¹ Richard A. Falk, The Relevance of Political Context to the Nature and Functioning of International Law: An Intermediate View, in The Relevance of International Law 133, 142 (Karl W. Deutsch & Stanley Hoffmann eds., 1968).

² Thomas M. Franck, Principles of Fairness in International Law (paper presented at Annual Meeting of American Political Science Association, Chicago, IL, September 1992).

³ See, e.g., Robert Bork, The Limits of ‘International Law,’ Nat’l Interest, Winter 1989/90, at 3.

⁴ In probably the most successful effort to bridge this disciplinary divide, Louis Henkin lamented that “the student of law and the student of politics … purport to be looking at the same world from the vantage point of important disciplines. It seems unfortunate, indeed destructive, that they should not, at the least, hear each other.” Louis Henkin, How Nations Behave: Law and Foreign Policy 4 (2d ed. 1979).

⁵ Some other notable Realists were Reinhold Niebuhr, Arnold Wolfers and Robert Strausz-Hupé.

⁶ Hans J. Morgenthau, Politics among Nations: The Struggle for Power and Peace 4–5, 25–26 (4th ed. 1967). Although many of the fathers of the United Nations would have argued that it was founded precisely on a Realist recognition of the necessities of power politics—hence the special privileges for the great powers sitting on the Security Council—Morgenthau specifically cites “the great attempts at organizing the world, such as the League of Nations and the United Nations,” as efforts to implement the wrongheaded “conviction that the struggle for power can be eliminated from the international scene.” Id. at 10.

⁷ George Kennan, American Diplomacy, 1900–1950 (1951). Kennan linked the “legalist-moralist” approach, a term he coined, to the predominance of lawyers among American foreign-policy makers, in addition to a broader effort to “transpose the Anglo-Saxon concept of individual law into the international field and to make it applicable to governments as it is applicable here at home,” to establish world order as we had once established a revolutionary national order. Id. at 95. See also Arnold Wolfers, Introduction: Political Theory and International Relations, in The Anglo-American Tradition in Foreign Affairs at ix (Arnold Wolfers & Laurence W. Martin eds., 1956).

⁸ Kennan, supra note 7, at 95 (emphasis added).

⁹ This was the title of an excellent 1968 Festschrift in honor of Leo Gross, which was edited by two noted political scientists and included both international lawyers and political scientists. See supra note 1.

¹⁰ Falk, supra note 1, at 138.

¹¹ There is a rich irony here. Both the Legal Realists and the Political Realists can be understood, in their extreme form, as having argued that law is indistinguishable from politics. Yet the Legal Realists argued that law subsumed politics; the Political Realists claimed that politics proceeded entirely independently of law. The difference, of course, is that the Legal Realists sought to demythologize a legal system in which legal institutions—lawyers and judges—unquestionably wielded great power. Political Realists, on the other hand, sought to demythologize a legal system in a society in which legal institutions were weak. The response to both critiques could thus be exactly the same, a move that endowed law with less autonomous power than thought by the formalists but more than perceived by the Realists of either stripe.

¹² David Kennedy is the great chronicler of this shift, although he conceptualizes it somewhat differently as a “preoccupation … with a process which might convince us of international law’s being by imagining it in relationship to something else—often thought of as ‘political authority.’ “David Kennedy, A New Stream of International Law Scholarship, 7 Wis. J. Int’l L. 1, 2 (1988). His account is a more self-referential description of the collective psychology of the discipline, describing what I call the Realist challenge as an internal identity crisis.

¹³ This redefinition of legal function was accomplished in two contradictory, but similarly motivated, maneuvers. On the one hand, some scholars argued that international law is like domestic law, but that domestic law operates in far more complex and subtle ways than by simply restraining behavior. See, e.g., Abram Chayes, Thomas Ehrlich & Andreas F. Lowenfeld, International Lecal Process: Materials for an Introductory Course at xiii–xv (1968) (domestic law is not so court-driven as we might suppose, and thus the absence of effective judicial institutions in the international realm is a difference in degree rather than kind); Roger Fisher, Bringing Law to Bear on National Governments, 74 Harv. L. Rev. 1130 (1961) (domestic private law is enforceable by the power of the state, but not so domestic public law such as constitutional and administrative law; thus, absence of coercive enforcement option does not differentiate international law from many important types of domestic law); William Coplin, International Law and Assumptions About the State System, 17 World Pol. 615 (1965) (both international and domestic law communicate society’s conception of itself). On the other hand, an equally ardent group of scholars have argued that the domestic analogy is false and misleading; international law must be understood as law in a very different context. See, e.g., Richard A. Falk, The Status of Law in International Society (1970); Introduction to International Law and Organization 1 (Richard A. Falk & Wolfram F. Hanrieder eds., 1968).

¹⁴ This famous plan for the wholesale reconceptualization of American legal education was set forth in Harold D. Lasswell & Myres S. McDougal, Legal Education and Public Policy: Professional Training in the Public Interest, 52 Yale L.J. 203 (1943). Lasswell was a professor of both law and political science at Yale Law School.

¹⁵ Myres S. McDougal, International Law, Power and Policy: A Contemporary Conception, 82 Recueil des Cours 137, 157 (1953 I).

