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From Apology to Utopia’s Point of Attack

Published online by Cambridge University Press:  28 July 2016

JUSTIN DESAUTELS-STEIN
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Abstract

This contribution to the Symposium celebrating the Twenty-fifth Anniversary of Martti Koskenniemi's From Apology to Utopia explores the relevance of the book for contemporary theorists of the international world. In doing so, the article puts Koskenniemi's classic in a contest with John Yoo's recent book, Point of Attack. The purpose in doing so is three-fold. First, it is to illustrate the contemporary use of Koskenniemi's structuralist method. Second, it is to show how the use of the method, with its attendant reliance on modes of legal thought, might give pause to international thinkers seeking to reinvigorate particular structures of argument from the nineteenth century. Third, the two books are put into conversation in order to highlight what I believe to be the very productive results of the structuralist method that have, for the most part, been dormant for a generation.

Keywords

From Apology to Utopiainternational legal historyinternational legal theoryKoskenniemistructuralism
Type
INTERNATIONAL LEGAL THEORY: Symposium on Martti Koskenniemi's From Apology to Utopia
Information
Leiden Journal of International Law , Volume 29 , Issue 3 , September 2016 , pp. 677 - 697
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2016 

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References

1 Kiobel v. Royal Dutch Petroleum, 133 S.Ct. 1659 (2013).

2 See generally ‘Agora: Reflections on Kiobel’, (2014) 107 American Journal of International Law 829.

3 Kiobel, supra note 1, at 1664.

4 Ibid., at 1669.

5 See, e.g., E. Posner, The Perils of Global Legalism (2009).

6 See generally Desautels-Stein, J., ‘The Judge and the Drone’, (2014) 56 Arizona Law Review 117 Google Scholar. For further explanation of this anti-internationalist mood, see I. Wallerstein, World-Systems Analysis (2004), 87.

7 J. Yoo, Point of Attack (2014).

8 Gathii, J., ‘Failing Failed States: A Response to John Yoo’, (2011) 2 Californian Law Review Circuit 40 Google Scholar. See also J. Ohlin, The Assault on International Law (2015).

9 See, e.g., Yoo, J., ‘Using Force’, (2004) 71 University of Chicago Law Review 729 Google Scholar, at 730–1; Yoo, J., ‘Fixing Failed States’, (2011) 99 Californian Law Review 95 Google Scholar, at 96.

10 Yoo, supra note 7, at 13–14.

11 Ibid., at 3, 113 and 119.

12 Ibid. at 208.

13 Ibid., at 5 (‘This book argues that the international system should encourage the great powers to follow a [cost-benefit] approach to war. The system should allow armed intervention when the expected benefits to global welfare, which include putting an end to the harmful activity in a targeted country, exceed the likely costs.’).

14 Yoo believes that the categories of ‘rogue’ and ‘failed’ state present different calculations, but for all intents and purposes he treats them as ‘targeted states’ in opposition with the Great Powers. Ultimately, such states become targets for war because they simply cannot muster an effective government (i.e., ‘unable’), or have an effective government but one that is crazy or evil or both (i.e., ‘unwilling’). Yoo introduces the concepts together in his welfare calculus, supra note 7, at 112–17. See also, R. Jackson, Quasi-States: Sovereignty, International Relations, and the Third World (1990); J. Rawls, The Law of Peoples (2001).

15 Yoo, supra note 7, at 128.

16 K. Anderson, ‘Targeted Killing and Drone Warfare: How We Came to Debate Whether there is a Legal Geography of War’, media.hoover.org/sites/default/files/documents/FutureChallenges_Anderson.pdf.

17 Yoo, supra note 7, at 120.

18 Ibid., at x, 4, 19, 23.

19 Ibid., at 153–4.

20 Ibid., at 191.

21 Ibid., at 13.

22 Ibid., at 128, 161.

23 M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2006).

24 Some might, for example, think of Koskenniemi's The Gentle Civilizer of Nations as the better choice, since that book does have as its focus the standard of civilization in international legal thought.

