1 For more background on the legal ideology of American foreign policy between 1900 and 1933, see Zasloff, Jonathan Law and the Shaping of American Foreign Policy: From the Gilded Age to the New Era, 78 N.Y.U. L. Rev. 239 (2003)Google Scholar [hereinafter Zasloff, Gilded Age]; Zasloff, Jonathan Law and the Shaping of American Foreign Policy: The Twenty Years’ Crisis, 77 S. Cal. L. Rev. 583 (2004)Google Scholar [hereinafter Zasloff, Twenty Years’ Crisis].

2 Classical legal principles formed a coherent and workable ideology because they legitimated lawyers’ work to lawyers themselves. And this ideology represented a congenial worldview for elite lawyers because it suggested that law created order without coercion, and maintained order without necessary conflict. It thus assured elite lawyers— all of whom were wealthy, and many of whom exercised political power—of the essential justness of their social position and the worthiness of their profession. But as with all ideologies, such service hardly meant that its adherents used it for obfuscation. As one prominent commentator has noted, “It is difficult to read [their] correspondence . . . without feeling they believed what they espoused.” Richard, L. Mccormick From Realignment to Reform: Political Change in New York State, 1893-1910, at 112 (1981).Google Scholar A prominent analyst of the career of Charles Evans Hughes also notes how closely his private letters and notes match his public statements and actions. See Glad, Betty Charles Evans Hughes and The Illusions of Innocence 3 (1966).Google Scholar

3 James Brown, Scott The Work of the Second Hague Peace Conference, 2 AJIL 1, 21–22 (1908)Google Scholar (celebrating neutral international prize court).

4 See Olney, Richard The Development of International Law, 1 AJIL 418, 422 (1907)Google Scholar (remarking about the “Eastern question,” that the “collective will of all civilized states overrides the will of any recalcitrant state” and that “the underlying and justifying principle is . . . the best interests of Europe as a whole as compared with those of a single state or of a few states”).

5 Olney, supra note 4, at 420; Scott, supra note 3, at 3; Alpheus Henry, Snow Law of Nations, 6 AJIL 890, 893 (1912)Google Scholar (stating that the lawgiver is “society,” not the state apparatus).

6 Scott, supra note 3, at 4; Snow, supra note 5, at 898 (arguing that national executives enforce the law of nations and do not act solely in the national self-interest).

7 Root served as secretary of war from 1899 to 1904, secretary of state from 1905 to 1909, and U.S. senator from New York from 1909 to 1915. His nonpolitical resume is hardly less distinguished: president of the American Society of International Law (ASIL) from 1906 to 1924, a founder of this Journal, and also the founder of the American Law Institute, the think tank of American elite lawyers. Little wonder that American Lawyer listed him as one of the hundred most influential attorneys of the twentieth century.

8 Root, Elihu The Need of Popular Understanding of International Law, 1 AJIL 1, 2 (1907).Google Scholar Root’s protégé, James Brown Scott, the former dean of the University of Southern California and Illinois law schools, and professor of law at Columbia University, became the AJIL’s first editor in chief. Root had hired Scott as solicitor of the State Department, a position he held at the time of the Journal’s founding. For details on the Root-Scott relationship, and the organization of conservative legalism throughout the first three decades of the twentieth century, see Charles DeBenedetti, Origins of The Modern American Peace Movement, 1915-1929, at 46-58 (1978); Warren F. Kuehl, Seeking World Order: The United States and International Organization to 1920, at 105, 116, 158, 161, 209 (1969).

9 Root, Elihu The Sanction of International Law, 2 AJIL 451 (1908)CrossRefGoogle Scholar; see also Editorial Comment, Elihu Root, 3 AJIL 423 (1909)Google ScholarPubMed (extensively quoting Root’s speech, “Causes of War,” which made similar arguments).

10 Scott, supra note 3, at 4; Snow, supra note 5, at 890, 894, 896, 897; James Brown, Scott The Legal Nature of International Law, 1 AJIL 831 (1907).Google Scholar

11 Olney, supra note 4, at 427. Codification bred cooperation in the classical worldview because it enabled parties to know their obligations and also to know who had violated them. And this cooperation, in turn, would promote the “voluntary observance of. . . rules and obligations” because the alternative was being shunned by the rest of the community. Root, supra note 8, at 2. This contention underlay the drive for the codification of international law, which occupied hundreds of AJIL pages throughout the period. See Oppenheim, L. The Science of International Law: Its Task and Method, 2 AJIL 313, 320 (1908)Google Scholar (“[O]nly codification . . . can create agreement and unanimity, and thereby universally recognized rules of law.”); see generally Root, Elihu The Function of Private Codification of International Law, 5 AJIL 577 (1911)CrossRefGoogle Scholar; Nys, Ernest Codification of International Law, 5 AJIL 877 Google Scholar; Henry, G. Crocker Codification of International Law, 18 AJIL 38 (1924)Google Scholar; Root, Elihu Codification of International Law, 19 AJIL 675 (1925)CrossRefGoogle Scholar; Manley, O. Hudson The Progressive Codification of International Law, 20 AJIL 655 (1926)Google Scholar; James Brown, Scott The Gradual and Progressive Codification of International Law, 21 AJIL 417 (1927)Google Scholar; Jesse, S. Reeves The Hague Conference on the Codification of International Law, 24 AJIL 52 (1930)Google Scholar; Manley, O. Hudson The First Conference for the Codification of International Law, 24 AJIL 447;Google Scholar Philip Marshall, Brown The Codification of International Law, 29 AJIL 25 (1935).Google Scholar Societies built on reciprocity can, of course, be highly violent and unstable, escalating instability. See Robert, O. Keohane Reciprocity in International Relations, in International Institutions and State Power 132, 138–39 (1989)Google Scholar. This is why the underlying harmony of interests, or at least a preponderance of common interest, was crucial for classicism in making reciprocity desirable: reciprocity would not spin out of control because at the end of the day interests were aligned. But this belief did lead international legal scholars to view things as clear even when they were not. The Root-Takahira Agreement of 1908, which concerned the Japanese sphere of influence in Manchuria, is famously vague. See, e.g., Raymond, A. Esthus The Changing Concept of the Open Door, 1899-1910, 46 MISS. Valley Hist. Rev. 435, 444‒51 (1959)Google Scholar (detailing historiographical debate and arguing for a new interpretation). But the editors of the AJIL claimed that the Agreement was so clear as not even to require comment. Editorial Comment, The United States and Japan in the Far East, 3 AJIL 168 (1909).Google ScholarPubMed One of us has written at greater length about the classicists’ connection of clear rules, reciprocity, and social peace. Zasloff, Jonathan Abolishing Coercion: The Jurisprudence of American Foreign Policy in the 1920s, 102 Yale L.J. 1689, 1695–98 (1993).Google Scholar

12 Oppenheim, supra note 1 l,at322-23; James Brown, Scott The Codification of International Law, 18 AJIL 260, 267, 269 (1924)Google Scholar (emphasizing that international law formed a part of Langdellian legal science).