¹⁶ Most of McDougal’s most important early work is collected in Myres S. McDougal & Associates, Studies in World Public Order (1960), although in many ways McDougal’s Hague lectures, supra note 15, provide more insight into the development of his unique framework. Other important articles, although only a limited selection from a vast corpus, include: Myres S. McDougal, Law as a Process of Decision: A Policy-Oriented Approach to Legal Study, 1 Nat. L. F. 53 (1956); Myres S. McDougal, Some Basic Theoretical Concepts about International Law: A Policy-Oriented Framework of Inquiry, 4 J. Conflict Resol. 337 (1960); Myres S. McDougal & W. Michael Reisman, The World Constitutive Process of Authoritative Decision, 19 J. Legal Educ 253 (1967); Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman, Theories about International Law: Prologue to a Configurative Jurisprudence, 8 Va. J. Int’l L. 188 (1968); Myres S. McDougal, International Law and Social Science: A Mild Plea in Avoidance, 66 AJIL 77 (1972); Myres S. McDougal & W. Michael Reisman, International Law in Policy-Oriented Perspective, in The Structure and Process of International Law 103 (Ronald St. J. Macdonald & Douglas M. Johnston eds., 1983) [hereinafter Policy-Oriented Perspective]. On the contributions of his many students, see the Festschrift published on the occasion of his retirement: Toward World Order and HUMAN Dignity (W. Michael Reisman & Burns H. Weston eds., 1976) [hereinafter Toward World Order], also containing a complete bibliography of works by and relating to McDougal.

¹⁷ Cf Harold Lasswell’s famous question: “Who gets what, when, how?” Harold D. Lasswell, Politics: Who Gets What, When, How (1936). The process is political because it inevitably involves power, both as a value in itself and as an instrument to attain other values. For a useful overview of Lasswell’s scholarship and its relation to that of other “distributive” political theorists, see Oran R. Young, Systems of Political Science 65–78 (1968). For the specific relationship between McDougal’s theory of law and Lasswell’s broader work, see Young, supra note 16, and, more recently, Gray L. Dorsey, The McDougal-Lasswell Proposal to Build a World Public Order, 82 AJIL 41 (1988).

¹⁸ The legal process itself is thus subject to restraints flowing from a modern version of natural law, “substitut[ing] the empirical generalizations of social science for the metaphysically based propositions of reason and religion.” Falk, Book Review, supra note 16, at 172.

¹⁹ For an accessible discussion of the McDougalites’ understanding of the relationship between authority and control, see Rosalyn Higgins, Integration of Authority and Control: Trends in the Literature of International Law and International Relations, in Toward World Order, supra note 16, at 79.

²⁰ Falk, supra note 13, at 14.

²¹ McDougal has collaborated with many distinguished scholars, some of whom are listed as his associates in Studies in World Public Order, supra note 16. See also the contributors to Toward World Order, supra note 16.

²² Myres S. McDougal & Harold D. Lasswell, The Identification and Appraisal of Diverse Systems of Public Order, in McDougal & Associates, supra note 16, at 39. World public order is defined as “those features of the world social process, including both goal values and implementing institutions, which are protected by law.” For McDougal and his associates, the supreme value to be promoted by international lawyers is the protection and furtherance of human dignity.

²³ Falk, supra note 13, at 41–49. An earlier version of this essay was published in The Relevance of International Law, supra note 1. Falk teaches in a political science department, and his ability to bridge both disciplines, as well as his unparalleled capacity to digest and disseminate vast quantities of material, makes him an invaluable resource for anyone engaged in an interdisciplinary enterprise.

²⁴ Falk, supra note 13, at 49.

²⁵ Id. at 57.

²⁶ Id. at 18. Falk was influenced here by the development of systems approaches in international relations theory, discussed infra, which allowed him to conceptualize the operation of international law independently of state actors. Rosalyn Higgins later questioned whether systems theory could indeed be used “to identify universal values” distinct from the values of “sub-universal systems” such as “corporations, regions, organizations.” Higgins, supra note 19, at 91.

²⁷ This function inspired an entire category of legal scholarship on “nonpolitical” international legal regimes that Falk has described elsewhere as “functionalism,” analogous to the functionalism of David Mitrany. Scholars such as Percy Corbett, Wolfgang Friedmann, C. Wilfred Jenks and Julius Stone concentrated on the growth of law and legal organization in areas perceived as not of vital interest to nation-states, on the assumption that the growth of, and growing confidence in, these institutions would gradually feed the growth of law in areas of increasingly vital interest as well. See Richard A. Falk, New Approaches to the Study of International Law, 61 AJIL 477, 491–93 (1967); Higgins, supra note 19, at 89–90.

²⁸ Falk, supra note 13, at 52–59.

²⁹ The casebook produced by three leading members of this school, Burns H. Weston, Richard A. Falk & Anthony D’Amato, International Law and World Order (2d ed. 1990), seeks to introduce students to this insight by asking them to work through a wide range of international political problems so as to understand the role of law in their solution.

³⁰ Chayes, Ehrlich & Lowenfeld, supra note 13.

³¹ Id. at xii. A more recent work in this vein is Daniel G. Partan, The International Law Process (1992).

³² For an excellent short overview of the sources and principal tenets of the legal process school, see Akhil R. Amar, Law Story, 102 Harv. L. Rev. 688 (1989) (reviewing Hart and Wechsler’s The Federal Courts and the Federal System (Paul M. Bator et al. eds., 1988)).

³³ Chayes, Ehrlich & Lowenfeld, supra note 13, at xii.

³⁴ Abram Chayes, The Cuban Missile Crisis (1974). Other works in this series are Thomas Ehrlich, Cyprus, 1958–1967 (1974); and Roger Fisher, Points of Choice (1978).

