the question I raise is how this limitation affects the explanatory power of the the theory as a whole? That is, if the reputational force influences state decision-making but we do not have a sense of exactly how this force works, doesn’t this limit the explanatory power of the rest of the rational choice theory? This is particularly the case if we assume the reputational force to be a powerful and pervasive one and is, of course, less the case if we assume the reputational force to be weak and of limited influence. My own sense is that the ability of the reputational force to do the “heavy lifting” in human rights treaty ratification suggests it can be a relatively powerful force. My own work in the area of norm development and origin also suggests to me that reputational forces are pervasive.

There is, of course, no doubt that Andrew’s elegant description of how rational self-interested states may create and comply with international law has great value. Among other things, he has provided us with a springboard for an important discussion of how rational choice theories explain international law. In his response to my earlier post, Andrew suggested that he believes reputational influences can, ultimately, be explained fully by rational choice theories. As my earlier post suggests, I believe that other processes may account for the reputational influence as well and I look forward to a continued dialogue regarding these issues. Before entering such a dialogue, however, I will ask for everyone’s thoughts on the issue I raise here regarding the limits of reputation in rational choice. I am, of course, also interested in knowing whether I have properly identified areas of agreement and disagreement and any other issues with my analysis.

Rational Choice and Broader Conceptions of International Law, A Response to Jeff Dunoff

by Andrew Guzman

Thank to Jeff for this thought provoking comment and his kind words about my book. I am not sure that my response addresses all his concerns, but I hope it at least speaks to some of them!

Let me first state that while I agree with much of what Jeff has stated in his post, I do not agree when he says that my conception of compliance presupposes a particular understanding of international law. My book’s central focus is an attempt to explain how a rule of international law can affect state behavior. I think that question would be relevant under any of the conceptions of international law Jeff mentions. Everybody agrees that the impact of treaties, soft law, CIL, and norms on behavior is a central question in international law. In that sense, I think the book sheds light on the field regardless of one’s view of the nature, purpose, or functions of international law.

I think Jeff’s post poses two quite different questions. The first is the familiar question of whether rational choice models are the one and only way to think about international law. The answer to this is clearly “no” as I say in the book and have said in earlier posts here at Opinio Juris. Liberal theories and constructivist theories, as Jeff mentions, have some claim to informing our understanding of international law. In some ways these approaches are also compatible with rational choice models because they can help to explain state preferences which serve as the input for those models. In other ways the different approaches are at odds with rational choice, of course, so to some extent we are forced to choose among methodologies.

The second question seems to be whether a rational choice approach can address international law issues that do not focus on compliance with legal obligations or that do not define compliance in the way I do. Jeff asks if rational choice accounts can be build upon conceptions of international law “that view it more as a process of authoritative decision making than as a bundle of rules, that focus more on the evolving trajectory of complex legal regimes than on the ratification of treaty norms.”

Rational choice, because it has an underlying theory and because it is not committed to inflexible doctrinal categories (e.g., hard law v. soft law), offers a way to think through problems and questions fairly systematically. So, for example, if one thinks of international law as a process by which decisions are made, a rational choice model insists that you make some assumptions about how that process works. Once you specify the decisions that interest you, and how they are made a rational choice approach gives you the tools to move from those assumptions to some conclusions. Other approaches might be able to do the same thing, of course. I find reasoning about international law problematic, regardless of the methodology, when it fails to identify its assumptions and does not tell the reader how it gets to its conclusions.

I do not know of any way to think about the “evolving trajectory of complex legal regimes” without a much stronger sense of what causes the regime to evolve, what are its component parts, and so on. The main problem with complexity, I like to say, is that it is so darn complicated. Rational choice models sometimes do a poor job with complexity but this is not because they feature rationality, but rather because they are models. The human brain does not handle complexity well, and so we use models, or simplifications, or maps, even when we do not do so consciously. Rational choice is a way of bringing order to our thinking because it offers some simple and plausible, if imperfect, assumptions about behavior. The resulting conclusions will be mere approximations of reality, but that is the inevitable result of any modeling process. Complaints about the fact that the models do not yield perfect representations of reality (to be clear, Jeff is not making such complaints in his comment) are misguided. We have no choice but to simplify. The question is how we will do it.

A Parsimonious Approach to (How) International Law (Works)

by Jeffrey Dunoff

How International Law Works [HILW] is a terrific book. For current purposes, I am less interested in the specifics of Andrew’s arguments than I am in his larger project – the explanation of international law in rational choice/game theoretic terms.

HILW employs standard rational choice assumptions, for example, that states “are rational, self-interested, and able to identify and pursue their interests.” The book’s goal is to explore, in light of these assumptions, “how international legal obligations might influence state behavior.” Much of HILW’s analytical and rhetorical strength lies in its relatively parsimonious model of state preferences, interests and behavior.

My interest is in whether there is a connection between the parsimony of these rational choice assumptions and the relatively parsimonious vision of international law that emerges in HILW? Consider, for example, HILW’s the discussion of treaties. HILW tells us that “states make commitments of their own in order to extract commitments from other states.” We might ask if rational choice approaches compel this understanding of the purpose of treaties — and whether this account of states’ motivations for entering into treaties is incomplete. For example, states sometimes enter into treaties to lock in domestic reforms. Many argue that the Salinas government joined NAFTA to prevent future Mexican governments from adopting policies hostile to foreign investment. Other times, states enter into treaties for reasons that have little to do with the treaty’s underlying subject matter. Consider the Convention on Long-Range Transboundary Air Pollution; most states who signed this treaty had little interest in acid rain but viewed the treaty as a vehicle to promote East-West detente. Finally, states may enter into treaties for expressive reasons or to embarrass other states – think of the Apartheid Convention – and may harbor few illusions that the treaty will actually change state behavior.

Similarly, HILW is centrally concerned with “compliance,” which the book seems to take as referring straightforwardly to behavior in conformity with treaty obligations. But as Kal Raustiala, Ben Kingsbury and others have persuasively argued, the concept of compliance is hardly straightforward. Rather, the significance of behavior in conformity with rules will vary significantly depending on how one understands the nature, purpose and functions of “international law.” Traditional positivist accounts are rule based. But there are competing process-based views, including the New Haven School’s vision of law as a process of authoritative and controlling decision making, and recent accounts that understand law in terms of a transnational legal process. Other approaches would include liberal accounts, which focus on the compliance as resulting from particular constellations of domestic political forces, and competing constructivist accounts. The point is that any particular conception of compliance presupposes a contested and controversial understanding of international law.

So I think the larger methodological issues HILW raises relate to the relationship between any particular understanding of international law and efforts to construct game-theoretic accounts of how international law works. Can rational choice shed light on which of these competing theories of international law to embrace? More importantly, does the parsimonious rational choice account of state behavior drive the book’s conception of international law — or does the parsimonious conception of international law drive the game-theoretic analysis that follows? In other words, might the very definitions of relevant issues, actors, and preferences in rational choice accounts depend on an unacknowledged (and controversial) conception of the preexisting international order? HILW’s focus on, say, treaties rather than evolving international regimes; on sovereign states to the virtual exclusion of other relevant international legal actors; and on compliance as conformity with rules all presuppose a particular—and controversial— vision of the international legal order.

In short, can rational choice accounts be built upon conceptions of international law that view it more as a process of authoritative decision making than as a bundle of rules, that focus more on the evolving trajectory of complex legal regimes than on the ratification of treaty norms, and that understands compliance not simply as a matter of rational calculation but also as a product of internalized identities and norms of appropriate behavior. If the answer to this inquiry is “no,” than we can understand HILW as an important illustration of both the promise – and the limits – of rational choice explanations of how international law works.

More on Human Rights and Rational Choice

by Andrew Guzman

I think the discussion of rational choice explanations for human rights treaties has become a little muddled due to a lack of clarity in terminology. In particular, two terms need to be clarified. First, a “rational choice” approach implies an approach in which states have preferences which are complete, transitive, and stable. In my book and in almost all rational choice discussions, there is an additional assumption that states are unitary actors. This last assumption is sometime relaxed in an ad hoc way to explain some particular feature of the world that is otherwise difficult to get at. Like many others, I do this from time to time in my book.

Roger’s last comment on human treaties looks to a domestic law explanation for American participation in the CEDR. It is appropriate to call this a rational choice explanation, and it may well be the best explanation we have. The problem for creating a theory of international law is that this domestic influence does not generalize easily. To be sure one can observe that domestic politics matters and that virtually anything states do is affected by them. This is close to what liberal theories attempt to do – they look to domestic interest groups and politics to explain events. Ideally, we would have a model of domestic politics that would explain the preferences of states at the international level. Unfortunately we do not have a strong enough theory of domestic politics to go much beyond the statement that they matter. We have only a very crude understanding of when one domestic view will trump over another.

The other term I want to mention is “internalization.” When Alex used this term I took him to be referring to preferences formation, akin to the argument Harold Koh has advanced for why international law is complied with, the work of Goodman and Jinks, and the views of constructivists in political science. If preferences can change they lose their transitive property, and so are no longer rational. I discuss constructivism briefly in the introduction to my book, and in the interests of space will not repeat myself here. It is enough to say that constructivism is a difference approach that needs to elaborated and evaluated on its own terms. We cannot do that in a serious way here.

When Roger uses the phrase “internalization of a norm” he is thinking of the impact of domestic politics. When I use it I mean that domestic preferences can be changed by international law (or international norms). I do not think we disagree very much beyond this semantic difference.

Finally, I should add that my preference, as evidence in the book (and elaborated in the first chapter), is to stick with the assumption of a unitary state. To be sure, this reduces the flexibility of the model, but that is a virtue, not a vice. If domestic concerns are allowed in, almost anything can be explained with a wave to interest group politics. To think seriously about domestic politics, then, requires a careful inquiry into specific events; a practice best suited to positive explanations of individual past events rather than general models of behavior.

Rational Choice Explanations for Human Rights Treaties

by Roger Alford

Let me just offer a quick additional reflection on the question of whether rational choice theory may help explain the conundrum of why states sign human rights treaties.

The easiest explanation is when the human rights commitment is bundled together with other provisions in a treaty, and the cost of making the human rights commitment is offset by other benefits derived from the treaty. The Helsinki Accords are the obvious example, with the USSR receiving significant benefits from provisions such as the territorial integrity of States, while committing itself to respect for human rights and fundamental freedoms. The rational choice explanation is obvious within the confines of the treaty itself.

Most human rights treaties are not of this nature. As for free-standing human rights treaties, a rational choice assumption would be that the cost of adhering to a human rights treaty must be offset by some greater good external to the treaty. Two possibilities come to mind, one international and the other domestic. In some cases, a country may wish to sign a human rights treaty to procure some greater international benefit. For example, the choice of some eastern European countries to sign the European Convention on Human Rights can be explained by their desire to secure admission to the European Union. And of course, foreign aid is often conditioned on adherence to human rights treaties. It is quite rational for developing countries to make human rights commitments for the sake procuring foreign aid.