13 Olney, supra note 4, at 429; see also Editorial Comment, Secretary Knox and International Unity, 4 AJIL 180 (1910)Google Scholar (making the same argument); Oppenheim, supra note 11, at 317 (claiming “the ultimate victory of international law over international anarchy”).

14 See Letter from (British ambassador to U.S.) James Bryce to (foreign secretary) Sir Edward Grey (Jan. 5,1909), FO 371 /706, Public Record Office, London, quoted in Michael, H. Hunt Frontier Defense and the Open Door: Manchuria in Chinese-American Relations, 1895–1911, at 181 Google Scholar & n.2 (1973) (stating that Knox is “ ‘first, last, and all the time’ a lawyer, with the characteristic habits of mind which belong to that profession, and disposed to look at the questions primarily from the legal side”); Letter from (British ambassador to U.S.) Mitchell Innes to Grey (Nov. 11, 1910), FO 371/85, quoted in id. at 224 (“To [Knox] a treaty is a contract, diplomacy is litigation, and the countries interested parties to a suit.”).

15 Telegram from Philander Knox to (U.S. ambassador to Britain) Whitelaw Reid (Nov. 6, 1909), Dep’t St. Numerical File 5315/559, National Archives, quoted in Zasloff, Gilded Age, supra note 1, at 319.

16 Editorial Comment, Railways in China, 4 AJIL 687, 689 (1910)Google Scholar; and Editorial Comment, The Chinese Railway and Currency Loans, 5 AJIL 705, 707 (1911)Google Scholar, respectively.

17 Letter from Knox to Taft (Jan. 7, 1911), Philander H. Knox Papers, Library of Congress, quoted in Zasloff, Gilded Age, supra note 1, at 320.

18 Scott, supra note 12, at 262- 63 (arguing that World War I would yield increasing stringency and effectiveness of international law, “which restrains even sovereign nations, in the exercise of their sovereignty”).

19 On evolutionary thought, see Gordon, E. Sherman The Nature and Sources of International Law, 15 AJIL 349, 356–57 (1921)Google Scholar; Pitman, B. Potter Is the Establishment of Peace and Disarmament Dependent upon the Perfection of International Law and Organization!” 11 AJIL 125, 128 (1933)Google Scholar (observing that “people and nations at large come to the conclusion, more or less subconsciously, that coöperation and non-violence are more beneficial ways of living than competition á outrance and the use of violence,” and they do so “long before they are willing to bind themselves by law to such forebearance and cooperation and long before they are willing to establish common sanctions to compel such coöperation”).

On the customary basis of law, see Sherman, supra, at 351, 357.

On harmony of basic interests, see id. at 359; George, A. Finch The Dawes Report on German Reparation Payments, 18 AJIL 419, 434–35 (1924)Google Scholar (hoping that “the universal conscience” will agree that the report is based “ ‘upon . . . principles of justice, fairness, and mutual interest’“) (latter quotation from letter of transmittal of Dawes Report to Reparation Commission).

On law, politics, and public affairs, see id. at 432 (“The plan is not considered to be in the nature of a political compromise . . .”).

On coercion and legal efficacy, see Philip Marshall, Brown Editorial Comment, The Geneva Protocol, 19 AJIL 338, 339–40 (1925)Google Scholar; Potter, supra, at 128 (“In our most civilized communities today, where the arts of law and government are most advanced, social peace and coöperation depend more upon spontaneous individual behavior than upon organized coercion.”); Edwin M. Borchard, The “Enforcement” of Peace by “Sanctions, “27 AJIL 518, 524 (1933) (“To engender peace by the threat of force is inherently incongruous, for it arouses, when applied to groups, fear and resentment.”); John Bassett, Moore The New Isolation, 27 AJIL 607.Google Scholar

20 Coolidge, Calvin Government and Business, in Foundations of The Republic: Speeches and Addresses 317, 330 (photo, reprint 1968) (1926).Google Scholar

21 Ways to Peace, Memorial Day Address Delivered May 31, 1926, in id. at 429, 432.

22 Coolidge Declares Observance of Law Is Basis of Peace, N.Y. Times, May 31, 1927, at 1.Google Scholar

23 For details on the relationship between ruinous competition theory and world politics, see Zasloff, Twenty Years’ Crisis, supra note 1, at 589-97. Ruinous competition theory held that firms would overinvest in capital because of a lack of knowledge of other firms’ behavior, incurring high fixed costs, and continue to operate because their marginal profit still exceeded their marginal cost, until they eventually collapsed. Merger and cooperative marketing arrangements were the best solutions.

Ruinous competition theory held enormous meaning for classical international legal drinkers, for it implied that cooperation between supposedly competitive firms could give each die market “security” it craved. In the same way, states’ battling for relative position was destructive and unnecessary because all could benefit from cooperation. Edwin M. Borchard served as the primary exponent of this approach. See Edwin M. Borchard, The Distinction Between Legal and Political Questions, S. Doc. N O . 68-118, at 5 (1st Sess. 1924); Edwin, M. Borchard The Problem of Backward Areas and Colonies, in The League of Nations: The Principle and the Practice 201, 211 (Stephen, Pierce Duggan ed., 1919)Google Scholar; Letter from Edwin M. Borchard to John Bassett Moore (Jan. 11,1926), Edwin M. Borchard Papers, Sterling Memorial Library, Yale University. But President Coolidge suggested a similar approach. Ways to Peace, in Coolidge, supra note 20, at 429,432-33; Coolidge, Calvin Press Briefing (Jan. 9,1925), in The Talkative President: the Off-the-Record Press Conferences of Calvin Coolidge 157 (Howard, H. Quint & Robert, H. Ferrell eds., 1964)Google Scholar; Coolidge, Calvin Press Briefing (Feb. 23, 1926), in id. at 162.Google Scholar

24 A relative gain, as the term suggests, denotes a gain relative to other states in the international system. The structural realist Kenneth Waltz explains the fundamental distinction between absolute and relative gains, and argues for the primacy of the latter in an anarchical state system:

Kenneth, N. Waltz Theory of International Politics 105 (1979).Google Scholar Classicism rejected this kind of realist thinking in part because it rejected the primacy of relative gains over absolute ones.

