Exceptionalist Analysis in Legal Scholarship

Legal scholarship has seized upon the concept with particular vigour, with critical assessments of American IL policy as beset by ‘exceptionalism’ becoming an article of faith. These accounts harness the pedigree and familiarity of the ideas in politics to shed light on the American practice of seeking ‘exceptions’ in the legal sphere – a case of ‘international law for others and not for itself’.Footnote ¹⁶ However, treatments vary significantly in whether they find it necessary to analytically distinguish between the exceptionalist beliefs influencing decision-making processes and the outcomes said to comprise exceptions. An illustrative definition from a scholar and practitioner is in the memoirs of former US Ambassador-at-Large for War Crimes David Scheffer, which in part explore his difficulties in securing US support for establishment of the ICC. For Scheffer, ‘the siren of exceptionalism enveloped the entire enterprise of the International Criminal Court on my watch’. His definition demonstrates how this single label encompasses multiple competing influences on policy:

It is clear that divergent IL policy shaped by ‘constitutional heritage’ fits squarely within a conventional exceptionalist explanation. On the other hand, legal exceptions designed to protect a ‘superior economy’ are not necessarily a product of beliefs in ‘American exceptionalism’ but, rather, the outcome of preponderant US power. Since this book is concerned with decision-making processes, it remains essential to isolate the effect of different exceptionalist beliefs from other causes of unique policy. Doing so has the potential to shed light on a spectrum of US IL policies that are more complex than binary support for or opposition to the international rule of law.

John Murphy’s exceptionalist account sets out to address the apparent contradiction that, despite being the key proponent of the major twentieth-century international institutions, the United States has itself found it ‘increasingly difficult to adhere to the rule of law in international affairs’.Footnote ¹⁸ He argues that US legal policy is shaped by attitudes of ‘triumphalism, exceptionalism, and provincialism’ that ‘stand in the way of US support of the rule of law in international affairs’. This troika of concepts encompasses but is not limited to exceptionalist thinking, with ‘exceptionalism’ itself defined as the idea that ‘the United States bears special burdens and is entitled to special privileges because of its status as the sole surviving superpower’.Footnote ¹⁹ Slaughter observes, however, that, despite the clear relevance of these related attitudes, Murphy’s formulation has ‘shed no light on the microfoundations of U.S. decisions to take specific positions in individual cases’.Footnote ²⁰

Hilary Charlesworth focuses more directly on beliefs, by defining exceptionalism to mean that ‘while other states should comply with international legal norms, it is not appropriate to subject the United States to the same regime’. Charlesworth lists relevant beliefs to include that ‘the United States is already an exemplary international citizen and its domestic legal system can be relied on to provide appropriate accountability and/or the expectation that international law will inevitably be used in a politicised way to discriminate against the United States’. For Charlesworth, such exceptionalism, whatever its constitutive beliefs, is antithetical to the rule of law.Footnote ²¹ Similarly, Natsu Saito defines exceptionalism in relation to ‘uniquely American’ IL policy as the belief that ‘America is special, or exceptional, because it claims certain incontestable values; the possibility that its hegemony was consolidated and continues to be exercised at the expense of those values can be ignored in the name of a greater good.’Footnote ²² Only by overcoming the ‘tremendous power of the narrative of American exceptionalism’ can the United States contribute to strengthening the rule of law.Footnote ²³

More systematic analyses are sought in Michael Ignatieff’s edited volume American Exceptionalism and Human RightsFootnote ²⁴ and Harold Koh’s article ‘On American Exceptionalism’,Footnote ²⁵ each of which provides a definition and typology that have shaped broader legal scholarship. For Ignatieff, American exceptionalism is the uniquely contradictory ‘combination of leadership and resistance’ to IL that has produced the ‘paradox of being simultaneously a leader and an outlier’.Footnote ²⁶ Ignatieff identifies three types of policy outcome that he labels exceptionalism: exemptionalism, double standards and legal isolationism.Footnote ²⁷ These are said to constitute an exceptional and harmful IL policy in that no other democracy engages in these practices to the same extent as the United States, or does so while simultaneously claiming to lead the global human rights movement.Footnote ²⁸ In all three forms, Ignatieff groups together causal beliefs and policy outcomes under the single ‘exceptionalism’ banner.

Koh finds Ignatieff’s typology ‘both under- and over inclusive’ in that it conflates some forms of exceptionalism and omits others.Footnote ²⁹ Koh’s own piece acknowledges the indeterminacy of exceptionalist ideas by calling on the United States to ‘preserve its capacity for positive exceptionalism by avoiding the most negative features of American exceptionalism’.Footnote ³⁰ Here, Koh adopts a four-part typology, listed ‘in order of ascending opprobrium’: distinctive rights culture, different labels, the ‘flying buttress’ mentality, and double standards.Footnote ³¹ The advantage of this formulation is in its distinguishing between unique IL practices according to whether underlying beliefs strengthen or weaken the rule of law. Invoking Gothic architectural imagery, the ‘flying buttress’ mentality, for instance, describes the idea that the United States frequently provides support for treaty regimes from outside the institution, while refusing to stand as a pillar within.Footnote ³² For Koh, this represents a threat to America’s own interests far more than to the system of IL generally. It is only in the final form of policy that Koh identifies a challenge to IL, where the United States ‘uses its exceptional power and wealth to promote a double standard’.Footnote ³³

The key question for present purposes remains: What specific factors cause America to exhibit contradictory IL policy behaviours, including the disjunct between expressions of commitment to the rule of law and policy outcomes? In particular, are these outcomes explained by exceptionalist beliefs properly so-called, thereby justifying adoption of the terminology? As with other legal accounts, the typologies of Ignatieff and Koh mask a range of competing and perhaps interrelated causes of distinctive behaviour such that the exceptionalism label sometimes does more to obscure than to clarify. Ignatieff identifies four possible explanations for distinctive US policy:

Of these, only the ‘cultural’ explanation directly encapsulates the influence of exceptionalism as the term is used here. The distinct elements are not mutually exclusive, however, such that exceptionalist beliefs indirectly shape each of the alternative explanations for policy uniqueness. Ignatieff recognises these linkages to the degree that American IL policy goes further than realism strictly requires in ‘defending a mission, an identity, and a distinctive destiny as a free people’.Footnote ³⁵ Cultural attachment to messianism is thereby a key explanation for the ‘power dynamics and the distinctive ideology’ underpinning different forms of ‘exceptional’ IL policy.Footnote ³⁶

Institutional explanations likewise reveal much about unique IL outcomes, but ultimately depend on exceptionalist and ideological factors to explain policy contradictions. The power to develop and execute IL policy resides primarily with the US executive, but it is institutionally divided between the branches of federal government and subject to the prerogatives of the various states. The ‘invitation to struggle for the privilege of directing American foreign policy’Footnote ³⁷ means that IL policy is determined not merely by a competitive market of ideas across government, but through amplification or suppression of certain ideas via ‘decentralized and fragmented political institutions’.Footnote ³⁸ Citing institutional factors, however, merely begs the question: What divergent beliefs distinguish policymakers competing for influence across divided government? Within Ignatieff’s volume, Andrew Moravcsik identifies the roots of US failure to ratify key human rights treaties in ‘senatorial suspicion of liberal multilateralism’ among a minority of senators ‘disproportionately representative of the conservative southern and rural Midwestern or western states’.Footnote ³⁹ Although institutional veto points such as ‘supermajoritarian treaty ratification rules in the Senate’ shape legal policy outcomes,Footnote ⁴⁰ this book addresses the more fundamental content of ideology itself. In this sense, exceptionalist beliefs of legal policymakers remain prior to institutional explanations for unique policy preferences.

To his typology, Koh adds a fifth positive element of exceptional global leadership, which comes closer to capturing the variable influence of exceptionalist ideas on American IL policy.Footnote ⁴¹ He concludes by posing a choice between an American exceptionalism that is ‘power-based’ and disregards IL and ‘good exceptionalism’Footnote ⁴² that is ‘norm-based’, showing deference to ‘universal values of democracy, human rights, and the rule of law’.Footnote ⁴³ Understanding the variable influence of exceptionalism confirms that any useful typology must be built not upon policy outcomes but, rather, on the content of competing exceptionalist beliefs guiding policymakers’ decisions and the ways these interact with power. Returning to the questions posed by this book, these illustrative legal accounts emphasise the need to identify more sharply underlying exceptionalist beliefs and their interaction with other causes of distinctive IL policy.

Power-Based Explanations: Hegemonic International Law

In the year prior to the 2003 Iraq War, Robert Kagan surveyed divided transatlantic approaches to IL to conclude that ‘Americans are from Mars and Europeans are from Venus’.Footnote ⁴⁴ Kagan’s thesis proved especially significant during the Bush 43 administration, where it was widely circulated and read in 2002. Then senior administration lawyer Jack Goldsmith wrote that the ‘essay gave structure to intuitions that top administration officials already possessed’.Footnote ⁴⁵ For Kagan, Europeans evinced a preference for ‘a world where strength doesn’t matter, where international law and international institutions predominate, where unilateral action by powerful nations is forbidden, where all nations regardless of their strength have equal rights and are equally protected by commonly agreed-upon international rules of behaviour’.Footnote ⁴⁶ The success of the European Union (EU) in ending centuries of interstate conflict encouraged faith in this formula as the answer to a more peaceful world. The United States, in contrast, continued to perceive a ‘Hobbesian world where international laws and rules are unreliable and where true security and the defence and promotion of a liberal order still depend on the possession and use of military might’.Footnote ⁴⁷ For Kagan, ‘these differences in strategic culture do not spring naturally from the national characters of Americans and Europeans’; rather, they emerge from underlying power differentials.Footnote ⁴⁸ Tracing shifts in global power over 200 years:

The disparity of transatlantic power has accordingly lain behind ‘a broad ideological gap’ in which ‘material and ideological differences reinforce one another’ to crystallise in irreconcilable conceptions of IL.Footnote ⁵⁰

The decisive role of preponderant global power provides the first explanation for distinctive American IL policy. Lassa Oppenheim argued over a century ago that, without a functioning balance of power at the global level, ‘an overpowerful State will naturally try to act according to discretion and disobey the law’, thereby becoming ‘omnipotent’.Footnote ⁵¹ Hedley Bull likewise recognised a mutual relationship between the efficacy of the balance of power and that of IL.Footnote ⁵² For Hans Morgenthau, the condition of international anarchyFootnote ⁵³ meant that enforcement of IL was ultimately left to ‘the vicissitudes of the distribution of power between the violator of the law and the victim of the violation’.Footnote ⁵⁴ Morgenthau thus recognised that applying a legal ‘positivist’ account ‘cannot but draw a completely distorted picture of those rules which belong in the category of political international law’.Footnote ⁵⁵ In consequence, ‘the rights and duties established by them appear to be clearly determined, whereas they are subject actually to the most contradictory interpretations’.Footnote ⁵⁶ This expresses political realism’s basic view of institutions as ‘epiphenomenal’: a mere expression of power distribution between states and of their self-interested behaviour. IL has an instrumental value when serving state interests, but any general commitment to its terms is anomalous.Footnote ⁵⁷ The bulk of IL may even command voluntary compliance by virtue of its useful administrative functions, but in cases where IL has a direct bearing on relative power between states, especially in matters of national security, power and not law determines compliance.