In other cases the benefit may have nothing to do with international relations. If I understand Andrew correctly from his last post, he assumes that the internalization of a norm is a departure from rational choice assumptions. I’m not sure this is correct. I would think that a state could make the rational choice to suffer the cost of adhering to a human rights treaty in order to secure a domestic benefit. The 1965 Convention on the Elimination of All Forms of Racial Discrimination is a good example. CEDR was pushed through the General Assembly by a majority bloc of newly-independent developing countries from Africa and Asia. But there is a rational choice explanation for why the United States quickly came on board: the international cost of adherence was offset by a domestic benefit. The Johnson Administration was under intense domestic pressure from the civil rights movement to show progress on racial equality, and adherence to an international treaty was one such clear signal.

Rational choice explanations of international law cannot divorce international costs from domestic benefits. All that matters is that there is some rational explanation for why states make international commitments. The explanation may be of a horizontal nature between nations, or of a vertical nature within the state itself.

Formation of Human Rights Treaties, A Response to Alex Geisinger

by Andrew Guzman

Alex Geisinger’s thoughtful comments return to some of the themes I touched on in my earlier response to Roger Alford. Alex is more forceful, however, challenging whether the theory I advance is able to account for the role of reputation in treaty formation.

I think the place to begin here is some terminology. The use of the term reputation invites confusion, and there may be some of that confusion going on here. In the book (and here) I use the term to refer to a reputation for compliance with international commitments. That is, the project takes as its focus the ability of states to make credible promises. Just as private parties find contracting valuable, states find it valuable to exchange promises. So the main thrust of the book is directed at the question of when those promises are credible.

Roger and Alex both pull at a different notion of reputation – one for cooperation more generally, or perhaps for participation in international human rights treaties. It is clear that there is no legal obligation to join a human rights treaty, but there may be political pressure or some other incentive at work. Alex seems to be on board with the notion that states join such treaties in order to advance their own interests, stating that states seek “material benefits somewhere down the line.” I agree. One reason I find human rights treaties so puzzling is that it is devilishly hard to figure out just what it is signatories think they are getting. Alex suggests some possibilities – to obtain aid, to signal a willingness to cooperation, to signal that membership in a group is valuable, to signal a low discount rate. We can certainly identify instances in which membership comes with some clear benefit of aid or other support, but there are many examples where that is not true. The problem with signaling stories was already discussed in my response to Roger: the signal must be costly and if you subsequently violate the agreement, the net impact on whatever it is you are trying to signal will be negative.

Alex mentions one additional possibility – the internalization of a norm. This is a departure from rational choice assumptions, and for that reason is not discussed in detail in the book. In some instances some sort of norm internalization (or, in economist-speak, a changing of preferences) seems a plausible explanation for some countries. It is hard to imagine anyone signing the CEDAW 50 years ago, for example. The norm internalization story, however, does not help us to understand why states sign treaties that they are almost certain to violate. If the relevant norm were internalized, would it not manifest itself in domestic policy too? It seems to me that not only is it hard to understand human rights treaties in a rational choice model, it is hard to explain them using any methodology.

Turning back to Alex’ question – can a rational choice theory account for treaty formation. I am confident that the answer is “yes” in the sense that thinking of treaty formation in rational choice terms makes sense to me. Indeed, that is how Roger, Alex, and I have been discussing it here. A slightly different question is whether I have addressed treaty formation in the book. To that question I would answer “sort of.” As the last paragraph in my response to Roger indicates, the book does explore some of the relevant issues, but not all of them. There is much more to be said on this issue, and it strikes me as important for our understanding of international law and international relations. And if someone has a good explanation for why states sign human rights treaties, I invite them let me know and we can co-author the paper on it!

Reputation and Rational Choice: Some Limits?

by Alex Geisinger

I’d like to thank everyone involved for having me. I, too, look forward to an engaging discussion.

Let me state from the outset that I agree with Professor Guzman regarding the nature of the debate. I believe there are interesting things to be learned from rational choice approaches as well as from constructivist and other approaches to international law. I have just finished a review, along with my co-author, Michael Stein, of How Rational Choice Works for the Michigan Law Review and much of the review we wrote reflects this general point.

I thus begin my first inquiry into the book by considering what Professor Guzman himself describes as the parsimonious vision of international law he develops in the book. In particular, I query the usefulness of a theory that models treaties solely on cooperation or coordination games and leaves reputation to playing a role only as a force of compliance. I see that Professor Alford has gotten to some of this ahead of me but I hope that my post can add some additional thoughts regarding the specific limits of parsimonious rational actor theories.

To make my concerns clear, I’d like to turn to the area of human rights treaties. If I am correct in my understanding of Professor Guzman’s parsimonious structure, such treaties will only come into existence if they further the direct interests of states. Put another way, a state will ratify a treaty only if ratification advances directly its own interests. (I will discuss my use of the word “directly” below). Of course, as Dean Koh has suggested previously (and as Professors Guzman and Alford have begun to address), it is hard to understand human rights treaties within the framework of coordination and cooperation. Professor Guzman suggests in his book that human rights treaties can be explained within this framework because the preferences of a number of states after World War II have evolved to include a preference for a provision of human rights to the citizens of other states.

This observation, to me, gets us about half-way there. We still have to account for why ratification advances the interests of those other states. It seems to me that the hidden assumption that makes entering such human rights regimes worthwhile for these other states is the recognition that entering such regimes will provide direct material benefits such as aid. The problem, of course, is that most treaties don’t provide such direct benefits.

Where I am left, then, is that the other states are ratifying human rights treaties because they perceive these treaties to provide them with benefits somewhere down the line. This, to me, is “reputation”. Yet Professor Guzman’s parsimonious rational choice theory cannot account for this reputational concern for two reasons. First, reputation is left to playing a role in treaty compliance only. Second, reputation as Professor Guzman describes it, is simply based on reputation for complying with obligations. Yet, as the foregoing analysis suggests, “reputation” must play some role in creating the (treaty) obligations in the first place.

So, if my account is correct, the problem with theories that model state behavior only in terms of cooperation and coordination, is that they can’t account for some other mechanism of treaty ratification that we loosely call “reputation”. That is they don’t explain the mechanism whereby other state ratifies human rights treaty because other state believes ratification will provide material benefit somewhere down the line. It may be that ratification creates future benefits by signaling a state’s general willingness to cooperate, a state’s value of group membership or a state’s discount rate or that ratification reflects the internalization of a norm. Professor Guzman seems to pick up on some of these former mechanisms, when he responds to Professor Alford that treaty ratification can send a signal if it is costly enough. All of these seem fruitful areas for analysis. However, my understanding is that a parsimonious rational choice theory (such as the one Professor Guzman so elegantly and valuably develops) does not explain state behavior in this situation because it limits reputation to a role as a force of compliance based on signaling a willingness to adhere to already existing obligations. Moreover, I would suggest that, the benefit of human rights treaties is that they throw these reputational influences into relief. However reputational influences are probably not limited to playing a role just in human rights treaty ratification. It seems likely that, to the extent reputation plays a role in human rights treaty ratification it plays a role in ratification of other treaties as well. If this is a correct reading of the parsimonious theory, am I wrong in my observation that it cannot account for the role of reputation in treaty formation?

I hope in my effort to be clear I have not sounded too forceful and I look forward to all responses.

Reputation, Human Rights, and Humanitarian Law, A Response to Roger Alford

by Andrew Guzman

Thanks, Roger, for these great comments. You have put your finger on the broad area of international law that presents perhaps the greatest puzzle for all our theories of international law and international relations – human rights and humanitarian law. Agreements in these areas are (usually) very difficult to characterize as quid-pro-quo exchanges in which each party accepts obligations in order to get the other party to do the same. It is hard to believe, for example, that repressive regimes join human rights treaties to ensure that Norway respects the rights of its citizens. So these treaties must be motivated by something else, and I think it is fair to say that the field is still searching for a satisfying explanation of what that something else is. The trick is to explain the participation of states with good human rights records (what do they stand to gain) and those with poor human rights records (why would they accept obligations they are almost certain to violate).

We can say a couple things, though. First, a state only achieves a reputational gain by joining an agreement if doing so represents a costly signal. If New Zealand would comply with the ICCPR whether or not it was a party, the fact of its joining provides no information and so cannot help its reputation. The same is true for the International Criminal Court. Switzerland is a party to the ICC. If it is implausible that Switzerland will ever run afoul of its ICC obligations, then Switzerland cannot achieve a reputational gain for joining. Notice that we are assuming a prior belief that Switzerland will not violate its obligations under the ICC. This means that there is no new information when Switzerland joins, and there is no reputational gain with respect to compliance because by assumption the legal obligation is not affecting behavior. This is an important point because it is sometimes argued that states join human rights treaties that they expect to violate because it gives them some sort of reputational gain and there is no enforcement (or no transparency with respect to their violations). The signaling model behind this argument, however, requires that it be costly to send the relevant signal. If the signal is costless, it serves no purpose.

So why, then, would Switzerland join the ICC? Good question. My guess is that it did so because it was very low cost (since violation is spectacularly unlikely) and because it sought to demonstrate some vague support for the idea of setting up the court. These are quite modest benefits, of course, and so the claim is really that the issue was very minor for Switzerland, but some small gain was enough to get it to join. This could be as little as wanting to do something to help an ally and thereby improving relations, for example. Where the costs and benefits of joining are small enough, of course, motivated states may be able to tip fence-sitters into a treaty at relatively low cost. It is conceivable to me that this is part of the explanation for some multilateral treaties that have large memberships consisting of many states that are not affected by the relevant obligations.

But your point about there being a reputational cost associated with a failure to enter into an agreement is, I think, exactly right. A refusal to join a treaty may signal a reluctance to live up to the content of the treaty. This can provide information to observing states. Though there obviously would be no treaty violation, a state that refuses to participate may signal that it is or will be in violation of a related rule of CIL, or simply that it is not willing to cooperate in a given area. This latter situation would not, strictly speaking, be a loss of a state’s reputation for compliance with international law, but it might nevertheless be a costly loss of reputation for cooperation. This certainly seems to be what has happened to the United States with respect to both the ICC and the Kyoto Protocol.

So as you suggest, Roger, there is a close connection between accepting an international legal obligation and complying with it. My book does discuss how joining a treaty can help a country to gain reputation, and how the presence of a treaty can serve to separate states into those that can comply relatively cheaply and those for which compliance will be more costly. It also addresses the need for signals to be costly. There is more to say, however, than what the book covers. To give just one thought off the top of my head: When presented with an agreement a state may lose the status quo as an option – it must either join or declare its refusal to join. If it joins it then faces consequences in the form of reputational losses if its defects. Throw in the fact that joining happens today and the potential violation is in the future (and may never occur), and you can see that the problem gets interesting very quickly. I want to lay claim to having recognized some of this in the book, but also agree that there are interesting question in the “issues for future research” category.

Reputational Capital and the International Criminal Court

by Roger Alford

Guzman’s book is an extremely useful addition to the literature, offering a rational choice explanation for compliance with international law. I think his three Rs of compliance (retaliation, reciprocity, and reputation) accurately reflect the best arguments for why states comply with international law.

But as I was reading the book I was struck by the fact that none of the three Rs really applies with respect to certain multilateral treaties, such as the Rome Statute establishing the International Criminal Court. As you indicate, reciprocity and retaliation are not particularly effective tools in the multilateral context, (pp. 64-68), and there is no reason to think they would be in the specific context of the ICC.