25 Scobbie, I., ‘Towards the Elimination of International Law: Some Radical Skepticism about Skeptical Radicalism’, (1991) 61 British Yearbook of International Law 339 CrossRefGoogle Scholar, at 345; Purvis, N., ‘Critical Legal Studies in Public International Law’, (1991) 32 Harvard Journal of International Law 81 Google Scholar. For further discussion, see d'Aspremont, J., ‘Martti Koskenniemi, the Mainstream, and Self-Reflectivity’, (2016) 29 LJIL 625–39CrossRefGoogle Scholar.

26 For discussion, see Desautels-Stein, J., ‘International Legal Structuralism: A Primer’, (2016) 7 International Theory Google Scholar (forthcoming).

27 Alvarez, J., ‘Judging the Security Council’ (1996) 90 American Journal of International Law 39 CrossRefGoogle Scholar; Alvarez, J., ‘Why Nations Behave’, (1998) 19 Michigan Journal of International Law 393 Google Scholar, at 317; Alvarez, J., ‘Commemorating Oscar Schachter, the Teacher’, (2004) 104 Columbia Law Review 556 Google Scholar, at 557; Alvarez, J., ‘Positivism Regained, Nihilism Postponed’, (1994) 15 Michigan Journal of International Law 747, at 782–3Google Scholar.

28 For a powerful supporting argument to this effect, see Rasulov, A., ‘ From Apology to Utopia and the Inner Life of International Law’, (2016) 29 LJIL 641–66 CrossRefGoogle Scholar.

29 Koskenniemi, supra note 23, at 106. For discussion of classical legal thought in the context of American Legal Thought, see D. Kennedy, The Rise and Fall of Classical Legal Thought (2005); Desautels-Stein, J., ‘Pragmatic Liberalism: The Outlook of the Dead’, (2014) 55 Boston College Law Review 1041 Google Scholar.

30 See, e.g., de Vattel, E., The Law of Nations (Kapossy, B. and Whatmore, R., eds., 2008), 8 Google Scholar; S. Pufendorf, De officio hominis et civis juxta legem naturalem libri duo (1927), 17–21; D. Armitage, Foundations of Modern International Thought (2013).

31 T. Hobbes, Leviathan (C.B. Macpherson, ed., 1968), 183.

32 Ibid., at 189.

33 Ibid.; R. Unger, Knowledge and Politics (1975), 66–89.

34 See, e.g., A. MacIntyre, After Virtue (2008), 51–5.

35 Hobbes, supra note 31, at 189–90.

36 Ibid., at 192–3.

37 Koskenniemi, supra note 23, at 71–2. The literature on Hobbes is enormous. The most formative text for me remains C.B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (2011). On ‘context’, see Pagden, A. (ed.), The Languages of Political Theory in Early-Modern Europe (1987)CrossRefGoogle Scholar. For more recent treatments, see generally Collins, J., ‘The Early Modern Foundations of Classic Liberalism’, in Klosko, G. (ed.), The Oxford Handbook of the History of Political Philosophy (2011)Google Scholar; A. Brett, Changes of State (2011); A. Monahan, The Circle of Rights Expands (2007).

38 Hobbes, supra note 31, at 183–4.

39 Koskenniemi, supra note 23, at 89–94.

40 Ibid.

41 A helpful summary of Vattel's work is available in S. Beaulac, The Power of Language in the Making of International Law: The Word Sovereignty in the Bodin and Vattel and the Myth of Westphalia (2004). See also, Onuf, N., ‘Civitas Maxima: Wolff, Vattel, and the Fate of Republicanism’, (1994) 88 American Journal of International Law 280 CrossRefGoogle Scholar.

42 Koskenniemi, supra note 23, at 108–22; Vattel, supra note 30, at 8.

43 See, e.g., H. Lauterpacht, Private Law Sources and Analogies of International Law (1927).

44 Vattel, supra note 30, at 36–7.

45 Ibid., at 38.

46 That is, international lawyers operating in the classical mode reject the notion that sovereigns need to renounce their rights in order for there to be a viable international law. See, e.g., Vattel, supra note 30, at 13.