25 Not surprisingly, these men of high integrity were most often lawyers: Hughes frequently argued that lawyers made the best American diplomatic representatives. See Letter from Frank B. Kellogg to Cordenio A. Severance (Sept. 19,1924), reel 14/frame 61, Frank B. Kellogg Papers, Minnesota Historical Society. Kellogg, Hughes’s successor, concurred with this assessment:

This was a common opinion in the international law community. See, e.g., Editorial Comment, Lawyer-Secretaries of Foreign Relations of the United States, 3 AJIL 942 (1909)Google ScholarPubMed (arguing that lawyers were the most competent to serve as secretary of state, even above those with diplomatic experience).

26 A fuller account of Hughes’s policies and their relationships to classicism can be found in Zasloff, Twenty Years’ Crisis, supra note 1, at 603-11, 617-26, 629-39.

Hughes’s policy on postwar German reparations exemplified his entire approach. France struggled to enforce the Versailles settlement, fearing a resurgence of German power; for its part, Berlin was just as eager to show that the treaty was a “scrap of paper,” and to reassume its great-power status. For Hughes, however, the reparations struggle was a technical matter: the key to resolving it, Hughes told Henry Cabot Lodge, was “to endeavor to get the question out of politics.” Letter from Charles Evans Hughes to Henry Cabot Lodge (Feb. 1, 1923), Charles Evans Hughes Papers, Library of Congress. The secretary’s solution: an independent, impartial commission, made up of men of “prestige, experience, and honor,” to determine the “most authoritative” answer to the problem “in such circumstances of freedom as will insure a reply prompted only by knowledge and conscience.” Charles E. Hughes, The Pathway of Peace 57 (1925); see Editorial Comment, Joint Resolution to Authorize the Appointment of a Commission in Relation to Universal Peace, 5 AJIL 433, 435–36 (1911).Google Scholar

27 Hughes privately told Ambassador Jean Jusserand of France:

Memorandum of interview with the French ambassador (Dec. 14, 1922), Charles Evans Hughes Papers, Library of Congress, quoted in Zasloff, Twenty Years’ Crisis, supra note 1, at 620. This was a typical view of legal classicism. Robert, W. Gordon Legal Thought and Legal Practice in the Age of American Enterprise, 1870-1920, in Professions and Professional Ideologies in America 70, 98 (Gerald, L. Geison ed., 1983).Google Scholar

28 See, e.g., Henry, L. Stimson Diary Feb. 27, 1933, Sterling Memorial Library, Yale University. Stimson began to see the collapse of classicism by the end of his term in office Google Scholar. See id., Feb. 14, 1933 (“I am trying to make up my mind . . . what the ultimate objective will be with regard to sanctions for . . . treaties . . . after we reach the point where public opinion will not be effective.”).

29 See, e.g., Manley, O. Hudson The Report of the Assembly of the League of Nations on the Sino-Japanese Dispute, 27 AJIL 300, 300 (1933)Google Scholar (arguing that the Lytton Commission report is an “epoch-making document. . . . [that] marks a triumph for the collective system of handling international disputes” (footnote omitted)); id. at 305 (“ [I] ts recommendations may have a far-reaching influence on future developments.”); see also John Bassett, Moore The New Isolation, 27 AJIL 607, 622 Google Scholar (decrying the idea that prewar international law was outdated and condemning “[t]he tendency to confuse war and peace and to magnify the part which force may play in international affairs”); Charles Cheney, Hyde Legal Aspects of the Japanese Pronouncement in Relation to China, 28 AJIL 431 (1934)Google Scholar; Manley, O. Hudson The United States and the World Court, 29 AJIL 301 (1935)Google Scholar; Brown, supra note 11, at 25; Philip, Marshall Brown Malevolent Neutrality, 30 AJIL 88 (1936)Google Scholar; Denys, P. Myers The Bases of International Relations, 31 AJIL 431 (1937)Google Scholar; Wright, Quincy The End of a Period of Transition, 31 AJIL 604 Google ScholarPubMed. Readers may also consult virtually any of the articles by Edwin M. Borchard, who maintained his classicist beliefs even after World War II.

30 David, J. Bederman Appraisinga Century ofScholarship in the American Journal of International Law, 100 AJIL 20 (2006).Google Scholar

31 Virginia Gott, for example, argued that Nazi theories of international law were “never completely understandable.” Virginia, L. Gott The National Socialist Theory of International Law, 32 AJIL 704, 718 (1938)Google Scholar; see also, e.g., James, W. Garner Recent German Nationality Legislation, 30 AJIL 96 (1936)Google Scholar; Ellery, C. Stowell Intercession Against the Persecution of the Jews, 30 AJIL 102 (condemning discriminatory laws, albeit in the most polite terms).Google Scholar

32 See, e.g., Philip, C. Jessup The New Neutrality Legislation, 29 AJIL 665 (1935)Google Scholar; Ellery, C. Stowell The Fallacies of Neutrality, 30 AJIL 256 (1936).Google Scholar

33 Wright, Quincy The Munich Settlement and International Law, 33 AJIL 12, 31–32 (1939).Google Scholar

34 Hans, J. Morgenthau Positivism, Functionalism, and International Law, 34 AJIL 260 (1940).Google Scholar

35 While the definition of “behavioralism” is contested, we use the term to mean the study of actions and reactions of individuals, groups, states, and international organizations through observational and experimental methods. This stands in contrast with “formalism,” which studies rules and usually assumes that behavior is in accord with them. Truman, David in Political Science in America: Oral Histories of A Discipline 135 (Michael, A. Baer Malcolm, E. Jewell & Sigelman, Lee eds., 1991).Google Scholar

