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Visions of international law: An interdisciplinary retrospective
Published online by Cambridge University Press: 28 September 2020
Abstract
Taking the opportunity of this LJIL special lecture, Professor Alter provides an interdisciplinary retrospective that explains, defends and critiques six common visions of international law: The naïve political scientist’s expectations about international law as a fixed reflection of political choices; the legal formalist and structural theorist who believes that formal rules, institutions, and processes should generate similar outcomes in different parts of the world; the Western centric scholar’s notion that one can draw general lessons based on European and American experiences; the liberal internationalist who believes that multilateral processes generate consent based agreements and outcomes; the law and society scholar whose focus on the local can minimize international structural elements; and the international legal sociologist who believes that meanings and practices constitute international law. After reflecting on what each vision captures and misses about international law, Professor Alter identifies the policy stakes of residing within a vision. While we need to draw from multiple visions to understand the hybridity of international law, we also need to understand the implicit presumptions of each vision, as these presumptions generate contradictory prescriptive recommendations.
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Footnotes
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Thanks to Ingo Venzke, Ming-Hsi Chu, and the anonymous reviewers for their helpful comments on this article.
References
1 Martii Koskeneniemi and Anne Orford describe additional visions in terms of different ideas and contested authority regarding sovereignty and international law. M. Koskenniemi, ‘International Law in the World of Ideas’, in J. Crawford and M. Koskenniemi (eds.), Cambridge Companion to International Law (2015); A. Orford, ‘Constituting Order’, in Crawford and Koskenniemi, ibid.
2 This perspective is naïve insofar as all involved acknowledge that sometimes law and legal process clearly do matter. Yet, still, political scientists often choose to explain away or ignore these examples, suggesting that power and interest rather than the law explains the choice.
3 A. Stein, ‘Coordination and Collaboration: Regimes in an Anarchic World’, in S. Krasner (ed.), International Regimes (1983); S. Krasner, ‘Global Communications and National Power: Life on the Pareto Frontier’, (1991) 43 World Politics 336.
4 On the rule of law as a composite measure see M. Versteeg and T. Ginsburg, ‘Measuring the Rule of Law: A Comparison of Indicators’, (2017) 42 Law & Social Inquiry 100. On how the rule of law contributes to positive outcomes see S. Haggard, A. Macintyre and L. Tiede, The Rule of Law and Economic Development (2008); T. Carothers, ‘The Rule of Law Revival’, (1998) 77 Foreign Affairs 95.
5 These are contested claims. St John’s analysis of the emergence of the investor dispute system assesses the many arguments used across time to support of the system that have been used: T. St John, The Rise of Investor-State Arbitration: Politics, Law, and Unintended Consequences (2018).
6 See, for example, C. N. Tate and T. Vallinder, The Global Expansion of Judicial Power (1995); A. Stone Sweet, Governing with Judges (2000); A. Stone Sweet, ‘Constitutional Courts and Parliamentary Democracy’, (2002) 25 West European Politics 77; K. J. Alter, L. R. Helfer and E. Hafner Burton, ‘Theorizing the Judicialization of International Relations’, (2019) 63 International Studies Quarterly 449.
7 Historical institutionalism sees institutions as sticky, so they persist even when political preferences change. P. Hall and R. Taylor, ‘Political Science and the Three New Institutionalisms’, (1996) XLIV Policy Studies 936; P. Pierson, ‘The Path to European Integration: A Historical Institutionalist Perspective’, (1996) 29 Comparative Political Studies 123; P. Pierson, Politics in Time: History, Institutions and Social Analysis (2004). Historical institutionalism also conceptualizes how fundamental change can occur outside of key decision-making moments: W. Streeck and K. A. Thelen, Beyond Continuity: Institutional Change in Advanced Political Economies (2005); J. Mahoney and K. A. Thelen, Explaining Institutional Change: Ambiguity, Agency, Power (2010). This theory fits my case since the European Court used legal interpretation to fundamentally change the international legal order, and this change proved very sticky.
8 F. Kratochwil, Rules, Norms, and Decisions on the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (1989). This perspective, which drew on theories outside of political science, came to be associated with constructivist approaches to international relations. Yet, for many early constructivists, rules were still seen as political creations; it did not matter much if something was a norm, rule or law; and international law in particular was not seen as all that influential. See, for example, H. Bull, The Anarchical Society: A Study of Order in World Politics (1977).