³⁵ Roger Fisher, Foreword to Chayes, supra note 34, at v. Fisher chaired a panel of ASIL members involved in the series.

³⁶ Chayes later applied his method to the workings of arms control agreements, concluding that the standard “rational actor” approach employed in strategic theory overlooked the importance of “consensus, concession, and commitment” on the part of a multitude of bureaucratic actors involved in the negotiation and ratification of a treaty as forces for compliance. Chayes also argued that legal provisions designed to require the furnishing of information on demand, now known as “transparency” provisions, could play as important a role in compliance as the standard model of verification and sanctions in noncompliance. Abram Chayes, An Inquiry into the Workings of Arms Control Agreements, 85 Harv. L. Rev. 905, 934, 954–55 (1972).

³⁷ Henkin, supra note 4, at ix (preface to 1st ed. 1968, reprinted in 2d ed. 1979). Part 4, entitled “The Law in Operation,” specifically examines the role of law in foreign-policy decision making in four case studies: Suez, the Eichmann abduction, the Cuban missile crisis and Vietnam. The rest of the book explores the role and functions of law in a broader frame. See also Louis Henkin, International Organization and the Rule of Law, 23 Int’l Org. 656 (1969) (describing how international organizations contribute to international lawmaking, influence the disposition of states to comply with their international commitments, and conform to the interests of the United States).

³⁸ Henkin, supra note 4, at 4–5. Henkin, too, felt compelled to rebut Kennan’s charge of the irrelevance and unsuitability of international law. See id. at 322–29.

³⁹ Id. at 21.

⁴⁰ Id. at 29.

⁴¹ Id.

⁴² Id.

⁴³ Id. at 20.

⁴⁴ This is Henkin’s criticism of the McDougal school, a view of law “not as is but always as becoming” from some Archimedean perspective. Id. at 40; see also Louis Henkin, Force, Intervention, and Neutrality in Contemporary International Law, 57 ASIL Proc. 147, 168 (1963).

⁴⁵ Boyle, supra note 6.

⁴⁶ Stanley Hoffmann, International Systems and International Law, in The International System 205 (Klaus Knorr & Sydney Verba eds., 1961), reprinted in International Law and Organization, supra note 13, at 89 (all citations herein are to the latter version); Morton A. Kaplan & Nicholas Katzenbach, The Political Foundations of International Law (1961). Other important systems theorists include Richard N. Rosecrance, Action and Reaction in World Politics (1963), who distinguished nine separate historical systems, and Oran Young. As discussed above, Richard Falk also drew on the insights of systems theory, but as a means of conceptualizing an international legal system.

⁴⁷ This effort was part of the ongoing struggle to define international relations as an “autonomous discipline.” On the relationship between this effort and the conceptualization of international politics as constituting part of a distinct system, see Contemporary Theory in International Relations 1–3 (Stanley Hoffmann ed., 1960).

⁴⁸ Each systems theorist uses a slightly different definition of “system,” but all agree that the analytic concept of a system requires study of the interaction of states with one another within a particular structure and in accordance with established patterns of behavior.

⁴⁹ A quite different “systems approach” was that of political scientist William Coplin, supra note 13, who argued that international law should be thought of as a system of authoritative communication, particularly communication to actors within the system about the nature and structure of the system. Coplin’s analogy between this function of international law and the function of domestic law in socialization processes bears striking resemblance to the arguments advanced a decade later by critical legal theorists in both domestic and international law.

⁵⁰ Hoffmann, supra note 46, at 107.

⁵¹ Morton A. Kaplan, System and Process in International Politics (1962).

⁵² In contrast to this deliberate application of McDougal’s principles, Hoffmann explicitly distanced himself from “deniers or cynics” “disguised as ‘policy-oriented’ theorists who dissolve rules and principles into a maze of processes, messages, and alternatives.” Hoffmann, supra note 46, at 116. Yet a number of his conclusions strikingly accord with McDougal’s analysis, notably his claim that in revolutionary systems, “gaps and ambiguities [in the law] become wedges for destruction or subversion of the international order in the interest of any of the actors.” Id. at 98. This argument echoes McDougal’s pleas for the avoidance of a “false universalism” in a system in which states with very different values can exploit ambiguities to their own advantage. The difference between the two thinkers is that Hoffmann saw these difficulties as limiting the relevance and usefulness of international law in certain political circumstances; McDougal sought to use the law to help change these political circumstances. See Stanley Hoffmann, International Law and the Control of Force, in The Relevance of International Law, supra note 1, at 21 [hereinafter Control of Force].

⁵³ See Hoffmann, Control of Force, supra note 52. As Hoffmann explained, his analysis led him to the regretful conclusion that “the plight of international law in the present international milieu is particularly serious,” and that “the relevance of legal rules to the control of the use of force among states will… remain limited in the near future.” Id. at 21. Contrary to the suggestion of some of his critics in the international legal community, however, he did not abandon hope for a future international legal order or advocate passivity until the system changed. He argued, instead, for pursuing the development of international law in areas other than the control of force, and in that area to develop practices that might operate as “quasi-law.” Id. at 45.

⁵⁴ Kaplan & Katzenbach, supra note 46, at 348. This approach earned Falk’s praise for using systems analysis to make a case for the value and potential effectiveness of international norms. Falk, supra note 13, at 486–87. Another international relations theorist, writing roughly contemporaneously with Kaplan and Katzenbach, who reached similar conclusions from staunchly Realist premises is John H. Herz, International Politics in the Atomic Age (1959).