47 Gross, L., ‘The Peace of Westphalia, 1648-1948’, (1948) 42 American Journal of International Law 26 CrossRefGoogle Scholar.

48 My brief discussion here is focused only on Vattel's view of the jus ad bellum. For Vattel's discussion on the rules constraining the modes of warfare, see Chapter VIII: Of the Rights of Nations in War, supra note 30.

49 Vattel, supra note 30, at 74–5.

50 Ibid., at 500.

51 Ibid., at 483–4.

52 As Rubin has already suggested, Vattel here anticipates a version of Wesley Hohfeld's conception of rights/duties. A. Rubin, Ethics and Authority in International Law (1997), 78.

53 Vattel, supra note 30, at 484.

54 Ibid., at 487. See also, T. Twiss, The Law of Nations Considered as Independent Political Communities (1861), 12–13.

55 Vattel, supra note 30, at 487.

56 Ibid., at 484

57 Ibid., at 471.

58 Yoo, in contrast, seems to think the line is pretty bright. Yoo, supra note 7, at 172.

59 The mechanism by which Vattel believed such maxims to take on a binding character was the ‘voluntary law’. Vattel, supra note 30, at 18–20.

60 Koskenniemi, supra note 23, at 106–7.

61 Ibid., at 74; See also T. Woolsey, Introduction to the Study of International Law (1908), 59; Twiss, supra note 54, at 11.

62 Though, for many commentators of a more ‘modern’ persuasion, the laws of war in the nineteenth century were more of a joke than anything else. The modern view of the laws of war, it is suggested, begins with the Hague Peace Conferences held at the turn of the twentieth century. As Brownlie has argued, international law before the First World War ceased to have any ‘limiting effect’ on the decisions of states to use violence against one another: I. Brownlie, International Law and the Use of Force by States (1963), 48: ‘The practice and doctrine of the period before 1920 present both a right of self-help and a right of self-preservation, the latter being unfortunately predominant and therefore obscuring the judicial value of the doctrine of self-help. This latter doctrine, which regarded war as a mode of judicial settlement, was nevertheless gaining ground in the period before the First World War. The greatest obstacle to adequate legal regulation of the use of force was the right of self-preservation and related tangle of doctrine concerning necessity and intervention. Categories such as self-preservation and necessity are too vague and susceptible to selfish interpretation to provide a sufficient basis for a legal regime. . .Lastly, the attempt to use vague categories of intervention and self-preservation to give a veneer of legality and morality to the exercise of the right of war or to the numerous interventions which occurred in this period obscured the situation and complicated the task of creating an adequate legal regime for the use of force.’: Ibid., at 48–9. See also, J.H.W. Verzijl, International Law in Historical Perspective (1968), 215 (‘Never until the twentieth century has the use of force been banned by positive international law, nor would it have even been possible to ban it in a society without any central authority to enforce the ban.’).

63 See, e.g., A. Anghie, Imperialism, Sovereignty, and the Making of International Law (2005). This mode of exclusion wasn't elaborated only in terms of self-interest. Rhetorically, at least, it was often couched in terms that suggested a progressive development available to the ‘inferior’ state. For example, Woolsey explained, ‘A state in the lower grade of civilization, like a savage, becomes conscious of its separate existence in the act of resistance, or of defending that existence. Such self-preservation on the part of the individual arouses, it may be, no better feeling than that of independence and self-reliance; in the state it helps the members to feel their unity and dependence, and the priceless value of the state itself. Hence war is a moral teacher: opposition to external force is an aid to the highest civic virtues.’ Woolsey, supra note 61, at 5. See also, L. Benton, A Search for Sovereignty: Law and Geography in European Empires 1400-1900 (2009).