36 The classic historical survey on postwar American foreign policy, which suggests realism as a driving factor, remains John Lewis, Gaddis Strategies of Containment: A Critical Appraisal of American National Security Policy in The Cold War (rev. ed. 2005).Google Scholar An excellent brief piece demonstrating the persistence of realism in U.S. foreign policy is Gideon Rose, Op-Ed, Get Real, N.Y. Times, Aug. 18, 2005, at A25 (noting that realism is “American foreign policy’s perennial hangover cure”). For examples of recent realist analyses of U.S. foreign policy and their relationship to international law, see Yoo, John International Law and the War in Iraq, 97 AJIL 563, esp. 575-76 (2003)CrossRefGoogle Scholar; Michael, J. Glennon Why the Security Council Failed, Foreign Aff., May/ June 2003, at 16Google Scholar. On the U.S. refusal to join the International Criminal Court, see Jack Landman, Goldsmith The Self-Defeating International Criminal Court, 70 U. Chi. L. Rev. 89 (2004).Google Scholar For a recent critique of a realist stance on the legality of the second Iraq war, and an analysis of the legality of U.S. actions in both Kosovo and Iraq, see Thomas Franck’s essay in this issue, Thomas, M. Franck The Power of Legitimacy and the Legitimacy of Power: International Law in an Age of Power Disequilibrium, 100 AJIL 88 (2006).Google Scholar

We do not claim that the shift to realism as the modal position in U.S. foreign policy derived wholly from the shift to realism in international law scholarship, or from the shift to legal realism in American jurisprudence. Indeed, although lawyers maintained a position of high influence in American diplomacy, a whole series of other institutions arose after World War II that diminished the prewar primacy of law as the organizing paradigm for American foreign relations. Think tanks fostering the professional study of international relations, and the growth of the U.S. military establishment, created two central loci for thinking about national security. See Melvyn, P. Leffler A Preponderance of Power: National Security, the Truman Administration, and the Cold War (1992)Google Scholar (demonstrating broad consensus of a variety of groups concerning the necessity of geopolitical thinking). For the continuing role of lawyers in the development of postwar U.S. foreign policy, see Jonathan Zasloff, Some More Realism About Realism: Dean Acheson and the Jurisprudence of Cold War Diplomacy (draft on file with authors).

37 Morgenthau, supra note 34; see Niccoló, Machiavelli The Prince, chs. XV, XVII; Discourses, bk. I, chs. XXI, LIX, & bk. Ill, ch. XLII (New York: Early Modern Library, 1978)Google Scholar; Edward, Hallett Carr Britain: A Study of Foreign Policy from the Versailles Treaty to the Outbreak of War (1939)Google Scholar; Robert, B. Stewart Book Review, 35 AJIL 742 (1941)Google Scholar (reviewing id); see also Edward, Hallett Carr The Twenty Years’ Crisis, 1919-1939: An Introduction to The Study of International Relations (2d ed. 1946).Google Scholar

38 Bull, Hedley The Grotian Conception of International Society, in Diplomatic Investigations 51 (Herbert, Butterfield & Wight, Martin eds., 1966).Google Scholar

39 The literature on legal realism is vast, and contentious about what legal realism actually meant. We believe that the anthology and interpretations presented in American Legal Realism (William, W. Fisher III Morton, J. Horwitz & Thomas, A. Reed eds., 1993)Google Scholar represent the best set of definitions. Another good treatment is found in Joseph William, Singer Legal Realism Now, 76 Cal. L. Rev. 465 (1988)Google Scholar (reviewing Laura Kalman, Legal Realism at Yale, 1927-1960 (1986)). Two important articles that reflect some of the most specific ways in which legal realism related to power are Robert, L. Hale Coercion and Distribution in a Supposedly Non-Coercive State, 38 Pol. Sci. Q. 470 (1923)Google Scholar; Morris, R. Cohen Property and Sovereignty, 13 Cornell L.Q. 8 (1927).Google Scholar Our interpretation of realism is not uncontested: for other views, see Kalman, supra; Bryan, R. Leiter “Is There an ‘American ‘Jurisprudence? 17 Oxford J. Legal Stud. 367 (1997)Google Scholar (reviewing Neil Duxbury, Patterns of American Jurisprudence (1995)).Google Scholar

40 Such a view appeared in the pages of the. Journal. See, e.g., Josef, L. Kunz The United Nations and the Rule of Law, 46 AJIL 504, 504 (1952)Google Scholar (“There is no doubt that we are in the present epoch living in a climate of so-called ‘realism’; power, not international law, prevails in the thinking of many . . .”).

41 There are, of course, important differences between (American) legal realism and international realism. For example, the American legal realism movement, which was directed to municipal law, concentrated on the relationship between law mediated through the courts and the values and functioning of relevant economic and social communities; whereas international realism has tended to concentrate on law mediated through the political organs of the state with less interest— until recently—in international law mediated through municipal or international courts.

42 Unless otherwise noted, we speak from now on only of international realists, and will specifically refer to legal realism if necessary.

43 See Gross, Leo The Peace of Westphalia, 1648-1948, 42 AJIL 20, 40 (1948)Google Scholar (noting that the Westphalian system was one of “rugged individualism of territorial and heterogeneous states, balance of power, equality of states, and toleration”).

44 Many refer to the tradition of realism prior to the structural realist formulation as “classical,” “modern,” or “neoclassical” realism. See Theory of World Politics: Structural Realism and Beyond, in Keohane, supra note 11, at 35, 42-43. In the context of this essay, however, we adhere to “traditional” realism out of concern that some other terms could cause confusion with our discussion of classical legal thought. For two excellent accounts of prestructural realism, see Haslam, Jonathan No Virtue Like Necessity: Realist Thought in International Relations Since Machiavelli (2002)Google Scholar; Michael, Joseph Smith Realist Thought from Weber to Kissinger (1986).Google Scholar

45 For political scientists and diplomats, see, for example, Hoffmann, Stanley International Law and the Control of Force, in The Relevance of International Law 21 (Deutsch, Karl & Hoffmann, Stanley eds., 1971)Google Scholar. See also Kennan, George American Diplomacy, 1900-1950 (1951)Google Scholar; Eagleton, Clyde International Law and the Charter of the United Nations, 39 AJIL 751, 751 (1945)CrossRefGoogle Scholar (“It would be gratifying to be able to say that the Charter of the United Nations established, or assured, the reign of law among nations; but the Charter does very little toward strengthening the law of nations.”).