The most influential modern account in these terms is Jack Goldsmith and Eric Posner’s The Limits of International Law.Footnote ⁵⁸ The authors’ aim is ‘to explain how international law works by integrating the study of international law with the realities of international politics’. Specifically, they theorise ‘that international law emerges from states acting rationally to maximise their interests, given their perceptions of the interests of other states and the distribution of state power’.Footnote ⁵⁹ Thus, ‘the best explanation for when and why states comply with international law is not that states have internalized international law, or have a habit of complying with it, or are drawn by its moral pull, but simply that states act out of self-interest’.Footnote ⁶⁰ In this view, the expectation that the United States will act in the same way as every other state is implausible for expecting US policymakers to acquiesce to the legal fiction of sovereign equality. In earlier writing defending an American ‘double standard’, Goldsmith noted: ‘The explanation is not subtle. The United States declines to embrace international human rights law because it can.’Footnote ⁶¹

Anu Bradford and Posner apply this perspective to the exceptionalist literature and conclude that, since all powerful states claim the mantle of exceptionalism, such beliefs cannot be treated as the cause of distinctive policies: ‘great powers typically support a view of international law that embodies their own normative commitments but is presented as a universal set of commitments’.Footnote ⁶² Exceptionalism thus defined is ‘the view that the values of one particular country should be reflected in the norms of international law’ by virtue of being ‘a model or leader in international relations because of its unique attributes’.Footnote ⁶³ Where the United States, Europe and China have each translated great power in this way, the ‘criticism of exceptionalism, then, is just a criticism of power, or the use of power to achieve ends of which the critic disapproves’.Footnote ⁶⁴ Exceptionalist beliefs, of American, European and Chinese IL policy, are in the end considered epiphenomenal.

Accounts of power being systematically transformed into the norms of the legal system can be refined yet further by specifying how hegemonic power specifically shapes distinctive IL policy. Ian Brownlie defined the ‘hegemonial approach’ to lawmaking as ‘an approach to the sources which facilitates the translation of the difference in power between States into specific advantages for the more powerful actor’. Doing so maximises the hegemonic state’s ability to gain ‘legal approval’, while minimising occasions when approval is ‘conspicuously withheld’.Footnote ⁶⁵ The power to fashion unique privileges out of general rules creates incentives for a hegemon to blunt their constraining effect upon itself while enhancing their value as enabling instruments that facilitate strategic objectives. Doing so challenges any assumption that binding a hegemon to legal rules protects the international order against imperialism. Rather, in the words of ICJ Judge Charles De Visscher, ‘the great powers after imprinting a definite direction upon a usage make themselves its guarantors and defenders’.Footnote ⁶⁶

Wilhelm Grewe speculated in the immediate post–Cold War period whether ‘we have entered a new age of United States hegemony’ in which the United States would play a distinctive role shaping the global legal order.Footnote ⁶⁷ The weight of evidence strongly suggests as much, with broad and frequent system-wide tasks providing unique opportunities to legally entrench American interests. American hegemony has thereby manifested not as control over every legal development but, rather, as the United States becoming ‘the one against whose ideas regarding the system of international law all others debate’.Footnote ⁶⁸ At times hegemonic impulses have translated into explicit US privileges under the law, as most conspicuously achieved in its designation as one of the five permanent members of the UNSC (P5). However, the most contentious debates over American IL policy relate to its de facto exceptional legal status rather than the limited cases where it is accorded de jure privileges. Michael Byers notes two strategies through which the United States has achieved hegemonial lawmaking within the existing framework of IL. Firstly, laws may sanction behaviour that is only practically available to a limited number of states. Preponderant military power over any other state or alliance means that broad legal rights may in practice become ‘de facto exceptionalism’ exercisable only by the United States.Footnote ⁶⁹ A second form of hegemonial lawmaking is where rules remain deliberately indeterminate, ‘enabling power and influence to determine where and when’ actions are legal, thus deflecting criticism under the guise of legality.Footnote ⁷⁰ Precise ‘rules’ enable ex ante decisions about acceptable conduct, whereas creating vague ‘standards’ enables ex post definitions of legality.Footnote ⁷¹

The logic of hegemonial lawmaking cuts both ways, shaping the interests of states forced to adapt to conditions of international hegemony. Those opposing preponderant American influence have a vested interest in an international legal system that diminishes political advantages. An overriding incentive thus exists to structure international legal rules and institutions in accordance with ‘counter-hegemonic’ interests.Footnote ⁷² In this vein, Martti Koskenniemi persuasively argues that the shape of the international legal system represents a form of ‘hegemonic contestation’ in which participants aim to ‘make their partial view of … [legal doctrines] appear as the total view, their preference seem like the universal preference’.Footnote ⁷³ As such, the ‘fight for an international Rule of Law is a fight against politics’.Footnote ⁷⁴ Here, the rule of law will be achieved through the levelling of international power via rules that are nominally universal and therefore place constraints on states that increase in a magnitude commensurate with geopolitical power. Counter-hegemonic dynamics effectively corroborate the arguments of those US scholars who perceive ‘universal’ legal rules as a challenge to American political power. The validity of Kagan’s insight into the nexus between law and power is therefore highly persuasive even for those critical of his normative conclusions.Footnote ⁷⁵

Nevertheless, returning to the puzzle of contradictory US IL policy, Kagan’s argument equally illustrates the explanatory limits of a purely power-based explanation for US IL policy. Kagan relies on the problematic assumption that divergent US and EU legal policies correspond to a binary opposition between American political interests and the ideal of the rule of IL. Kagan, for example, characterises European policy as being ‘all about subjecting inter-state relations to the rule of law’, whereas the United States chooses to operate outside of the rule of law.Footnote ⁷⁶ It is the claim of this book, however, that the evidence instead points to legal policymakers on both sides interpreting legal principles through political interests, such that the concept of law itself is contested. There are clearly intimate connections between preponderant power and the ‘exceptional’ outcomes of American IL policy, which are influenced by incentives to follow certain patterns of behaviour. But at the level of analysing processes of IL policy decision-making, power is indeterminate as an explanation for the positions taken in domestic debates between opposing legal policymakers, each claiming to advance American national interests. Explanation at the level of political realism ‘discounts the influence of particular normative values, history, and culture, all of which shape the attitudes of a country’s leaders toward international law and foreign affairs’.Footnote ⁷⁷ Power alone cannot explain observed contradictions in policy in circumstances where US legal policymakers express fidelity to the rule of law even while giving contradictory accounts of how this advances political interests.

Institutional Explanations: Policy-Oriented Jurisprudence

A second common explanation for distinctive American IL policy is institutionalised jurisprudence in the US academy and practice, which has a causal effect distinct from either relative power or cultural beliefs. The most distinguishing feature of American IL jurisprudence is a greater scepticism toward conceptions of IL isolated from social and political context.Footnote ⁷⁸ American international legal jurisprudence is instead strongly influenced by various ‘policy-oriented’ approaches, which originated in response to perceived limitations in legal positivism and have grown into the dominant IL jurisprudence in American scholarship and practice. The most well-known is the distinctive New Haven School, but elaborate variants abound and continue to be fiercely debated.Footnote ⁷⁹ The precise formulation is less important than the general observation that ‘policy-oriented law is, by now, an accepted orthodoxy in the United States’.Footnote ⁸⁰

The chief innovation is to approach IL as a form of policymaking, while rejecting the plausibility of treating IL as a body of value neutral rules. Rules represent ‘merely the accumulated trends of past decisions’ stripped of the context of their creation and their connection to contemporary circumstances.Footnote ⁸¹ Koskenniemi’s account of this jurisprudence identifies the ‘one theme’ connecting different approaches as a ‘deformalized concept of law’. By this is meant that IL has not been seen as

David Kennedy documents the rise of this approach across the twentieth century, where it was the proponents of IL themselves who

The conception built upon the work of American legal realism, which had aimed to penetrate the legal formalist myth that law was a self-contained body of rules by which judges could produce determinate outcomes.Footnote ⁸⁴ Most significant, for present purposes, is recognition of the relationship between decision-makers and law: ‘legal history could not simply chronicle the emergence and development of legal doctrines, nor treat them largely as intellectual insights divorced from the actual world in which they occurred’.Footnote ⁸⁵ Here the compatibility with hegemonial dynamics becomes clear in the inherent ‘tension between the [legal] realist understanding of law as an instrument of policy and the legalist view of law as a constraint on policy’.Footnote ⁸⁶

The New Haven School of Myres McDougal and Harold Lasswell aimed to move legal realism beyond mere critique toward a methodology that made these insights ‘operational in a systematic way’.Footnote ⁸⁷ ‘Law’ is recast as a process in which legality is conditional upon attaining social, moral and political goals through ‘authoritative and effective decision-making’. Policy decisions are ‘authoritative’ in cases that advance ‘world public order’ and ‘human dignity’,Footnote ⁸⁸ while they are ‘effective’ when backed by enforcement mechanisms and therefore ‘controlling’.Footnote ⁸⁹ In each case, the interests and values shaping foreign policy decisions more generally are imbued with a legal function, of providing predetermined criteria that permit legal subjects to organise their actions with known consequences. With the twin criteria of authority and control, the policy-oriented approach aims to overcome a misperception in International Relations (IR) and IL scholarship that ‘law is concerned with authority (but not power) and that international relations is concerned with power (but not authority)’.Footnote ⁹⁰ Decisions that lack one or both of the elements of authority and efficacy are distinguished from law and remain merely political acts.

