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Conclusion: The Causes and Consequences of Legalization

Published online by Cambridge University Press:  09 July 2003

Miles Kahler
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Abstract

The intersection of law and politics provides tentative answers for two questions: First, why, among the variety of institutional forms available to governments, are legalized institutions preferred in some contexts and not in others? Second, what are the consequences of legalization? Explanations for variation in legalization are directed to the supply of legalized institutions, grounded in the preferences of the most powerful states. Those preferences are shaped, in turn, by domestic political demands for legalization as well as unanticipated domestic political dynamics that can increase legalization over time. Domestic political demands for legalization have increased as a result of international economic integration; the effects of democratization have been more ambiguous. Outside the industrialized democracies, the intersection of supply and demand is often different: supply of legalized institutions is lower and sovereignty costs are often higher. The authors in this special issue examine three important consequences of legalization: its effects on government compliance with international agreements, its impact on the evolution of international norms, and the conditions under which it will harden and spread. In each case, domestic political links are central to the effects of legalization. International agreements and institutions that are legalized, compared with those that are not, seem to be more deeply rooted in domestic politics: their existence often draws on both anticipated and unanticipated actions by domestic actors; their consequences are shaped by domestic characteristics and constituencies.

Type
Conclusion
Information
International Organization , Volume 54 , Issue 3 , Summer 2000 , pp. 661 - 683
Copyright
Copyright © The IO Foundation 2000

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References

I thank Karen Alter, Robert O. Keohane, Richard Steinberg, the editors of International Organization, and an anonymous reviewer for helpful comments on an earlier draft of this article. Pablo Pinto provided excellent research assistance.

1. Carr 1946, 177–78.

2. Abbott et al., this issue.

3. Keohane, Moravcsik, and Slaughter, this issue.

4. Abbott and Snidal, this issue.

5. F. Abbott, this issue.

6. Keohane, Moravcsik, and Slaughter, this issue.

7. See Lutz and Sikkink; Goldstein and Martin; and Alter, all in this issue.

8. For the distinction between unintended and unanticipated consequences in functionalist analysis, see Martin and Simmons 1998, 749–50.

9. Abbott and Snidal, this issue.

10. Simmons, this issue.

11. Keck and Sikkink 1998, 86.

12. Simmons, this issue.

13. Eichengreen 1999, 105.

14. Goldstein and Martin, this issue.

15. Abbott and Snidal, this issue.

16. Smith 2000.

17. Simmons 2000b.

18. Alter 1998b, 137.

19. Abbott and Snidal, this issue.

20. Kahler, this issue. For a positive reading of what some have called “aggressive unilateralism” in U.S. trade policy, see Downs, Rocke, and Barsoom 1996, 395.

21. Martin and Simmons 1998, 747.

22. Alter, this issue.

23. Keck and Sikkink 1998, 81.

24. Ibid., 85.

25. Martin and Simmons 1998, 747.

26. Alter, this issue.

27. See ibid.; and Shaw 1998.

28. For an example of this kind of explanation, see Richards 1999.

29. Richards 1999.

30. Downs and Rocke 1995, 87–91.

31. For an account of the pact and its political underpinnings, see Ferrell 1952.

32. Ibid., 73, 99.

33. DeBoe 1974, 34–35.

34. Lutz and Sikkink, this issue.

35. Goldstein 1996.

36. F. Abbott, this issue.

37. Smith 2000.

38. Solingen 1998.

39. Downs, Rocke, and Barsoom 1996, 383.

40. F. Abbott, this issue.

41. Simmons, this issue.

42. Evidence on territorial disputes in Latin America also failed to find a “democratic effect” with respect to compliance, although the results were complicated by the small number of regimes that met contemporary standards of liberal democracy. Simmons 2000, 16. Simmons also finds that change of government is linked to noncompliance: an effect that is not specific to democracies but occurs on a regular basis in democratic regimes.

43. See Simmons's definition in this issue.

44. Alter 1998b, 128.

45. F. Abbott, this issue.

46. Keohane, Slaughter, and Moravcsik, this issue.

47. See Alter, this issue; and Alter and Vargas 2000.

48. See F. Abbott, this issue; and Lutz and Sikkink, this issue.

49. Goldstein and Martin, this issue.

50. Mitchell's account of the discharge subregime in controlling oil pollution suggests that courts were reluctant to impose fines that would effectively deter illegal discharges; under the equipment subregime, administrative sanctions “skirted both flag state and port state legal systems—and the associated sensitivities regarding legal sovereignty.” Mitchell 1994, 451.

51. Legro examines submarine warfare, strategic bombing, and chemical weapons. Legro 1995.

52. Although Legro's measurement of institutionalization differs from the concept of legalization used in this issue, his rankings of international restraints are roughly the same. Legro's claim regarding the superiority of an explanation based on organizational culture relies heavily on his coding of the chemical weapons ban, which he regards as less institutionalized than rules against unrestricted submarine warfare. If norms regarding chemical warfare are taken as stronger than Legro allows (predicting adherence), the superiority of the organizational culture explanation is greatly diminished. Using our definition of legalization, the two regimes appear very similar.

53. Even a politician such as Churchill, notably disdainful of restraints on warfare, noted the pressures from British public opinion. Legro 1995, 157–58.

54. See Price 1997, 109–11, 128; and Legro 1997, 53.

55. Price 1997, 104.

56. The following account is drawn from ibid.

57. Ibid., 96.

58. Ibid., 136, 139–41.

59. Downs, Rocke, and Barsoom 1998.

60. Alter, this issue.

61. Simmons, this issue.

62. On the problems that unanticipated consequences pose for rational choice explanations, see Martin and Simmons 1998, 750–51.

63. Keohane, Moravcsik, and Slaughter, this issue.

64. Ibid.

65. Alter 1998b, 145.

66. F. Abbott, this issue.

67. Alter, this issue.

68. Ibid.

69. Keohane, Moravcsik, and Slaughter, this issue.