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

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

[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.’

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

[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.

Introducing Interdisciplinary Perspectives on International Law and International Relations: The State of the Art

[Jeffrey L. Dunoff is the Laura H. Carnell Professor of Law at Temple University Beasley School of Law and Mark A. Pollack is professor of Political Science and Jean Monnet Chair ad personam at Temple University] We are very grateful to our friends at OJ for hosting this symposium, which we trust will continue the work begun in our recent edited volume, namely providing a critical assessment of the innovations and contributions, as well as the lacunae, biases and blind spots, of international law and international relations (IL/IR) scholarship.  In this post, we kick off the discussion by providing a brief introduction to international law/international relations literature; discussing the motivation behind, and aims of, Interdisciplinary Perspectives on International Law and International Relations: The State of the Art; and identifying one significant conceptual shortcoming found in much IL/IR scholarship.

The Fall and Rise of IL/IR

The disciplines of international law (IL) and international relations (IR) both seek, albeit in different ways, to understand the causes and consequences of international cooperation, in general, and international legalization, in particular.  Perhaps not surprisingly, then, for several decades prior to World War II, practitioners from both fields pursued common research interests. However, the cataclysm of World War II brought this era of disciplinary convergence to a crashing halt.  Influential political scientists, such as Morgenthau, Kennan and Carr, argued that state actions were driven by national interests, and that, as Kennan wrote, international law was “too abstract, too inflexible, too hard to adjust to the demands of the unpredictable and the unexpected” that mark international affairs. A dominant school of “realism” argued that “law,” as understood in the domestic sense, could not serve as a meaningful constraint on states’ pursuit of the national interest in an anarchic international system, and for many years thereafter IR scholars paid little attention to international law or international legal scholarship.  One consequence was a decades-long mutual estrangement between the two disciplines. This period of mutual neglect began to ebb only with the end of the Cold War, and the increased salience of international norms and institutions.