As for reputational sanction, for most states there is a reputational payoff in joining and complying with the ICC, with little to no cost. For the overwhelming majority of states, it is a cost-free treaty because there are no nonreputational payoffs for non-compliance. The only states for which reputational sanction is even possible are those states willing to commit military forces to promote international peace and security. (Rogue states presumably care little about reputational harm). For those states, there is the constant risk that if it signs onto the Rome Statute and engages in any conduct that arguably is a violation, it will have a reputational cost. The calculus may be that it is better to avoid the obligation than suffer the possibility of reputational harm.

You suggest that a sensible model of reputation building cannot lead to the conclusion that Bolivia, a landlocked country, can improve its reputation simply by committing to keep its ports open. (p. 74). But that is exactly the situation for the overwhelming majority of states who have signed the Rome Statute. They enjoy a reputational payoff simply by adhering to and complying with a treaty that costs them nothing.

How so? Reputation is relative, and states sitting on the sidelines enjoy a reputational enhancement for signing onto the Rome Statute as they watch the reputation of states in the theater of conflict diminish for failing to sign. Thus, reputational harm applies not only for violating international law, but also for refusing to be bound by it. Conversely, there is a reputational payoff for consenting to be bound to a high profile, cost-free treaty.

Rather then the reputation of the United States enhanced for its willingness to commit forces abroad to maintain international peace and security and provide collective self-defense, its reputation for compliance with international law is diminished simply for refusing to abide by rules that functionally apply to only a very select group of states. (I of course am not talking about the separate reputational harm to the United States for its misuse of military force, in some cases in violation of international law).

I know that reputation is multi-faceted, and you are focusing on the reputation for compliance with international law. But it seems that the reputation for adherence and compliance to international law are closely connected, or at least more closely connected than you suggest in your book.

Opening Comments on How International Law Works

by Andrew Guzman

Let me first thank Peggy McGuinness and everyone at Opinio Juris for this wonderful opportunity to discuss my book. I also want to thank the commentators, Jeff Dunoff, Alex Geisinger, and Kal Raustiala for their willingness to participate. I know that I will benefit from the discussion. I hope that the commentators do as well, and that readers of the blog both enjoy the discussion and are encouraged to read my book!



Let me start with a few words about the methodology used in How International Law Works: A Rational Choice Theory. As the title states, the book adopts a rational choice perspective. This reflects my view that such an approach is a (but not “the”) fruitful way to think about the subject. My embrace of a rational choice methodology should not be mistaken for a dismissal of other approaches. I believe that the best way to make progress in our study of international law is to identify a set of assumptions (in this case, rational, unitary states) and see how far those assumptions take us. Proponents of other approaches, including constructivists, realists, proponents of liberal theories, and so on, are doing the right thing when they, too, state their assumptions clearly and follow where those assumptions take them. In the end our understanding of the international system will surely involve some combination of these approaches, but we cannot hope to think about a synthesis unless we understand each approach first. So my book attempts to stick with a rational choice approach, though I admit it occasionally alters those assumptions (transparently, I hope) when the world seems inexplicable under the assumption that states are rational actors.



The book aims to speak to all those interested in international law, from skeptics to traditionalists and everyone in between. The message a reader takes from the book, however, is likely to depend on his or her perspective. For traditional scholars of international law the book seeks to advance the claim that much of the discipline can be explained with a small number of fairly conventional (i.e., rational choice) assumptions. Sticking with a parsimonious set of assumptions allows us to develop tractable theories of how international works and how it might work better. For example, the theory of compliance developed in the book relies on what I call “The Three Rs of Compliance” – reputation, reciprocity, and retaliation. Understanding these forces tells us something about when states comply and why they do so. It also helps distinguish the doctrinal claim that all international law is equally binding from the predictive claim that some forms of international law (e.g., treaties rather than CIL) will tend to exert greater “compliance-pull” than others. This emphasis on theory and assumptions leads to a number of conclusions that differ from conventional accounts of international law. I argue, for example, that there is no sharp distinction between the effect of soft law and hard law; that CIL should allow for subsequent objectors as well as persistent objectors; and that states do not always want to increase, rather than decrease the credibility of their promises. So the book tries to persuade traditionalists that this sort of theoretical approach can illuminate our understanding of the field. Without denying the importance and value of detailed, fact specific inquiries into events, the point here is that it is also useful and productive to think in more theoretical terms in order to get a sense of how the system works.



The book delivers a similar message to those with constructivist views or those whose first response is to consider the specifics of institutions or domestic politics. Each of these perspectives yields very fact-specific inquiries which are often difficult to generalize. The book tries to show that a general theory of international law is possible and, indeed, necessary to understanding the system.



A very different message is aimed at skeptics of international law. I have in mind commentators who use rational choice assumptions essentially identical to those I adopt in the book – that states are rational and selfish. The book lays out a theory of international law that is consistent both with these assumptions and with a world of robust and effective international law. The discussion explains how international law can affect state conduct, why states choose to enter into international law arrangements, and why international law sometimes fails to constrain states.



Both of these messages are intended to achieve the same result, which is to strengthen the study of international law. International legal scholars have at times had difficulty answering critics because the field lacks a coherent and comprehensive theory. There are, of course, theories addressing various aspects of the subject. But I think it is fair to say that no existing theory can be applied to the full range of international law questions. The only exceptions are theories that simply assume a propensity to comply with international law, thereby dodging one of the most central questions in the field.



This book seeks to build a comprehensive theory of international law. It not only helps us to understand that field, but also strengthens the ability of international legal practitioners and academics to explain why the subject matters, and why it is an essential tool for addressing so many of the world’s problems.



The foundation of the project is a theory of international law based on the already mentioned Three Rs of Compliance. Though each of the Three Rs is important, the book devotes the most space to a discussion of reputation. The role of reputation has been familiar to political scientists (among others) for some time, but the discussion of reputation in the book moves us forward in thinking about how reputation affects international law and when reputation is likely be most (or least) effective. One example is the challenge of multilateral cooperation (e.g., climate change). Unlike retaliation and reciprocity, reputational sanctions do not suffer from free rider or credibility problems and so may be able to deliver cooperation that would not otherwise be possible. I am obviously not the first to discuss the role of reputation, but I think the book advances a more complete account of how it generates compliance, how it is accumulated, and how it can be lost.



The book then turns to look at the sources of international law, in particular international agreements and customary international law (CIL). With respect to CIL I explain how customary rules can come about and how their status as law can cause them to influence behavior. The basic idea is that once a norm comes to be viewed as a legal requirement, the stakes in terms of reputation, retaliation, and reciprocity are raised, making it more costly to ignore that rule. This mechanism allows CIL to influence behavior. If one adopts this view of CIL, however, it becomes impossible to retain the conventional definition of CIL as opinio juris and general practice. The theory states that CIL matters because other states believe that a state has a legal obligation. This means that a form of opinio juris – specifically the views of observing states – is what “creates” CIL. Practice has no relevance. So the theory tells us that we should discard the conventional definition of CIL which, in any event, is impossible to reconcile with the way CIL is often used by courts, commentators, and states. The easiest (but not the only) example is torture which is widely practiced and yet considered to be CIL. My functional theory of CIL avoids this disconnect between theory and practice.



The book also includes a chapter entitled International Agreements. The name of the chapter foreshadows one of the claims I make – that there is no stark difference between “hard” treaties and “soft law.” Rather, states select from these alternative levels of commitment, much like they select the other features of their agreements – dispute resolution, escape clauses, substance, and so on. One immediate payoff is that we can (and should) use the same models and theories to study both types of agreements. In fact, the discussion of hard and soft law is just one example of how states trade off various design features against one another. They may opt, for example, for weaker substantive provisions but a more robust form; or they may include strong substantive provisions, but also have generous exit and escape clauses. All of the features of the agreement are negotiated at once, and must be considered together.



The discussion of agreements provides an explanation of why states enter into agreements, what they hope to get, and how treaties work. It also attempts to explain many of the features of agreements, including the scope of the agreement, the depth of the agreement, the number of members, and more. Let me illustrate the style of argument by summarizing what the book says about the scope of agreements. I begin with the assumption that the transaction costs of entering into an agreement grow larger as the scope increases, and that this causes states to prefer the narrowest possible agreement. This gives us a default position – that we should expect agreements to be as narrow as possible. I then relax this assumption in three different ways to explain why we observe treaties of varying scope. First, states may broaden the scope to increase effectiveness – it makes little sense to have an agreement on tariff barriers if you do not also restrict non-tariff barriers. Second, a broader scope may be needed to construct the transfers necessary to reach a consensus. In intellectual property, for example, after years of failed attempts to get an international agreement the United States and others succeeded in getting the TRIPs agreement at the WTO because they were able to offer developing countries concessions in the form of market access and a cessation of unilateral measures. A competing view is that the United States was able to threaten developing countries with exclusion from the trading system if those countries rejected TRIPs. Though these two versions of events differ, both describe a situation in which broadening the agreement to include both intellectual property and trade allowed negotiators to transfer value in ways that generated agreement. Finally, there may be economies of scope that justify a broader agreement. If trade in goods is to be discussed at the WTO, it makes sense to also discuss trade in services as this avoids having to duplicate many of the features and functions of the WTO.



Let me very briefly return to a couple larger themes. I hope readers will come away thinking of the Three Rs of Compliance as the key forces that make international law work, and that they will have a better sense of when and how each of these functions. With respect to the sources of law, the book attempts to explain that the various ways in which legal obligations come about are different points on a spectrum of commitment. The stronger the commitment, the higher the cost of violating international law, and the stronger the compliance-pull provided. This view is quite different from the more traditional view under which treaties, soft law, customary law, and mere norms are all considered to be distinct creatures. Other boundaries also fade when we take a rational choice approach to international law. It is impossible to sustain a view of international legal commitments as being binary in the sense that states are either “bound” or they are not. Instead, we must again think in terms of degrees of commitment. A formal treaty is traditionally said to bind a state, but at times the cost of violating that commitment will be quite small. A soft law agreement is normally considered to not be “binding” and yet may have a profound effect on behavior because a failure to comply would be costly. The more one thinks about international law through a rational choice lens, the more traditional distinctions fade into differences of degree. Surrendering old categories can be uncomfortable, because one’s sense of order is disturbed, but if the field is to advance it must seek out stronger theoretical foundation, even if doing so forces us to rethink long-held views. Hopefully this book represents a step in that direction.

Mapping the Future of the Middle East

by Chris Borgen

Mapping the Evolution of States and Empires

by Chris Borgen

Why I Disagree with Marty Lederman About Prosecuting Waterboarders

by Kevin Jon Heller

Final Thoughts

by Walter Russel Mead

Once again, thanks to Roger Alford and everyone else involved with Opinio Juris for a rich discussion and an excellent example of how the Internet can facilitate in-depth exchanges.