Siegfried Wiessner and Andrew Willard advocate the merits of policy jurisprudence by drawing a contrast with a perceived ‘counterimage’ of legal positivists, who ‘gain no help from their theory when asked what the law “should” be. Indeed, their theory eschews any creative or prescriptive function.’Footnote ⁹¹ This is an influential retort among American legal policymakers who have portrayed positivist rules as no less politicised than the US policy decisions they seek to constrain. John Bellinger here draws a distinction between the Anglo-American common law tradition and the civil law tradition of continental Europe. On the one hand, American jurisprudence is inclined toward ‘pragmatism and scepticism’:

Law must therefore be devised to reflect ‘the virtues that have been drummed into us’. On the other hand, Bellinger acknowledges that such claims give rise to suspicion from Continental jurisprudence that American IL policy is ‘opportunistic or, worse, self-serving’. Nevertheless, to American lawyers, the European conception is marked by ‘excessive formalism, a doctrinal inflexibility, and an unwillingness to acknowledge that different paths may lead to the same end’.Footnote ⁹³ Although Bellinger depicts worldviews uniting the common law tradition, the divergence is one more specific to American legal culture. Former ICJ President Rosalyn Higgins’ observation that conflicts between ‘American’ and ‘British’ views ‘now permeate the entire fabric of international law’ precisely mirrors Bellinger’s comparison with Continental Europe.Footnote ⁹⁴

A concrete example of a practitioner’s defence in these terms comes from Abraham Sofaer, who served as Legal Adviser to the Department of State under Presidents Reagan and Bush 41. Sofaer wrote: ‘Many, if not most international lawyers, have reacted to the need to use force in self-defense and in the defense of humanitarian rights by seeking to preserve what they consider the purity of international law.’ Sofaer was responding to an article by Professor Tom Franck entitled ‘Break It, Don’t Fake It’, which argued that the United States should have explicitly breached IL when it failed to obtain UN authorisation for the 1999 Kosovo intervention, rather than trying to fit it into existing doctrine.Footnote ⁹⁵ Franck’s rationale was that, by so doing, the purity and therefore the integrity of IL would be preserved. To this, Sofaer responded:

Policy jurisprudence sees such expunging of policy from law as chimerical, and instead aims to make law conform to the right sort of policy. The proper distinction for the policy-oriented approach is that ‘the terms “political dispute” and “legal dispute” refer to the decision-making process which is to be employed in respect of them, and not to the nature of the dispute itself’.Footnote ⁹⁷

Cases of divergent international legal decision-making reinforce the significance of this institutionalised jurisprudence as an explanation for contradictions in IL policy. Yet, it is also clear that the jurisprudence remains profoundly intertwined with explanations from both power and culture, in ways not always fully acknowledged. IR realism and American legal realism assume in common that law is a ‘“means to social ends and not … an end in itself”; a “distrust” of “traditional legal rules and concepts,” as a description of what the system actually does; and an “insistence on evaluation of any part of the law in terms of its effects.”’Footnote ⁹⁸ Shared assumptions buttress the undeniable compatibility between hegemonial lawmaking and policy jurisprudence, such that it is problematic to view either in isolation as a causal explanation for unique policy outcomes. Specific policy-oriented theories developed across the twentieth century inevitably reflected prevailing national interests and, in particular, the long fixation of US foreign policy on Cold War politics. In this process, American lawyers ‘increasingly conceived international law from the perspective of a world power, whose leaders have “options” and routinely choose among alternative “strategies” in an ultimately hostile world’.Footnote ⁹⁹ For some accounts of the New Haven jurisprudence, ‘world public order’ was effectively defined to coincide exactly with the interests of the Western Bloc.Footnote ¹⁰⁰ More generally, a well-founded criticism is that powerful states are able to use this jurisprudence to self-judge their parochial interests as ‘law’. The clear prescriptions of legal rules and the decisions of international courts are liable to be set aside for inconsistency with claimed ‘fundamental goals of the international community’.Footnote ¹⁰¹

Hedley Bull thus rejected the imprecision of the policy-oriented approach as liable to render law unintelligible.Footnote ¹⁰² Likewise, the former president of the ICTY declared the tribunal ‘bound only by international law’ to the exclusion of ‘meta-legal analyses’. Accordingly, ‘a policy-oriented approach in the area of criminal law runs contrary to the fundamental customary principle nullum crimen sine lege’.Footnote ¹⁰³ Professor Oscar Schachter levelled a particularly strident critique while sitting on a conference panel with McDougal, warning that the approach produced a ‘unilateralist version of policy jurisprudence in which law plays a secondary role and policy is determined by the [American] perception of self-interest’.Footnote ¹⁰⁴ On the same panel, Professor Richard Falk wryly described the ‘miraculous’ capacity of McDougal’s jurisprudence to coincide with US foreign policy interests.Footnote ¹⁰⁵ Even Higgins, as a strong advocate of the jurisprudence, accepts that there is ‘a very fine line between insisting that decisions be taken in accordance with the policy objectives of a liberal, democratic world community and asserting that any action taken by a liberal democracy against a totalitarian nation is lawful’.Footnote ¹⁰⁶ Modern exponents have applied policy-oriented analysis to support the legality of the most prominent examples of American IL policy diverging from orthodox interpretations of IL. These include arguments for the legality of the 2003 Iraq WarFootnote ¹⁰⁷ and using policy analysis to challenge the legal definition of torture.Footnote ¹⁰⁸ In all such cases, jurisprudence is both distinct from and yet correlates with American hegemonic power, as presumptive causes of unique IL policy.

Cultural Explanations: Exceptionalist Beliefs

The final causal explanation embedded in ‘exceptionalist’ accounts is the role of culturally specific beliefs about America’s unique role in the international legal system. These explanations come closest to capturing the exceptionalist concept, in the sense of distinctive practices drawn not from hegemonic power or institutionalised jurisprudence but from beliefs and identity. John Murphy’s characterisation of ‘exceptional’ American legal practice is sceptical of Kagan’s conclusion that distinct approaches to IL are fundamentally rooted in transatlantic differences in power and weakness. Rather, sovereignty limitations created by the EU ‘are simply inconceivable’ to most Americans, who possess ‘an historical distrust of power, especially centralized power’.Footnote ¹⁰⁹ Here, culturally based beliefs remain a principle explanation for distinctive IL policy.

One of the most enlightening interventions from this perspective is an argument by Jed Rubenfeld that a primary source of exceptional IL policy is America’s distinctive constitutional democracy and the divergent transatlantic lessons of WWII.Footnote ¹¹⁰ For Continental Europe, WWII represented the perverse outcome of unrestrained popular will and confirmed for European leaders that national politics must be answerable to the explicitly antinationalist and antidemocratic higher authority of IL. In contrast, the lesson for America was confirmation that its nationalism, in the form of popular sovereignty, was the surest guardian of individual liberty. Far from seeking to curb American popular will, the post-war years saw a US strategy to extend its democratic values outward and ‘Americanise’ the rest of the world.Footnote ¹¹¹ The contradiction entailed in that lesson, however, was that legal regimes moderating the politics of other states had no legitimate claim over the United States itself. Henceforth, the United States became both the principal architect of IL and its most conspicuously reluctant subject.

Rubenfeld traces these formative experiences into two distinct understandings of how constitutionalism guards liberty. For European states, ‘international constitutionalism’ perceives supranational legal institutions transcending state sovereignty as the ultimate guardians of liberty. Power is deliberately transferred from the control of popular sovereignty to ‘international experts – bureaucrats, technocrats, diplomats, and judges – at a considerable remove from popular politics and popular will’.Footnote ¹¹² In contrast, American ‘democratic constitutionalism’ identifies the legitimacy of constitutional law in its foundations as a special act of popular lawmaking. These beliefs reinforce distinctive American jurisprudence and its scepticism toward the possibility of a higher law divorced from democratic political foundations.Footnote ¹¹³ Henry Nau concurs that, from ‘the European point of view, law must be inclusive of all cultures and check democratic as well as non-democratic states’. In contrast, for Americans, ‘democratic politics legitimates law’. For Nau, this explains much of the divergence in beliefs about the binding authority of the UN in the 2003 Iraq invasion relative to the democratic legitimacy of US policy.Footnote ¹¹⁴ Intentionally undemocratic foundations of IL are therefore illegitimate fetters on American constitutional government.

Rubenfeld’s argument is especially significant for understanding the meaning of hypocrisy in US IL policy, as considered in this book. He suggests that, because European international constitutionalism dominates global conceptions of IL, the United States is relegated to being an outlier consistent with its exceptionalist beliefs. In this, Rubenfeld agrees with Kagan’s conclusion that, although US actions are exceptional, they are not thereby hypocritical in the proper sense of that word. In Paul Kahn’s terms, the price of US resistance to legal constraints is that: ‘To the rest of the world, this is bound to look hypocritical. In the United States, it will look like an insistence on democratic self-government.’Footnote ¹¹⁵ The argument does not deny the clear correlation between exceptional conceptions of IL and their facilitation of exceptional American power since WWII. However, self-interest is not determined objectively but is received through a nation’s ‘history, culture, values, and worldviews’.Footnote ¹¹⁶ Two forces have thus guided American IL policy: a ‘high-minded’ messianic impulse to spread American constitutional rights and a ‘geopolitical’ motive to construct an order augmenting American economic and political power. Both motives are united in the objective of establishing a new global order replicating American values.Footnote ¹¹⁷ The convergence of two distinct causal explanations thus resolves potential hypocrisy in the decision-making of US IL policymakers.

Rubenfeld’s argument raises questions about whether exceptionalist explanations provide insights beyond the influence of power. Robert Delahunty accepts that the explanatory value of Rubenfeld’s argument is ‘incontestable’, particularly in relation to the depth of commitment of opposing sides to their worldview.Footnote ¹¹⁸ Nevertheless, he concludes that more orthodox explanations, such as that propounded by Kagan, retain equivalent or greater explanatory power, while eschewing complex historical narratives.Footnote ¹¹⁹ The value of the richer analysis lies in a different analytical purpose, however, of identifying the contested meanings of ‘the international rule of law’, as understood by American policymakers and as they shape decision-making processes. Delahunty’s conclusions confirm an abstract theory of the fundamental dynamics of states’ IL policies, making it unnecessary to unpack the concept of ‘national interests’. However, when the objective is to develop a framework for understanding the IL policy of a named state in specific policy contexts, then an abstract concept of national interest is simply inadequate. The national interest is a dependent concept, requiring specification of both perceived objectives and a state’s strategy for advancing them through IL. Upholding America’s national interest, as defined by Rubenfeld, entails constructing a system of IL that reproduces distinct American constitutional values, while using those same values to shield American domestic law against the world. Each account is equally valid and compatible. But, just as a parsimonious approach best explains abstract motivations, it is weakest in providing an ideographic account of interests as they actually guide policymakers.

