12 Aug Hearts and Minds and Laws: Legal Compliance and Diplomatic Persuasion
In case this is of interest to Opinio Juris readers, I want to point out that I have a new essay posted to SSRN entitled Hearts and Minds and Laws: Legal Compliance and Diplomatic Persuasion. Here’s the abstract:
This essay, written for the South Texas Law Review’s Ethics Symposium, considers the role of international legal argument in the war on terror and, in particular, in the attempts to justify the use of military force. It focuses on the relationship of credible legal arguments to legitimacy and reputation.
Part I looks at challenges posed by the evolution of military conflict and how this affects diplomacy. In particular, I argue that a reputation for honoring one’s treaty commitments and for legality, more generally, is an important part of fostering cooperation and undercutting the support of our adversaries. Moreover, in “fourth generation conflicts” such as this, a sense of “moral cohesion” is especially important. This is aided by a sense of the legality of one’s actions. Part II focuses on how the Bush Administration oscillated between a hostility to international law and attempts to rewrite the rules of international law concerning the use of force. While the United States was able to foster a new understanding of international law that legitimized the invasion of Afghanistan, the invasion of Iraq was another matter. Regarding Iraq, the Bush Administration made arguments that undercut the very foundations of the law of the use of force. It acted in a way that maximized short-term flexibility but damaged the reputation and efficacy of the United States (at least into the medium-term) and may have weakened some of the foundational principles of international law.
Finally, Part III considers some of the effects of these legal policies on U.S. foreign policy beyond Iraq by considering the interplay or power, responsibility, and reputation.
More broadly, this essay is part of my general interest in how great powers use international legal arguments to justify their foreign policies. I also explore this theme in my new article in the Chicago Journal of International Law on U.S. and Russian arguments related to South Ossetia and Kosovo, which l will post to SSRN in the near future.
Chris, i enjoyed your article if only because I was predisposed to agreeing with its assumptions and premises! One thing, however, and perhaps of little significance: there’s something about speaking of “good” and “bad” instrumentalism that doesn’t seem to sufficiently capture these two very different attitudes and approaches to law. The former clearly aims to be generalizable, impartial, far-sighted if not teleological and axiological, while the latter is nationalistic, partial, myopic if not incrementalist. Put differently, with “bad” instrumentalism, law is simply one of several possible (contingent) means to our ends (whatever they may be), whereas with “good” instrumentalism, law is replete with certain formal and perhaps substantive virtues such that it is a particular kind of indispensable or necessary means to our principled ends. Figuratively if not literally the latter is identical or akin to–or appreciates the significance of–Lon Fuller’s notion of there being minimalist, principled requirements (‘internal morality’) to our notion of law, in this case, in international relations, contexts and fora. Bad instrumentalism here strikes me as a species of crude pragmatism or consequentialism, whereas what is here termed good instrumentalism is surely more than “instrumentalist” and thus beyond pragmatism and consequentialism in at least some important respects (in which case,… Read more »