20 - Law, Lawyers, and Empire

Summary

At the end of the twentieth century, scholars from many disciplines noted the rise of “norms” or even “legalization” in U.S. foreign policy and in the practice of international relations more generally. Legal debates about the rules for governing foreign relations and questions of how to enforce desirable laws such as those outlawing genocide or ethnic cleansing became central to international diplomacy. Even the debates for and against globalization came to feature lawyers, whereas trade debates focused on such issues as the legal standing of environmental groups in proceedings before the World Trade Organization (WTO).

For many scholars, these developments marked an important and desirable shift from the “realist” focus on struggles for power and influence toward greater cooperation and rule-oriented behavior. More than at any time in the past, ideas of how to build and improve laws and legal enforcement dominated the agenda of American foreign policy.

In this chapter we examine the process of legalization (and its celebration). By tracing current institutional developments to their geneses a century ago, we argue that the current situation in international relations reflects a relative success in “Americanization” abroad that also reinforces the power of lawyers and the clients they serve domestically. Law and lawyers have been central to what can be characterized as U.S. “imperial strategies” throughout the twentieth century, we show, but the role of law and lawyers in these strategies has changed over the course of that time. We examine in particular the process by which, during the first half of the twentieth century, the power of the so-called “foreign policy establishment” (FPE) was entrenched in the workings of the law.