IL/IR Book Discussion: Steinberg Reply to Hurd

[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.]

I am grateful for Ian Hurd’s thoughtful comment on my book chapter partly because it supports my claim that that everyone borrows from the realist tradition.  Moreover, Hurd’s comment inadvertently recapitulates a narrow structural realist view of international law (recalling the associated dysfunctional debate of the 1980s) that I intended my chapter to supersede, offering me the opportunity here to underscore the approach of my chapter, which sees the utility of employing a longer-lived realist tradition for understanding international law . . .

First, Hurd expresses apparent disappointment that most of my claims are completely acceptable to him and constitute orthodoxy among international relations scholars.  My claims are “so encompassing that there is little to disagree with.”  For example, Hurd agrees with me that analysts of international politics should take into account states, state power, and state interests, and that states strive to use their power to create a legal order that favors their interests.  Apparently, my clear restatement of concepts rooted in the realist tradition, going back two and a half millennia, is not disagreeable—except to the extent that Hurd thinks my restatement is not realism.  “The problem here,” Hurd writes, “is that few scholars of any stripe would deny these premises or empirical patterns” and so Hurd is “doubtful” that “this is ‘realism.’”  But the fact that these premises and patterns are broadly accepted does not negate the fact that they are rooted in the realist tradition—the mode and level of analysis common to people like Thucydides, Machiavelli, and Morgenthau.  These premises and patterns are certainly not the preoccupation of the liberal tradition, with its focus on individuals and nonstate actors as drivers of state interests and action, nor of constructivism, with its focus on the social roots of epistemologies, norms, and interests.

Hurd’s declaration that these realist premises and patterns are broadly accepted is gratifying to those who have identified themselves with the realist tradition in their understanding of international law—but who in the last thirty years have been intellectually flogged for doing so by those who have attacked a straw-man version of realism described in my chapter.  For Hurd, the shortcoming with my chapter seems to be that a correct distillation of the realist tradition offers little to disagree with.  Sorry to disappoint.  As stated in the last line of my chapter:  Perhaps everybody is still a realist.

So, what does Hurd disagree with?  Not my account of the realist narrative.  He seems to mistake a particular version of realism for my personal view of how to think about international relations.  For example, he states, that I “refuse to see law as a separate and non-political domain.”   That’s not true: I have never claimed that, nor would I claim that.  I fully acknowledge that ideas and norms independent of material power may crystallize into law and stand in opposition to material power—and that which prevails is indeterminate, a priori.  In the section of the chapter where I discuss hybrid approaches, I state expressly that realist concepts may be blended with others, including in empirical research—and nowhere in that section do I privilege realist variables over others.  I see the realist tradition as one of many lenses that are needed for a full account of international law and international relations.  I am not a realist who is blind to the utility of other approaches.

Moreover, contrary to Hurd’s conjectures, I do not think that realism is limited to or defined by analyses based only on a materialist approach to power, a fixed concept of pre-given interests, or skepticism.  These are all Hurd’s conjectures about how I might want to define and delimit realism— which he then goes on to critique.  But let it be clear that this is Hurd’s straw-man and his vehicle for presenting a delimited view of realism— delimitations that would exclude Thucydides, Machiavelli, and Morgenthau, and me from the realist tradition.  I did not and do not want to delimit realism in those ways.  In fact, in my chapter I expressly or implicitly rejected each such delimitation, arguing, for example, that interest-formation is extrinsic to realism and at one point that “new ideas about the world keep norms and epistemologies in a constant state of change, so social reality is constantly transforming.”   It follows that interests and sources of state power constantly transform.  I am not the straw man.

As for skepticism, my comment in that regard was to the effect that realists tend to be more skeptical than most international lawyers about the extent of shared international norms and conclusions that state practice is motivated by opinio juris.  By that, I mean that realist analysis (as a positive exercise, in Comte’s sense) is less likely to find clear expressions of opinion juris, and less likely to accept claims of emerging customary law, than those advocates who favor a particular customary rule that accords with their normative bent.  It isn’t that skeptics tend to be realists, as Hurd suggests; it’s that realism is a positive orientation that does not see things simply because the analyst hopes to see them.

Despite these disagreements, I suspect there is in fact little daylight between Hurd’s approach toward understanding international law and international relations and my approach.  The only real difference may be in what concepts and patterns we attribute to the “realist tradition.”  Our difference seems to be what’s in and what’s out—and who’s in and who’s out.

Hurd’s suggested delimitations would define realism in much the same way structural realists did in the early 1980s.  He then attacks that version of realism, recapitulating a debate that was ultimately of limited utility.  My chapter was designed to move beyond that debate, rejecting a narrow, structural specification of realism as a singular basis for understanding international law, recalling instead a longer-lived realist tradition in which the state and state power are at the center of understanding international law, but which admits other factors into the equation, including what we now think of as norms, ideas, and liberal forces.