9 M. Finnemore, National Interest in International Society (1996); M. Finnemore and K. Sikkink, ‘International Norm Dynamics and Political Change’, (1998) 52 International Organization 887; J. Goldstein and others, ‘Introduction: Legalization and World Politics’, (2000) 54 International Organization 385; M. Finnemore and S. Toope, ‘Alternatives to Legalization: Richer Views of Law and Politics’, (2001) 55 International Organization 743.
10 A. Stone Sweet (2000), supra note 6; Alter, Helfer and Hafner Burton, supra note 6; M. Shapiro and A. Stone Sweet, On Law, Politics and Judicialization (2002).
11 P. Pescatore, ‘The Doctrine of “Direct Effect”: An Infant Disease of Community Law’, (1983) 8 European Law Review 155.
12 In this framework, if the agent (judges or administrators) stray too far, the principal will respond by changing the law, firing the judge, cutting judicial budgets, or rescinding a court’s jurisdiction. Before the rise of populist leaders for whom attacking and undermining the power of courts – both national and international – is a regular part of their playbook, political interventions to reverse or curtail international courts were rare occurrences. The scarcity of political efforts to ‘correct’ international judicial practices led proponents of principal–agent theory to argue that judges were self-censoring to avoid sanction. I explain why this framework is too narrow, tautological in its reasoning, and thus unhelpful: K. J. Alter, The New Terrain of International Law: Courts, Politics, Rights (2014), at 42; K. J. Alter, ‘Delegation to International Courts and the Limits of Recontracting Power’, in D. Hawkins et al. (eds.), Delegation and Agency in International Organizations (2006). For a discussion about the rise of populism and international courts see E. Voeten, ‘Populism and Backlashes against International Courts’, (2020) 18(2) Perspective on Politics 407–22.
13 See, for example, D. Bodansky, ‘Legal Realism and Its Discontents’, (2015) 28 Leiden Journal of International Law 267; A. Anghie, Imperialism, Sovereignty, and the Making of International Law (2005).
14 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
15 See G. N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (1993).
16 K. J. Alter and S. Meunier-Aitsahalia, ‘Judicial Politics in the European Community: European Integration and the Pathbreaking Cassis De Dijon Decision’, (1994) 24 Comparative Political Studies 535.
17 American law schools and American courts are so politicized right now that this normative core is heavily discounted. The different American and European legal sensibility may mean that the normative core exists only where politics does not corrupt the operation of legal interpretation.
18 L. L. Fuller, The Morality of Law (1964).
19 J. Weiler, ‘The Transformation of Europe’, (1991) 100 Yale Law Journal 2403, at 2428.
20 It remains difficult for a political scientist to know what to do with the legal counter that portrays law and the legal process as an unending fencing match: argument, counter-argument, point here, counterpoint there, match won, set lost, tournament won, starts over. Politics is also a fencing match, and yet social scientists study it. To insist that social science see law as lawyers do is not reasonable, and it will not work. Law and society approaches (vision 5) offer a way forward.
21 This idea is what Brunée and Toope mean when they argue that the ‘practice of legality’ is a cultural norm and legitimating narrative of modern governance. See J. Brunnée and S. J. Toope, ‘Interactional Legal Theory, the International Rule of Law and Global Constitutionalism’, in A. F. Lane and A. Wiener (eds.), Handbook on Global Constitutionalism (2017). Many others make similar arguments, for example, A. Huneeus, J. A. Couso and R. Sieder, Cultures of Legality: Judicialization and Political Activism in Latin America (2011).
22 J. d’Aspremont, International Law as a Belief System (2018); L. Rosen, Law as Culture: An Invitation (2006).
23 By functionalist, I mean that they can be problem-solving rules and institutions designed to address common problems such as infant and parental mortality, human trafficking, terrorism, mass migration, etc. that are shared by a diverse range of countries.
24 R. La Porta, F. Lopez-de-Silanes and A. Shleifer, ‘The Economic Consequences of Legal Origins’, (2008) 46 Journal of Economic Literature 285; R. La Porta et al., ‘Legal Determinants of External Finance’, (1997) 52(3) Journal of Finance 1131–50; R. La Porta et al., ‘Law and Finance’, (1998) 106 Journal of Political Economy 1113.