64 Yoo, supra note 7, at 62.

65 Of course, it hardly needs saying that human beings have enslaved and exploited other human beings for as long as our history has been kept. But the point here is precisely that pre-liberal scholars like Vitoria did not use ‘race’, and that they could not have. Racial classifications were a distinctly liberal tactic. The point is that we can easily imagine a story in which liberalism created a new hunger for a means to maintain the subordination of certain human populations, while still able to retain the basic architecture of liberal rights for the more powerful groups. One way to do this could be found in the new turn to empirical science, and if it could be scientifically proven that certain humans were actually more ‘human’ than others, this would provide an effective means for circumscribing the Family of Nations. The invention of the human ‘races’ was the secret of the new liberal hierarchy, cloaking it in neutrality and necessity. The term ‘race’ is sometimes traced back to the work of Bernier in 1684, writing just 30 years after the 1651 publication of Hobbes’ Leviathan. F. Berneir, ‘A New Division of the Earth, according to the Different Species or Races of Men Who Inhabit It’, (1684) Journal des Scavans. Bernier, like the Comte de Buffon and Johann Friedrich Blumenbach who would later write the more popular texts on the physical ‘varieties’ of the human species, were all monogenecists. The major work of Georges-Louis Leclerc, Comte de Buffon, was Histoire naturelle, générale et particulière (1749–1788). Johan Blumenbach's central work here was On the Natural Variety of Humankind (1776). Good treatments of the history of race science include I. Hannaford, Race: The History of an Idea in the West (1996); N. Stepan, The Idea of Race in Science (1982); B. Baum, The Rise and Fall of the Caucasian Race (2006).

66 There are many instances of the use of race as a means of exclusion throughout US law, as well as at international law. On the domestic side, critical race theory has done the most in pursuit of the point. See, e.g., Gotanda, N., ‘A Critique of “Our Constitution is Colorblind”’, (1991) 44 Stanford Law Review 1 CrossRefGoogle Scholar. For helpful discussion of the point at a broader level, see T. McCarthy, Race, Empire, and the Idea of Human Development (2009). In terms of uses in the nineteenth century among international lawyers, see, e.g., W.E. Hall, A Treatise on International Law (1909), 52 (‘As has already been mentioned, international law is a product of the special civilization of modern Europe, and is intended to reflect the essential facts of that civilization so long as they are fit subjects for international rules. . .If it fails to do so, either through the imperfection of its civilization, or because the ideas, upon which it is founded, are alien to those of the European peoples, other states are at liberty to render its admission to the benefits of international law dependent on [the uncivilized state's willingness to conform to European values.]’); T.J. Lawrence, The Principles of International Law (1895) (‘. . .the notions of classical antiquity differ immensely from those of modern Europe, and in our own day there is a great gulf fixed between the views of European and American statesmen on the one hand and those of the potentates of Central Africa on the other. But though there are several systems of international law, there is but one important system. . .it grew up in Christian Europe, though some of its roots may be traced back to ancient Greece and ancient Rome. It has been adopted by all the civilized states of the earth. . .We have, therefore, in our definition, spoken of it as “the rules which determine the conduct of the general body of civilized states.”’) Ibid., at 4–5. Thus, Lawrence explained that even while certain populations might satisfy the criteria for statehood, sovereignty alone was insufficient to warrant ‘membership in the family of nations. For there are many communities outside the sphere of international law, though they are independent states. . .It would, for instance, be absurd to expect the King of Dahomey to establish a Prize Court, or to require the dwarfs of central African forest to receive a permanent diplomatic mission.’ Ibid., at 58. Whether they be ‘a race of savages’, or the more accomplished races of Turkey, China, or Japan, non-European peoples were presumptively inferior and outside the family of nations. Ibid., 58–9. J. Lorimer, The Institutes of the Law of Nations (1883), 101–2 (‘As a political phenomenon, humanity, in its present condition, divides itself into three concentric zones or spheres—that of civilized humanity, that of barbarous humanity, and that of savage humanity. . .It is with the first of these spheres alone that the international jurist has to deal. . .He is not bound to apply the positive law of nations to savages, or even to barbarians as such.’ In distinguishing between the civilized, barbarous, and savage spheres of humanity, Lorimer explained that it would be helpful to ‘distinguish between the progressive and non-progressive races’.).