International Relations Theory and Ideology

The key question emerging from Chapter 1 is not whether unique dynamics of American IL policy are best explained by power or ideas, since they are evidently interrelated; rather, the question is: how do culturally ingrained ideas about America’s global role mediate between the fact of preponderant power and legal policymakers’ engagement with IL? In IR terms, this becomes a question of how a state’s perception of interests alters the way that it behaves within the international system and therefore the causal role of ideas. It has become almost ritualistic to begin such an enquiry by identifying the limitations of Kenneth Waltz’s neorealist tenet that ‘considerations of power dominate considerations of ideology’Footnote ³ and then describing the advantages of a flourishing array of alternative IR theories that reassert the power of ideas.Footnote ⁴

Richard Steinberg observes that international legal scholarship tends to ‘perpetuate a common misperception that realism is a monolithic approach that denies any role for law’.Footnote ⁵ Yet theoretical variants do recognise that ideas, including legal beliefs, can be mutually constitutive of power, and among these the ‘softest realist position is that of the traditional or neoclassical realists’.Footnote ⁶ Gideon Rose explains that adherents of the IR school of neoclassical realism recognise, first, that ‘the scope and ambition of a country’s foreign policy is driven first and foremost by its place in the international system and specifically by its relative material power capabilities. This is why they are realist’ but, second, that ‘the impact of such power capabilities on foreign policy is indirect and complex, because systemic pressures must be translated through intervening variables at the unit level. This is why they are neoclassical.’Footnote ⁷ Those ‘intervening variables’ include ideology, comprised of the foreign policy ideas ‘embedded in social norms, patterns of discourse and collective identities’.Footnote ⁸ Ideology operates to ‘filter and limit options, ruling out policies that fail to resonate with the national political culture’.Footnote ⁹ The mutually constitutive relationship between policymakers’ beliefs and the material structure of the international system renders realism compatible with ‘constructivist’ theories of IR, which lawyers have conventionally seen as the ideal entry point for interdisciplinary research. IL scholarship often ‘echoes the flavour and ontology of constructivist theory’ in that both treat ideas and identity as the fundamental building blocks of international politics.Footnote ¹⁰ Within these approaches, IL policy can be analysed by reference to the ‘competing general conceptions of what legal institutions and rules should look like’, which are in turn ‘shaped by the actors’ conceptions of their interests and their identities’.Footnote ¹¹

The advantages of theoretical synthesis are evident in Rose’s analysis of America’s rising relative power and the concomitant assertion of its normative exceptionalism. He argues that ‘instead of viewing ideas as either purely independent or purely dependent variables’, there is scope for identifying ‘how, in conjunction with relative power, they could play both roles simultaneously’. Specifically, Rose considers shifting interpretations of the exceptionalist belief that American ‘domestic institutions should be disseminated to others’. This idea has been expressed by both the ‘examplars’ of the nineteenth century and the ‘crusaders’ of the twentieth century.Footnote ¹² By adopting a neoclassical realist framework, he argues that the most important explanation for this shift remains the ‘massive increase in relative power’ that gave the United States the means to contemplate a strategy of shaping global politics. The role of political power and the basic premise of political realism thereby remain intact. Yet analysts ‘still need to know the content of American political ideology … in order to understand the specific policy choices officials made in either era’.Footnote ¹³ The causal role of ideology and law is thereby preserved, even when proceeding from an ostensibly political realist foundation.

Ideas as Beliefs

To achieve greater clarity in the meaning of ‘ideology’, it is useful to start with a more precise definition of ‘ideas’ as its basic building blocks. There is a degree of imprecision in formulations that variously label the constitutive elements of ideology as ‘ideas’, ‘opinions’, ‘values’, ‘symbols’ and ‘beliefs’. For this book, Judith Goldstein and Robert Keohane’s approach is instructive, as it defines ideas simply as ‘beliefs held by individuals’.Footnote ¹⁴ Focusing on beliefs is persuasive, as it expresses the interconnection between abstract political ideas and the real actors who hold them – who emerge as central characters in these pages. For Goldstein and Keohane, foreign policy beliefs are of three types: worldviews defining possible modes of thought and discourse;Footnote ¹⁵ principled beliefs providing normative criteria for assessing right from wrong;Footnote ¹⁶ and causal beliefs about the cause–effect relationships that yield strategic outcomes.Footnote ¹⁷ As will be seen, all three forms of belief inhere in a single ideology.

Building on this treatment, Alexander George and Andrew Bennett argue that, rather than exerting a deterministic influence, political beliefs increase the propensity of decision-makers to reach particular ‘diagnostic’ and ‘choice’ decisions. Beliefs create in policymakers a propensity to reach a particular diagnosis about what is happening in a case, which is followed by policymakers’ strategic choices about what action to then take.Footnote ¹⁸ The distinction alludes to the role of political beliefs in not merely recognising interests but in defining what they are. Blyth reminds that a useful understanding of beliefs must distinguish between the concept of interests and the necessarily prior cognates of interest. This distinction permits interests to be ‘less about a priori structural determination and more about the construction of wants as mediated by beliefs and desires (i.e., ideas)’.Footnote ¹⁹ Although structures such as relative global power remain important in determining interests, they ‘do not come with an instruction sheet’.Footnote ²⁰

Defining Ideology

‘Ideology’ emerges as the bridge between ‘interests’ and ‘ideas’ in legal and political analysis. Michael Freeden’s influential definition of political ideology is of

Here, ideology is identified as pervasive in all political thought, being composed of the ‘ideas and symbols through which political actors find their way and comprehend their social surroundings’.Footnote ²² The way beliefs are configured in a specific ideology enables the ‘decontesting’ of their meaning, thereby narrowing the valid policy implications for any political situation.Footnote ²³ Miroslav Nincic and Jennifer Ramos approvingly adopt Freeden’s definition for highlighting ideology as a form of ‘structured thinking: a stable and coherent relationship among the cognitions and preferences people hold’.Footnote ²⁴ Importantly, for present purposes, Freeden addresses the question of the correlation between material power and belief. Ideology is characterised as both a representation of an objective reality and part of the discourse that constructs it:

Crucially, this approach recognises the dialectical nature of ideology. A nation’s political ideology does not develop in a vacuum but, rather, through encounters with the constraints and opportunities afforded by power.

Jonathan Zasloff explores the meaning of ideology in a context closer to home, albeit from the reverse angle to this book’s: analysing the influence of ‘legal ideology’ on early American foreign policy. His account of the ‘notoriously treacherous’ concept is on point for drawing attention to ideology’s causal role in mediating between power and international legal policy.Footnote ²⁶ Zasloff adopts David Davis’s definition of ideology as ‘an integrated system of beliefs, assumptions, and values, not necessarily true or false, which reflects the needs and interests of a group or class at a particular time in history’.Footnote ²⁷ Davis’s own further explanation is useful for reminding that ‘there is a continuous interaction between ideology and the material forces of history’.Footnote ²⁸ This element comports with Rose’s observation that the rise in ideas about America’s ‘exceptional’ global role has paralleled and reinforced the reality of growing preponderant global power. Zasloff’s most important point for present purposes is that so defining ideology means that it cannot be approached as merely ‘a cynical cover for the naked pursuit of self-interest’.Footnote ²⁹ That conclusion is pivotal to the argument of this book: although US IL policy is often defended in idiosyncratic terms that align with politicised interests, that cannot itself be evidence of hypocrisy on the part of legal policymakers. Zasloff puts the case well:

American IL policymakers thus perform an ‘important ideological function’ that has ‘helped to reconcile imperial power with republican traditions and universal principles’.Footnote ³¹ The implications are significant in cases of apparent legal contradiction, since to so observe ‘is not to say that people were disregarding the “true” law but rather to underline the claim that all international law, to one degree or another, relies on such ideological construction’.Footnote ³² Within this process, ideology operates to translate power into legal principle – in effect deriving an ‘ought’ from an ‘is’Footnote ³³ – which adherents can then adopt as simultaneously both a good faith commitment to IL and an affirmation of American power.

Especially pronounced consequences arise in the specific context of foreign policy ideology, since policymakers are faced with inherent uncertainties about the intentions of external parties owing to ‘gaps in distance, culture, and understanding’. Even more so than in domestic politics, policymakers are ‘forced to rely upon ideological assumptions to guide their action’.Footnote ³⁴ Michael Hunt’s leading account defines American foreign policy ideology as ‘an interrelated set of convictions or assumptions that reduces the complexities of a particular slice of reality to easily comprehensible terms and suggest[s] appropriate ways of dealing with reality’.Footnote ³⁵ For George, foreign policy ideology is ‘a belief system that explains and justifies a preferred political order for society, either one that already exists or one that is proposed, and offers at least a sketchy notion of strategy … for its maintenance and attainment’.Footnote ³⁶ Jeffrey Legro’s definition identifies three characteristics of ideas specific to the domain of foreign policy ideology. These are that ideas: ‘(1) are collectively held; (2) involve beliefs about effective means; and (3) refer specifically to national conceptions about international society’.Footnote ³⁷ For Legro, these ideas ‘are not so much mental as symbolic and organizational; they are embedded not only in human brains but also in the “collective memories,” government procedures, educational systems, and the rhetoric of statecraft’.Footnote ³⁸ Moreover his definition of ideology draws attention to the inherent ‘instrumentality’ of foreign policy ideas, which are beliefs not just about the objectives of policy but also about the effective means for achieving them.Footnote ³⁹ His final element is of particular interest to the present analysis, which is that a foreign policy ideology entails beliefs about the proper attitude toward the existing international order: whether to join, remain outside or revise it.Footnote ⁴⁰

From these accounts, foreign policy ideology can be defined as a shared set of interrelated beliefs that interpret global power and help define a state’s international interests and strategies for achieving them. The nature of ideology as beliefs entrenched in a political community ensures that evaluations of success will be heavily biased by a conviction that an ideology is effective. It is hard, if not impossible, to conclusively falsify beliefs about foreign policy once ideologically entrenched. They do not provide an ‘absolute truth’ about foreign policy interests and strategies, merely beliefs that resonate as an article of faith. Any established American foreign policy ideology entails a claim to a formula for strengthening national power and interests.

The Wittkopf-Holsti-Rosenau Typology

Attention can now turn to the substance and structure of American foreign policy ideologies influencing conceptions of IL. The underlying rationale of the WHR typology is the same as this book’s, which is that it ‘is useful in understanding the frequent inconsistency of American foreign policy, for the maintenance of a coherent foreign policy is more difficult in a domestic environment characterized by the absence of consensus’.Footnote ⁴¹ Although the foundational literature does not use the term ‘ideology’, it is clear that the underlying concept is the same.Footnote ⁴² In a review of foreign policy ideology literature, Michael Hunt cited the work of Ole Holsti and James Rosenau as an example of ‘a new concern with ideology’ that had ‘infiltrated the field of diplomatic history’.Footnote ⁴³ Those authors’ own terminology of ‘attitude structures’,Footnote ⁴⁴ ‘worldviews’Footnote ⁴⁵ and, in particular, ‘belief systems’Footnote ⁴⁶ entails the key elements of interrelated ideas about the nature of the world and political strategies for responding to it. The model is accordingly adapted here to identify and classify the constitutive beliefs and structure of American foreign policy ideology and thereby of American IL policy.

As a preliminary point, the most analytically useful typology in social science is one that moves beyond mere listing and instead maps out the structure of how different types relate to one another. David Collier et al. define an analytical typology as ‘an organized system of types that breaks down an overarching concept into component dimensions and types’.Footnote ⁴⁷ ‘Dimensionality’ is a broader concept than ‘type’ and refers to the ‘number of variables entailed in a concept or a data set’.Footnote ⁴⁸ Common variables may be evident in different types and so the goal of the analyst is to isolate each variable, then show how types are connected and differentiated through them. Where the concept under analysis exhibits multidimensionality, a clear typology will be one constructed by the intersection of orthogonal dimensions to form discrete types. An underlying strength of the WHR typology is that it goes beyond merely listing different forms of ideology, instead meeting the more rigorous standard of mapping out how different types relate to one another. A further point is that the product of this typology is four ‘ideal types’ of foreign policy ideology. In Max Weber’s terms, ‘an ideal type is formed by the one-sided accentuation of one or more points of view and by the synthesis of a great many diffuse, discrete, more or less present and occasionally absent concrete individual phenomena, which are arranged according to those one-sidedly emphasized viewpoints into a unified analytical construct’.Footnote ⁴⁹ These types are therefore analytical constructs that usefully capture patterns of observed behaviour, rather than an account of any particular person’s belief system. Outlying cases and inconsistencies do not necessarily falsify the typology; rather, they remind that it represents a synthesised ideal.