25 See, for example, E.-U. Petersmann, The Gatt/WTO Dispute Settlement System (1997); B. Kingsbury et al., ‘The Emergence of Global Administrative Law’, (2005) 68 Law and Contemporary Problems 15.
26 K. J. Alter, ‘The Global Spread of European Style International Courts’, (2012) 35 West European Politics 135; K. J. Alter, ‘The Evolution of International Law and Courts’, in O. Fioretos (ed.), International Politics and Institutions in Time (2017).
27 For more on the growth of empirical legal studies see T. Eisenberg, ‘The Origins, Nature, and Promise of Empirical Legal Studies and a Response to Concerns. (Law and Economics Conference to Honor Thomas S. Ulen)’, (2011) University of Illinois Law Review 1713; M. C. Suchman and E.Mertz, ‘Toward a New Legal Empiricism: Empirical Legal Studies and New Legal Realism’, (2010) 6 Annual Review of Law and Social Science 555. For more on the growth of law and economics see S. M. Teles, The Rise of the Conservative Legal Movement: The Battle for Control of the Law (2009); R. A. Posner, ‘The Law and Economics Movement’, (1987) 77 The American Economic Review 1.
28 See, for example, B. Koremenos, C. Lipson and D. Snidal, ‘The Rational Design of International Institutions’, (2001) 55 International Organization 761; B. Koremenos, The Continent of International Law (2016); J. McCall Smith, ‘The Politics of Dispute Settlement Design’, (2000) 54 International Organization 137.
29 The backward engineering of this insight is what motivates proponents of principle–agent theory (see supra note 12).
30 We explore this idea as we explain why the Andean Tribunal has been such a formalist legal body. K. J. Alter and L. R. Helfer, Transplanting International Courts: The Law and Politics of the Andean Tribunal of Justice (2017).
31 Alter, Helfer and Hafner Burton, supra note 6; C. Epps, The Rights Revolution: Lawyers, Activists and Supreme Courts in Comparative Perspective (1998); T. Risse, S. Ropp and K. Sikkink, The Power of Human Rights: International Norms and Domestic Change (1999).
32 In methods terminology, the correlations of formal scholars may overlook difficult to measure intervening variables, ignoring factors that are jointly necessary for the formal institution to achieve the desired outcome.
33 See S. Engle Merry, ‘Rights Talk and the Experience of Law: Implementing Women’s Human Rights to Protection from Violence’, (2003) 25 Human Rights Quarterly 343; S. Engle Merry, ‘Constructing a Global Law-Violence against Woman and the Human Rights System’, (2003) 28 Law and Social Inquiry 941.
34 See, for example, L. R. Helfer and A.-M. Slaughter, ‘Toward a Theory of Effective Supranational Adjudication’, (1997) 107 Yale Law Journal 273; J. McCall Smith and J. Tallberg, ‘Dispute Settlement in World Politics: States, Supranational Prosecutors, and Compliance’, (2012) European Journal of International Relations 1; McCall Smith, supra note 28.
35 Koremenos, supra note 28.
36 Weber did not actually say that this progression existed. Yet he and others did try to understand why capitalism evolved furthest and most successfully in the West, and in this respect, it is easy to presume that capitalist progression required emulating Western development. On Weber’s theory of capitalism see R. Collins, ‘Weber’s Last Theory of Capitalism: A Systematization’, (1980) 45 American Sociological Review 925.
37 On scholarship that is more explicitly promoting the idea that Western forms of law and governance are necessary for capitalist development see D. C. North and R. P. Thomas, The Rise of the Western World: A New Economic History (1973).
38 In my training the following texts, all of which build general theories from the case of Europe, were foundational: C. Tilly, Coercion, Capital, and European States, Ad 990–1992 (1992); T. H. Marshall, Citizenship and Social Class (1992); A. Gerschenkron, Economic Backwardness in Historical Perspective, a Book of Essays (1962); M. Weber, Economy and Society (1978); A. Shonfield, Modern Capitalism (1969).
39 The literature is vast but see, for example, L. A. Benton and A. Clulow, ‘Webs of Protection and Interpolity Zones in the Early Modern World’, in L. A. Benton, A. Clulow and B. Attwood (eds.), Protection and Empire: A Global History (2018); L. A. Benton and L. Ford, Rage for Order: The British Empire and the Origins of International Law, 1800–1850 (2018).