I wrote God and Gold hoping to set off a conversation about some important and often uncomfortable truths:

that the modern world has developed under the auspices of an ever growing and deepening system of politics, culture, economics and ideology rooted in capitalist social organization and Anglo-American power;

that this long era of Anglo-American predominance in world affairs rests in large part on a unique cultural fit between those societies and the challenges of rapid capitalist development;

that this cultural fit is best understood in the light of a dynamic religious sensibility that infuses both orthodox and heterodox religious faith in the Anglo-American world;

that this religious sensibility continues to shape the perceptions and values of secular as well as religious people in the United States today;

that both the cultural and the geopolitical conditions of today’s world seem favorable to the continuation of the “American era” in world affairs well into the present century;

that much of the world objects to various features of this international system and that these objections are often deeply rooted in cultural and political preferences which will not easily or quickly be changed (and which in any case many people want to preserve);

that the Anglo-Americans are not and often have not been wise, generous or just in their use of the power they’ve achieved;

that the very cultural qualities which have helped make the Anglo-Americans so strong tend to blind them to certain important features of the emerging world system;

that the accelerating social and technological changes which liberal capitalism promotes are simultaneously liberating and destabilizing;

that while it is impossible to predict where all this is heading, humanity seems fated to continue along this path.

At least from where I sit this does not look like a triumphalist message. I respect the power of Whig optimism to shape world affairs, but I cannot share the easy optimism that the Whig tradition promotes. My own view of the future is a bit darker and more Delphic than the intoxicating and enticing visions of a peaceful, stable and democratic world order resting on capitalism and the rule of law which so many British and American observers have thought they discerned during the last couple of centuries. I honestly do not know where all this will end, and I am sometimes staggered at the perils we face.

In the end I do share the Abrahamic faith that all the turmoil and trauma of human history will lead to something greater and richer than anything we now know, but I suspect that the consummation of history will be something more unsettling and unexpected than a peaceful and easy transition to the Paradise of Whigs.

What is the Future of Global Institutions and International Law?

by Walter Russel Mead

This is the question Peter Spiro poses in his response to God and Gold. While noting that I call for an ‘organic, Burkean evolution’, he wonders whether I’ve given full weight to the role these institutions need to play, not as utopian solvers of humanity’s many problems, but as ‘the arena for addressing the problems of global society.’

It’s a probing point and a thoughtful question. It would be even more probing and thoughtful if he asked me what I thought about global institutions as an institution rather than as the institution for addressing the problems of global society. That is, I think global institutions and international law will continue to develop as international society becomes more complex and the affairs of nations and peoples become more entangled – but I will be very surprised if this development becomes the predominant force in international life.

A tendency in world politics that I think the US media sometimes misses is the resistance to global institutions – not by the US, but by countries and cultures who feel that global institutions do not fully reflect their values and priorities. Thus East Asian countries since the currency crises of 1997 have been working to marginalize the World Bank and the IMF in favor of home grown organizations and networks. ASEAN, in southeast Asia, has increasingly displaced global institutions in the region. The African Union, with all its shortcomings, is where many Africans prefer to see African issues addressed; with the former colonial powers of France and Britain holding permanent seats on the Security Council, many Africans see the power of global institutions like the UN and the IMF as relics of the colonial era. Many Islamic countries are also looking for a growing role for regional groups (like the Gulf Cooperation Council of Arab countries on the Gulf) or groups like the Organization of Islamic Countries. The European Union has largely marginalized global institutions when it comes to issues affecting relations among its members; EU members in disputes with each other go to Brussels rather than to New York to seek solutions.

There’s another problem. Global institutions are and are likely to remain very inefficient and hard to reform. The veto system in the Security Council, the utter fecklessness of the General Assembly, the poor management of much of the UN bureaucracy, the demonstrated inability of global institutions so far to come to terms with problems ranging from Darfur to climate change: all this will reduce their influence into the future. I am not happy about this, and I fear that this means that many serious problems will not be addressed, but I think the most likely future is one in which global institutions continue to play a limited, frustrating and partial role.

Peter’s question about global institutions is part of a broader concern. He worries that I could be too state-centric both with respect to supra-national organizations like global institutions and sub-national or trans-national organizations based on tribal, religious or other cultural or issue-oriented groups found within the boundaries of a particular state or scattered across many states.

I guess I’d say in response that God and Gold isn’t as state-centric as Peter’s read would suggest. The emphasis on culture and civilization in the book goes well beyond the nation state. The analysis of relations between the Islamic world and the Anglo-American project, for example, isn’t limited to a state-to-state analysis. God and Gold highlights the importance of culture in world politics; this factor can operate at the level of states, but it operates at other levels too.

Kosovar Declaration of Independence Imminent?

by Chris Borgen

Another Congolese Warlord in ICC Custody — and Sloppy Reporting by the ICC

by Kevin Jon Heller

The Meaning of It All

by Roger Alford

The final section of God and Gold addresses the question of why Anglo-Saxon optimism has so often been wrong, and what three centuries of Anglo-Saxon success means for world history. Much of this section focuses on American misapprehension of liberal capitalist democracy. While Americans think of it as a way to promote social peace and stability, they fail to appreciate how it also produces an accelerated pace of social, economic, and technological change. This acceleration is not always welcome in other societies, as they struggle to cope with the change, must less welcome it. (p. 16).

If one takes the long view of Anglo-American power, one can see the last sixty years of American primacy not as an isolated period in world history, but rather the latest stage in the long-term development of the maritime order. It is impossible to think clearly about questions of American power and world order today without grasping the story of the long rise of the maritime system. The history of the maritime system is the best available guide to America’s history, its current situation, and the choices that confront it. (pp. 343-44).

Far from a civilization in decline, the American maritime system is stable. The real lesson of history is that there is nothing inevitable about the decline and fall of civilizations, and that the outlook for civilizations and cultures can be transformed on short notice. Great civilizations don’t fall, they are pushed, and it takes an unusual combination of circumstances for a whole civilization to be pushed past its breaking point. (p. 347).

A narrow focus on the American world role gives something like sixty years of precedent and experience. But if we look back at the whole rise of the maritime system we find a much richer historical memory. American power seems more deeply rooted in the structure of world politics than it does when one looks at the United States alone. The United States is the leading state in a power system with a three-hundred year history, one that has flourished under many different sets of conditions. (p. 359).

The protocols of the elders of Greenwich remain the key to world power. Develop and maintain an open, dynamic society at home; turn the economic energy of that society out into world trade; protect commerce throughout the world and defend the balance of power in the world’s chief geopolitical theaters; open the global system to others, even to potential competitors in time of peace; turn the system against one’s opponents in war; promote liberal values and institutions wherever one can. This plan works and those who stick to the plan will prosper and triumph. (pp. 360-61).

The greatest disaster that came upon the United States did not come from blunders in carrying out a sea-power program. Vietnam and Iraq were disasters, but they pale before the horrors brought on by isolation, abstention, and the foolish neglect of our responsibilities abroad. (p. 362).

The study of the history of the maritime order can help us think more clearly about the relationship between the Anglo-Saxon powers and the world of Islam. Waspophobia has swept the world before, and history teaches that this struggle need not be a struggle to the death. (p. 366). In the end, when and if Islam makes its peace with the dynamic society, it will do so in the only way possible. It will not “secularize” itself into a mild form of atheism. It will not blend into a postconfessional unity religion that sees all religions as being fundamentally the same. Rather, pious Muslims of unimpeachable orthodoxy, conspicuous virtue, conservative principles, and great passion for their faith will show the world what dynamic Islam can be. (p. 372).

The imperatives of history force the world’s civilizations into contact with one another. Whether they like it or not, all civilizations today are condemned to live in close contact, to deal with one another, and to affect one another. The first four years of the administration of George W. Bush were almost a textbook example of the dangers that American foreign policy faces when it ignores the enduring importance of collective recognition in international life. The Bush administration seemed to glory in its relative isolation and its capacity for unilateral action, and it was only too happy to remind countries like Germany and France that they were not the great powers they had once been. With gratuitous slights and grandiose posturing, the likes of Donald Rumsfeld made American power odious in much of the world. It risked disturbing old ghosts best left to slumber in peace. (p. 378).

In the years ahead, we can expect some significant and hopefully benign change in American policy and attitude, but these will fall well short of what America’s most impassioned critics want. In the future we can anticipate a situation that will satisfy no one. The Whigs will not build a global Tower of Babel, a single set of laws and values that overshadows the whole world, but those who resist and oppose Whig civilization will be unable to free themselves from its presence. (pp. 386-87).

We face a quintessentially Niebuhrian situation. The Anglo-American Whigs, caught up in the enthusiasm for their global project of liberation and development, cannot lose sight either of the ways their project affects others, or of the roots of their ideology in their own culture values and interests. And yet the awareness of the conditionality of that project and of its actual and potential drawbacks and limitations cannot and should not affect their core commitment to their values, values that continue to power the global activities and transformational agenda of the maritime order. (p. 394).

Conservatives as well as liberals need to internalize the Niebuhrian stance, and mass public opinion as well as elite debate should reflect those values. Such values can only be sustained if they have wide and deep support. Evangelical Protestantism is the one social movement in the United States that has the presence and power to create a new mass of public opinion that is responsive to Niebuhrian ideals. Fortunately, there are definite signs that the contemporary American evangelical community is becoming significantly more receptive to a Niebuhrian vision of the world. The more culturally open and internationally engaged evangelicalism of the present day is one dimension in which American society is gradually gaining the capacity to play the global role to which its economic and geopolitical success has called it. (pp. 396-97, 402).

So what is the place of the Anglo-Saxon era in the long human story? They may not have built a utopia, but even so, the Anglo-Saxon era has produced changes that are as profound as they are enduring. For all its injustices and imperfections, the creation of the first truly global society is a substantial achievement; the maritime powers have effected a transformation of international relations whose consequences will be felt as long as the current civilization endures. (p. 404).

The emerging global society shares some of the key traits of the dynamic societies that grew up in the English-speaking world. Today’s world is divided among three competing sets of visions, and no one vision can impose its values on global society as a whole. In one group are the advocates of reason, who believe that universal logic, principles, and law are the only suitable or even feasible basis for an international system. For this group, the establishment of a powerful system of institutions that can enforce the global rule of law is the obvious and natural goal of international society. A second group is composed of advocates of religion: people who believe that one of the world’s great religions is the necessary foundation for any just international order. The advocates of a religion-based international order disagree on the details, but share a common commitment to base both international and domestic society on the precepts of revealed religion. Finally, there are the devotees of tradition, partisans of various form of cultural and identity politics. These are often populist nationalists who believe that their own values and culture ought to be the basis for international life. (p. 405).

No one in the world is strong enough to compel the others to conform to an international society based on reason, religion, or tradition. To the degree a global society can establish itself to serve the needs of the world’s different societies and cultures, they must proceed from sometimes contradictory assumptions. The world of international law already seems to be based more on precedent and historical accident than the results of rational principles consistently applied. The most conscious proponents of a law-based and institutionally defined international system generally deplore this condition, but that is a mistake. Tolerating and even welcoming a more diverse and less uniform approach to international life and global governance is likely over time to lead to more effective and widely accepted institutions. (pp. 406-07).