Holsti first described a ‘three-headed eagle’ of foreign policy types in 1979; it comprised ‘two versions of internationalism’, identified previously by Michael Mandelbaum and William Schneider as ‘conservative internationalism’ and ‘liberal internationalism’, plus ‘isolationism’.Footnote ⁵⁰ Conservative internationalism emphasised elements of traditional realpolitik, including a zero-sum contest between the United States and its adversaries and the importance of US leadership maintaining a favourable balance of power.Footnote ⁵¹ In contrast, liberal internationalism rejected the wisdom of pursuing US primacy, instead emphasising global interdependence and thus the need for cooperation – particularly on economic and humanitarian issues.Footnote ⁵² Mandelbaum and Schneider then arranged these types in relation to a third ‘noninternationalist’ categoryFootnote ⁵³ to conclude that foreign policy is best thought of in terms of two dimensions: ‘an internationalist–isolationist dimension (whether the United States should play an active role in world affairs) and a cross-cutting liberal–conservative dimension (what kind of role it should play)’.Footnote ⁵⁴

Survey data from the Chicago Council on Foreign Relations (CCFR)Footnote ⁵⁵ and the Foreign Policy Leadership Project (FPLP) corroborated a bi-dimensional ideological structure of support–oppose ‘militant internationalism’ (MI) and support–oppose ‘cooperative internationalism’ (CI), which together forms four foreign policy belief types (see Table 1).Footnote ⁵⁶ Accommodationists support CI and oppose MI. They adopt an internationalist focus according to a liberal worldview that emphasises non-traditional security threats such as democratisation and human rights, with a preference for working multilaterally through IL and institutions. Internationalists support both CI and MI. They have an internationalist focus but according to a conservative worldview that is willing to combine diplomatic cooperation with military superiority to maintain America’s global position. Isolationists oppose both CI and MI. They resist unnecessary international involvement in order to protect liberal values at home. Finally, hardliners oppose CI and support MI. They adopt a nationalistic rather than international focus, but do so to uphold national security and America’s global position rather than for liberal objectives.

Subsequent survey research confirmed that these dimensions structure the beliefs of both American masses and American foreign policy elites – rebutting pioneering findings by Philip Converse that elite foreign policy beliefs diverged from the beliefs of the mass public.Footnote ⁵⁷ Eugene Wittkopf analysed the beliefs of ‘leaders’ within the CCFR survey data, taking them to be those respondents ‘in leadership positions with the greatest influence upon and knowledge about foreign relations’.Footnote ⁵⁸ Falling in this category are ‘policymakers’ in the sense used in this book, including members of Congress (in particular members of the Foreign Relations and Foreign Affairs committees) and the executive (including State Department officials and ‘officials with international responsibilities from other government departments’).Footnote ⁵⁹ The real difference between elites and masses was in the distribution between types. Survey results demonstrated a relatively even distribution of the mass public among the four types.Footnote ⁶⁰ In contrast, leaders were more likely to support CI compared to the mass public, with a far greater distribution between the two internationalist quadrants (accommodationists and internationalists). This difference stemmed specifically from the occupancy of leadership positions itself rather than from the demographic characteristics of those leaders.

Distribution of leaders and masses among types was determined foremost by political ideology and party affiliation, with data indicating that self-identified liberals were more likely to adopt a support CI/oppose MI position. In contrast, conservatives and moderates were more likely to adopt a support MI/oppose CI position.Footnote ⁶¹ In terms of partisanship, this translated into a greater number of Democrats identifying as accommodationists, while internationalists and hardliners were more likely to be Republicans. Partisan affiliation of isolationists was less apparent but leaned toward Republican or independent.Footnote ⁶² Subsequent analysis of CCFR data by Joshua Busby and Jonathan Monten suggested an increase in the proportion of Republican elites categorised as hardliners, and thereby a narrowing gap between the mass public and elites in levels of support for both forms of internationalism.Footnote ⁶³ In something of a prologue to the surge of ‘populist-nationalism’ in the 2016 US presidential election, the research showed forms of partisanship emerging from 2002, with growing support for CI among Democrat leaders matched by increasing support for MI among Republican leaders.Footnote ⁶⁴ Busby and Monten’s updated analysis nevertheless confirmed both the persistence of the WHR structure of beliefs and the continued concentration of leaders among internationalist types.

The WHR typology has been repeatedly verified through empirical data on the structure of foreign policy ideology among the American public and elites,Footnote ⁶⁵ and through evidence that the types correlate with domestic political beliefs.Footnote ⁶⁶ The historical context of the typology was, of course, heavily influenced by Cold War thinking and US–Soviet relations. However, a ‘remarkable continuity’ in ideological structure followed the end of the Cold War.Footnote ⁶⁷ Holsti and Rosenau traced the evidence across a period spanning the immediate post–Vietnam War to the post–Cold War era and concluded that belief structures have ‘persisted through a period of historic international change’. That continuity is evident not only in ‘high politics’ on the causes of war and peace but also in emerging non-traditional security threats that span state boundaries.Footnote ⁶⁸ As such, there is strong evidence that the WHR ideological structure is invariant over time and independent of changing distributions of international power. Critiques of the typology have been offered over the years, including that foreign policy beliefs are structured either by moreFootnote ⁶⁹ or by lessFootnote ⁷⁰ than the two MI/CI dimensions. No formulation has eclipsed the WHR scheme, however, in popularity or influence. Matthew Baum and Henry Nau more recently endorsed the typology as ‘impressively reliable at predicting support or opposition to U.S. approaches toward foreign policy in general, and specific policy initiatives in particular’.Footnote ⁷¹ Alternative formulations may have merit, therefore, but the WHR has proven adequate to the task of providing an analytical typology of foreign policy ideology, while offering the advantages of parsimony and an impressive pedigree as the ‘gold standard’ within the literature.Footnote ⁷²

Evidence from Diplomatic History

The WHR scheme is valuable for using quantitative research to map the interrelation between ideological beliefs, but it remains a parsimonious rendering of rich traditions of thought long shaping American foreign policy. Foremost, this history provides clear evidence of analogous dimensionality in attitudes to foreign policy. An early analysis by Frank Klingberg observed that the US foreign policy ‘mood’ has cycled between periods of ‘extroversion’ and ‘introversion’.Footnote ⁷³ Louis Hartz identified a similar pattern, but in the context of two distinct forms of a Lockean ‘liberal tradition’.Footnote ⁷⁴ The first is an ‘exemplarist’ strand that seeks to spread American values primarily by preserving the unique character of the nation as an example to the world.Footnote ⁷⁵ This has meant promoting the superiority of the American example within the confines of the existing international order. Alternatively, American foreign policy has taken a ‘messianic’ form in which the United States seeks to actively spread exceptional values abroad. Here, the focus is on using American values as a blueprint for reforming the international order in line with its own values. For Hartz, the connection between these divergent outlooks is that ‘absolute national morality is inspired either to withdraw from “alien” things or to transform them: it cannot live in comfort constantly by their side’. In consequence, liberalism can variously manifest in internationalist or nationalist form so that, for America, ‘messianism is the polar counterpart to its isolationism’.Footnote ⁷⁶ Hartz’s thesis of a defining liberal tradition has not gone unchallenged, however, with scholars such as Anatol Lieven describing the importance of an ‘American antithesis’ grounded not in universal values but in particularistic ethnoreligious roots.Footnote ⁷⁷ For William Brock, the universal and liberal view of American purpose has been ‘constantly at war with the idea that Americanism belongs exclusively to the American people and must be defended against alien influences rather than shared with mankind’.Footnote ⁷⁸ In these terms, a former Trump administration official warned of the contempt engendered when liberal-minded policymakers set aside parochial defence of the American nation and instead act as if it is ‘immoral to prefer one’s fellow citizens to strangers on the opposite side of the world’.Footnote ⁷⁹

These connections were recognised in Holsti and Rosenau’s earlier work, which noted that their isolationists ‘revived a theme with venerable roots in American political thought – that the ability to nurture and sustain democratic institutions at home is inversely related to the scope of the nation’s commitments abroad’.Footnote ⁸⁰ They cited as evidence George Kennan’s contemplation: ‘I think I am a semi-isolationist.’Footnote ⁸¹ Similarly, the strong connection between domestic liberalism and accomodationist beliefs is explained as the legacy of the ideas of democracy promotion, human rights and collective security in the foreign policy of Woodrow Wilson.Footnote ⁸² Finally, hardliners are described in terms directly attributable to what is sometimes labelled the ‘Jacksonian’ tradition of foreign policy, with strong Southern roots and an emphasis on military virtues.Footnote ⁸³ In the WHR typology, hardliners are identified as predominantly Southern, typified by former chairman of the Foreign Relations Committee Senator Jesse Helms and ‘strongly pro-military and right wing, but staunchly nationalist and outspokenly protectionist opponents of the New Deal’.Footnote ⁸⁴

Fleshing out the WHR model requires attention to the sets of ideas that have developed around each point of intersection across American diplomatic history. Policymakers’ beliefs are not derived from the logic of the scheme itself, but are informed by culture and diplomatic history, which have rendered determinate sets of ideas about policy means and ends. Freeden notes the importance of cultural and historical influences rendering a circumscribed ‘range of meanings and arguments’ from a broader ideology.Footnote ⁸⁵ Similarly, for Hunt, this process permits a ‘relatively coherent, emotionally charged, and conceptually interlocking sets of ideas’,Footnote ⁸⁶ while for Colin Dueck, ‘culture’ establishes a ‘set of interlocking values, beliefs, and assumptions that are held collectively by a given group and passed on through socialisation’.Footnote ⁸⁷ These all suggest the formation of an American foreign policy Weltanschauung, largely defining the universe of acceptable policy options. The two dimensions of the WHR scheme provide a skeleton for analytically ordering more diffuse sets of competing ideas that American policymakers hold about the nature of American power and its purpose in the world. Perhaps the strongest evidence of the WHR typology’s external validity is that the four ideal types are corroborated by these well-established sets of foreign policy beliefs that precede the specific typology by many decades and even centuries.