More recently, echoes of traditional realism by international lawyers may be seen, for example, in Frederick, M. Abbott The WTO Medicines Decision: World Pharmaceutical Trade and the Protection of Public Health, 99 AJIL 317 (2005)Google Scholar; Byers, Michael The Single Superpower and the Future of International Law, 94 ASIL Proc. 64 (2000)Google Scholar; Bernard, H. Oxman The Future of the United Nations Convention on the Law of the Sea, 88 AJIL 488, 493 (1994).Google Scholar

46 Vagts, Alfred & Detlev, F. Vagts The Balance of Power in International Law: A History of an Idea, 73 AJIL 555 (1979).CrossRefGoogle Scholar The Framers were acutely conscious of the relationship between international law and balance-of-power concepts. See Daniel, G. Lang Foreign Policy in the Early Republic: The Law of Nations and The Balance of Power (1985).Google Scholar

47 Josef, L. Kunz The Changing Science of International Law, 56 AJIL 488, 499 (1962).Google Scholar

48 See, e.g., Eagleton, Clyde International Law or National Interest, 45 AJIL 719 (1951)CrossRefGoogle Scholar; Detlev, F. Vagts Hegemonic International Law, 95 AJIL 843 (2001).Google Scholar

49 Structural realism’s urtext is Kenneth N. Waltz, Theory of International Politics, supra note 24. Early reactions to Waltz’s work, and his response, are found in Neorealism and its Critics (Robert, O. Keohane ed., 1986).Google Scholar

50 Waltz, supra note 24.

51 Stephen, D. Krasner Structural Causes and Regime Consequences: Regimes as Intervening Variables, in International Regimes 1 (Stephen, D. Krasner ed., 1983).Google Scholar

52 Stephen, D. Krasner Global Communications and National Power: Life on the Pareto Frontier, 43 World Pol. 336 (1991).Google Scholar

53 See, e.g., Mearsheimer, John The False Promise of International Institutions, Int’l Security, Winter 1994/1995, at 5.CrossRefGoogle Scholar

54 See, e.g., Edwin, D. Williamson Realism Versus Legalism in International Relations, 96 Asil Proc. 262 (2002).Google Scholar

55 Jack, L. Goldsmith & Eric, A. Posner The Limits Of International Law 36-37, 118, 225 (2005).Google Scholar

56 See, e.g., Anne-Marie, Slaughter Burley International Law and International Relations Theory: A Dual Agenda, 87 AJIL 205, 206 (1993)Google Scholar; Kenneth, W. Abbott International Relations Theory, International Law, and the Regime Governing Atrocities in Internal Conflicts, 93 AJIL 361, 365 (1999).Google Scholar

57 During George W. Bush’s presidency, some U.S. government officials and commentators calling themselves “realists” have argued that law does not and should not constrain pursuit of the U.S. national interest. In supporting various foreign policies, definitions of the “national interest” have sometimes been based on an ideological commitment to the propriety of democratizing the world, or parts of it. Mahmoud Abbas, then the Palestinian prime minister, recounts how President Bush told him: “I have a moral and religious obligation. I must get you a Palestinian state. And I will.” MacAskill, Ewen George Bush: ‘God Told Me to End the Tyranny in Iraq,’ Guardian, Oct. 7, 2005 Google Scholar, Home Pages, at 1. This stance differs from that of structural realists, who define the core national interest as survival, advancing policies that maximize the prospects for national survival. Waltz, supra note 24, at 91. It also differs from that of most other realists, who see a foreign policy that is based on ideology and consumes vast national economic, diplomatic, and military resources as an imprudent luxury available only to a hegemonic state for a limited historical period— until pursuit of that policy undermines its hegemonic position. Stephen, D. Krasner Defending The National Interest: Raw Materials Investments and U.S. Foreign Policy (1978).Google Scholar Indeed, efforts to stretch the realist paradigm to advance a particular ideology may be seen by some as a root of miscalculations in Iraq—which may be catalyzing a return to realism, evidenced (at the time of this writing) by suggestions of disengagement from Iraq concurrently with attempts to curry favor with disgruntled European allies.

58 As suggested by the analysis here, it is incorrect to claim that realism sees international law as inconsequential; only that structural realism and its progeny deem international law inconsequential.

59 Robert, O. Keohane The Demand for International Regimes, in International Regimes, supra note 51, at 141Google Scholar; Stephen, D. Krasner Regimes and the Limits of Realism: Regimes as Autonomous Variables, in International Regimes, supra note 51, at 355.Google Scholar

60 Gruber, Lloyd Ruling the World: Power Politics and The Rise of Supranational Institutions (2001);Google Scholar Richard, H. Steinberg In the Shadow of Law or Power? Consensus-Based Bargaining and Outcomes in the GATT/WTO, 56 Int’l Org. 339 (2002).Google Scholar

61 Richard, H. Steinberg The Prospects for Partnership: Overcoming Obstacles to Transatlantic Policy Cooperation in Asia, in Partners or Competitors? The Prospects for U.S.-European Cooperation on Asian Trade 213 (Richard, H. Steinberg & Stokes, Bruce eds., 1999).Google Scholar

62 Steinberg, supra note 60.

63 Geoffrey, Garrett, R. Daniel Kelemen & Schulz, Heiner The European Court of Justice, National Governments, and Legal Integration in the European Union, 52 Int’l Org. 149 (1998)Google Scholar; Richard, H. Steinberg Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints, 98 AJIL 247 (2004)Google Scholar; Schulz, Heiner The Political Foundations of Decision Making by the European Court of Justice, 99 ASIL Proc. 132 (2005).Google Scholar For a competing view, see Heifer, Laurence & Anne-Marie, Slaughter Toward a Theory of Effective Supranational Adjudication, 107 Yale L.J. 273 (1997);Google Scholar Laurence, R. Heifer & Anne-Marie, Slaughter Why States Create International Tribunals: A Response to Professors Posner and Yoo, 93 Cal. L. Rev. 899 (2005).Google Scholar

64 Stephen, D. Krasner Sovereignty: Organized Hypocrisy 73–219 (1999)Google Scholar; Richard, H. Steinberg The Transformation of European Trading States, in The State After Statism (Levy, Jonah ed., forthcoming 2006).Google Scholar

