IL/IR Book Discussion: Wanted- Dead or Alive: Realism in International Law

by Richard Steinberg

[Richard H. Steinberg is Professor of Law at the University of California. Los Angeles; Visiting Professor of International, Comparative & Area Studies at Stanford University; and Director of the Sanela Diana Jenkins Human Rights Project.]

“Realism” is the theory international lawyers love to hate. Dozens of commentators have attacked realism or written its epitaph. Some commentators have even asked: is anybody still a realist?

Many international law (IL) scholars challenge “realism” because most think it means that international law is epiphenomenal and so devoid of meaning – which could make their jobs irrelevant, wasteful, and quixotic.  But they also seem to love realism – or a version of it – because the misunderstood and mischaracterized structural realist straw-man claim that “international law does not matter” serves for them as the perfect foil for arguments that international law (IL) is important.  It is the null hypothesis that enables international lawyers to show that their argument and life’s work does have meaning.  There’s another reason IL scholars may dislike realism: it is seen as an amoral theory, at best.  And it offers a basis for attacking the feasibility of much of the normative work that espouses changing the status quo in international law.  In IL, a field that remains driven largely by normative agendas, realists constantly raise annoying facts and analyses that spoil the party.  Finally, realists don’t see nearly as much customary law in the world as most international lawyers who aspire to build a more legalized world order.  What’s not to hate?

This book chapter argues that realism remains very much alive, not only because international lawyers have kept it alive by attacking a straw-man misinterpretation of the structural realist variant, but also because it is a useful tool for positive analysis of international law: even its structural realist variant (correctly understood) has heuristic power, and realist concepts may be hybridized with insights of other approaches – for example, cooperation theory in economics, liberalism, social construction theory, or empiricism – to constitute a valuable research program in international law, with substantial explanatory and predictive power. Finally, realism is critical for the advancement of normative agendas in international law.  Realism’s epitaph is premature. Realism in international law remains alive and vibrant.

The chapter is organized into five sections.  The first section, “Realism’s Core Elements and Causal Narratives in International Law,” distills the core elements of the realist tradition in international law over the millennia: the state, state power, state interests. It then briefly posits realism’s main causal narratives: state capabilities are brought to bear to advance interests that become embodied in international law, so international law reflects the interests of powerful states; international law may make states better off than otherwise; and if international law contradicts the long-term interests of a powerful state, then that state will not comply with it.

The next section, “Varieties of Realism in International Law,” presents a revisionist intellectual history of realism, showing how different versions of realism have put these elements together in different ways. Thucydides, Machiavelli, and Morgenthau all thought that powerful states (or their rulers) conclude treaties to advance state interests. Interests were sometimes divergent and sometimes convergent. Hence, powerful states could sometimes impose international law on weaker states, and sometimes states could agree among themselves on issues of common interest. Classical (Thucydides), early modern (Machiavelli), and traditional (Morgenthau) realist approaches to international law included some additional elements, however – such as norms, religion, and type of government – that affect the making of or complying with treaty obligations. A more contemporary version of realism, the structural realism distilled by Kenneth Waltz and applied to international regimes by Stephen Krasner, presented a highly stylized theory devoid of these additional elements and argued, inter alia, that international law can’t contradict the structure of the international system. A version of that structural argument was misinterpreted by scores of commentators as a broader claim that international law has no effect on any international outcomes or state behavior – a claim that would never have been made by realist predecessors and that does not follow logically from structural premises. And it is that straw-man that has been confounded by many as “realism” over the past thirty years.

The third section, “You Can’t Live with It; You Can’t Live without It: The Endurance of Realism in Hybrid Theories,” shows how realist elements have been used in hybridized accounts of international law. Realism has been regularly combined with elements of other major international relations (IR) theories (rationalism, domestic politics theories, constructivism) and empiricism to yield useful hybrid models that are theoretically progressive and do not subvert realist concepts. These hybrid models add complexity to (and diminish the parsimony of) the structural realist approach, but they expand the explanatory power of realist-oriented argumentation and carve out more broadly effective roles for international law.

The fourth section, “Realist Understanding of International Law Making, Interpretation, Compliance, and Global Legal Structure,” recounts some basic lessons about international law from realist and hybrid approaches that employ realist elements.  Realism is powerful for explaining international law making, constraints on judicial interpretation of it, and compliance– which are the microfoundations of realism’s insights about the global structure of international law.  The effect of structural change on international law is exemplified by a realist history of international law since the Second World War.

The concluding section suggests the importance of realism for advancing the science and art of international law, while at the same time acknowledging that realism has limits.  Explaining and predicting all aspects of international law and international relations through realism (or through the lens of any particular meta-theory) is not possible.  Realism (and every other –ism) may be better employed as a tradition than as a theory.  Hybrid theories are necessary to understand at least some phenomena.  And empiricism, using concepts and causal narratives from multiple traditions, offers the promise of precise claims within narrowly specified time frames and geographic contexts.  Yet neither hybrid nor empirical approaches to understanding international law can ignore the state, state power, or state interests.  And it would be unwise for a practitioner to advance any normative agenda in international law without considering which states are powerful and what their interests may be.  Hence, the realist tradition remains important to positive theory about international law and to normative agendas.  In that sense, everybody is still a realist.

http://opiniojuris.org/2013/09/16/ilir-book-discussion-wanted-dead-alive-realism-international-law/

3 Responses

  1. Chapter One apparently describes how some, not all, have viewed “realism” — and I wonder whether McDougal-Lasswell and their entourage are mentioned.  Realism from a realistic viewpoint seeks to identify (or at least be aware of) the various actors that have had and have formal and informal participatory roles in the “real-world” international legal process.  see also Lung-chu Chen, An Introduction to Contemporary International Law (Yale Univ. Press).  As noted in a response to the post below, formal actors have included states, nations, peoples, tribes, cities, and belligerents for at least the last two hundred years and international law has never been merely state-to-state.  http://ssrn.com/abstract=1701992
    It is time for some of the blind persons who are feeling merely small parts of the elephant to at least become aware of what some of the other blind persons have identified as other parts of the elephant.  Together we might “see” the elephant.

  2. “And it would be unwise for a practitioner to advance any normative agenda in international law without considering which states are powerful and what their interests may be.  Hence, the realist tradition remains important to positive theory about international law and to normative agendas.  In that sense, everybody is still a realist.”
     
    Well, sure…but that’s meaningless and certainly no defense of realism. No one denies that powerful states and their interests matter; there is nothing distinctly realist about that.
     

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  1. […] Relations: The State of the Art over at Opinio Juris. Richard Steinberg kicked off the event with Wanted- Dead or Alive: Realism in International Law, but see also the reply by Ian Hurd and Steinberg’s reply to Hurd. Yesterday, Larry Helfer […]