Opinio Juris Book Discussion: Andrew Guzman, “How International Law Works”

by Peggy McGuinness

The fun continues at Opinio Juris next week, February 11-14, as we host an online discussion of Professor Andrew Guzman’s book, How International Law Works, which has just been published by Oxford University Press. Professor Guzman teaches at UC-Berkeley, Boalt Hall School of Law, where he directs the International Legal Studies Program. Guzman is a prolific scholar and this book makes an important contribution to international law theory by deploying the tools of rational choice to explain how and why international law affects the behavior of states. Professor Guzman will post an introduction to his claims in the book on Monday, to be followed by commentary by Jeff Dunoff (Temple), Kal Raustiala (UCLA) and Alex Geisinger (Drexel). Some of the OJ regulars will be joining in the discussion. We welcome comments from our readers as well.

If you would like to order a copy of the book, you can do so here at the OUP website (keeping in mind that ASIL members get a discount!).

European Utopians

by Roger Alford

One of the key arguments in that latter half of Mead’s book is that Anglo-Americans are particularly given to visions of history working itself out toward some greater purpose. Mead believes that Anglo-Americans are distinctly oriented toward utopian visions of fixing human affairs. Of course, there are ample examples to support naïve and idealistic American dreams of a new world order. So while I think Mead is correct that Anglo-Americans are prone toward such idealism, I’m not sure they are distinctly given to such an orientation.

Some of the most important utopian visions of the past century do not have their origins in the Anglo-American world. To offer just a few examples, the early 20th century pacifist movement was largely a European construct. The great populist pacifists of the day— Frédéric Passy, Élie Ducommun, Albert Gobat, Bertha von Suttner, Klas Arnoldson, Frederik Bajer, Alfred Fried, and Henri La Fontaine—were all Europeans. These populist pacifists genuinely believed that a world without war was imminent. Of course, there were a few notable exceptions, such as the Englishman Randal Cremer or the American Andrew Carnegie, but they were a distinct minority.

It was an Austrian, Bertha von Suttner, who in 1889 penned the monumentally significant pacifist manifesto Lay Down Your Arms, a book that Leo Tolstoy described as the pacifist equivalent of Uncle Tom’s Cabin. She proclaimed in 1906 that the old system of militarism was doomed to fail and that anyone who understood the laws of evolution recognized that “the future will always be one degree better than the past.” And it was the Swiss pacifist Albert Gobat who said, “I am not one of those who laugh at utopias. The utopia of today can become the reality of tomorrow. Utopias are conceived by optimistic logic which regards constant social and political progress as the ultimate goal of human endeavor.”

During the interwar years, the utopian vision of a world without war returned, this time to Switzerland with the Locarno Pact. The chief negotiator of the Locarno Pact was the French Foreign Minister Aristide Briand, who with the German Gustav Stresemann and the Englishman Austen Chamberlain, signed the 1925 agreement that would end war in Europe. When the Locarno Pact was signed on October 16, 1925, one first-hand account by Mercedes Randall reported that “jubilation broke out as if a new gospel had been proclaimed. People embraced each other, some of them even wept—no more conflicts—no more wars—no more victors and vanquished—the word was becoming one great family of friends and brethren!… Henceforth the name of that little city on the beautiful lake was to be not merely the designation of a town, but a new conception of the unity and friendship of mankind.”

The Kellogg-Briand Pact was originally the brainchild of again, the Frenchman Aristide Briand. When it was eventually signed in 1928, Briand proclaimed: “War, formerly considered an attribute of divine right, and continuing to live in international ethics as a privilege of sovereignty, is at last by law deprived of that which constitutes its greatest danger: its legitimacy…. Freed from such a serfdom, the peoples who adhere to the new treaty will soon become accustomed to the idea that national prestige, national interest, is no longer connected with the conception of violence.”

There are other examples one could offer. And of course, I’m not telling Mead anything he doesn’t already know. But suffice it to say that naïve idealism and utopian triumphalism is not unique to Anglo-American stock. Anglo-American utopias may be different than European utopias, with the former unusually committed to the invisible hand of democratic capitalism and the latter uncommonly oriented toward liberal international institutionalism. But utopians know no nationality, and utopians of all nationalities share the common mistake of misapprehending the difficulties of achieving their visions.

The Societal Benefits of the Anglo-American Protestant Work Ethic

by Roger Alford

Mead’s discussion of the Anglo-American Protestant work ethic ventures into the fascinating subject of the sociology of religion. I am by no means an expert in this area, but I once was a student of the subject and I do have some reflections on his discussion of the societal benefits of the Anglo-American Protestant work ethic.



His thesis that Anglo-American Protestants are working out their religious calling in a way that inures to the benefit of the broader society is a familiar and fairly convincing interpretation of the American experience. There is a common Protestant acceptance of the doctrine of vocation, in which each individual has a particular calling and obligation to fulfill that calling. (Of course there is the other well-known Christian doctrine of salvation by grace, which embraces the notion that nothing we can do will ever merit God’s favor. One would think that such a doctrine would not offer the societal spillover benefits that a doctrine of salvation by works would).



Accepting the benefits that flow from a Protestant fixation on calling, I’m not sure that this story of the sociological impact of the Anglo-American Protestant work ethic should apply in an increasingly secular culture. If Mead is correct, one would think that Protestant cultures that remain deeply religious would continue to reap the benefits of the Protestant work ethic, while cultures that stray from that path would increasingly cease to benefit from a culture permeated with a sense of divine calling. That, of course, is not what we see. To be sure, American society is deeply religious and also remarkably productive. But the rest of the Anglophone world is increasingly secular, and yet remains astonishingly productive. The correlation one would expect to associate with the Protestant work ethic would be diminished as more and more secular citizens reject any notion of a personal destiny or calling.



One could also use inductive reasoning from the world we all experience to reject Mead’s conclusions of the Anglo-American Protestant work ethic. We all know examples too numerous to mention of highly religious individuals who are remarkably unproductive (at least in terms of benefitting broader society). Conversely, the examples are legion of individuals who have no faith commitment—much less a sense of divine calling—and yet they are among the most prolific and productive members of society. One could even argue that it should be the irreligious members of society who are the most productive, for their only hope of immortality is whatever legacy they have been able to leave from their labors here on earth. They may well believe that their only salvation is their works.



Mead briefly suggests that the secular culture is subconsciously part of the Abrahamic tradition, but he never really discusses why there is no obvious differences in productivity along the secular and religious divide. Perhaps Mead is suggesting that the secularization that is sweeping the rest of the Anglophone world is nonetheless subconsciously imbued with a modern variation of calling and vocation. These modern-day Anglo-Americans are not seeking a religious calling, but they nonetheless are pursuing a purpose-driven life.




Mead’s God and Gold: Great “Great Power” Stuff, But Whither the Great Powers?

by Peter Spiro

This is a terrific read, a Big Book in all the good ways. I’m particularly struck by the way that Mead stretches The End of History out backwards as a persistent trait of Anglo-American culture. One can hardly not have heard of Norman Angell these days, as the herald of false dawns, but connecting the dots from him to Hegel on the one hand and Fukuyama on the other is nicely done here. And thanks to Walter for reconnecting me with my inner Marx.



The account should thus serve as a strong cautionary tale for international law triumphalists. Time and time again, the English and Americans have believed that peace and harmony have been just around the corner, by their hand. In the current era, perhaps no group more than international lawyers holds out such a hope, one in which global democratic and capitalist peace prevail with, yes, international lawyers at the vanguard.



But is it possible that even if the world is unlikely to become a much better place (though our Whig reflexes run deep) it may be on the verge of becoming a much different place. If I were to take the book to task for anything, it would be for its deep statist assumptions. Mead doesn’t say where he stands vis-a-vis the state. He rightly recognizes the importance of identity and group membership, and of the individual’s yearning for group recognition. At one point he tags progressives with the belief that “the state can and should play a decisive role in the development of human societies.” But even if his own premises are unstated, it seems pretty clear that he believes in the state, too, and in state-based communities as the central organizing principle of human affairs.



That may be true for now, but it may not be true forever. It seems to me that where the real challenge lies not in projecting the Great Power paradigm forward but confronting the possibility that the Great Power Paradigm may no longer apply. What of transnational communities? The book addresses global migration only incidentally, with an assumption that immigration to the United States will play out on the old, assimilationist model.



What if we find a world in which territory is increasingly decoupled from identity, in which group conflict still very much defines global interactions but not on a let’s-play-Risk basis? And what of those issues (like environmental protection) that don’t really map out on any bounded basis? God and Gold pays brief lip service to the potential of global institutions and international law (correctly arguing for its organic, Burkean evolution), but maybe it should feature more centrally, not as the mark of the end of history but as the arena for addressing the problems of global society.

The Golden Meme of Anglo-American Progress

by Roger Alford

Part Four of Gold and Gold builds upon the previous sections to discuss what Mead calls the golden meme of Anglo-American history and politics. The English-speaking world has adopted a dominant paradigm representing a deeply rooted vision of how the world works. The idea that the world is built (or guided by God) in such a way that unrestricted free play creates an ordered and higher form of society is found in virtually all fields and at virtually all levels of the Anglo-Saxon world. It makes people individualistic and optimistic, and it climaxes in what many have called the “whig narrative”—a theory of history that sees the slow and gradual march of progress in a free society as the dominant force not only in Anglo-American history but in the wider world as well. (p. 15).

Anglo-American politicians and intellectuals have frequently put forward the idea that the purpose of the Anglo-Saxon ascendancy is to usher in a peaceful, liberal, and prosperous world order. Yet if the history of the last hundred years teaches one lesson, it is that Anglo-Americans consistently underestimate the difficulty of establishing the global democratic and capitalist peace that they want. The ever-recurring belief that the world is about to become a much better place is deeply rooted in Anglo-American culture. (pp. 271-72).

We live in an age of competing grand narratives. The oldest of these narratives is the Abrahamic story. (p. 274). The call of Abraham became a grand narrative in which the people of Abraham would prosper and multiply and thereby bless the nations of the earth. The human story is one of progress with a purpose. Islam, Christianity, and Judaism all believe that human beings can grasp the nature of the universe and that the normal course of natural events is subject to laws which can be understood and predicted by human beings. History is not simply the passage of time, it is accomplishment of a task. History is the process by which what is wrong is set right, what is broken is mended. (pp. 280-81).

Even secular modernism is part of the Abrahamic tradition, for it too sees history as a process of moral and political struggle through which truth is gradually discovered and proclaimed. Modernists acknowledge a higher power based on natural law or human nature that shapes history, even as they reject many features of traditional theism. (pp. 282-84).

The attempted transformation of the human condition has not only been fueled by hope but also by fear. Because war is woven so deeply into the fabric of history, the abolition of war requires a thoroughgoing social and political revolution. If the human race reaches a point of development at which organized mass violence is no longer the supreme arbiter of human affairs, then we have clearly solved the fundamental problem of human society. (p. 294).

The younger of the two narratives is the rise of capitalism. The social system of capitalist globalization has transformed cultures and social relations on every continent to generate a cascade of social, technological, economic, cultural, and political revolutions in every dimension of life on every part of our planet. (p. 274). The optimism rooted in Anglo-American culture unites with the biblical roots of Anglo-American religion to create a distinct grand narrative that ties the Abrahamic story of Israel and Christ together with the intuition that capitalist modernity represents a new call from God. (p. 298).