40 The literature is vast but see, for example, S. Pahuja, Decolonizing International Law: Development, Economic Growth and the Politics of Universaility (2011); R. P. Anand, ‘The Influence of History on the Literature of International Law’, in R. S. J. Macdonald and D. M. Johnston (eds.), The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine, and Theory (1983).
41 Wars led European states to mobilize resources to fight, and to modernize their militaries, Tilly, supra note 38. The European liberal revolutions in the mid-1800s, and later the communist revolution, forced kings to share or devolve their power to more participatory institutions. Colonialism provided an outlet for discontented or outcast Europeans to find a new place where they could flourish, if only because the quality of being European and White provided an asset that was valuable abroad. Colonialism and slavery also provided cheap labour and materials that Europeans could transform into high-value added assets that they could then sell back to the colonies.
42 When I started to study the Andean legal system, I began with all of my European assumptions. One after another they fell, which led to a major rethinking. I published pieces of this rethinking in the form of comparisons between the European and Andean legal systems. See K. J. Alter and L. R. Helfer, ‘Nature or Nurture: Judicial Lawmaking in the European Court of Justice and the Andean Tribunal of Justice’, (2010) 64 International Organization 563; K. J. Alter, ‘Jurist Advocacy Movements in Europe: The Role of Euro-Law Associations in European Integration (1953–1975)’, in K. J. Alter (ed.), The European Court’s Political Power (2009); L. R. Helfer and K. J. Alter, ‘The Andean Tribunal of Justice and Its Interlocutors: Understanding the Preliminary Ruling Reference Patterns in the Andean Community’, (2009) 42 Journal of International Law and Politics 871.
43 L. R. Helfer and I develop this argument more fully when we consolidate our thinking about the Andean system by bringing our various articles together. In the book version, Helfer revisits his Western-centric work on what makes supranational judges effective. See Alter and Helfer, supra note 30.
44 Sinclair wrote his book to emphasize the plight of workers, but its larger impact was to highlight the disgusting practices of the Chicago meat-packing industry. The book caused so much outrage that Federal authorities investigated and created some of the first federal food safety regulations. Reading excerpts of The Jungle was part of my middle school social science curriculum, and I have not eaten a hot dog since. For more, see www.crf-usa.org/bill-of-rights-in-action/bria-24-1-b-upton-sinclairs-the-jungle-muckraking-the-meat-packing-industry.html.
45 For the sake of clarity, I added the modifier ‘principled’ to what Ruggie simply called ‘multilateralism’. I mean the term exactly in the same way that Ruggie used it.
46 Michael Fahkri argues that the League of Nations’ International Sugar Agreement (1937) was a pioneering multilateral initiative that created concepts and institutions that were replicated in post-Second World War international agreements. Championed by Cuba, this agreement was designed to mitigate the effect of American market power vis-à-vis Cuba. M. Fakhri, Sugar and the Making of International Trade Law (2014), 129. See also G. J. Ikenberry, ‘The End of Liberal International Order?’, (2018) 94 International Affairs 7.
47 J. Ruggie, ‘Multilateralism: The Anatomy of an Institution’, in J. Ruggie (ed.), Multilateralism Matters (1993), 561, at 586.
48 Ibid., at 586. Mazower’s analysis of the history of the idea of global governance supports these claims. See M. Mazower, Governing the World: The History of an Idea (2013).
49 J. Ruggie, ‘International Regimes, Transactions and Change: Embedded Liberalism in the Postwar Economic Order’, (1982) 36 International Organization 379, at 404.
50 The United States emerged from World War Two as an abnormally dominant power. Europe and most of Asia had been devasted by war, whereas the American economy and society were mostly untouched, to the point that the US was the only country in a position to supply the world with critical resources. The epic disasters of the First World War, the Great Depression, and the Second World War had largely eviscerated a political desire to return to the past. On this ash heap, the Allied victors of the Second World War could build a new world order.