⁵⁵ Kaplan & Katzenbach, supra note 46, at 351.

⁵⁶ Even McDougal reached this conclusion, notwithstanding Kaplan and Katzenbach’s acknowledged debt to his conceptual apparatus and professed efforts to apply it. See McDougal & Reisman, Policy-Oriented Perspective, supra note 16, at 112.

⁵⁷ Kenneth N. Waltz, Theory of International Politics (1979).

⁵⁸ Id. at 99.

⁵⁹ Friedrich Kratochwil & John G. Ruggie, International organization: a state of the art on an art of the state, 40 Int’l Org. 753, 754 (1986).

⁶⁰ Kratochwil and Ruggie trace every step of this progression with copious citations, and follow up with a critique of current trends in regime theory. For anyone interested in political science writing on international organization generally and regime theory in particular, this is necessary reading, as is the 1982 special issue of International Organization on international regimes, republished as International Regimes (Stephen D. Krasner ed., 1983). Krasner’s introduction provides an overview of the various approaches to regimes encompassed in the volume, ranging from Structural Realist skepticism to what he terms a “Grotian” position, advanced by Oran Young and Hopkins and Puchala, who regard regimes as the model status of international life. In between is the majority position in the volume, exemplified by the contributions of Robert Keohane and Arthur Stein, who proceed from Structural Realist premises but argue that regimes can maximize cooperation under specified conditions. Stephen D. Krasner, Structural causes and regime consequences: regimes as intervening variables, in id. at 1.

⁶¹ Kratochwil & Ruggie, supra note 59, at 753.

⁶² See Krasner, supra note 60; and Robert O. Keohane, After Hegemony: Cooperation and Discord in the World Political Economy 8–10 (1984).

⁶³ See Krasner, supra note 60. See also discussion supra note 60.

⁶⁴ Keohane, supra note 62, at 244. See also Oran R. Young, International Cooperation: Building Regimes for Natural Resources and the Environment (1989).

⁶⁵ Keohane, supra note 62, at 244–45.

⁶⁶ For elaboration on this point, see Kratochwil & Ruggie, supra note 59, at 762.

⁶⁷ See Robert Jervis, Security Regimes, in International Regimes, supra note 60, at 173; Cooperation under Anarchy (Kenneth A. Oye ed., 1986).

⁶⁸ For a collection of critiques of Neo-Realism, see Neo-Realism and its Critics (Robert O. Keohane ed., 1986).

⁶⁹ Keohane, supra note 62, at 14, 245.

⁷⁰ This was the “modification” of Structural Realism. Keohane also criticized the neo-Realists for relying too heavily on systemic approaches, arguing that, although valuable as a “first cut,” such approaches must ultimately be supplemented by “unit-level” explanations drawn from domestic politics.

⁷¹ Keohane, supra note 62, at 244.

⁷² Id. at 246.

⁷³ Id. at 13.

⁷⁴ In an extensive bibliography, Keohane lists only one international law source, Henkin’s How Nations Behave, which he cites for the proposition that regimes are fragmentary, and for “go[ing] so far as to say that ‘almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.’ “ Id. at 88, 98 (quoting Henkin, supra note 4, at 47).

⁷⁵ Inis L. Claude, Power and International Relations 255–71 (1962).

⁷⁶ See, e.g., Robert O. Keohane, The Demand for International Regimes, in International Regimes, supra note 60, at 141.

⁷⁷ This is the role that even Kenneth Waltz attributes to law in the domestic setting. Waltz analogizes the international system to a domestic market, in which the constituent units are governed by the law of unintended consequences and thus can be analyzed independently of their actual intentions. He claims that the analogy ends, however, because domestic markets are structured by laws channeling individual interests into productive uses, such as electoral laws, securities and banking regulation, antitrust laws, etc. Waltz, supra note 57, at 91. In his words:

⁷⁸ See Geoffrey Garrett & Barry R. Weingast, Ideas, Interests and Institutions: Constructing the EC’s Internal Market, in Ideas and Foreign Policy (Judith Goldstein & Robert O. Keohane eds., forthcoming 1993).

⁷⁹ Robert O. Keohane, International Institutions and State Power at vii (1989). This volume is a collection of Keohane’s essays on institutions through the 1980s. For those seeking to find their way through the bewildering maze of theoretical labels, the introductory essay offers a useful overview of the distinctions among Neo-Liberal Institutionalism, Neo-Realism, and Liberalism. However, Keohane’s summation of the Liberal tradition differs considerably from the Liberal paradigm described in the second half of this article. He defines Liberalism “as a set of guiding principles for contemporary social science.” Yet his preferred subset of these principles closely resembles Institutionalism. Thus, “Neoliberal institutionalists accept a version of liberal principles that … emphasizes the pervasive significance of international institutions without denigrating the role of state power.” Id. at 11.

⁸⁰ Id. at 8.

⁸¹ For an even more comprehensive approach to international relations theory that accords international law and institutions a central role, see Charles Lipson, The Centrality of Contract in International Relations (paper presented at Annual Meeting of the American Political Science Association, Chicago, IL, September 1992). Lipson advocates reconceptualizing all problems of international politics as “problems of contract.”

