International Law

The Parochialism of American Cosmopolitanism

By Samuel Moyn
Friday, September 15, 2017, 10:00 AM

What immediately strikes outsiders to international law as it is understood in the United States—whether foreigners on a visit or Americans who come to our debates with other expertise and training—is how critically the field is affected by its local institutions and protocols. The stereotype is that the purpose of induction into international law is to provide some cosmopolitan lingua franca, for the sake of the gentle civilization of nations by universal norms and the altruistic caste of their stewards, who represent humanity more than any country. The trouble is that the stereotype is so far from reality.

It is an unfair and unrealistic stereotype, of course. International law is a body of rules for the relation of states inter se; it is no wonder that in each place, a different understanding of universality prevails. But it is still shocking how far the common image of the field is from what American international law is actually like. Many of our debates about international law seem to be little more than local debates about how to wield our country’s power, refracted into an ostensibly non-local rhetoric. This applies even to the pushback by conservatives against the “cosmopolitan duty” imposed by encroaching international law, pushback which often fails to recognize how nationalist in their outlook even our cosmopolitans usually are, wittingly or unwittingly.

None of this is necessarily a matter of intention, let alone of malice. “Someone said to Socrates,” Michel de Montaigne memorably related, “that a certain man had grown no better in his travels.” Socrates replied: “I should think not. He took himself along with him.’” But Americans today benefit structurally from the centrality and power of our country, and can expect others to engage with our framing of debates (for a recent example, consider the U.S. reliance on the “unwilling or unable” doctrine in the law of self-defense) or else to face marginalization. For this reason, even the well-meaning American who seeks to deprovincialize may have a hard time of it, somewhat like the person who tries to speak to foreigners in their own language only to find that they speak ours as well as we do.

The syndrome starts very early, since most American practitioners and scholars of international law—unlike those in other places—cannot actually train in it, except through the portal and as an offshoot of constitutional law and especially foreign affairs law, or nowadays through so-called “national security law.” Even for liberals, international law is sociologically a topic that many have reached through the indirect path of other fields, especially at the major law schools. This is most certainly true of human rights law, in the tradition of Louis Henkin, long a constitutional and foreign affairs law scholar and a later an icon of human rights law American-style.

After training, there are equally if not more important professional imperatives. Whether it is preparation to be a government servant, a lawyer in private practice, or a university professor, there is immense pressure to engage the global within the terms of the local.

No one could reasonably suggest that Americans are unique in this regard. But from our national tradition of monolingualism—few think it necessary to transcend it in an age when English is “globish,” even to be a professional international lawyer—to the fact that Americans often aim to serve a very specific great power, the parochialism in engaging international law here does have its own unique features. In arguments, from classrooms and textbooks to blogs and scholarship, powerful forces conspire to make international law in American debates not so much a breakthrough to an external perspective as a continuum of positions tightly bound to local assumptions and audiences. What seem like major acts of decentering to locals often appear to foreigners to be one more variation on self-enclosure to outsiders.

All of this could remain on the level of anecdote and (if it bothers you) anxiety but for the imminent publication of Anthea Roberts’s magisterial new book, Is International Law International? (Oxford University Press). Instantly, it is a classic that anyone who wants to reflect on the field must read. Professor Roberts demonstrates that international law consists not so much of an “invisible” college, as Oscar Schachter famously claimed, as of a “divisible” one, with radically different intellectual and professional assumptions depending on where one engages international law across the world. And through her extraordinary survey, American practitioners and scholars can begin to come to grips with their own idiosyncrasies better than ever before. It is a sobering exercise.

The central virtue of Professor Roberts’s study is that it is brilliantly and rigorously empirical, based on an extraordinary survey of how training, scholarship, and service in international law actually take place across the world. It is not explicitly about the consequences of American ascendancy for the sociology of international law, and readers of all nationalities will learn from Professor Roberts how to situate their own country and region in a global framework. On the basis of the differences she records, she calls for the invention of a new field, which she has dubbed “comparative international law.” And while the book includes comparison of distinct nations, Professor Roberts also studies how knowledge is globally organized, including through the transit of students among regions.

The sociology of global knowledge of this kind has been conducted many times before for other fields and it is long overdue for international law. The exercise forces the renunciation of the fictions not simply of universality but also of equality—recall Pascale Casanova’s finding in her study of world literature that if your novel has not been translated in Paris, no one else is likely to read it either. In investigating how much of international law’s cosmopolitanism actually holds true, Professor Roberts brings the field into the exciting conversation around global intellectual dynamics, and requires those who care about it to reflect on the relationship of expertise and power in a still very uneven world.

After a series of helpful insights on the diverse kinds of training international lawyers undergo across the globe, including on very specific doctrinal implications that follow, Professor Roberts closes her study with a depiction of emergent “disruption.” What she means is that our parochial cosmopolitanism will have to change as both old hands and new entrants to the field face a novel geopolitics. America, while by no means on the brink of powerlessness, is unlikely to set the terms of international law debate as powerfully as it has for decades as a more multipolar world looms.

It is an open question what this will mean. For some, it is a regrettable development because a world of one especially powerful country resembles a cosmopolitan world more than a world of multipolar strife: consider that, from the ancient world to the present, cosmopolitan dreams have always gone along with imperial ascendancy. Many international lawyers will fear the Chinese rise and Russian maneuvering today precisely because they think it is likely to take the world further into parochialism, rather than closer to universalism under the auspices of one nation’s beneficence.

But if a placeless cosmopolitanism is not in the offing because geopolitics is changing, it could also mean more honesty and reflection about how parochial cosmopolitanisms have frequently been and may remain in our day. Professor Roberts herself concentrates on description and explanation, leaving readers the task of what to make of her findings. She writes, "If one lays bare some of the patterns of dominance within the field and analyzes how shifting geopolitical power might disrupt these dynamics, how can one separate international law from international politics? I do not have good answers to these questions."

This uncertainty, however, makes the book more rather than less useful to readers who are divided from their colleagues, or within themselves, about how important cosmopolitan aims are, and how genuinely contemporary international law allows for their pursuit. Both hard-bitten realists about the endurance of international struggle and idealists who hope for a more unified humanity must now start with Professor Roberts’s book. Only by transcending the premise that international law has ever been international can its present realities become clear and its future promise, if any, peek through.