51 Literature debating these questions includes: G. J. Ikenberry, After Victory Institutions, Strategic Restraint, and the Rebuilding of Order after Major Wars (2001); G. J. Ikenberry, ‘Why the Liberal World Order Will Survive’, (2018) 32 Ethics & International Affairs 17; B. B. Allan, S. Vucetic and T. Hopf, ‘The Distribution of Identity and the Future of International Order: China’s Hegemonic Prospects’, (2018) 72 International Organization 839; B. Jahn, Liberal Internationalism: Theory, History, Practice (2013); M. Doyle, ‘Liberalism and World Politics’, (1986) 80 American Political Science Review 1151. Tom Ginsburg imagines the authoritarian international law alternative, see T. Ginsburg, ‘Authoritarian International Law?’, (2020) 114 AJIL 221.
52 The literature is vast, and the finding of a decline in inter-state war and battle deaths is undisputed (although explanations for this decline are disputed). The data is briefly summarized in S. Pinker, The Better Angels of Our Nature: The Decline of Violence in History and Its Causes (2011); B. Russett, Grasping the Democratic Peace (1993).
53 See Doyle, supra note 51.
54 See Jahn, supra note 51.
55 B. G. Garth and J. Sterling, ‘From Legal Realism to Law and Society: Reshaping Law for the Last States of the Social Activist State (Sociolegal Scholarship)’, (1998) 32 Law & Society Review 409. Tamanaha sees many historical antecedents to the socio-legal study of law, see B. Z. Tamanaha, A Realistic Theory of Law (2017), but as Garth and Sterling explain, the law and society movement was not simply socio-legal in its orientation.
56 See, for example, Bull, supra note 8; H. Bull and A. Watson, The Expansion of International Society (1984); C. Reus-Smit, ‘The Constitutional Structure of International Society and the Nature of Fundamental Institutions’, (1997) 51 International Organization 555.
57 This idea comes directly from Emmanuel Kant. Kant’s theories gained new strength when international relations scholars found that democracies do not fight wars against each other, a finding that has proven to be remarkably robust. This finding led to extensive theorizing to try to explain this strong social science finding. See, for example, Doyle, supra note 51; A.-M. Slaughter, ‘International Law in a World of Liberal States’, (1995) EJIL 503.
58 I examined changing law in action and rejected formalist and legalist claims that the sui generis nature of European law and the compelling argumentation of the European Court of Justice convinced domestic audiences to accept the supremacy of European law. And I rejected the neo-functionalist narrative of a win-win-win scenario for litigants, national judges, and European officials, focusing on the actors who were disempowered by the supremacy of European law. See K. J. Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (2001).
59 See Y. Dezalay and B. G. Garth, Global Prescriptions: The Production, Exportation, and Importation of a New Legal Orthodoxy (2002); Y. Dezalay and B. G. Garth, ‘From the Cold War to Kosovo: The Renewal of the Field of International Human Rights’, (2006) 2 Annual Review of Law and Social Science 231; M. R. Madsen, ‘Legal Diplomacy: Law Politics and the Genesis of Postwar European Human Rights’, in S.-L. Hoffmann (ed.), Human Rights in the Twentieth Century: A Critical History (2009), 62; A. Vauchez, ‘The Transnational Politics of Judicialization: Van Gend En Loos and the Making of Eu Polity’, (2010) 16 European Law Journal 1; A. Vauchez, ‘Une Élite D’intermédiaires. Genèse D’un Capital Juridique Européen (1950–1970)’, (2007) Actes de la recherche en sciences sociales 54; see d’Aspremont, supra note 22. On the recursivity loop that allows global law to influence society, and society to influence law, see T. C. Halliday, ‘The Recursivity of Global Norm-Making’, (2009) 5 Annual Review of Law and Social Science 263.
60 See Engle Merry, ‘Constructing a Global Law …’, supra note 35; J. Hagan, Justice in the Balkans: Prosecuting War Crimes in the Hague Tribunal (2003).
61 T. C. Halliday and G. C. Shaffer, Transnational Legal Orders (2015), at 3. Halliday and Shaffer are from the law and society tradition but the TLO approach is not unique in considering this broader set of actors, and the approach is reminiscent of McDougal and Laswell’s approach to studying international law, and Koh’s transnational legal process. See M. S. McDougal, H. D. Lasswell and J. C. Miller, The Interpretation of Agreements and World Public Order; Principles of Content and Procedure (1967); M. S. McDougal, W. M. Reisman and B. H. Weston, Toward World Order and Human Dignity: Essays in Honor of Myres S. Mcdougal (1976); H. H. Koh, ‘Why Do Nations Obey International Law?’, (1997) 106 Yale Law Journal 2599; H. H. Koh, ‘Transnational Legal Process’, (1996) 75 Nebraska Law Review 181.