67 For discussion of this phenomenon in the language of core and periphery, see Wallerstein, supra note 6.

68 Woolsey, supra note 61, at 232–3.

69 Bluntschli cites Pritchard, Gobineau, and Waltz in his ‘scientific’ account of the racial composition of the law of nations. J.Bluntschli, The Theory of the State (2000), 76 (‘Highest in the scale stands the white race of Caucasian or Iranian nations, the “nations of the daylight”, as Carus calls them in opposition to the children of the night and of the twilight. . .They are preeminently the nations which determine the history of the world. All the higher religions which unite man with God were first revealed among them; almost all philosophy has issued from the works of their mind. In contact with other races they have always ended by conquering them and making them their subjects. They give the impulse to all higher political development. To their intellect and to the energy of their will, we owe, under God, all the highest achievements of the human spirit.’).

70 See, e.g., L. Oppenheim, International Law (1913), 30–5; G. Gong, The Standard of Civilization in International Society (1984), 19.

71 Yoo, supra note 7, at 191.

72 Bluntschli, supra note 69, at 76.

73 This point has much in common with the TWAIL (“Third World Approaches to International Law”) literature. See generally Fakhri, M., ‘The 1937 International Sugar Agreement: Neo-Colonial Cuba and Economic Aspects of the League of Nations’, (2011) 24 Leiden Journal of International Law 89 CrossRefGoogle Scholar; Thomas, C., ‘Critical Race Theory and Postcolonial Development Theory: Observations on Methodology’, (2000) 45 Villanova Law Review 1195 Google Scholar; Matua, M., ‘Why Redraw the Map of Africa? A Moral and Legal Inquiry’, (1995) 16 Michigan Journal of International Law 1113 Google Scholar, at 1113–37.

74 See, e.g., Kennedy, D., ‘Critical Theory, Structuralism, and Contemporary Legal Scholarship’, (1985) 21 New England Law Review 209 Google Scholar; Heller, T., ‘Structuralism and Critique’, (1984) 36 Stanford Law Review 127 CrossRefGoogle Scholar. I take this also to be among the points made by John Haskell in his contribution to this symposium. See Haskell, J., ‘ From Apology to Utopia’s Conditions of Possibility’, (2016) 29 LJIL 667–76CrossRefGoogle Scholar.

75 R. Unger, What Should Legal Analysis Become? (1996), 190.

76 G. Schwarzenberger, The League of Nations and World Order (1936). See also, M. Mazower, No Enchanted Palace (2009); Kennedy, D., ‘The Move to Institutions’, (1987) 8 Cardozo Law Review 841 Google Scholar.

77 Yoo, supra note 7, at 68.

78 Ibid., at 54, 69–71.

79 Ibid., at 78.

80 See, e.g., Porras, I., ‘Constructing International Law in the East Indian Seas: Property, Sovereignty, Commerce and War in Hugo Grotius’ De Iure Praedae—The Law of Prize and Booty, Or “On How to Distinguish Merchants from Pirates”’ (2006) 31 Brooklyn Journal of International Law 741 Google Scholar. See generally B. Kingsbury and B. Straumann (eds.), The Roman Foundations of the Law of Nations: Alberico Gentili and the Justice of Empire (2011).

81 Koskenniemi, supra note 23, at 80.

82 Ibid. . See also, Kennedy, D., ‘Primitive International Legal Scholarship’, (1986) 27 Harvard International Law Journal 1 Google Scholar. For contexts in political theory, see A. Brett, Changes of State: Nature and the Limits of the City in Early Modern Natural Law (2014), 11–37. For an analytic examination of Thomas Aquinas and his basic theory of law, see B. Russell, The History of Western Philosophy (1945).

83 For discussion of the use of ‘grammar’ in this sense, see Kennedy, D., ‘A Semiotics of Legal Argument’, (1991) 42 Syracuse Law Review 75 Google Scholar.

84 Kennedy, supra note 82, at 8.

85 H. Kelsen, The Pure Theory of Law (1981); R. Falk, A Global Parliament: Essays and Articles (2011).

86 F. Vitoria, Political Writings ([1539] Anthony Pagden and Jeremy Lawrance, eds., 2008) 277–92.

87 H. Grotius, Commentary on the Law of Prize and Booty (1950), 8. See also E. Midgley, The Natural Law Tradition and the Theory of International Relations (1975), 137.