⁸² Kratochwil and Ruggie advocate this approach in the conclusion to their survey, pointing out that a definition of regimes that includes the element of convergent expectations necessarily has an inter subjective dimension. Kratochwil & Ruggie, supra note 59, at 763–71. See also Friedrich Kratochwil, Rules, Norms, and Decisions (1989); Nicholas G. Onuf, World of Our Making: Rules and Rule in Social Theory and International Relations (1989); Alexander Wendt, Anarchy is What States Make of It, 46 Int’l Org. 391 (1992). The “rationalist/reflectivist” dichotomy was coined by Keohane in his 1988 presidential address to the International Studies Association. Robert O. Keohane, International Institutions: Two Approaches, 32 Int’l Stud. Q. 379 (1988).

⁸³ Cf. International Court of Justice, Statute Art. 38 (instructing the Court to apply “international conventions, whether general or particular, establishing rules expressly recognized by the contesting states” and “international custom, as evidence of a general practice accepted as law”).

⁸⁴ Keohane, following Haggard and Simmons, now limits the definition of regimes to “institutions with explicit rules, negotiated by states.” Keohane, supra note 79, at 4, 17 n.5 (1989). It seems safe to assume that this definition of regimes will be virtually coextensive with Young’s category of “legal regimes.”

⁸⁵ Oran R. Young, Remarks, 86 ASIL Proc. 172 (1992). On the same panel, Kenneth Abbott went so far as to call for a new joint discipline, possibly called “the study of organized international cooperation,” to take full advantage of shared understandings between internaticial relations and international law. Kenneth W. Abbott, Elements of a Joint Discipline, id. at 167, 168.

⁸⁶ Examples of legal writing on this issue include Anthony D’Amato, What ‘Counts’ As Law?, in Lawmaking in the Global Community 83 (Nicholas G. Onuf ed., 1982); and Peter S. Thacher, Alternative Legal and Institutional Approaches to Global Change, 1 Colo. J. Int’l Envtl. L. & Pol’y 101 (1990). The most sophisticated treatment of this subject in political science is Charles Lipson, Why are some international agreements informal?, 45 Int’l Org. 495 (1991).

⁸⁷ Young’s arguments here track those of Friedrich Kratochwil. See Kratochwil, supra note 82.

⁸⁸ See, e.g., Kennedy, supra note 12; Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (1989).

⁸⁹ Kratochwil & Ruggie, supra note 59, at 772–73.

⁹⁰ A recent paper by Kenneth Abbott offers an exemplar of this approach, using an interdisciplinary framework to investigate the “rational design hypothesis” with respect to provisions governing the production of information in arms control agreements. Kenneth W. Abbott, The Production of Information in Arms Control Treaties and Other International Agreements, 26 Cornell Int’l L.J. 701 (1993). See also Lipson, supra note 86.

⁹¹ On transparency, see the work of Abram and Antonia Chayes outlining a noncriminal model of compliance that specifically addresses questions of organizational design. Abram Chayes & Antonia H. Chayes, Regime Architecture—Elements and Principles (Brookings Institution ed. volume, forthcoming 1993); see also Abram Chayes & Antonia H. Chayes, On Compliance, Int’l Org. (forthcoming 1993). On the “compliance pull” of legitimacy, and for a serious effort to specify the content and dimensions of legitimacy, see Thomas M. Franck, The Power of Legitimacy Among Nations (1990).

⁹² See Chayes & Chayes, Regime Architecture, supra note 91. Other interesting interdisciplinary work on compliance includes J. H. Ausubel & D. G. Victor, Verification of International Environmental Agreements, 17 Ann. Rev. Energy & Env’t 1 (1992); Ronald B. Mitchell, From Paper to Practice: Improving Environmental Treaty Compliance (1992); Global Environmental Change: Understanding the Human Dimensions (Paul C. Stern et al. eds., 1992); Oran R. Young, Compliance and Public Authority: A Theory of International Applications (1979); Robert O. Keohane, Sovereignty, Interdependence and International Institutions (1991); Robert O. Keohane, Compliance with International Commitments: Politics within a Framework of Law, 86 Asil Proc. 176 (1992).

⁹³ Diane F. Orentlicher, The Power of an Idea: The Impact of United States Human Rights Policy, 1 Transnat’l L. & Contemp. Probs. 43 (1991) (uses regime theory to develop a model of the effectiveness of international human rights law, placing “norm-generating and compliance-directed activities” “along a spectrum of regime activities, ranging from weak to. comparatively strong measures of promoting certain behavior”; id. at 64).

⁹⁴ Edwin M. Smith, Understanding Dynamic Obligations: Arms Control Agreements, 64 S. Cal. L. Rev. 1549 (1991) (connects regime theory with relational contract literature to conceptualize and interpret a new class of international obligations that are defined within the context of a formal international agreement but that cannot be defined at the time the agreement is executed).

⁹⁵ Francis A. Boyle, International Law and the Use of Force: Beyond Regime Theory, in Ideas and Ideals: Essays on Politics in Honor of Stanley Hoffmann (forthcoming 1993).

⁹⁶ Robert O. Keohane, U.S. Compliance with Commitments: Reciprocity and Institutional Enmeshment (paper presented at Program on International Politics, Economics, and Security (PIPES), University of Chicago, Oct. 24, 1991).

⁹⁷ Notable exceptions include Stanley Hoffmann, Duties Beyond Borders (1981); and Charles R. Beitz, Political Theory and International Relations (1979). Michael Doyle is currently working on a major project seeking to reconnect Kant’s political and moral theories.