Today the cult of the invisible hand may be the chief difference between the English-speaking world and the rest of the world. It is the principal reason for the Anglo-Saxon rise to world power and a leading influence in how Anglo-Saxons have understood and interpreted their rise and their role. (p. 298). Today, the Anglo-American mind approaches virtually any social, political, scientific, or economic question with the belief that, somehow, some kind of invisible hand is the answer. Believers in the invisible hand are confident that the historical process is carrying forward some great if unknown purpose. We do not fight it; we believe that we must let capitalism and its revolutionary potential loose upon the world. (pp. 304-05).

The “whig narrative” refers today to a distinctly Anglo-American concept of history told as the story of slow, sure, and irresistible capitalist progress under the guidance of the invisible hand. (p. 305). The whig narrative is a powerful and all-embracing synthesis of the Abrahamic narrative and the story of capitalism. It links capitalist development with the unfolding will of God. (p. 310).

While this whig narrative has helped Anglo-Saxons dominate modern history, it has not helped them understand it. Anglo-Americans fail to understand why so many foreigners despise, reject, and resist the blessings of free markets and democratic government. They also underestimate the difficulties and obstacles other societies must overcome before they can play the game of free politics and free markets. (p. 316). Far from satisfying the deepest desires of human beings, the present world system and world order frustrate and enrage many people. Americans will not understand their role in the world until they have fully grasped the paradoxical relationship between the success of American society at home (and even internationally) and the level of global unhappiness with the American project and the American way. Success builds American confidence in the whig narrative; it creates resistance to it as well. (p. 339).

Response to Roger Alford

by Walter Russel Mead

In God and Gold I write about three elements of England’s success. Roger asks how I combine the three into one story – and wonders whether the whole story hangs together. In response, let me describe the three pieces of my story, and show how I think they fit.

First, England was a lucky country – the Goldilocks of early modern Europe. It wasn’t too big – like the Holy Roman Empire or France; it wasn’t too small like Holland. It was just right. The English Reformation wasn’t too hot – as in Germany where it set off religious wars that killed something like a quarter of the population. It wasn’t too cold, either – so that one religion established a secure position and cracked down on dissidents and new ideas as in Italy and Spain. It wasn’t too far from the centers of European innovation and culture – like Russia, always behind and slow to develop. But it was insulated by the Channel so it wasn’t periodically devastated by constant warfare. And so on.

Second, England adopted a clever geopolitical strategy that helped it win wars. I call this strategy “the protocols of the elders of Greenwich” and a five point plan for global domination. To summarize:

Point One: have an open society at home. That is, allow intellectual, political and economic freedom. Don’t keep immigrants and religious minorities out. Allow scientists, professors and business people to innovate. Keep careers open to talent – let that clever peasant kid rise to become a powerful merchant or industrialist.

Point Two: take the show on the road – engage with the world. The commercial and intellectual dynamism of the open society can fuel a very profitable engagement with the rest of the world through trade. The open society has new products, more efficient financial and industrial techniques; a more meritocratic system puts more talented people in key positions. When this society engages with the rest of the world, it makes a lot of money.

Point Three: use the money to fund a global grand strategy based on commerce, sea power and the balance of power. Protect the sea routes for your commerce and back up your trading interests. Make sure that no single country can dominate a key geopolitical theater and use the military and commercial resources of that theater against you.

Point Four: having built this global system, open it up. Let other countries benefit from the secure international trading environment. Encourage them to integrate their economies into your global system. This makes war less likely; other countries are getting rich by participating in your system so they have less desire to go to war. If they do go to war, you can use your control of the sea lanes and the international economic system to cut them off from the resources and markets they need.

Point Five: promote liberal values in other countries. Values like an independent judiciary and a reliable code of law create a safer and more profitable environment for your merchants and traders. By adopting these values other countries become more able to participate successfully in your system, and are therefore less likely to go to war with you.

It seems to me that the relationship between these two pieces of the story is reasonably clear. The “Goldilocks” part of the story explains why England had a good head start on the race to world power. The clever strategy, the five point plan, shows how the British and then the Americans managed to turn this initial head start into a long term lead.

But there is another question. It is one thing to say that having an open society – here, a society eager and able to develop along liberal capitalist lines – is the first step on a path toward global power. But why were the English and the Americans able to take this step? What gave them the cultural and psychological and political ability to maintain an open society through so many pitfalls and vicissitudes of fortune for so many centuries?

The answer to this is the third part of my story: the set of cultural values, habits and conditions that made Anglo-American society so quick to embrace capitalism and so unusually able to preserve their political stability as the consequences of capitalism led them into one radical social transformation after another. Subsequent sections of the book go into this in some detail and I expect we will be getting into this as the discussion progresses, but some of the cultural forces I have in mind include Anglo-American religion, and a faith that providence, or an ‘invisible hand’, is bringing a benign order out of chaos.

So England’s success was due to a combination of good luck and good strategy. Fate gave them a good hand of cards and the skill to play; they found a winning line of play and followed it out, and they won. (Sometimes, they cheated; they were pretty good at that part of it too.)

Roger, I don’t know if this clears it up for you; I’d be interested in your response.

The Religious Roots of Anglo-American Open Society

by Roger Alford

Part Three of God and Gold focuses on the question of how the Anglo-Saxons were able to put together the economic and military resources that enabled them to defeat their enemies and build a global order. Mead argues that the decisive factor in the success of the English-speaking world was that they came from a culture that was uniquely well positioned to develop and harness the titanic forces of capitalist. Anglo-Americans have been consistently among the best performers at creating a favorable institutional and social climate in which capitalism can grow rapidly. The roots of this aptitude can be found in the way the British Reformation created a pluralistic society that was unusually tolerant and unusually pious. The English-speaking world reached a new kind of religious equilibrium in which capitalism and social change came to be accepted as good things. (pp. 14-15).

The English Reformation was unusual in that it steered a middle course between the unacceptable extremes of scriptural literalism and Roman Catholicism. Tradition, they concluded, could provide an unerring guide to the worst perplexities of the religious controversies of the day. (p. 212). Some leading Englishmen—most notably Edward Gibbon—rejected both scripture and tradition and turned to the third alternative of reason. But in the end, English society recognized that reason cannot be separated from interest and passion and reason alone could not stand as the basis for human society. The excesses of the French Revolution—supposedly based on reason and logic—fortified this impression. (pp. 216-19).

Juggling scripture, tradition, and reason, the English-speaking world embraced an open society in which religion constantly adjusted to the demands of social and economic change. The prevailing Anglo-American view came to be Adam Smith’s: “that religion, even fanatical religion, is necessary to the health and happiness of society, and that free competition among religions is the best way to achieve the benefits of religion at the lowest possible cost.” (p. 228). The history of the Anglophone world suggests that the most vigorously open society, the society that presses hardest and fastest toward the West, is a religious society. Societies that marginalize religion and that are based purely on reason are less flexible, less open, and less dynamic. (p. 230).

Mead also underscores the religious roots of the Anglo-American embrace of change. The Anglo-American version of Protestant Christianity is particularly oriented toward Calvinism, which reinforces God’s grace working through people. It is not just that Calvinists are running from fear of a hideous fate, they are reaching out toward something positive: a transcendent calling. Embracing change is not a necessary evil; it is a religious sacrament in which the pursuit of change is the encounter of the meaning of life. As such, each person’s calling becomes a type of project to achieve, and that plan manifests itself in the broader society. Over the course of centuries, millions of Anglo-Americans have adopted this mindset to improve their personal forturnes and make society a more suitable medium for capitalist development (pp. 240-47).

Response to Chris Borgen

by Walter Russel Mead

Chris Borgen taxes me with not paying enough attention to the ways in which the responses of non-Anglo-American powers to the Anglo-Americans may reflect their own hopes and plans for the world, rather than a simple dislike of Anglo-American plans or values. I think the two are connected; people dislike the Anglo-Americans both because they don’t like what we have in mind and because our plans and activities frustrate hopes and wishes of their own. God and Gold deals with these issues at some length in the last section; rather than argue with Chris about this now I think it’s better to wait until the discussion moves to the later sections of the book and see what he thinks then.

But there is one point I would like to make now. One difference between the perspective of God and Gold on the world and the conventional approach is that the conventional narrative sees ‘Europe’ as part of the core – and non-Europe, excluding the US and other English speaking countries like Canada and Australia, as a ‘periphery’. From the God and Gold point of view, Europe is also the periphery, at least as far as power and geopolitics are concerned. Spain, France, Russia and Germany have been (some of them still are) as frustrated, alienated and embittered by the progress of the Anglo-American project as much as Iran, China, Egypt and India have been.

And for the same reasons. On the one hand, the Anglo-Americans have blocked the development of institutions, power relations and social dynamics that they did not like; on the other, the Anglo-Americans have furthered a set of changes, institutions and relationships that they did like. The Hapsburg dream of a universal Catholic monarchy; the French visions of Catholic hegemony, Jacobin world revolution, or Napoleonic grandeur; the deeply held belief of idealistic German nationalists that Imperial Germany stood for a higher and nobler way of life than Anglo-American commercialism; the various forms of communist and fascist visions of the twentieth century: these are not just negative anti-American or anti-British world views. They are each based on a set of values and beliefs that arise from the experiences and aspirations of other peoples and other cultures – but they are quickly forced to engage in a struggle with the global commercial vision of the Anglo-American world.

So Chris is right to point out that others have hated the Anglo-Americans not only because they dislike what we are doing, but because the rise of our system has blocked or frustrated the achievement of other goals and other visions. But this has not just been true for people in what he now calls the ‘periphery’; this has been the experience of everyone, far or near, European or non-European, who cherished a vision of either a global or a local civilization built on values and priorities different from those of the Anglophone paradigm.

Response to Michael Lind

by Walter Russel Mead

Mike Lind asks in effect, what makes England and America special compared to other commercial powers, especially the Italian city states – and why shouldn’t the Anglo-American political tradition be seen as more closely integrated into the history of republican, humanist letters passing through the Italian states back into antiquity? In effect he is asking whether there isn’t too little Europe in my story – have I insisted too hard on trying to see the Anglo-American story (or Batavo-Anglo-American story given the Dutch dimension) in isolation from a broader story of European development.

It’s a good question. Obviously, everything is connected, and commercial powers in a capitalist framework are particularly connected.

Clearly the Venetians and the Genoese in particular were good at some of the same things that the Dutch, the British and the Americans were good at later on. More than that, one can trace some specific elements of continuity in the story. Both the British and the Dutch begin their emergence into the modern capitalist world through their connections with the Italian trade networks; the Italian-dominated trade in wool, particular, for both Britain and the Low Countries, was the first great economic force that linked them closely with the international economy and gave them the resources and the experience they would need.

But I still think there is a clear difference to be noted between the oceanic, globe girdling maritime system originating in the Dutch era and the Mediterranean commercial ventures of the Italian city states. The Italian city states, even at their greatest, were essentially interstitial powers, occupying the spaces between empires that were almost always larger and more powerful than their own. None ever sought or reached the heights of international power or global reach that was integral to the later versions of maritime power. The British and American maritime systems, however, combined the trading interests and flexibility of interstitial commercial powers like Venice and ancient Tyre with the grand continental power of empires like Assyria, the Ottomans and Rome.