88 Grotius, supra note 87, at 20.

89 Vitoria, supra note 86, at 279.

90 Ibid., at 252–64.

91 Kennedy, supra note 82, at 9–10.

92 See, e.g., F. Suarez, De Legibus, ac Deo Legislatore (On Laws and God the Lawgiver) (1612), reprinted in J. Brown Scott (ed.), Selections from Three Works of Francisco Suarez, in Classics of International Law (1944), 14.

93 MacIntyre, supra note 34, at 54.

94 See, e.g., Aristotle, The Nicomachean Ethics (T. Irwin, trans., 1999), 8–9.

95 See generally M. Ransome Johnson, Aristotle on Teleology (2005).

96 Aristotle, supra note 94, at 23.

97 B. Kingsbury, ‘Sovereignty and Inequality’, (1998) European Journal of International Law 599. For a contrasting view, see Lauterpacht, H., ‘The Grotian Tradition in International Law’, (1946) 23 British Yearbook of International Law 1 Google Scholar. Again, my focus here links ‘pre-liberal jurisprudence’ exclusively with the medieval Aristotle. I do not mean to suggest that all modes of legal thought before Hobbes are ‘pre-liberal’ in the sense that I am describing here.

98 I recognize that there is disagreement about whether Grotius ought to be characterized as a pre-liberal or proto-liberal or some other thing. See, e.g., A. Nussbaum, A Concise History of the Law of Nations (1947), 109; R. Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (2001). Here I follow Kennedy and Koskenniemi's characterization of Grotius as a ‘pre-liberal’ due to his consistent tendency to locate legal authority in nature or the divine rather than the sovereign state. Kennedy, supra note 82, at 8–9; Koskenniemi, supra note 23, at 58–69.

99 Nussbaum, supra note 98, at 14–15; Midgley, supra note 87, at 136.

100 For a critique, see Anghie, supra note 63.

101 Grotius, supra note 87, at 33.

102 Vitoria, supra note 86, at 278–83.

103 See generally J. Finnis, Natural Law and Natural Rights (2011).

104 MacIntyre, supra note 34, at 62.

105 Ibid., at 51–5.

106 P. Manent, An Intellectual History of Liberalism (1995), 25 (‘The right of the sovereign, individual or collective, is necessarily unlimited. His sovereignty is absolute because the right transmitted to him by everyone is unlimited. The sovereign inherits the jus in omnia that belonged to each individual in the state of nature.’).

107 This idea is at work in Maine's famous thought about the shift from ‘status to contract’, for example H. Maine, Ancient Law (1870). See also F. Hayek, The Constitution of Liberty (1978). Kennedy has framed the idea in his ‘will theory’ of law, where ‘[t]he state ought to and largely did in fact define the rules of law so as to guarantee the free exercise of individual will, subject to the constraint that willing actors respect the like rights of other willing actors.’ Kennedy, D., ‘From the Will Theory to the Principle of Private Autonomy: Lon Fuller's Consideration and Form’, (2000) 100 Columbia Law Review 94 CrossRefGoogle Scholar, at 96.

108 Unger, supra note 33, at 66–90. For discussion of these two senses of natural law, see L. Strauss, Natural Right and History (1965), 7 (‘Natural right in its classic [Aristotelian] form is connected with a teleological view of the universe. All natural beings have a natural end, a natural destiny, which determines what kind of operation is good for them.’).

109 Koskenniemi, supra note 23, at 95–106.

110 Ibid., at 158.

111 See, e.g., H. Lauterpacht, International Law and Human Rights (1950), 114–15. As an aside, this is one reason why Yoo might associate early twentieth century institution building with Aristotelianism. At a surface level it might seem plausible to suggest that, since the moderns were expressly advocating for natural law prohibitions on war and other constraints on states, as well as a more consequentialist way of reasoning about international rules, Wilson and co. were resurrecting a pre-liberal Aristotelianism. As Yoo writes, ‘Wilson sought a revival of just war theory. In a manner reminiscent of the medieval philosophers, Wilson viewed aggressive war as a criminal activity. Defensive war represented prosecution and punishment of aggression.’ Yoo, supra note 7, 66. Now, I have little interest in what Wilson or House or anyone else ‘sought’ to revive, and we can leave this question to their biographers and intellectual historians. But with respect to the ‘manner’ in which the moderns sought to reconstruct a new international law – their style of legal argument – it is a mistake to see this manner as resembling pre-liberal Aristotelianism in any way but the weakest sense.