62 T. Tyler, Why People Obey the Law (2006).
63 O. Hathaway and S. J. Shapiro, ‘Outcasting: Enforcement in Domestic and International Law’, (2011) 121 Yale Law Journal 252. Authors making similar arguments include R. Goodman and D. Jinks, ‘How to Influence States: Socialization and International Human Rights Law’, (2004) 54 Duke Law Journal 621; R. Goodman and D. Jinks, ‘Social Mechanisms to Promote International Human Rights: Complementary or Contradictory?’, in T. Risse, S. Ropp and K. Sikkink (eds.), The Persistent Power of Human Rights: From Committment to Compliance (2013), 103; B. Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (2009).
64 See Alter (2014), supra note 12.
65 Y. Ōnuma, International Law in a Transcivilizational World (2017), at 8. This idea is an answer to the complaint in note 20.
66 I never published my most Eurocentric theoretical paper, but I did try to generalize from Europe in the conclusion of my 2001 book, and Laurence Helfer built a theory of effective supranational courts based on European models. See Helfer and Alter, supra note 30; K. J. Alter, ‘The European Court and Legal Integration: An Exceptional Story or Harbinger of the Future?’, in K. Whittington, D. Keleman and G. Caldiera (eds.), Oxford Handbook of Law and Politics (2008), at 209; see Helfer and Slaughter, supra note 34.
67 For more see J. Gathii (ed.), The Performance of Africa’s International Courts (2020).
68 The research is summed up in our recent book, which updates research published in numerous articles. See Alter and Helfer, supra note 30.
69 Our findings are explained in K. J. Alter, L. R. Helfer and M. R. Madsen, International Court Authority (2018), at 435.
70 G. Shaffer, J. Nedumpara and A. Sinha, ‘State Transformation and the Role of Lawyers: The WTO, India, and Transnational Legal Ordering’, (2015) 49 Law & Society Review 595.
71 For example, see Dezalay and Garth (2006), supra note 59; Y. Dezalay and B. G. Garth, The Internationalization of Palace Wars: Lawyers, Economists, and the Contest to Transform Latin American States (2002); M. R. Madsen, ‘The Challenging Authority of the European Court of Human Rights: From Cold War Legal Diplomacy to the Brighton Declaration and Backlash’, (2016) 79 Law and Contemporary Problems 141.
72 On eclectic theorizing see R. Sil and P. J. Katzenstein, ‘Analytic Eclecticism in the Study of World Politics: Reconfiguring Problems and Mechanisms across Research Traditions’, (2010) 8 Perspectives on Politics 411.
73 The literature is vast but see, for example, J. A. Tickner, ‘Hans Morgenthau’s Principles of Political Realism: A Feminist Reformulation’, (1988) 17 Millennium - Journal of International Studies 429.
74 Classic texts in this tradition include M. Weber, The Protestant Ethic and the Spirit of Capitalism (1998); see Weber, supra note 38; K. Polanyi, The Great Transformation (1944).
75 This school is often associated with the work of A. Wendt, Social Theory of International Politics (1999); A. Wendt, ‘Anarchy Is What States Make of It: The Social Construction of Power Politics’, (1992) 46 International Organization 391, but it has been developed by many scholars writing before Alex Wendt, including Hedley Bull and John Ruggie.
76 There is an inescapable reality that international law rests entirely on paper agreements that generate inter-subjective (e.g., socially reinforced) understandings. Given that state actors still control the key levers of power, including control over borders, state resources, money, militaries, national law, and communications, the only possible way for international governance to work is via understandings and commitments that are intersubjectively shared with state-level actors.
77 See Tamanaha supra note 55.
78 Systems theory sees systems as being more than the sum of its parts. An example of a systemic entity is a market where there is clumped heterogeneity (e.g., definable groups within) and where very different types of people interact and collaborate. The market exists as a composite entity, yet the market has its own dynamics and logics so that market results are not a simple sum of preferences of actors within the market space. Nor are market results the summation of behaviour, since the rules and terms of a market are structured by a variety of social, legal, and economic forces – national law, global law, global finance etc. Today, no single set of actors controls the global market. The same is true of international law.
79 Mark Mazower’s wonderful book examines ideas of global governance across time, helping us see how the American international order differs from alternative visions. See M. Mazower, Governing the World: The History of an Idea.