In particular, the emerging geopolitical strategy that the Dutch, the British and the Americans developed over time marks off a common approach that distinguishes these powers from earlier commercial entities. Tacitly in the Dutch case, but explicitly in the British and American case, these powers sought to construct a global order. That is, they did not just want to survive or pursue their interests in a world system which they more or less took for granted. They wanted to shape that system itself, and to a very large extent they did so. Furthermore, the Venetians and the Genoese were content to confine their concerns to a region. They wanted to carry on the silk trade from the Black Sea westward, but they didn’t spend a lot of time and effort going to China and trying to shape the development of the silk industry there. They wanted access to products coming off the Silk Road, but they left the Silk Road itself to other, more remote powers.

This is also true at the level of values and ideas. The Venetians and the Genoese wanted to deal with the Ottoman Empire, not transform it into a reflection of Venice and Genoa. They were pragmatic, taking other states as they were; the British and the Americans have sometimes been pragmatic, but at their core both the modern powers have had transformational ambitions. They don’t just want to survive Russia or China; they want to democratize them.

So while Mike is right that there are important similarities between these commercial trading nations, I still maintain that the differences are significant enough to study.

On the question of the intellectual similarities and differences among these countries, I would make some similar arguments. However, I think it might make more sense to engage on these topics after Mike has had a chance to articulate his point in the light of God and Gold’s discussion of the individualistic and ‘dynamic’ religious tradition of the Anglo-American world a bit later on.

Luck and The Spoils of War

by Roger Alford

There is an interesting paradox in Mead’s book between luck and the spoils of war. On the one hand, Mead spends much of the book suggesting that the English were just plain lucky. “By luck or … the providence of God, England was in the right place with the right mix of social and economic conditions at the right time.” (p. 176). England had the Goldilocks touch. Within Europe, England was in the Goldilocks spot of real estate: close enough to benefit fully from Europe’s acceleration, but out of the way to avoid repeated invasion and ruin. England had a Goldilocks reformation, not so hot to result in ruinous civil wars (like Germany) and not so cold that one Christian denomination could establish a secure position and drive out all rivals (like much of southern Europe). It also had a Goldilocks state, neither too soft like early modern Germany, where the Holy Roman Empire had dissolved into hundreds of tiny local jurisdictions incapable of acting on a wide scale, nor too hard, as in Spain and France, where increasingly powerful kings and rigid bureaucracies crushed local authority and private initiative. (pp. 178-183).

On the other hand, much of his historical analysis would suggest that England was able to secure its favored position as a result of the spoils of war. “During all these many wars, while the continental powers wore one another out with titanic ruinously expensive struggles on land, the Anglo-Saxons occupied themselves with the crown jewels of their power strategies: they entrenched themselves more deeply than ever in the global system by stealing the colonies of their warring rivals. The British forced France out of India and North America using this technique; they used it to take the Cape Colony from the Dutch…. Sometimes the lands the British grabbed belonged to their enemies; sometimes, whoops, they belonged to their allies, but over time the British systematically dismantled rival colonial empires.” (pp. 111-12).

I would be quite curious about how Mead reconciles these two versions of the story. After all, five hundred years ago it was far from expected that the center of gravity in world power would shift dramatically toward England. (p. 173). But when Mead gets to the question of exactly why Anglo-Saxons became king of the hill, he falls back on benign notions of luck and culturally affinity and fails to return to his earlier assessment of England’s cunning history.

Introductory Comments

by Walter Russel Mead

I’d like to begin by thanking Roger Alford and his colleagues for offering this opportunity to engage in a discussion about God and Gold.

Writers are like new parents; there is nothing we would rather do than discuss the latest production; if new books sometimes get a chillier reception than new babies, well, that is just the way of the world.

As God and Gold starts to make its way in the world, my first reaction is one of gratitude to so many readers and critics for their forbearance. Paul Kennedy put it very well when he said that this book would “outrage lots of readers.” This is a book that argues that WASP studies, the study of the beliefs and achievements of the English speaking peoples, holds the key to the history of the modern world. If that isn’t bad enough, it argues that Protestant Christianity and private enterprise, working together, stand at the heart of the belief system that enabled the WASPs to conquer the world. I do not even offer the meager consolation that this ancient and evil system is crumbling under the weight of injustice and wrong; God and Gold argues the unfashionable position that the era of American leadership in international affairs still has some decades (at least) to run. This is a scandalous and a disgraceful argument; I’ve been pleasantly surprised by how many readers have managed to engage seriously with what I’ve tried to say despite the unpalatable nature of the case.

God and Gold is the same kind of book, though on a bigger scale, as Special Providence, my 2001 study of American foreign policy. Both books are attempts to make sense of a problem. In Special Providence I tried to make sense of the basic contradiction one finds over and over in the study of American foreign policy. On the one hand, virtually every scholar and observer, foreign or domestic, who examined American foreign policy from the time of the Revolution through the present day, concluded that Americans are not very good at making foreign policy – too moralistic and Manichean, too isolationist, too ignorant or simplistic, too militaristic or what have you. The details differ, but the conclusion is the same: Americans are just not very good at foreign policy.

But at the same time, it is obviously and incontrovertibly true that a basic trend in international life for the last 225 years has been the rising power and influence of the United States in the international system. Why does the team with the worst skills in the league win so many games? Special Providence was an attempt to figure this out.

God and Gold starts with a different contradiction: that the British and Americans have dominated world history for the last couple of hundred years – but never understand where their power is taking the world. On the one hand, for the last couple of centuries, Britain and America have seen the end of history just ahead. Free trade, free government, international
organizations: from the end of the Napoleonic Wars through the end of the Cold War, Anglo-American statesmen and intellectuals, to say nothing of broader public opinion have believed that what the rest of the world calls the “Anglo-Saxon powers” were on the verge of establishing a just and permanent world order. Over and over again, they’ve been wrong.

At the same time, gauche as it is to say so, the British and the Americans have been dominating world politics, winning wars and leading global economic and technological development now for a fairly long time – roughly since the Glorious Revolution in 1688. In God and Gold I am trying to work out how the British and the Americans could be so wrong and also so strong.

This line of thought led me to the six questions God and Gold tries to answer:

1. What is the distinctive political and cultural agenda that the Anglo-Americans bring to world politics?

2. Why did the Anglo-Americans prevail in the military, economic, and political contests to shape the emerging world order?

3. How were the Anglo-Americans able to put together the economic and military resources that enabled them to defeat their enemies and build a global order?

4. Why have the Anglo-Americans so frequently believed that history is ending–that their power is bringing about a peaceful world?

5. Why have they been wrong every time?

6. What does Anglo-American power mean for the world? How long is it likely to last, and what does three hundred years of Anglo-American power mean for the larger sweep of world history?

This investigation necessarily involves an investigation into why the Anglo-Americans keep winning – just as Special Providence was an investigation of why American foreign policy works. While some readers have found this unpardonably triumphalist, that isn’t the way I see it – and in my experience, it isn’t the way people see this analysis outside the ‘Anglosphere’. After all, the rise of the British and the Americans to world leadership isn’t exactly a secret; other people besides ourselves have noticed that Great Britain defeated France in the contest for world leadership of the eighteenth and early nineteenth centuries and that when the British world order began to fall, it was replaced by an even more powerful and pervasive American order after World War II. With a kind of Victorian prudery, Anglo-Americans find frank discussions of this power embarrassing; in my experience people from other parts of the world find it a refreshing break from what they often see as our hypocritical and even self-serving evasion of exactly these questions of power.

Obviously, this power has not always been used wisely or well. From the aborigines of Australia to the Irish peasants dispossessed under Cromwell to the Indians of North America and Asia, the world is full of the victims of Anglo-American power. In Special Providence I paid particular attention to the extraordinary record of brutality that one finds in the American way of war (think of the mass fire-bombings of civilian targets in World War II); God and Gold also addresses these issues from time to time (particularly when it comes to Ireland), but neither book attempts to give anything like a comprehensive account of the wrongs done by either the British or their American cousins. Excellent books have been written on these subjects and more will no doubt follow; God and Gold like Special Providence is a book about how the system with all its faults still works.

Again, thanks to all the folks at Opinio Juris who are making this conversation possible. I’m looking forward to the discussion.

The Italian-Dutch-Anglo-American Tradition

by Michael Lind

God and Gold is a timely and welcome contribution to the rediscovery of America’s political traditions, particularly the characteristic American tradition of internationalism. In this important book Walter Russell Mead makes explicit what has been a subdued theme in his earlier books, including his groundbreaking Special Providence—namely, the rejection of the idea that because American foreign policy has been “naïve” or “idealistic” simply because it has operated on principles different from that of pre-World War I continental European states. In the second half of the twentieth century, the native American foreign policy tradition was obscured by the prominence of Central European realists like Hans Morgenthau and Henry Kissinger, who taught several generations of political scientists and statesmen that the U.S. had no respectable strategy to speak of before professors with Germanic accents arrived to instruct the childish Americans in the arcana imperii of Metternich and Bismarck. During this period, roughly from World War II until the last decade, the response of critics of German-style Realpolitik was not to explore and rehabilitate the older American internationalist tradition, but rather to accept the realist caricature of traditional American foreign policy as mindless “idealism” or “utopianism” and to make virtues of what the realists denounced as vices. Without detracting from Mead’s originality, I see his work as a landmark contribution to a rediscovery of American internationalism as a distinct foreign policy tradition in which other authors like Daniel Deudney in Bounding Power and Peter and Nicolas Onuf have participated, as well as Mead himself in previous work.

Equally welcome is his dissection of traditional Anglophobia and anti-Americanism as a manifestation of illiberalism, directed at the leading liberal powers of the modern world. Which is not to deny that even paranoids have enemies; Arabs displaced from their homes in Palestine by British-sponsored Jewish colonists, like native Americans, Mexicans and Cajuns displaced by Anglo-Americans in the U.S. and Canada, surely have reasons to object to British and U.S. foreign policy quite apart from illiberalism, Anglophobia, anti-Americanism or anti-semitism.

Mead is right, too, to root the liberal Anglo-American tradition in the early modern Netherlands. Here, however, I would suggest an emendation to his account. As Luciano Pellicani argued in his too-little-known book The Genesis of Capitalism and the Origins of Modernity (Telos Press, 1994), practically everything we think of as part of the Dutch-Anglo-American model—constitutional republicanism, capitalism, insurance, science, even double-entry book-keeping—had its origins in the city-republics of northern Italy during the late Middle Ages and the Renaissance. When the vitality of the Italian city-states was snuffed out by foreign invasions and the Counter-Reformation, the center of republican government and commercial society migrated to the Netherlands and then to Britain and the U.S.