112 See, e.g., Brierly's condemnation of the Lotus decision. J.L. Brierly, The Basis of Obligation in International Law (1958), 142–51. See also, H. Lauterpacht, The Function of Law in the International Community (2011); Morgenthau, H., ‘Positivism, Functionalism, and International Law’, (1940) 34 American Journal of International Law 260, at 273CrossRefGoogle Scholar.

113 Alvarez, A., ‘The New International Law’, (1929) 15 Transactions of the Grotius Society 35, at 41–2Google Scholar.

114 Ibid., at 36.

115 One important entryway into this new form of jurisprudence was provided by Wendell Holmes, Jr. in his ‘bad man’ jurisprudence. In this view, law was ‘valid’ so long as it actually mattered in the day-to-day of the man worried about law's sanction. ‘[A] legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court.’ Holmes, O. Wendell Jr., ‘The Path of the Law’, (1897) 10 Harvard Law Review 455, at 458Google Scholar.

116 Anghie, supra note 63, at 16–17.

117 For a full discussion, see generally Kennedy, supra note 82.

118 To be clear, it was not normal at all for modern thinkers to expressly argue for an international Leviathan in the Hobbesian style. Rather, my point is that for all of their raging against the Westphalian paradigm, it was unusual for the moderns to actually reject the liberal premises of the domestic analogy. As Kennedy has suggested in a different context, the moderns were interested in saving liberalism from itself, and not in its rejection. Kennedy, D., ‘Three Globalizations of Law and Legal Thought’, in Trubek, D. and Santos, A. (eds.) The New Law and Development: A Critical Appraisal (2006)Google Scholar.

119 Lauterpacht's rights-centric vision of Grotius is especially illuminating here. Lauterpacht, supra note 97, at 43.

120 Among the most explicit of such efforts is Roepke, W., ‘Economic Order and International Law’, (1954) 86 Recueil des Cours 203, 220–50Google Scholar.

121 See, e.g., Q. Wright, Contemporary International Law (1961); Brown, P. Marshal, ‘International Lawlessness’, (1938) 32 American Journal of International Law 775 CrossRefGoogle Scholar.

122 For discussion, see C. Beitz, Political Theory and International Relations Theory (1999); K. Waltz, Man, the State, and War: A Theoretical Analysis (2001); A. McGrew and D. Held, Governing Globalization: Power, Authority, and Global Governance (2002).

123 See Kennedy, D., ‘The Nineteenth Century: History of an Illusion’, (1986) 65 Nordic Journal of International Law 385 CrossRefGoogle Scholar.

124 Verdross, A., ‘Forbidden Treaties in International Law’, (1937) 31 American Journal of International Law 571 CrossRefGoogle Scholar.

125 Pufendorf, supra note 30.

126 See generally L. Strauss, Natural Right and History (1953).

127 Kennedy, supra note 82, at 8–9.

128 Koskenniemi, supra note 23, at 89–94.

129 Vattel, supra note 30, at 67 (‘The law of nations is the science which teaches the rights subsisting between nations or states, and the obligations correspondent to those rights.’).

130 Lauterpacht, supra note 97, at 28.

131 Ibid. (‘Undoubtedly, international law is primarily-though not exclusively-a body of rules governing the relations between states. . .’).