⁹⁸ Lea Brilmayer is pioneering this effort, arguing first that governmental treatment of foreigners should be subject to the same moral and political criteria as the treatment of citizens, and now that the “legitimacy of international hegemony” depends on the same criteria as the legitimacy of domestic government. See Lea Brilmayer, Justifying International Acts (1989); Lea Brilmayer, The Legitimacy of International Hegemony (unpublished draft). See also Franck, supra note 91. Franck is currently exploring ways to apply the fairness principles developed by John Rawls to the evaluation of international legal norms. Franck, supra note 2. In an equally philosophical tradition, Fernando Tesón is working to revive the Kantian moral tradition in international law. See Fernando Tesón, The Kantian Theory of International Law, 92 Colum. L. Rev. 53 (1992); Fernando Tesón, Realism and Kantianism in International Law, 86 ASIL Proc. 113 (1992).

⁹⁹ This author has recently been approached by the editors of two well-respected journals in international political science seeking advice on how to increase the number of articles they publish on international law.

¹⁰⁰ I am indebted here to John Gerard Ruggie’s remarks on a panel entitled “Neorealism and Neoliberal Institutionalisrn” at the September 1992 American Political Science Association Annual Meeting in Chicago.

¹⁰¹ For a fuller explication of this difference, see Andrew Moravcsik, Liberalism and International Relations Theory (working paper, Center for International Affairs, Harvard University, 1992).

¹⁰² For an explanation of this shift away from an emphasis on transnational actors in international relations back toward state-centric modes of analysis by one of its principal architects, see Keohane, supra note 79, at 8.

¹⁰³ Bruce Russett, Politics and Alternative Security: Toward a More Democratic, Therefore More Peaceful, World, in Alternative Security: Living without Nuclear Deterrence 107, 111 (Burns H. Weston ed., 1990).

¹⁰⁴ Id.

¹⁰⁵ See Keohane, supra note 79, at 14, 173–74; Helen Milner, International Theories of Cooperation among Nations: Strengths and Weaknesses, 44 World Pol. 466 (1992).

¹⁰⁶ Hoffmann, supra note 46, at 113.

¹⁰⁷ Arnold Wolfers coined the “billiard ball model” as a description of Realist assumptions. He was less interested in the opacity of the individual units, however, than in explicating the Realist assumption that states were the only international actors whose actions mattered, notwithstanding evidence of proliferating supra- and subnational actors. Arnold Wolfers, Discord and Collaboration: Essays on International Politics 19–24 (1962).

¹⁰⁸ Moravcsik, supra note 101. For an effort to identify and organize the group of theorists working “within the Liberal tradition,” see Mark Zacher & Richard Matthew, Liberal International Theory: Common Threads, Divergent Strands (paper presented at American Political Science Association Annual Meeting, September 1992). Zacher and Matthew explicitly recognize that Liberalism’s “propositions cannot be simply deduced from its assumptions,” precisely the task that Moravcsik sets himself.

¹⁰⁹ Moravcsik, supra note 101, at 6.

¹¹⁰ Id. at 9.

¹¹¹ Id. at 10.

¹¹² Id. at 11.

¹¹³ See, e.g., Juan J. Linz, Transitions to Democracy, Wash. Q., Summer 1990, at 143 (explores these issues in different contexts). The interest in comparative constitutional issues has been so strong in recent political science that it has even spawned a journal, The Journal on Democracy.

¹¹⁴ Zeev Maoz & Bruce Russett, Normative and Structural Causes of Democratic Peace, 1946–1986, in Grasping the Democratic Peace: Principles for a Post-Cold-War World (forthcoming 1993) (manuscript at 6–7, on file with the author).

¹¹⁵ Id. at 4.

¹¹⁶ By comparing the evolution of judicial systems in well-established liberal states with the emergence of judicial systems in transitional states, we may be able to learn more about the link between domestic law and international order.

¹¹⁷ One of the pioneers of this type of analysis is Martin Shapiro, a political scientist trained in comparative politics who teaches in a law school. See Martin Shapiro, Courts: A Comparative and Political Analysis (1981). This type of analysis has also spawned a growing literature on courts in liberal societies, analyzing questions such as the growth of judicial review in France in the face of a long tradition of parliamentary sovereignty and comparing the political role of courts in France and Germany. See Alec Stone, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective (1992); Alec Stone, Judging Socialism: Constitutional Politics in France and Germany, Comp. Pol. Stud. (forthcoming 1993).

¹¹⁸ Philip C. Jessup, Transnational Law (1956).

¹¹⁹ This definition subsumes traditional private international law but does not embrace all of public international law.

¹²⁰ As I define it, “transnational law” includes subjects labeled international litigation, international practice, and much of international business transactions. Casebooks in this area are proliferating, written by both practitioners and academics.

¹²¹ To complain of the absence of an overriding organizing principle or conception that would provide identity and cohesion to this subject area as a field is not to say that the material itself does not have common elements. Born and Westin, for instance, identify five “recurrent themes”: interest balancing, foreign relations, federalism, public international law and international comity. Gary B. Born & David Westin, International Civil Litigation in United States Courts: Commentary and Materials 3 (1st rev. ed. 1990).

¹²² Stephen B. Burbank, The World in Our Courts, 89 Mich. L. Rev. 1456 (1991) (reviewing Born & Westin, supra note 121 (1st ed. 1989)). Teachers of international business transactions similarly warn students of the conceptual incoherence of the field. Private communication from Professor Jay Westbrook, University of Texas Law School (Dec. 7, 1992).