The WHR schema now sits atop an identifiable body of literature that draws upon American diplomatic history to divide American foreign policy into four distinct types.Footnote ⁸⁸ These formulations necessarily differ given that they are developed through a forensic reconstruction of observed patterns of conduct. Inevitable overlaps and inconsistencies exist among the types, but a review of this literature reveals sufficient correspondence to treat these as corroborating the approach. The most well-known is that of Walter Russell Mead, who argues that his classification of the Wilsonian, Hamiltonian, Jeffersonian and Jacksonian traditions of thought allows for the interpretation of ‘American foreign policy as more of a unified whole and less as a sequence of unrelated episodes’.Footnote ⁸⁹ Mead sees these four traditions as an organic product of the American experience, with each deeply rooted in regional, economic, social and class interests. More specifically, he speculates that the traditions may be traced to the four ‘folkways’ inherited from the regional cultures of the British Isles.Footnote ⁹⁰

Wilsonians focus on the moral dimension of US political culture and the interests in spreading these values internationally through democracy promotion and the rule of law. Mead sees the roots of this tradition lying deep in nineteenth-century American missionary activitiesFootnote ⁹¹ so that, despite the moniker, ‘there were Wilsonians long before Woodrow Wilson was born’.Footnote ⁹² This tradition is more than mere idealism, emerging ‘as a middle way between reactionary militarism and revolutionary internationalism’.Footnote ⁹³ Hamiltonians focus on strengthening the state through an alliance between government and big business, which serves as the basis for policies directed toward protecting the nation’s economic power.Footnote ⁹⁴ Jeffersonians emphasise liberty at home as the pre-eminent American value, and thus focus on avoiding the corrupting influence of an activist foreign policy. For Mead, this is the only tradition ‘that believes history is not necessarily on the side of the American experiment’, producing a fear that overseas commitments erode American liberty through both neglect and centralisation of government power.Footnote ⁹⁵ H. W. Brands’ ‘exemplarists’ terminology captures the idea that America owes the world only the example of its constitutional freedoms. Going any further threatens to ‘jeopardize American values at the source. In attempting to save the world, and probably failing, America would risk losing its democratic soul.’Footnote ⁹⁶ Finally, Jacksonians represent a nationalist-populist tradition in US foreign policy, which values the security and preservation of the American ‘folk community’ above all else. ‘American exceptionalism’ is seen by Jacksonians ‘not as a function of the universal appeal of American ideas, or even as a function of a unique American vocation to transform the world, but rather as rooted in the country’s singular commitment to the equality and dignity of individual American citizens’.Footnote ⁹⁷ Mead argues that US foreign policy is notable for the continuity of these four traditions in shaping America’s worldview and the character of its international engagement.Footnote ⁹⁸ The history of US foreign policy is thus seen as one of the traditions vying for political influence separately and together in shifting combinations. Each has contributed to national power and proven naturally capable of complementing one another as if led by Adam Smith’s invisible hand.Footnote ⁹⁹

The parallels between the WHR and Mead typologies are obvious. Holsti states that, although never attributed as such, the four types ‘bear more than a passing resemblance to the distinction between the Hamiltonian (internationalists), Wilsonian (accommodationists), Jeffersonian (isolationists), and Jacksonian (hard-liners) approaches to American foreign policy’.Footnote ¹⁰⁰ The WHR typology has indeed been treated as synonymous with Mead’s for analytical purposes, with the primary difference being its more rigorous structure.Footnote ¹⁰¹ Mead himself disavows any intent to ‘prove’ that policymakers hold these beliefs, or indeed to treat his typology as a model suited to empirical testing.Footnote ¹⁰² His work is presented as a ‘classificatory typology’ listing named types, rather than a ‘conceptual typology’ constructed on underlying dimensions.Footnote ¹⁰³ Nevertheless, Mead’s typology exhibits the same dimensionality as the WHR scheme, with Wilsonianism and Hamiltonianism classed together as specific types of a ‘globalist’ tradition, while Jeffersonianism and Jacksonianism comprise ‘nationalist’ traditions.Footnote ¹⁰⁴ Moreover, Mead emphasises the liberal values at the core of both Wilsonianism and Jeffersonianism, which distinguishes them from the other two traditions. Other variants of the typology confirm the same dimensions. In Nau’s examination, his ‘internationalists’ and ‘realists’ are actively engaged in the international sphere, while his ‘neoisolationists’ and ‘nationalists’ resist international engagement.Footnote ¹⁰⁵ Dueck is more explicit, setting out two dimensions of strongly/weakly committed to liberalism and strongly/weakly committed to limited liability, which functionally replicate the WHR dimensions and resulting typology.Footnote ¹⁰⁶

A similar distribution of elites and masses between the historical and WHR types is also evident. Mead emphasises the popular and mass appeal of Jacksonianism and Jeffersonianism, in contrast to the greater support among foreign policy elites for his two internationalist traditions.Footnote ¹⁰⁷ Reflecting on the 2016 US presidential election, Mead observed the nationalist mood among a ‘public increasingly disenchanted’ with the Hamiltonian-Wilsonian internationalism long favoured by the ‘foreign policy establishment’.Footnote ¹⁰⁸ Dueck likewise emphasises that, of his two internationalist traditions, the Wilsonian equivalent has been the most influential among elites, while his Hamiltonian equivalent has consistently failed to resonate with the American public.Footnote ¹⁰⁹ These suppositions accord with the empirical evidence that leaders and foreign policymakers are located in the internationalist quadrants in far greater proportions than the mass public.

Revisiting American Exceptionalism

A crucial implication of thinking in terms of diplomatic history is that this brings the WHR structure to bear on the divergent strands of ‘exceptionalism’ evident in legal analysis. American exceptionalism has itself been called an ideology that has ‘deeply shaped the structure of social and political thought’.Footnote ¹¹⁰ However, in the context of foreign policy, Siobhán McEvoy-Levy prefers to describe American exceptionalism as ‘the “para-ideological” umbrella’ encompassing the many recurrent themes of America’s global engagement. By this, she means that the concept lacks the coherence of an ideology, but rather is ‘a crystallization of a set of related ideas which explain the world and the US role therein’.Footnote ¹¹¹ That is the conclusion preferred in this book, which does not find exceptionalist thinking to meet the features of an ideology. Rather, the interplay between America’s uniquely preponderant power and the incentive to understand and explain its own normative significance has produced exceptionalist beliefs as components of broader foreign policy ideologies. Each of the four American foreign policy ideologies has settled on distinct explanations for American uniqueness that, when taken together, represent the different faces of what has become known as American exceptionalism. The term is indeterminate as a categorical label and only provides insight into American foreign policy where the particular variants of exceptionalist ideas are specified as liberal, illiberal, internationalist or nationalist.

Mead directly describes Jacksonian thinking as combining ‘a firm belief in American exceptionalism and an American world mission with deep scepticism about the United States’ ability to create a liberal world order’.Footnote ¹¹² But the label applies equally to his Wilsonians’ perception of an ‘American duty to remake the world in its image’Footnote ¹¹³ and the Jeffersonian view that the American Revolution ‘was the start of a new era in the world’.Footnote ¹¹⁴ Baum and Nau are more explicit in identifying each of the WHR types as entailing a particular interpretation of exceptionalist thinking, observing that ‘Americans do not have a single, uniform view of American exceptionalism or foreign policy. Instead, they have several distinct ones.’Footnote ¹¹⁵ For all versions of the four-part typology, the outlier in terms of exceptionalist beliefs is the WHR ‘internationalist’ type or Mead’s ‘Hamiltonian’ tradition. Notably Dueck as well as Baum and Nau simply label this the ‘realist’ tradition. For Dueck, the internationalism of this type flows not from exceptionalist beliefs but rather ‘from an attempt to promote the national interest in a balanced manner’.Footnote ¹¹⁶ Likewise, for Baum and Nau, adherents ‘do not consider America as exceptional at all but ordinary like all other powers’.Footnote ¹¹⁷ Exceptionalist ideas nevertheless remain a defining component within each of the alternative foreign policy ideologies.

Internationalist–Nationalist Governance Dimension

Parsimonious explanations from political power predict that a powerful state will tend to ‘oscillate between two poles: instrumentalization of and withdrawal from international law’.Footnote ¹⁴⁷ In ideological terms, this ‘governance’ dimension measures US commitment to governing foreign policy through the international legal system. Legal policymakers have at times demonstrated a belief that American interests are enhanced by actively engaging to develop the architecture of international legal rules and institutions. In this view, American interests and security are dependent on the nature of the world beyond national borders, with the international legal order being a meaningful determinant of how that world looks. This also entails a commitment to elite authority in IL, since global governance is by its nature a domain properly controlled by legal and diplomatic personnel with technocratic expertise on how to advance identified interests through law. Internationalism may be expressed through a diversity of values and rationales, but there is evidence of a persistent belief in the strategic advantages of governance through a global system of law.

Alternatively, legal policymakers have identified the national interest in decreasing American enmeshment in international institutions and law. In this view, governing through law and institutions located at the national level is a superior strategy for meeting American foreign policy interests, which should therefore be shielded from increasing global entanglement. In particular, policymakers with a nationalist commitment are more concerned with how certain IL policies ‘will best advance the kind of domestic policies and order they wish to promote’.Footnote ¹⁴⁸ Nationalist positions are by their nature a domain centred on and more directly responsive to popular preferences of ordinary American citizens, rather than of foreign policy elites. In this sense, the concept of ‘populism’ in American IL policy can be best understood not as itself an ideology but as a position along the ideological governance dimension.Footnote ¹⁴⁹ The governance dimension thus encompasses the WHR ‘support CI–oppose CI’ dimension, Mandelbaum and Schneider’s ‘internationalist–isolationist’ dimension and the internationalist–nationalist dimension evident in diplomatic history.

Liberal–Illiberal Values Dimension

The second dimension concerns the ‘values’ informing American IL policy. At one end are American legal policymakers who identify the legitimacy of IL in its realisation of universally defined liberal values, as encapsulated in human rights and the protections of US constitutional democracy. The essence of liberalism is that, in questions of governance, natural persons be accorded ‘equal concern and respect.’Footnote ¹⁵⁰ IL thus has Lockean foundations in which people, rather than states or classes of people, are its fundamental sovereign subjects holding ‘certain unalienable Rights’.Footnote ¹⁵¹ To this end, liberal conceptions have tied the legitimacy of IL to a functioning municipal rule of law, which is the necessary foundation for securing substantive democratic values and fundamental human rights as ‘the core of international law’.Footnote ¹⁵² Crucially, liberalism in US IL policy means only recognising the equal normative status of all people but does not necessarily translate into an equal political status for those outside of the American polity, whose perceived rights remain dependant on governance beliefs.

Conversely, IL policy has been motivated by illiberal values – being any values that prevail over the defence of universally defined liberal rights as the foundation for IL. Specifically, these include strengthening national security, using foreign policy to maintain a particular balance of global power and upholding parochial ethnocultural values and group identity. Illiberal approaches to IL policy reject the principle of promoting cosmopolitan values that transcend the state, focusing instead on guarding what is uniquely American. As such, there is an equally strong case that the values dimension captures the ‘oppose MI–support MI’ dimension, Mandelbaum and Schneider’s ‘liberal–conservative’ dimension and the liberal–illiberal dimension evident in diplomatic history.