132 See generally E. Jouannet, The Liberal-Welfarist Law of Nations: A History of International Law (2012).

133 Yoo, supra note 7, at 120.

134 Ibid., at 17.

135 Ibid., at 23.

136 Ibid., at 113.

137 United Nations General Assembly Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, UN Doc. A/RES/25/2625 (1970).

138 Yoo, supra note 7, at 128.

139 Ibid., at 4–5.

140 S. Neff, Justice Among Nations (2014).

141 A major intervention was made by Huxley and Haddon who published We Europeans in 1936. J. Huxley and A. Haddon, We Europeans (1936). Attacking the ‘pseudo-science’ of writers like Gobineau and Smith, Huxley and Haddon argued that the bulk of race science had been established to support the political, social, cultural, and economic superiority of some populations over others, and that as real science, the biology of race was complete nonsense, ibid., at 144–64. To be sure, they were not arguing that various populations could not be separated by innate genetic differences with regard to both physical and psychological traits – this would present an argument against race that would eventually come later in the century. But, where Huxley and Haddon admitted the existence of innate genetic differences between groups, they first challenged the non-sequitur that one could deduce psychological conditions from physical conditions, ibid., at 144. That is, there was no real evidence whatsoever that black skin or a certain cranial capacity could tell a scientist anything at all about ‘racial’ intelligence. Second, they criticized the idea that one could find average degrees of intelligence based on physiognomy – ‘there will be in every social class or ethnic group a great quantitative range and a great qualitative diversity of mental characters, and different groups will very largely overlap with each other’, ibid., at 70. Third, Huxley and Haddon suggested that whereas race science had previously concluded that ‘race is everything’ in the question of nature versus nurture, this was surely wrong. Climate and culture played an enormous role in the differentiation of human capabilities, and as yet, they concluded, there was simply no way of quantifying how explanatory nurture or nature might be in any given situation. While Huxley and Haddon agreed that there were innate differences between populations, and therefore kept within the discourse of a biological idea about the separation of groups of human beings, they believed that ‘nothing in the nature of “pure race” in the biological sense has any real existence’, ibid., at 14. Looking to Herodotus’ use of the term ethnos, Huxley and Haddon suggested ‘ethnic group’ to provide a superior way of labeling political, cultural, social, and economic differences between human populations, ibid., at 30–1.

142 Indeed, a formal veneer of sovereign equality came to become something like an ordering principle in the modern canon. Unlike in the context of the Family of Nations, where only those racially superior states enjoyed rights of territorial integrity and self-defence, the modern canon promulgated a new set of rules equally applicable to all members of the UN system. No better example is there than the UN Charter itself. In the first chapter of the Charter, the fourth paragraph of Art. 2 states: ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’

143 Of course, and at the same time, the concept of equality was hardly self-evident in terms of how and where it ought to be applied. See, e.g., P. Potter, Introduction to the Study of International Organizations (1922), 254.

144 See, e.g., United Nations General Assembly Declaration on the Granting of Independence to Colonial Countries and Peoples (1960).

145 Speaking for a generation of lawyers, D.P. O'Connell stated in 1965 that ‘traditional institutions, consecrated by philosophical systems whose momentum is largely spent, and formed by political situations that are unlikely to be rejected, are called in question, and their historical evolution has been subjected to an analytical scrutiny that is unprecedented in legal scholarship.’ D. O'Connell, International Law (1970), ix. O'Connell's position is worthy of a bellwether for functionalism, given his stark differences with those advocates of the New International Economic Order, calling into question exactly the traditional institutions O'Connell himself appeared to believe had been spent. See, e.g., Second report on succession of states in respect of matters other than treaties, by Mr. Mohammed Bedjoui, Special Rapporteur: Economic and financial acquired rights and State succession’, UN Doc. A/CN.4/216/REV.1, 18 June 1969.

146 See, e.g., W. Friedman, The Changing Structure of International Law (1964), 369.

147 See, e.g., Rasulov, A., ‘NAIL’, in Kennedy, D. and Beneyto, J. (eds.) New Approaches to International Law: The European and American Experiences (2013)Google Scholar.

148 Koh, H., ‘Transnational Legal Process’, (1996) 75 Nebraska Law Review 181 Google Scholar, at 183.

149 Ibid., at 184.

150 See, e.g., J. Goldsmith and E. Posner, The Limits of International Law (2005).