¹²³ Burbank, supra note 122, at 1458 (quoting Michael Moore, A Theory of Criminal Law Theories, in Tel Aviv Studies in Law (Daniel Friedmann ed., 1991)).

¹²⁴ Note that the proposed contribution of transnational law to world order differs from the model developed in Richard A. Falk, The Role of Domestic Courts in the International Legal Order (1964). Falk saw private international law as constituting a “horizontal” international legal order that operated by stabilizing state expectations. Liberalism, by contrast, focuses on the stabilization of individual expectations.

¹²⁵ See Arthur T. von Mehren, Adjudicatory Jurisdiction: General Theories Compared and Evaluated, 63 B.U. L. Rev. 280 (1983).

¹²⁶ See The Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972); Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985).

¹²⁷ Judge Cardozo similarly insisted, “courts are not free to refuse to enforce a foreign right at the pleasure of the judges, to suit the individual notion of expediency or fairness.” Loucks v. Standard Oil Co., 120 N.E. 198, 201–02 (N.Y. 1918).

¹²⁸ A. V. Dicey, A Digest of the Law of England with Reference to the Conflict of Laws 8 (2d ed. 1908).

¹²⁹ Susan Strange has written of the undermining of national authority by the spread of the “international business civilization.” Susan Strange, The Name of the Game, in Sea-Changes: American Foreign Policy in a World Transformed 238 (Nicholas X. Rizopoulos ed., 1990). At the same time, however, she notes that “a central concern of th[is] civilization is the securing of property rights, for individuals and for firms.” Id. at 263. It is time that international political economists purveying such perspectives factored transnational law into their global equations.

¹³⁰ Alan Redfern & Martin Hunter, Law and Practice of International Commercial Arbitration 7 (1986) (emphasis added).

¹³¹ Anne-Marie Burley, Law Among Liberal States: Liberal Internationalism and the Act of State Doctrine, 92 Colum. L. Rev. 1907 (1992).

¹³² See Timberlane Lumber Co. v. Bank of America, N.T. & S.A., 549 F.2d 597 (9th Cir. 1976); Mannington Mills v. Congoleum Corp., 595 F.2d 1287 (3d Cir. 1979); U.S. Department of Justice, Antitrust Enforcement Guidelines for International Operations (1988) (for private antitrust actions).

¹³³ Asahi Metal Indus. Co. v. Superior Court of California, Solano County, 480 U.S. 102 (1987).

¹³⁴ Societe Nationale Industrielle Aerospatiale v. U.S. District Court, 482 U.S. 522 (1987).

¹³⁵ See Hjalte rasmussen, On Law and Policy in the European Court of Justice 249–50 (1986).

¹³⁶ Rasmussen argues that the drafters of the Treaty of Rome intended the new European Court of Justice to have even less power than was exercised by the Court of the European Coal and Steel Community. Id. at 220–22.

¹³⁷ Eric Stein, Lawyers, Judges and the Making of a Transnational Constitution, 75 AJIL 1 (1981). As Stein and others have pointed out, the Court has often taken its cue from the Commission as regards the political climate in the member states to determine just how far it should go. Numerous political scientists have concluded that the Court was careful not to transgress the bounds of the political consensus of the Community. Nevertheless, its incremental style and successful wooing of the national courts both to expand its jurisdiction and to secure the enforcement of its judgments gradu ally pushed the bounds of Community law steadily forward.

¹³⁸ Countdown to Maastricht, Fin. Times (London), Nov. 18, 1991, §1, at 8.

¹³⁹ This is a highly stylized account of the European Court of Justice, without reference to the extensive lobbying effort undertaken by the Court for support from the national courts, or its own political balancing act in gradually advancing its agenda. For such an alternative account, see Anne-Marie Burley & Walter Mattli, Europe before the Court: A Political Theory of Legal Integration, 47 Int’l Org. 41 (forthcoming 1993). Nevertheless, I would argue that the existence of a common liberal culture and institutions provided the context in which such efforts and concerns were even possible.

¹⁴⁰ The Preamble to the Treaty of Rome commits the members of the European Community to “pool[] their resources to preserve and strengthen peace and liberty,” and “call[s] upon the other peoples of Europe who share their ideal to join in their efforts.” It should be noted that, in keeping with the liberal principles on which these states are based, the supranational lawmaking process will increasingly have to conform to democratic principles. Paradoxically, this will mean the devolution of some lawmaking power away from Community organs, under the principle of subsidiarity or other federalist (in the American sense) doctrines. It is also likely to mean greater transparency in Community decision making and greater input not only from the Community Parliament, but from national parliaments.

¹⁴¹ Joseph Weiler, The Transformation of Europe, 100 Yale L.J. 2403, 2426 (1991).

¹⁴² The Community could equally provide a rich lode of experience on institutional and organizational design. A Liberal analysis would emphasize the desirability of “embedding” public international institutions in domestic society, not only, as Ruggie has argued, to allow states to remain part of these institutions, but also to strengthen the institutions themselves by reshaping private expectations. See John G. Ruggie, International Regimes, Transactions, and Change: Embedded Liberalism in the Postwar Economic Order, 36 Int’l Org. 379 (1982). It is interesting to compare Keohane’s notion of “sovereign enmeshment,” arguing for the compliance-enhancing role of institutions in terms of their link to domestic legal and political processes. Keohane’s analysis proceeds from a strict and relatively static division between the systemic and unit levels of analysis, without taking into account individual and group actors or interests. See Keohane, supra note 96. The Liberal approach, by contrast, builds from a more holistic vision of state responses to domestic and transnational pressures.