A Working Definition of the International Rule of Law

Despite imprecision and overuse of the term, there remains great value in the ‘rule of law’ as more than a mere ‘synonym for “law”’.Footnote ¹⁶ At the most elementary level, the concept encompasses the principle that arbitrary self-judging should be substituted with a ‘pre-agreed, principled procedure for decision-making’.Footnote ¹⁷ However, where the concept is applied to the institutional design and development of an actual legal system, some justification is required for a necessarily subjective definition of core elements. This book accordingly looks to British Jurist A. V. Dicey, as the earliest and most frequently cited in Anglo-American jurisprudence, without denying the merit of classic municipal formulations.Footnote ¹⁸ Dicey emphasised: ‘the supremacy of law’ over arbitrary power as a defining element of the English and American constitutions;Footnote ¹⁹ ‘equality before the law’ for rulers and the ruled alike; and the determination of rights through judicial power.Footnote ²⁰ This has formed the starting point for most major analyses of the concept, especially in an Anglo-American context, and therefore with well-documented strengths and weaknesses. More particularly, modern theorists including Simon Chesterman,Footnote ²¹ Stéphane BeaulacFootnote ²² and Rosalyn HigginsFootnote ²³ have externalised Dicey’s three municipal elements by analogy to the global level. Beaulac adopts Dicey’s formulation on the basis that it ‘is well known and largely accepted; it has also been analysed and criticised from a variety of angles, thus adding to [its] credibility’.Footnote ²⁴ In Chesterman’s report The UN Security Council and the Rule of Law, the common understanding is identified as the ‘application of these rule of law principles to relations between States’ and other legal subjects.Footnote ²⁵

Owing to the gap between municipal and global conditions, Chesterman characterises each of his principles and the international rule of law itself as more of a ‘political ideal’ than a legal reality, with closer adherence to ideals remaining a means rather than an end.Footnote ²⁶ Higgins and Beaulac concur that evidence of the approximation of each element demonstrates, at most, an emergent international rule of law.Footnote ²⁷ For Beaulac in particular, these principles apply only mutatis mutandis to the extent that IL diverges from municipal law. The key differences are that ‘there is no one formal norm-creating authority on the international level; states (not individuals) remain the principal legal actors and there is no enforcement mechanism’.Footnote ²⁸ Higgins concludes that, although ‘the phrase “rule of law” is today very much in vogue in international relations’, the ‘domestic rule of law model does not easily transpose to international relations in the world we live in’.Footnote ²⁹

The tripartite definition nevertheless remains sufficient for the defined purpose of directly comparing commitment to rule of law ideals across competing IL polices. The definition that emerges is an institutional and ‘functionalist’ one, in the sense that it is concerned with ‘how and why the rule of law is used—as distinct from the formal understanding of what it means’.Footnote ³⁰ Here, Chesterman means that the term is articulated at the global level within a political context: ‘as a tool with which to protect human rights, promote development, and sustain peace’.Footnote ³¹ This also responds to the warning of a former State Department legal adviser not to attribute a ‘talismanic meaning to the phrase “rule of law”’.Footnote ³² Dicey’s formulation can be usefully adopted to analyse legal policy in a specific institutional context without refuting well-known criticismsFootnote ³³ or claiming to exhaustively capture the term’s meaning. Coherent answers to three questions amount to a distinct conception of the international rule of law:

1. 1 Developing non-arbitrary global governance: For Chesterman, the first element of the international rule of law is that there be ‘a government of laws’.Footnote ³⁴ Here, the concept of ‘global governance’ is more apt for describing the situation where ‘functions normally associated with governance are performed in world politics without the institutions of government’.Footnote ³⁵ This is a broader concept than government ‘concerned with purposive acts, not tacit arrangements. It emphasizes what is done rather than the constitutional basis for doing it.’Footnote ³⁶ Applying Chesterman’s formula, this is the requirement of ‘non-arbitrariness in the exercise of power’ through increasing codification of law, greater uniformity in its rules and eliminating the distinction between ‘legality’ and self-judging standards of ‘legitimacy’.Footnote ³⁷ Beaulac similarly focuses on ‘the existence of principled legal normativity on the international plane’.Footnote ³⁸ This translates into the development of IL sufficient to ensure ‘certainty, predictability, and stability’ while eliminating ‘arbitrary power’.Footnote ³⁹ Finally, Higgins identifies the first principle of the international rule of law by analogy from ‘an executive reflecting popular choice, taking non-arbitrary decisions applicable to all, for the most part judicially-reviewable for constitutionality’.Footnote ⁴⁰ In these formulations, the common question is how to develop ‘systems of rule’ through IL that establish non-arbitrary global governance.Footnote ⁴¹

2. 2 Defining equality under IL: The second element of the international rule of law is described by Chesterman as ‘equality before the law’.Footnote ⁴² This entails a ‘more general and consistent application of international law to States and other entities’, with less regard to disparities in power.Footnote ⁴³ Beaulac describes equality as a ‘primordial value of the rule of law’ recognised by all key theorists.Footnote ⁴⁴ His variation is a question of ‘how these norms are made and are applicable equally to all legal subjects’.Footnote ⁴⁵ Finally, in Higgins’ analysis, Dicey’s second element requires that there be ‘laws known to all, applied equally to all’.Footnote ⁴⁶ The principle of ‘equality’ is far from clear-cut in practice, however, since a key meaning of equality is not merely identical treatment but ‘treating like cases alike’.Footnote ⁴⁷ Indeterminacy unavoidably intrudes when distinguishing between different cases, since external criteria are required to measure what is ‘alike’ and what is ‘unalike’.Footnote ⁴⁸ As Beaulac concedes, equality ‘cannot mean that all legal norms apply to every state in the same way; some of them may only apply to certain states because of their situations’. Thus, the principle ‘entails similarly situated states being treated in the same way by international law, with no discriminatory treatment tolerated by the system’.Footnote ⁴⁹ E. H. Carr’s earlier formulation was that there be an ‘absence of discrimination for reasons which are felt to be irrelevant’.Footnote ⁵⁰ In applying this principle, ‘equality’ simpliciter is shown to be ‘an empty vessel with no substantive moral content of its own. Without moral standards, equality remains meaningless, a formula that can have nothing to say about how we should act.’Footnote ⁵¹ Thus ‘equality’ as an element of the international rule of law is not a self-contained ‘organising principle’ for sovereign states,Footnote ⁵² but rather a question of the proper criteria for defining who is alike under IL and how to allocate correspondingly equal rights and duties.

3. 3 Determining the integrity of international judicial power: The final element is described by Chesterman as ‘the supremacy of the law’, which ‘distinguishes the rule of law from rule by law’.Footnote ⁵³ The meaning of this principle in Dicey’s and Chesterman’s formulations is ‘privileging judicial process’Footnote ⁵⁴ sufficient to provide ‘determinative answers to legal questions’.Footnote ⁵⁵ This will be achieved through increasing acceptance of the jurisdiction of international courts and tribunals, and the deference to law by political institutions. Likewise, Beaulac looks to ‘the way in which normativity is enforced through adjudication’.Footnote ⁵⁶ The clear deficiencies of judicial power at the ‘institutional level’ present ‘what is without doubt the most difficult set of formal values associated with the rule of law’.Footnote ⁵⁷ Finally, Higgins notes that Dicey’s third element requires ‘independent courts to resolve legal disputes and to hold accountable violations of criminal law, themselves applying the governing legal rules in a consistent manner’.Footnote ⁵⁸

   It is evident from these formulations that this third rule of law element requires significant modification when externalised to the international level. Limited institutionalisation of judicial power at the global level is not equivalent to the absence of these powers; rather, it is the case that states (and the United States in particular) underwrite the international legal system by directly exercising powers variously resembling ‘executive’, ‘legislative’ and ‘judicial’ functions wherever they are not already delegated to global institutions. The consequence is a weak separation of powers, since it is the legal subjects of the system who often determine when and how legal powers are exercised, by creating, interpreting and executing legal rules. The repercussion of power being so diffused is that all three ‘legal’ powers are exercised concurrently by each member state alongside a range of institutions, and in many cases absent an entity wielding supreme authority. The integrity of international judicial power requires a principle for determining what international judicial functions are properly reserved to states and what functions should be separated into international courts and tribunals.

Legalism

It would be contradictory to interpret American IL policy through divergent foreign policy ideologies and yet treat all other states as holding an undifferentiated conception of law. That is certainly not the case, with comparative IL scholarship revealing the extent to which legal policymakers in each state look through the lens of their own foreign policy ideologies.Footnote ⁶² The claim being made here is the narrower one that opposition to US IL policy has converged around the beliefs of ‘legalism’, irrespective of culturally specific conceptions of the international rule of law.Footnote ⁶³ Apart from evidence of legalism’s dominance in the relevant scholarship,Footnote ⁶⁴ and that certain states do indeed exhibit culturally entrenched commitments to variants of legalism,Footnote ⁶⁵ there are clear incentives for America’s global counterparts to receive law in forms that diminish advantages of preponderant power. Sustained advocacy for the ‘international rule of law’ has been attributed in part to its perceived ‘utility in challenging American exceptionalism, which threatens … the legitimacy of the international legal order based on the principle of the legal equality of all states’.Footnote ⁶⁶ Koskenniemi identifies the power lying behind ‘the juxtaposition between European constitutional formalism and the “imperial” challenge to international institutions by the United States’.Footnote ⁶⁷ There are compelling reasons for treating legalism as an ideological ideal type structuring opposition to US IL policy.

The legalist approach is best defined by Judith Shklar as ‘the ethical attitude that holds moral conduct to be a matter of rule following, and moral relationships to consist of duties and rights determined by rules’.Footnote ⁶⁸ In the context of IL specifically, Tai-Heng Cheng defines it as the ‘claim to apply prescriptions, through a process of reasoning and logic, neutrally to facts in an international problem’.Footnote ⁶⁹ The rhetorical attraction of contesting American international legal power in these terms lies in the claim to a ‘depoliticised’ conception of law:

In this view, ‘the appeal of a global rule of law lies in the promise of protection against the pathologies of internal domestic politics’.Footnote ⁷¹ For Nardin, the international rule of law comes to mean ‘no more than that states conduct their relations within a framework of non-instrumental law’.Footnote ⁷²

Leading accounts describing legalism at the municipal level remain relevant here owing to the power of a ‘domestic analogy’ in which ‘[c]ustom, usage, conventions, and treaties provide a complete system of law, analogous to municipal law’.Footnote ⁷³ Legalist beliefs thus possess the features of ‘a political ideology which comes into conflict with other policies’ no less than do specifically American conceptions.Footnote ⁷⁴ Such ‘deliberate isolation of the legal system – the treatment of law as a neutral social entity – is itself a refined political ideology, the expression of a preference’.Footnote ⁷⁵ Moreover, Shklar suggests that conceptions of international (as opposed to municipal) law are ‘perhaps the most striking manifestation of legalistic ideology. Its ideological character is especially discernible because the principles of international law are not supported by effective institutions.’Footnote ⁷⁶

