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A Response to Robert Ahdieh by Eric A. Posner

[Eric A. Posner, co-author of Universal Exceptionalism in International Law with Anu Bradford, responds to Robert Ahdieh] I am grateful for Professor Ahdieh’s illuminating comments on my paper with Anu Bradford. Ahdieh offers three interpretations of the charge of U.S. exceptionalism: Degreeism: The United States does not always win, but it wins more often than Europe and China do. Exceptionalism is a matter of degree, but it still exists. I don’t think that the traditional notion of American exceptionalism permits this interpretation, but it is possible that people misuse the word “exceptionalism” in the way that Ahdieh describes. Still, our purpose was to cast doubt on the appropriateness of exceptionalism (and, a fortiori, degreeism) as a moral category. Rather than criticizing states for being exceptionalist, we should focus on the relative normative appeal of the competing exceptionalist visions. An exceptionalist country that always gets its way, or a country that merely gets its way more often than other countries, may be a good country. Such country may also be “better” than the others, which is why we don’t sympathize with North Korea and Myanmar, which rarely get their way, and we retrospectively cheer on the British when they abolished the international slave trade. Everything depends on whether getting its way helps or hurts others—not whether a country is exceptionalist or not or the degree to which it can enforce its exceptionalist view. Presentationism:

A Response to Anu Bradford and Eric A. Posner by Robert Ahdieh

[Robert Ahdieh, the Associate Dean of the Faculty, Professor of Law, and Director of the Center on Federalism and Intersystemic Governance at Emory University School of Law, responds to Anu Bradford & Eric A. Posner, Universal Exceptionalism in International Law] In Universal Exceptionalism in International Law, Professors Anu Bradford and Eric Posner help to advance our understanding of international order in at least two respects. To begin, there is the distinction they draw (if sometimes imperfectly) between the familiar trope of “exceptionalism” – a term most commonly found with “American” in front of it – and the distinct concept of “exemptionalism.” As I will suggest below, I have some doubt about the definitional premise on which the Article is based. The notion that we should distinguish between a desire to have one’s values reflected in international law and a desire to operate beyond its strictures, however, has the potential to offer valuable leverage in the discourse of international law and relations. I was also struck by their systematic analysis of each of the states/regions of relevant interest – Europe, China, and the United States. It is beyond my expertise to assess the substantive accuracy of their review of distinct patterns of exceptionalism in each locale. Their embrace of what I would cast as a “microanalytic” approach to the question presented, however, holds great promise – perhaps especially when played out within a broader framework, such as the exceptionalism versus exemptionalism approach they advance. Notwithstanding these contributions, I have significant doubts about the conclusion that Bradford and Posner would have us take away from their Article.

Universal Exceptionalism in International Law by Anu Bradford and Eric A. Posner

[The following summary is the abstract from Universal Exceptionalism in International Law by Anu Bradford (an Assistant Professor of Law at the University of Chicago Law School) & Eric A. Posner (the Kirkland & Ellis Professor of Law at the University of Chicago Law School).] A trope of international law scholarship is that the United States is an “exceptionalist” nation, one...