65 Krasner, supra note 64, at 14-20; Richard H. Steinberg, Who Is Sovereign? 40 Stan. J. Int’l L. 329 (2004).

66 David Kennedy argues that international law became obsessively process oriented during this period. Kennedy, David A New Stream of International Law Scholarship, 7 Wis. Int’l L.J. 1 (1988).Google Scholar

67 Kunz, supra note 47, at 495.

68 Myres, S. McDougal & Harold, D. Lasswell The Identification and Appraisal of Diverse Systems of Public Order, 53 AJIL 1, 11 (1959)Google Scholar; see also Myres, S. McDougal & W. Michael, Reisman The Prescribing Function in the World Constitutive Process: How International Law Is Made, in International Law Essays 355 (Myres, S. McDougal & W. Michael, Reisman eds., 1981).Google Scholar

69 Two excellent sources on this movement are G. Edward, White From Sociological Jurisprudence to Realism: Jurisprudence and Social Change in Early Twentieth-Century America, 58 VA. L. Rev. 999 (1972)Google Scholar; Thomas, C. Grey Modern American Legal Thought, 106 Yale L.J. 493, 495–500 (1996)Google Scholar (reviewing Duxbury, supra note 39).

70 In so doing, they were following a similar effort by Pound several decades earlier. Pound, Roscoe Interests of Personality, 28 Harv. L. Rev. 343, 445 (1914-1915)Google Scholar. Importantly, McDougal and Lasswell’s scientific templates— the behavioral sciences—resembled less those used by adherents of sociological jurisprudence than those used by realists. See White, supra note 69, at 1013 (noting that realists relied more on behavioral sciences, and adherents of sociological jurisprudence relied more on economics and statistics). Nevertheless, McDougal and Lasswell used behaviorialism for sociological purposes.

71 For a more contemporary application of policy-oriented jurisprudence, see Wiessner, Siegfried & Andrew, R. Willard Policy-Oriented Jurisprudence and Human Rights Abuses in Internal Conflict: Toward a World Public Order of Human Dignity, 93 AJIL 316 (1999).CrossRefGoogle Scholar

72 Chayes, Abram Ehrlich, Thomas & Andreas, F. Lowenfeld International Legal Process (1968)Google Scholar; Mary, Ellen O’Connell New International Legal Process, 93 AJIL 334 (1999).Google Scholar

73 The literature on Hart and Sacks is large and growing. The beginning, of course, is Henry, M. Hart Jr. & Albert, M. Sacks The Legal Process: Basic Problems in the Making and Application of Law (William, N. Eskridge Jr. & Philip, P. Frickey eds., 1994) (tentative draft 1958).Google Scholar

74 Our description of the central themes of legal process theory comes from Eskridge and Frickey’s outstanding introduction to the Hart and Sacks materials. William, N. Eskridge Jr. & Philip, P. Frickey An Historical and Critical Introduction to The Legal Process, in Hart & Sacks, supra note 73, at 1i, 1iii.Google Scholar

75 Chayes, Abram & Antonia, Handler Chayes The New Sovereignty: Compliance with International Regulatory Agreements (1998).Google Scholar

76 See George, W. Downs David, M. Rocke & Peter, N. Barsoom Is the Good News About Compliance Good News About Cooperation? 50 Int’l Org. 379 (1996)Google Scholar (demonstrating that most compliance would have occurred in the absence of international agreements and distinguishing compliance from effectiveness); see also Raustiala, Kal & Anne-Marie, Slaughter International Law, International Relations, and Compliance, in Handbook of International Relations 538, 543 (Carlsnaes, Walter et al. eds., 2002)Google Scholar (describing Downs’s article as “trenchant”).

77 See, e.g., Gilpin, Robert War and Change in World Politics (1981)CrossRefGoogle Scholar; Stephen, D. Krasner State Power and the Structure of International Trade, 28 World Pol. 317 (1976).Google Scholar

78 Axelrod, Robert The Evolution of Cooperation (1984).Google Scholar

79 Robert, O. Keohane After Hegemony: Cooperation and Discord in The World Political Economy (1984).Google Scholar

80 Kenneth, W. Abbott Modern International Relations Theory: A Prospectus for International Lawyers, 14 Yale J. Int’l L. 335 (1989).Google Scholar

81 Jeffrey, L. Dunoff & Joel, P. Trachtman The Law and Economics of Humanitarian Law Violations in Internal Conflict, 93 AJIL 394 (1999).Google Scholar

82 For examples of analyses using the prisoners’ dilemma, see Kenneth, W. Abbott Trust but Verify: The Production of Information in Arms Control Treaties and Other International Agreements, 26 Cornell Int’l L.J. (1993)Google Scholar; Setear, John An Iterative Perspective on Treaties: A Synthesis of International Relations Theory and International Law, 37 Harv. Int’l L.J. 139 (1996).Google Scholar

83 The notion of clarity as an important law function echoes the classicists’ rationale for codification. See, e.g., Joseph, M. Grieco Cooperation Among Nations 23 (1990)Google Scholar (noting “consensus that international cooperation cannot be separated from rule-governed state behavior and that rules may in fact be the most important element of international regimes or institutions”). The idea of this law function applies to the domestic context as well. See, e.g., Axelrod, Robert An Evolutionary Approach to Norms, 80 Am. Pol. Sci. Rev. 1095, 1106–07 (1986)Google Scholar (“The law tends to define obligations much more clearly than does an informal norm. A social norm might say that a landlord should provide safe housing for tenants, but a housing code is more likely to define safety in terms of fire escapes.”); Carol, M. Rose Crystals and Mud in Property Law, 40 Stan. L. Rev. 577, 608 (1988)Google Scholar (observing that clear rules “enhance sociability and facilitate ongoing social interactions”).