80 This change explains the turn towards investigating how authority and legitimacy shape international relations. See D. A. Lake, ‘Rightful Rules: Authority, Order, and the Foundations of Global Governance’, (2010) 54 International Studies Quarterly 587; M. Zürn, A Theory of Global Governance (2018).
81 H. Bull, The Anarchical Society: A Study of Order in World Politics (1977); H. Bull and A. Watson, The Expansion of International Society (1984).
82 I do believe that there are some shared core values. This idea is discussed under the concept of ‘human universals’. See C. Antweiler, Our Common Denominator: Human Universals Revisited (translated by D. Kerns) (2016); D. E. Brown, Human Universals (1991).
83 This is a question that Tom Tyler investigates. See Tyler, supra note 62; T. Tyler, ‘Psychology and Institutional Design’, (2008) 4 Review of Law and Economics 801; T. R. Tyler and J. Jackson, ‘Popular Legitimacy and the Exercise of Legal Authority: Motivating Compliance, Cooperation, and Engagement’, (2014) 20 Psychology, Public Policy, and Law 78.
84 See, for example, M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870–1960 (2001); A. Becker Lorca, Mestizo International Law: A Global Intellectual History 1842–1933 (2014); M. R. Madsen, ‘Unpacking Legal Network Power: The Structural Construction of Transnational Legal Expert Networks’, in M. Fenwick, S. Van Uytsel and S. Wrbka (eds.), Networked Governance, Transnational Business and the Law (2013), 39; M. R. Madsen and A. Vauchez, ‘European Constitutionalism at the Cradle. Law and Lawyers in the Construction of a European Political Order (1920–1960)’, in A. Jettinghoff and H. Schepel (eds.), In Lawyers’ Circles Lawyers and European Legal Integration (2005); Y. Dezalay and M. R. Madsen, ‘The Force of Law and Lawyers: Pierre Bourdieu and the Reflexive Sociology of Law’, (2012) 8 Annual Review of Law and Social Science 433.
85 Noting how differently international law is taught and discussed around the world, Anthea Roberts asks whether we can assume that international law is actually international: A. Roberts, Is International Law International? (2017).
86 This is a phrase of John Ruggie. See J. Ruggie, ‘What Makes the World Hang Together? Neo-Utilitarianism and the Social Constructivist Challenge’, (1998) 52 International Organization 855.
87 The literature is vast. See, for example, R. Inglehart and P. Norris, ‘Trump and the Populist Authoritarian Parties: The Silent Revolution in Reverse’, (2017) 15 Perspectives on Politics 443.
88 See Ruggie, supra note 49, at 382; see also Ruggie, supra note 47.
89 J. Delisle, China’s Approach to International Law: A Historical Perspective (2000); A. Hurrell, ‘Beyond the BRICs: Power, Pluralism, and the Future of Global Order’, (2018) 32 Ethics & International Affairs 89; S. Tang, ‘China and the Future International Order(s)’, (2018) 32 Ethics & International Affairs 31.
90 This idea is persuasively developed by John Ikenberry. See Ikenberry (2018), supra note 51.
91 K. J. Alter and S. Meunier, ‘The Politics of International Regime Complexity’, (2009) 7 Perspective on Politics 13; K. J. Alter and K. Raustiala, ‘The Rise of International Regime Complexity’, (2018) 14 The Annual Review of Law and Social Science 329.
92 This phrase refers to the parable of the blind men and the elephant where a set of blind men try to understand the elephant by examining only a leg, a tusk, an ear or a tail. In this parable, a beneficent prophet arrives to explain that each blind man’s truth is accurate, even if it pertains to only a piece and not the whole.
93 For an interesting perspective on what this entails see R. Shilliam, ‘Race and Research Agendas’, (2013) 26 Cambridge Review of International Affairs 152.
94 Graduate students and junior scholars should definitely focus first and foremost on learning how to think, write, and publish in the discipline they are studying. Interdisciplinarity may be an add on, something to engage if you have mastered the art of communicating to your discipline, and if being interdisciplinary will not harm your ability to establish yourself. To the extent that people outside of your field will levy strong criticisms, deep interdisciplinary writing may be for tenured faculty or scholars who reside in interdisciplinary programs.
95 See Alter (2014), supra note 12.