IL/IR Book Discussion: Comment on Richard Steinberg, “Wanted Dead or Alive: Realism in International Law”

by Ian Hurd

[Ian Hurd is an Associate Professor in Political Science at Northwestern University]

Steinberg opens his chapter with the line that “realism is the theory that international lawyers love to hate.” But he goes on to present a version of realism that is so encompassing that there is little to disagree with.

Realism, he says is about “the state, state power, and state interests” (147). He emphasizes that state power plays a role in making international law and in shaping states’ responses to international law. Among other things: “powerful states (or their rulers) conclude treaties to advance state interests…. Hence, powerful states could sometimes impose international law on weaker states, and sometimes states could agree among themselves on issues of common interest” (147). He also notes that powerful states use law to shape the capacities of others, which implies that they gain some advantage from this (157). International law is therefore a product of state power, and a contributor to it. IR/IL scholarship must focus on the complex dynamics among power, interests, and law.

As a description of some key elements of international politics this has much to recommend it. What is left of international politics if one leaves out states, state power, or state interests? There are many non-state forces in international relations but many are interesting for how they connect with or contradict state power. Who would deny that powerful states often evade their legal obligations, or that they strive to use their power to create a legal order that favors their interests? State agency is not absolute and it is shaped by international legal forms among other things, but one cannot deny that it exists.

But therein lies the problem — it takes on so much that it is hard to see what a non-realist approach to IR/IL could be.

Steinberg sets out to make essentially two points: first, that scholars of international law should pay more attention to power, especially state power, and its relation to international law; and second, that to do is called ‘realism.’

For many readers, the first is likely to be more controversial than the second. This is because with the first point Steinberg undermines the popular view that international law is an alternative to international power politics. US President Eisenhower said in 1958 (on ‘Law Day U.S.A.’ no less) that “in a very real sense the world no longer has a choice between force and law. If civilization is to survive, it must choose the rule of law.” (cited in William W. Bishop “The International Rule of Law,” Michigan Law Review, v59, 1961, p.555) Law is presented as a form or system outside power, coercion, and force.

By refusing to see law as a separate and non-political domain, Steinberg issues a challenge to the liberal-internationalist conventional wisdom. The distinction that Ikenberry (for instance) draws between US ‘leading through rules’ rather than by coercion is no distinction at all if one sees the rules as Steinberg would have it: as a continuation of power politics in legal form.

However, is this ‘realism’? Steinberg says so, but I am doubtful.

He defines realism as a set of three assumptions from which three causal claims (“causal narratives”) follow. The assumptions are that states are central players, they have interests, and they use their material capabilities in the pursuit of those interests. The causal claims are that international law reflects the interests of powerful states, law may make states better off than otherwise, and powerful states will not comply with a law that contradicts their long-term interests.

The problem here is that few scholars of any stripe would deny these premises or empirical patterns – few people expect states to follow law that contradicts their long term interests, and everyone expects strong states to have more influence over the creation and change of law. The payoff to being a Great Power is precisely the capacity to shape the rules of the international system, and to act outside of them when desired. This isn’t a ‘realist insight’ so much as it is just an ‘insight.’ What is important in these issues is how and why governments find law to be a useful instrument for advancing their goals, and how and why they sometimes find themselves influenced by law in ways they did not intend.

If attention to power and interests defines realism, then there is not much scholarship that isn’t realist. Constructivists, post-colonial scholars, feminists, realists, and others all share an interest in studying state power, including its interconnections with law and legal institutions.

The overly expansive definition makes it possible for Steinberg to see realism’s pedigree “back at least two-and-a-half millennia through some of history’s most important political thinkers” (148). This is certainly true if one takes the interest in state power as sufficient to qualify a scholar as a ‘realist,’ but it doesn’t draw a meaningful line between this and other traditions.

To be a useful category, ‘realism’ must mean something more limited. Steinberg hints at several possibilities.

The first is materialism. I have argued elsewhere that realism may be distinguished by its commitment to a materialist approach to power, and Steinberg comes close to this view – that is, that material resources have influence in the world that is unmediated by non-material forces. Thus, the material possessed by a neighboring state is inherently threatening and demands a proportionate response, independent of any further details about context, history, etc. This is demonstrably wrong as an account of international relations (as Wendt showed, concepts of friend and enemy cannot be reduced to brute material), but it is a plausible intellectual commitment which separates realism from other approaches, and Steinberg appears to endorse it.

The second is fixed concepts. Realism is characterized by the absence of interest in the history or content of its central concepts: states, interests, and power. It takes these as self-evident: pre-given states with pre-given interests and pre-given military insecurities. Steinberg notes that “new ideas about the world keep norms and epistemologies in a constant state of change, so social reality is constantly transforming” (166) – this he says explains why diverse intellectual traditions are important to the study of international law and politics. And in this division of labor, he implies, realists are those who study international law and politics as if these things were fixed.

This is not an altogether flattering account — it suggests that realists are people who do not want to think very hard about their concepts. To inquire into their construction or history in relation to particular cases risks one’s membership in the realist epistemic community: thus, a realist who looks at how state interests are made becomes a constructivist (Martha Finnemore); a realist who takes a complex view of state power becomes a post-structuralist (David Campbell, Charlotte Epstein); a realist who looks into the domestic processes that produce state policies becomes a liberal of the transgovernmentalist or interest-group varieties (Anne-Marie Slaughter, Andrew Moravscik).

The third is possibility for differentiation between realism and others lies in what Steinberg calls a kind of ‘skepticism.’ He says “realists are skeptical of the extent of shared international norms, the existence or longevity of an international ‘society’ or ‘community,’ and the evolution of soft law into hard law. Realists are skeptical of many assertions of customary international law: they want unambiguous state-by-state expressions of opinio juris that would evidence consent” (146-147).

What is interesting about this skepticism is that it does not derive from the first principles that Steinberg sets out for realism — and yet he is right that it seems to characterize the community of realist scholars. Perhaps the skepticism comes before the realism. That is, are realists those who are committed to showing that international norms and international law are not important? Skepticism may be a premise of realism, not a finding.

The most interesting parts of Steinberg’s research agenda do not support this a priori skepticism. He points instead toward the important questions of how and why the use of law by states influences their interactions. What do strong states gain by institutionalizing their interests in legal rules? How does control over legal institutions add to their existing power resources? Why do small states and others see legal arguments as a source of leverage, as possible ‘weapons of the weak’? These are interesting questions about the influence of legal forms on international politics, and Steinberg opens doors to them.

In the end, Steinberg is right about international law and politics — power and interest are inseparable from the world of international law, and IL/IR scholarship should focus at this intersection. But the version of ‘realism’ that he draws is either all-encompassing or demonstrably wrong. The value of his essay comes from the fact that it is better to be right about the world and wrong about the discipline than the other way around.

http://opiniojuris.org/2013/09/16/ilir-book-discussion-comment-on-steinberg/

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