Should we speak, therefore, of an Italian-Dutch-Anglo-American tradition? In one sense, adding the Renaissance Italians only slightly alters Mead’s story. In another sense, however, it shifts the whole debate. For one thing, it reduces the emphasis on ethnicity and religion. The Italian city-states were Catholic, so their success can hardly be explained by the Reformation work ethic. Indeed, Pellicani has a forceful polemic against Weber’s attempt to link early modern capitalism with Protestantism, attributing itself instead to republican government (or in the case of Britain, quasi-republican constitutional monarchy) and practical if not official secularism or latitudinarianism. And while Mead’s use of the phrase the “Anglo-Saxon powers” is refreshing as a distinction between Britain and its offspring and the continental bureaucratic states, inevitably despite his statements to the contrary it tends to lend an ethnic cast to what is clearly a philosophical system (liberalism) and a geopolitical tradition (maritime trading states). The alternative would be to find some other, non-ethnic, non-religious phrase—liberal? republican? maritime?—to describe what I see as the Italian-Dutch-Anglo-American tradition. Venice, along with Amsterdam, is part of the story too.

The Other Half of the Picture

by Chris Borgen

Like Roger, and the rest of the Opinio Juris bloggers, I want to thank Walter Russell Mead for joining us this week. I found God and Gold to be provocative and to contain wonderful insights, particularly concerning why the Anglo-Saxon powers have done remarkably well in conflicts over the last 300 years.

But my first comment in this discussion will be less about what Mead did analyze in the opening two sections of the book (discussing the “clash of civilizations” and what may be called the Anglo-Saxon diplomatic and warfighting methods), then about what he did not cover. By this, I mean that Mead has built a fascinating but largely Eurocentric (if I could include the U.S.) narrative. I question this not out of some misguided “political correctness” but rather because I think that to understand properly the Anglo-Saxon encounter with the rest of the world, and particularly to understand why some people push back, it is vital to give due weight to the beliefs, goals, and concerns of those people. Otherwise, one gets only half the picture; and a picture which is somewhat rose-tinted, to boot.

Mead describes what he calls (tongue-in-cheek, I think) “Waspophobia” and concludes, “[w]hatever we call it, the hatred and fear of white Anglo-Saxon Protestants and of all their doings is one of the motors driving the world.” (p.58, my emphasis.) A history which gave serious weight to the actual desires and fears of those in the periphery of this story (that is, the rest of the world besides Western Europe and North America) may find that, perhaps, hatred of the powerful WASPs is not as important an engine as it may seem. Maybe, instead, the people of the periphery were not just reacting against Britain or the U.S. but were acting upon their own affirmative visions of what they wanted to build. If that is the case, then understanding those plans and goals generated in the periphery–and why the U.K. and the U.S. chose to react against them, is a key part of the story of how Britain and America “made” the modern world.

If one focused equally on the encounter as it was experienced in the countries facing Anglo-Saxon power, then one would not consider the issue of “How They Hate Us” (the title of Chapter 3) without even mentioning Mossadegh or Allende. Or the U.S. backing of the Shah, Pinochet, and Duvalier, to give a few examples. It would also be less likely that post-World War II history would receive a gloss such as “America supported independence drives in the former colonies, and then allowed new states to enter the global economic system the U.S. was building.” (p. 112) To quote a Haitian folk saying: “He who is hit always remembers. He who hits always forgets.” I think the narrative in the opening sections of God and Gold has forgotten the other half of the picture.

It is by forgetting—or by only briefly considering—the various examples of bad faith or bad acts by the great powers that we come to oversimplify the interaction the U.K, the U.S., and the rest of the world. Mead summarizes:

Rich and free but also cold and inhuman: this is how the West looks from the East…

It is what Occidentalists look at when they hate and fear the West; it is what Waspophobes are talking about when they decry the global power and influence of Britain and the United States today. (p. 175)

No, they are probbly talking about more than that. And this is missed in Mead’s analysis because the opening two sections of God and Gold present an essentially a metropolitan history of international politics. As Mead puts it:

To the degree that the story of world power politics in the last few centuries has a single overarching plot, that plot is the long and continuing rise of the maritime system as its center shifted from the United Provinces to the United Kingdom to the United States. (p.173)

I agree with that, as a general matter and, as I stated in the opening, I think Mead has much of great insight to say on the geopolitical style of the U.K and the U.S. But this story only goes so far; it is one in which great powers were trying to outmaneuver each other on the chessboard that is the rest of the world. The board, and the chessmen on it, are barely described. And, at least the way the first two sections of this book read, the board and the gamepieces are acted upon, they are not actors in this story.

Giving serious attention not just to the power politics and economic and social proclivities of the U.K. and the U.S., but also to those of states on the periphery, can lead to further insights as to the role of Anglo-Saxon power in the world, besides those that Mead has presented.

The Anglo-American World Order

by Roger Alford

Let me begin by saying that God and Gold is an ambitious book. According to Walter Russell Mead, the book is not about history, but about the meaning of history. What is the overarching plot of world history? Mead argues that history is best viewed from the perspective of Anglo-American power. He writes, “It is not too much to say that the last four hundred years of world history can be summed up in ten letters. As leadership in the maritime order shifted from the United Provinces of the Netherlands to the United Kingdom and finally to the United States, the story of world power goes U.P. to U.K. to U.S.” (p. 86).

This story of power is both conservative and revolutionary. Conservative in that the United States seeks to defend the international status quo against those who would change it through violence, and revolutionary in seeking to change age-old power structures with market economics and democratic ideals. (p. 4). From an American perspective, the established liberal capitalist democratic system is the best way to promote social peace and stability in the world. But it also accelerates the pace of social, economic, and technological change for everyone in the world. (p. 16). It is a system of creative destruction in which the Anglo-American culture establishes the rules of the game and—of all the nations on earth—the Anglo-Americans are best equipped to play and win by those rules.

What follows is a brief outline of the first half of the book. Part One of the book “reviews three hundred years of clashing civilizations, explores the common Anglo-Saxon culture of the United States and Britain, and examines the rise of an “anti-Anglophone” ideology among the various forces that have opposed the English-speaking powers from the time of Louis XIV to Osama bin Laden.” (p. 13). Part Two of the book looks at the military, diplomatic, and economic strategies that led Britain and the United States to world power. The Anglo-Saxon powers did not just win wars, they changed the way the world lives, thinks, and organizes itself. (p. 13-14). The history he presents is worth the price of the book alone, for it underscores the centrality of Anglo-American power in shaping our current world order.

Not surprisingly, that power has led to fear and dread for many. Mead offers a wonderful analysis of the intensity of hatred of all things American. That hatred can best be analyzed as rooted in the creative destruction the modern Anglo-American world has wrought. While we may see the creativity in this change, others see the destruction. Mead argues that anti-Americanism is an all-consuming (albeit incoherent) worldview. The American must be hated. He must be hated because he is indifferent to the world but wants to impose his views on the world. He is a fat and lazy couch potato like Homer Simpson who is also the shrewd and relentless businessman who strips opponents of their assets through icy and malignant super-intelligence. He is a reckless cowboy and a feminized weakling. He endangers peace with unworldly idealism and foments war with ruthless and inhuman policies. (p. 73). For these anti-Americans, our country is an omnipresent, total, and terrifying menace to the world.

Mead does not appear to be particularly troubled by this hatred. Since Elizabeth I we have fought wars with illiberal opponents and have won. “It is perhaps bad manners to say so, but that does not make it less so. The Anglo-Saxon powers have established the most extensive, powerful, and culturally significant hegemony that history records—and this in the teeth of bitter opposition by rich and powerful states capable of waging both military and ideological campaigns against the Anglo-American order.” (p. 80). One cannot help but wonder if God is a liberal, for every century has seen Anglo-Americans face imposing, illiberal opponents and yet every century the Anglo-Americans and their world order is stronger at the end than it was at the beginning. The walls keep coming down, and Americans see in that destruction the hand of Providence. (p. 81).

The current world order is not modeled on British imperialism, but Mead suggests that it is akin to an empire nonetheless. With empires you have to conquer and control. With order people freely choose to belong. And in that order there is control. Anglo-Americans control the turf, the trade routes, the market share, the financial markets, and the key relationships. (p. 112).

The picture that Mead draws is a compelling and in many respects disturbing one. At bottom, he argues that democratic capitalism imposes a constant imperative to change, in what may appear to be a never ending Darwinian struggle. The rest of the world looks on with fascination, horror and envy at this economic model, a model which has given the English and Americans an economic edge that has sustained them in their battles with evil empires down the years. (p. 186). The world order is not rigged in our favor, but it is imbued by our culture such that we are predisposed to succeed in that environment. And others are predisposed to struggle just to keep up.

Real or Fictional?

by Kevin Jon Heller

Human Rights Watch 2008 Report: Despots Masquerading as Democrats

by Peggy McGuinness

The Six Questions

by Roger Alford

In order to get our readers thinking about Mead’s book, let me highlight the key questions he seeks to answer in his book. These questions are, in Mead’s view, the “six key questions about the world we live in” (p. 12):

1. What is the distinctive political and cultural agenda that the Anglo-Americans bring to world politics?

2. Why did the Anglo-Americans prevail in the military, economic, and political contests to shape the emerging world order?

3. How were the Anglo-Americans able to put together the economic and military resources that enabled them to defeat their enemies and build a global order?

4. Why have the Anglo-Americans so frequently believed that history is ending–that their power is bringing about a peaceful world?

5. Why have they been wrong every time?

6. What does Anglo-American power mean for the world? How long is it likely to last, and what does three hundred years of Anglo-American power mean for the larger sweep of world history?

Book Discussion With Walter Russell Mead on “God and Gold”

by Roger Alford

We are very pleased to introduce Walter Russell Mead to Opinio Juris readers to discuss his most recent book, God and Gold: Britain, America, and the Making of the Modern World.

Walter Russell Mead is the Henry A. Kissinger senior fellow for U.S. foreign policy at the Council on Foreign Relations and one of the country’s leading students of American foreign policy. His book, Special Providence: American Foreign Policy and How It Changed the World (Alfred A. Knopf, 2004), was widely hailed by reviewers, historians, and diplomats as an important study that will change the way Americans and others think about American foreign policy. Among several honors and prizes, Special Providence received the Lionel Gelber Award for the best book in English on international relations in 2002.

Mr. Mead writes regularly on international affairs for the Los Angeles Times, New York Times, Wall Street Journal, International Herald Tribune, Washington Post, Financial Times, Foreign Affairs, New Yorker, Atlantic, Harper’s, and Esquire. He serves as a regular reviewer of books for Foreign Affairs and frequently appears on national and international radio and television programs. In 1997, he was a finalist for the National Magazine Award in the category of essays and criticism.

Mr. Mead’s chief intellectual interests involve the rise and development of a liberal, capitalist world order based on the economic, social, and military power of the United States and its closest allies. He is interested in the implications of this evolving world order for American foreign policy and for American and international society.

The plan is for us to discuss Parts One and Two of the book on Tuesday, Parts Three and Four on Wednesday, and Part Five on Thursday. Mead will also offer some concluding thoughts on Friday.

Michael Lind, Whitehead Senior Fellow at the New America Foundation, will be a guest respondent. The regular contributors to Opinio Juris also will add their thoughts.

Feel free to post comments or questions in the comment section or otherwise email me your comments, reflections, and questions which I may post as additional guest posts.

Giants Win Less Likely Than Middle East Peace

by Roger Alford

D.C. Circuit Rules on DTA Scope of Information Under Review

by Roger Alford

Navel Gazing

by Duncan Hollis

Want to Move to New Zealand?

by Kevin Jon Heller

Straying Diplomats?

by Peggy McGuinness