¹⁴³ For some readers, Liberal analysis may appear to have much in common with McDougal-Lasswell jurisprudence. Both schools look beyond the state and emphasize the importance of individual and group actors as principal actors in world politics. Both schools posit that the internal characteristics of states determine their external behavior, leading both to emphasize the distinctive attributes of “liberal” states and the concomitant importance of comparative law, particularly comparative constitutional law. Both schools thus reject the positive and normative universalism projected by Realism, Institutionalism and traditional international law, substituting a differential analysis based on an underlying convergence of interests and values.

Appearances notwithstanding, these similarities belie important differences. First, McDougal’s projection of Lasswell’s model political decision-making process onto international politics (the “world power process” and the “world social process”) identifies all the possible participants in this process indiscriminately, without attempting to specify the causal relationships and the generative orderings among them. Liberal theory, by contrast, deliberately sets out to build a model of the international system that will serve as a carefully specified alternative to Waltzian Neo-Realism. It marries theories of interest formation in domestic and transnational society with theories of international bargaining. The result is a model that can specify, as a generative model should, how changes in one part of the model will affect actors and processes in another part, with a precise claim about how the causal arrows run.

A second basic category of differences between the two schools rests on the relative vulnerability of McDougal-Lasswell analysis and Liberal analysis to subjective manipulation. As some McDougal students have pointed out, the popular critique of McDougal-Lasswell jurisprudence for its supposed identification of the “law” with the subjective values of individual decision makers is based on a crude misreading or fundamental misunderstanding of McDougal’s work. Nevertheless, one such defender himself goes on to deplore the ultimate subjectivity of the various applications of this theory by McDougal himself and many of his associates. Falk, supra note 1, at 138–41. Many others in both law and political science have taken a similar view. See, e.g., Claude, supra note 75, at 255–71; Hoffmann, supra note 46, at 116.

From the Liberal perspective, such critiques seem an inevitable concomitant of a theory in which lawyers themselves become policy scientists. McDougal and Lasswell promptly enlisted their theories as positive means to normative ends. In place of a false universalism, they urged differentiation in word and in fact—of all systems of public order: international, regional and potentially national. They devoted their efforts to teaching lawyers how to undertake this process—how to “appraise” systems of public order so as to distinguish the good from the bad and consequently elevate the good. In practice, they “urg[ed] the use of international law as a strategy to attain the goals of the democratic public order states and to frustrate the designs of their totalitarian adversaries.” Falk, supra note 1, at 142.

In this conception, lawyers perform their own social science in the guise of policy science. The artificial and wavering line between positive and normative, between “is” and “ought,” cannot long withstand such fusion. No independent check exists on the lawyers’ findings. In the Liberal model, by contrast, it is left to the political scientists to uncover the links between domestic and transnational social patterns and distinctive patterns of state behavior. The lawyers must be bound by the results of this research, both in ascertaining what the law is and in thinking about what it should be. The Liberal approach to interdisciplinary collaboration thus maintains the separate identities and functions of both disciplines. But it harnesses them on a common track, one that remains largely unexplored.

¹⁴⁴ Gregory H. Fox, The Right to Political Participation in International Law, 17 Yale J. Int’l L. 539 (1992); Thomas M. Franck, The Emerging Right to Democratic Governance, 86 AJIL 46 (1992). See also Theodor Meron, Democracy and the Rule of Law, 153 World Aff. 22 (1990); Henry J. Steiner, Political Participation as a Human Right, 1 Harv. Hum. Rts. Y.B. 77 (1988) (arguing for the right of political participation as a “programmatic right”).

¹⁴⁵ See, e.g., Ian Brownlie, Principles of Public International Law 75 (3d ed. 1979).

¹⁴⁶ There is indeed a difference between “liberal states” and “democracies,” in that the definition of a liberal state requires constitutional protections and private property rights in addition to self-governance. In practice, however, I know of no genuine democracy that does not also at least aspire to these other attributes.

¹⁴⁷ I use the term “violation” of sovereignty because that is how certain judicial decisions are often perceived by the representatives of the foreign government in question.

¹⁴⁸ See Burley, supra note 131.

¹⁴⁹ Ruggie has emphasized the importance of the Durkheimian concept of “dynamic density,” de fined as “the quantity, velocity, and diversity of transactions that go on within society,” to the changing definition of sovereignty. John G. Ruggie, Continuity and Transformation in the World Polity: Toward a Neorealist Synthesis, 35 WORLD POL. 261, 281–85 (1983). Kratochwil has taken these insights further in his work on the nature of boundaries and the resurrection of the Roman concept of dominion. Friedrich Kratochwil, Of Systems, Boundaries, and Territoriality: An Inquiry into the Formation of the State System, 39 World Pol. 27 (1986). See also Note, Constructing the State Extra-territorially: Jurisdictional Discourse, the National Interest, and Transnational Norms, 103 Harv. L. Rev. 1273 (1990).

¹⁵⁰ I am indebted to Robert Keohane for a personal communication highlighting many of these points.

¹⁵¹ On the distinction between explanation and understanding as a means of classifying different types of international relations theories, see Martin Hollis & Steve Smith, Explaining and Understanding International Relations (1990). To offer a concrete example, even if it is true that individuals are the primary actors that determine the behavior of states, if our model of state behavior adequately captures the effects of individual behavior, why not preserve the fiction of states as the primary actors?