84 Lisa, L. Martin Democratic Commitments: Legislatures and International Cooperation (2002)Google Scholar; James, D. Fearon Signaling Foreign Policy Interests: Tying Hands Versus Sinking Costs, 41 J. Conflict Resol. 68–90 (1997)Google Scholar; Andrew, T. Guzman A Compliance-Based Theory of International Law, 90 Cal. L. Rev. 1823 (2002).Google Scholar

85 Cooler, Robert Expressive Law and Economics, 27 J. Legal Stud. 585 (1998).Google Scholar

86 See, respectively, Kenneth, W. Abbott & Snidal, Duncan Hard and Soft Law in International Governance, 54 int’l Org. 421 (2000)Google Scholar; Paul, R. Milgrom Douglass, C. North & Barry, R. Weingast The Role of Institutions in the Revival of Trade: The Medieval Law Merchant, Private Judges, and the Champagne Fairs, 2 Econ.& Pol. 1 (1990)Google Scholar; and Lipson, Charles Why Are Some International Agreements Informal? 45 Int’l Org. 495 (1991).CrossRefGoogle Scholar

87 Norman, George & Joel, P. Trachtman The Customary International Law Game, 99 AJIL 541 (2005).CrossRefGoogle Scholar

88 Koremenos, Barbara Lipson, Charles & Snidal, Duncan The Rational Design of International Institutions, 55 Int’l Org. 761, 761–80 (2001).CrossRefGoogle Scholar

89 See, respectively, Koremenos, Barbara Loosening the Ties That Bind: A Learning Model of Agreement Flexibility, 55 Int’l Org. 289 (2001)CrossRefGoogle Scholar; James McCall, Smith The Politics of Dispute Settlement Design: Explaining Legalism in Regional Trade Pacts, 54 Int’l Org. 137 (2000)Google Scholar; and Ronald, B. Mitchell Regime Design Matters: International Oil Pollution and Treaty Compliance, 48 Int’l Org. 425 (1994).Google Scholar

90 See, e.g., Anne-Marie, Slaughter Toward an Age of liberal Nations, 33 Harv. Int’l L.J. 393 (1992)Google Scholar; see also Fukuyama, Francis The End of History (1992).Google Scholar

91 Slaughter Burley, supra note 56, at 228.

92 Slaughter Burley, supra note 56; Anne-Marie, Slaughter Andrew, S. Tulumello & Wood, Stepan International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship, 92 AJIL 367 (1998)Google Scholar; see also Moravscik, Andrew Taking Preferences Seriously: A Liberal Theory of International Politics, 51 Int’l Org. 513 (1997).CrossRefGoogle Scholar

93 See, e.g., Raustiala, Kal Form and Substance in International Agreements, 99 AJIL 581 (2005)CrossRefGoogle Scholar; Daniel, M. Bodansky The Legitimacy of International Governance: A Coming Challenge for International Environmental Law? 93 AJIL 596, esp. 617-19 (1999).Google Scholar

94 Michael, A. Bailey Goldstein, Judith & Barry, R. Weingast The Origins of American Trade Policy: Rules, Coalitions, and International Politics, 49 World Pol. 309 (1997).Google Scholar

95 Martin, supra note 84; Goldstein, Judith & Lisa, L. Martin Legalization, Trade Liberalization, and Domestic Politics: A Cautionary Note, 54 Int’l Org. 219 (2000).Google Scholar

96 Stein, Eric Lawyers, Judges, and the Making of a European Constitution, 75 AJIL 1 (1981)Google Scholar; Anne-Marie [Slaughter], Burley & Mattli, Walter Europe Before the Court: A Political Theory of Legal Integration, 47 Int’l Org. 41 (1993)Google Scholar; Joseph, H. H. Weiler The Transformation of Europe, 100 Yale L.J. 2403 (1991).Google Scholar

97 Robert, O. Keohane Moravscik, Andrew & Anne-Marie, Slaughter Legalized Dispute Resolution: Interstate and Transnational, 54 Int’l Org. 73 (2000).Google Scholar

98 Slaughter Burley, supra note 56; Slaughter, Tulumello, & Wood, supra note 92.

99 “Critical” (i.e., postmodern) constructivist theory is referred to here as “hard,” and modern theory as “soft,” to avoid confusion with later references to critical legal studies, which includes modernists and postmodernists. See Kelman, Mark A Guide to Critical Legal Studies (l987)Google Scholar; Critical Legal Studies Symposium, 36 Stan. L. Rev., Nos. 1 & 2 (1984).Google Scholar

100 Friedrich V. Kratochwil, Rules, Norms, and Decisions: on the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (1989).

101 Id. M 251.

102 Wendt, Alexander Anarchy Is What States Make of It: The Social Construction of ‘Power Politics, 46 Int’l Org. 391 (1992).CrossRefGoogle Scholar

103 Wendt, Alexander Social Theory of International Politics (1999)CrossRefGoogle Scholar; see also Wendt, Alexander The Agent-Structure Problem in International Relations Theory, 41 Int’l Org. 335 (1987)CrossRefGoogle Scholar. A superb critical review of Wendt’s book from a neorealist perspective is Dale, C. Copeland The Constructivist Challenge to Structural Realism, Int’l Security, Fall 2000, at 187Google Scholar. 52 Int’l Org., NO. 4 (1998)Google Scholar, is entirely devoted to the rationalist-constructivist debate.

104 See Kratochwil, Friedrich Constructing a New Orthodoxy? Wendt’s ‘Social Theory of International Politics’ and the Constructivist Challenge, 29 Millennium: J. Int’l Stud. 73 (2000).CrossRefGoogle Scholar

105 Examples of the vast and rapidly growing constructivist literature in international relations theory generally include Barnett, Michael & Flnnemore, Martha Rules for The World: International Organizations in Global Politics (2005)Google Scholar; John, Gerard Ruggie Constructing The World Polity, ch. 1 (1998)Google Scholar; Adler, Emanuel Seizing the Middle Ground: Constructivism in World Politics, 3 Eur. J. Int’l Rel. 319 (1997)CrossRefGoogle Scholar; Hopf, Ted The Promise of Constructivism in International Relations Theory, Int’L Security, Summer 1998, at 171CrossRefGoogle Scholar; and Christian, Reus-Smit The Constitutional Structure of International Society and the Nature of Fundamental Institutions, 51 Int’l. Org. 555 (1997).Google Scholar

106 See Gordon, supra note 27; Robert, W. Gordon ‘The Ideal and the Actual in the law’: Fantasies and Practices of New York City lawyers, 1870-1910, in The New High Priests: Lawyers in Post-Civil War America 51 (Gerard, W. Gawalt ed., 1984)Google Scholar; Robert, W. Gordon Critical Legal Histories, 36 Stan. L. Rev. 57 (1984).Google Scholar

107 A powerful (albeit somewhat prolix) statement of this position in CLS is found in Robert, O. Mangabeira Unger Politics: Vol. 1, False Necessity: Anti-Necessitarian Social Theory in The Service of Radical Democracy (rev. ed. 2004)Google Scholar; Vol. 2, Social Theory: its Situation and Task (2004); Vol. 3, Plasticity into Power (2004).

108 Milliken, Jennifer The Study of Discourse in International Relations: A Critique of Research and Methods, 5 Eur. J. Int’l Rev. 225 (1999)Google Scholar; Kennedy, supra note 66.

109 Kennedy, supra note 66; see also Kennedy, David The Dark Sides of Virtue: Reassessing International Humanitarianism (2004).Google Scholar

110 Charlesworth, Hilary Chinkin, Christine & Wright, Shelley Feminist Approaches to International Law, 85 AJIL 613 (1991)CrossRefGoogle Scholar; see also Charlesworth, Hilary Feminist Methods in International Law, 93 AJIL 379 (1999).CrossRefGoogle Scholar

111 Kingsbury, Benedict Indigenous Peoples in International Law: A Constructivist Approach to the Asian Controversy, 92 AJIL 414 (1998).CrossRefGoogle Scholar

112 Harold, Hongju Koh Transnational Public Law Litigation, 100 Yale L.J. 2347 (1991)Google Scholar; Harold Hongju, Koh How Is International Human Rights Law Enforced? 74 Ind. L.J. 1397 (1999).Google Scholar

113 Thomas, M. Franck The Power of Legitimacy Among Nations (1990);Google Scholar Thomas, M. Franck Legitimacy in the International System, 82 AJIL 704 (1988)Google Scholar [hereinafter Franck, Legitimacy]. Like Louis Henkin, Franck assumes that almost all international law is followed almost all of the time, and his theory is offered as a post hoc explanation of why that might be. Franck, supra note 36; see also Thomas, M. Franck The Emerging Right to Democratic Governance, 86 AJIL 46 (1992)Google Scholar (arguing that an emerging international legal norm requiring democratic governance has legitimated democratic governments and processes and undermined nondemocratic ones).

114 Goodman, Ryan & Jinks, Derek International Law and State Socialization: Conceptual, Empirical, and Normative Challenges, 54 Duke L.J. 983 (2005)Google Scholar; see also Byers, Michael Custom, Power, and the Power of Rules: Customary International Law from an Interdisciplinary Perspective, 17 Mich. J. Int’l L. 109 (1995).Google Scholar

115 Margaret, E. Keck & Sikkink, Kathryn Activists Beyond Borders: Advocacy Networks in International Law (1998)Google Scholar; see also Charnovitz, Steve Nongovernmental Organizations and International Law, 100 AJIL (forthcoming 2006).CrossRefGoogle Scholar

116 Haas, Peter Introduction: Epistemic Communities and International Policy Coordination, 46 Int’l Org. 1 (1992).Google Scholar

117 Ellen, L. Lutz & Sikkink, Kathryn International Human Rights Law and Practice in Latin America, 54 Int’l Org. 249 (2000).Google Scholar

118 Dezalay, Yves & Garth, Bryant Dealing in Virtue: International Commercial Arbitration and the Construction of A Transnational Legal Order (1996).Google Scholar

119 For more evidence of this heterogeneity, see Steven, R. Ratner & Anne-Marie, Slaughter Symposium on Method in International Law, 93 AJIL 291 (1999).Google Scholar

120 Lori Fisler, Damrosch The “American “and the “International” in the American Journal of International Law, 100 AJIL 2 (2006).Google Scholar

121 Hoffmann, Stanley An American Social Science: International Relations, Daedalus, Summer 1977, at 41.Google Scholar

122 Philippe, C. Schmitter Seven (Disputable) Theses Concerning the Future of “Transatlanticized” or “Globalized” Political Science (rev. Oct. 2001) (unpublished essay, Istituto Universitario Europeo, on file with authors).Google Scholar

123 Robert, O. Keohane & Joseph, S. Nye Power and Interdependence (2d ed. 1989).Google Scholar

124 Keohane, supra note 79.

125 Franck, Legitimacy, supra note 113.

126 Chayes & Chayes, supra note 75.

127 Damrosch, supra note 120.

128 This is not to suggest that rationalist institutionalism is unused in the security field. See, e.g., James, D. Morrow The Laws of War, Common Conjectures, and Legal Systems in International Politics, 31 J. Legal Stud. 41 (2002).Google Scholar

129 See, e.g., Krisch, Nico International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order, 16 Eur. J. Int’l L. 369 (2005).CrossRefGoogle Scholar

130 Compare, e.g., David, D. Caron War and International Adjudication: Reflections on the 1899 Peace Conference, 94 AJIL 4 (2000)Google Scholar, with David, D. Caron The International Whaling Commission and the North Atlantic Marine Mammal Commission: The Institutional Risks of Coercion in Consensual Structures, 89 AJIL 154 (1995).Google Scholar

131 See, e.g., Hathaway, Oona Do Human Rights Treaties Make a Difference? 111 Yale L.J. 1935 (2002)CrossRefGoogle Scholar; Beth, A. Simmons The Legalization of International Monetary Affairs, 54 Int’l Org. 189 (2000).Google Scholar

132 Cf C. Wilfred, Jenks Craftsmanship in International Law, 50 AJIL 32 (1956).Google Scholar Our notion of international legal craftsmanship differs somewhat from that of Jenks: he distinguished sharply between offering opinions to justify the national interest and building a solid foundation for international law, forthrightly arguing that the “compleat” international lawyer should do the latter. We contend, on the contrary, that international lawyers must look to develop cooperative international institutions without doing violence to the interests of powerful states: the World Trade Organization, the Montreal Protocol, and the World Bank might serve as useful examples. Ignoring national interest in deference to universalism is a recipe for international legal failure.

133 This alludes to a famous Langdellian catechism:

Christopher Columbus Langdell, Address to the Harvard Law School Association (Nov. 1886), quoted in Arthur, E. Sutherland The Law at Harvard 175 (1967).Google Scholar

134 “[I]t is the mark of an educated man to look for precision in each class of things just so far as the nature of the subject admits; it is evidently equally foolish to accept probable reasoning from a mathematician and to demand from a rhetorician scientific proofs.” Aristotle, Nlcomachean Ethics, bk. I, ch. 3 (W. D. Ross trans., Clarendon Press 1908).