The ‘legalism’ appellation has more often been employed from a critical perspective to challenge those who oppose American legal policy. Posner defines legalism as ‘the view that law and legal institutions can keep order and solve policy disputes. It manifests itself in powerful courts, a dominant class of lawyers, and reliance on legalistic procedures in policymaking bodies.’Footnote ⁷⁷ In the externalised form of ‘global legalism’, the concept is defined pejoratively as ‘an excessive faith in the efficacy of international law’.Footnote ⁷⁸ Nevertheless, in the present work, adoption of the legalist rubric is for comparative purposes only and disavows any strong normative implications. It is merely ‘intended to express social facts about a specialized mode of interaction in the process of decision-making in international problems, without engaging in unnecessary conceptual debates about whether or not this mode of interaction is actually “law”’.Footnote ⁷⁹ This use in no way excludes the possibility of advocating the normative merits of legalist conceptions. Importantly, Shklar wrote not to defeat legalism but to harness its potential to advance liberal values.Footnote ⁸⁰ Her primary objective remained ‘to save legalism for liberal politics by showing central liberal ideas like the rule of law to be useful ideologies’.Footnote ⁸¹ Criticism was directed only at ‘those of its traditional adherents who, in their determination to preserve law from politics, fail to recognize that they too have made a choice among political values’.Footnote ⁸²

It is instructive to compare how legalist conceptions of IL align with the governance and values dimensions structuring American IL policy. At the risk of stating the obvious, the legalist conception is internationalist, in the sense that it advocates forms of governance through global legal architecture. In particular, legalist conceptions envision domestic decisions with transnational implications, including about war and peace, being transferred to the international level. Along the values dimension, legalism draws upon the ‘cosmopolitan ethos’ embedded in modern IL, which mirrors the aspiration in the wider project of modernity for more than a normatively agnostic international order. Cosmopolitanism requires that the rule of law uphold ‘non-instrumental’ rules that treat persons as ends and not merely means for satisfying political objectives. The effect of seeking politically neutral normative foundations is to displace the controlling role of democratic accountability so central to American understandings of liberalism. Consistently with this idea, authors variously identify the norms underpinning IL with ‘universal values’Footnote ⁸³ and an ‘international value system’.Footnote ⁸⁴ Believing in the genuinely cosmopolitan foundations of global legal order has the same effect as faith in American exceptionalism, which is the tendency toward a ‘messianic’ IL policy.Footnote ⁸⁵

It is important to note that included among legalist advocates are prominent American individuals and organisations, which can and have vocally advocated a range of policies in legalist terms (especially within NGOs). The theorised IL policy typology does not encompass all policies capable of being internalised by American citizens, only those influential among American legal policymakers. George Kennan identified an attachment to ‘moralistic-legalistic’ beliefs as an affliction of American foreign policy itself.Footnote ⁸⁶ However, attachment to legal rules and solutions as described by Kennan is largely encompassed by the liberal internationalist type and remains distinct from legalism as that term is used here.Footnote ⁸⁷ The adoption of legalist beliefs by Americans other than legal policymakers would not in itself falsify the typology unless such positions were accepted by and structured American IL policy.

Liberal Internationalism

Of the four ideal American policy types, liberal internationalism is the most important for understanding the beliefs of American policymakers strongly committed to international legal order. The unparalleled commitment to developing IL has often led liberal internationalists to view alternative American conceptions as ‘IL sceptics’ or what Spiro memorably called ‘new sovereigntists’.Footnote ¹¹¹ Liberal internationalism identifies the international rule of law in externalisation of American constitutional government to establish a seamless system of law, with international and national legal systems reinforcing universal liberal values. Self-identified liberal internationalist Anne-Marie Slaughter defines the essence of the rule of law as ‘ordered liberty’.Footnote ¹¹² At the global level, however, that ideal involves a ‘continual tension between the requirement under international law that we respect nations, meaning governments, and our own democratic value of respecting all peoples’.Footnote ¹¹³ Here, Slaughter invokes the belief that the reason for establishing the rule of law is identical across the municipal and international levels: to achieve ‘a steady progression toward greater freedom of conscience, choice and country – first within America and then beyond our borders’.Footnote ¹¹⁴ This forms the foundational principle of a liberal internationalist conception of IL:

General accounts of ‘Wilsonianism’, as an equivalent tradition of thought, have focused on democracy promotion as the ‘first principle’,Footnote ¹¹⁶ the ‘most essential ingredient’Footnote ¹¹⁷ and the ‘keystone’Footnote ¹¹⁸ of the tradition. Liberal internationalism identifies democracy as the conduit between the enjoyment of liberty by natural persons and an international system of law. In 1917, Elihu Root wrote: ‘The world cannot be half democratic and half autocratic … If it is democratic, international law honored and observed may well be expected as a natural development of the principles which make democratic self-government possible.’Footnote ¹¹⁹ Liberal internationalism is distinctive among the American ideal types for valuing democracy as constitutive of the international rule of law itself: ‘the global rule of law depends on the domestic rule of law’.Footnote ¹²⁰ Believing that liberal states adhere more consistently to the rule of law at both the national and the international level thus presents a utopian vision in which a world of liberal states progressively enforces mutual respect for IL.Footnote ¹²¹

The vision of taming global politics through law is what forms the common ground with the legalist conception of IL, with both promoting a ‘Kantian vision of a law-governed international society’.Footnote ¹²² However, liberal internationalism diverges categorically in identifying the centrality of American power and values to the project. John Ikenberry advocates the establishment of ‘American “rule”’ through ‘the provisioning of international rules and institutions and its willingness to operate within them’. In short: ‘Liberal order building is America’s distinctive contribution to world politics.’Footnote ¹²³ In this way, IL and American constitutional government share the same firm foundation in hard-won political bargains.

Illiberal Internationalism

Illiberal internationalism actively engages with global rules and institutions to facilitate foreign policy objectives, but does so for the overriding purpose of strengthening US national security. The rule of law for illiberal internationalists means a flexible framework of legal rules and institutions that facilitates US strategic autonomy and diplomatic justifications. The absence of concern for the moral purpose of states has parallels with the realpolitik and balance of power politics of Continental Europe.Footnote ¹⁴² IL is thereby preserved as a diplomatic tool between states rather than a means for vindicating the legal rights of natural persons. Former US Attorney General John Ashcroft objected to the US Supreme Court holding in Hamdan v. Rumsfeld that litigants had rights exercisable against the US government under the Geneva Conventions.Footnote ¹⁴³ Consistent with an international rule of law between sovereign states, Ashcroft responded that ‘those treaties within themselves have provisions which limit the parties that can raise them and enforce them to the high contracting parties, not to the citizens of various nations’.Footnote ¹⁴⁴ This reflects a fundamentally illiberal conception, addressing the interests of individual citizens only indirectly and in the aggregate through the principal focus on national security. Liberal internationalism addresses national security more indirectly, by externalising liberal values into an international legal environment to reinforce global security over the long term. Illiberal internationalism rejects such utopian visions, instead engaging with IL to manage rather than overcome security threats. The conception is further distinguished by a clear separation between the illiberalism of international legal policy and national political values, with no assumption of mutual reinforcement. The privileging of American security interests abroad has nevertheless translated into greater deference to executive power and therefore weaker institutional checks and balances integral to protecting liberty at home.

Liberal Nationalism

Liberal nationalist legal policy honours liberalism by engaging with IL to guard against global governance and preserve the example of American constitutional government. The ideology has a long tradition extending back to the founding fathers’ belief that the United States represented a break from the European ‘old order of diplomacy’.Footnote ¹⁷¹ Whereas liberal internationalists believe that a greater US role in international governance extends and strengthens democracy, liberal nationalists often perceive ‘fundamental conflicts between democracy and international law’.Footnote ¹⁷² IL itself is said to suffer from a ‘democratic deficit’ such that, to the extent of any conflict, IL should be subordinated to domestic laws with democratic legitimacy.Footnote ¹⁷³ The appearance of unilateralist tendencies is ‘not simply out of self-interest but because the United States is committed to democratic self-government’.Footnote ¹⁷⁴ The intervention of IL may well be legitimate for ‘the many nations incapable at present of sustaining flourishing democratic politics’, for whom IL ‘offers the hope of economic and political reforms’.Footnote ¹⁷⁵ But the imperative of preserving the outward example of liberalism excludes IL extending inward to America’s own institutions.

Liberal internationalists are wary of any exceptional US role enmeshed in global governance, since ‘American presidents may be tempted to use the role of the world’s law enforcer as a justification for a new American militarism’, thereby fostering broad and unaccountable executive powers.Footnote ¹⁷⁶ These beliefs establish a preference for the US Congress to control IL policymaking, as more directly democratically accountable than presidential prerogative.Footnote ¹⁷⁷ For these reasons, and consistent with theorised weaker support among elites, few contemporary legal policymakers advocate IL policy primarily in these terms, although it has enjoyed some resurgence, including in the policy platform of 2016 and 2020 Democratic presidential candidate Senator Bernie Sanders. The outlier status of liberal nationalism was demonstrated in the wary reception toward 2012 presidential candidate and then Congressman Ron Paul and his son Senator Rand Paul, each of whom has been categorised according to equivalent belief types.Footnote ¹⁷⁸ Both have cast themselves as ‘libertarian’ candidates, and for this reason oppose US government intervention domestically and internationally as equally a threat to liberal values.Footnote ¹⁷⁹

This legal conception frequently aligns with the two illiberal American conceptions, with all united by a scepticism toward the utopian visions of legalism and liberal internationalism. Legal policymakers advocating quite illiberal policies have accordingly been drawn to justify municipal consequences of their positions consistently with liberal nationalism. Curtis Bradley and Jack Goldsmith have bolstered support for pragmatic US engagement with IL by arguing that the automatic incorporation of customary IL into American municipal law ‘is in tension with basic notions of American representative democracy’. The danger is that law derived from the ‘views and practices of the international community’ is ‘neither representative of the American political community nor responsive to it’.Footnote ¹⁸⁰ Similarly, Ku and Yoo warn that the pressure to conform to international legal obligations ‘could undermine the existing balance of powers’ among the three branches of US federal government.Footnote ¹⁸¹ In these cases, the outwardly focused illiberal internationalism is treated as complementary to rather than in competition with the inwardly focused liberal nationalism.

Illiberal Nationalism

Illiberal nationalism rejects the strategic value of a freestanding body of IL altogether, engaging only to defend national security and protect non-universal cultural values and identity. More than any of the other ideal types, illiberal nationalists are defined by a transactional conception of IL, being ‘fundamentally dubious of the ability of law to order relations in an international community that is strikingly reminiscent of a lawless Western frontier town’.Footnote ¹⁹⁵ In this tradition, John Bolton, former US ambassador to the UN and later a national security adviser to President Trump, sees any submission to IL as ‘the first step to abandoning the United States of America. International law is not law; it is a series of political and moral arrangements that stand or fall on their own merits, and anything else is simply theology and superstition masquerading as law.’Footnote ¹⁹⁶ The conception has a lineage in pre-enlightenment worldviews of an order founded in folk wisdom and tradition, with adherents of Mead’s equivalent belief type valuing ‘rule of custom’ over the rule of law.Footnote ¹⁹⁷

Former acting US Attorney General and federal judge Robert Bork criticised IL as an expression of global anti-Americanism that targets both American moral standing and US national security.Footnote ¹⁹⁸ For Bork, IL advocates are characterised as liberal elites who, consistent with legalism and liberal internationalism, are in search of ‘transcendent principles and universalistic ideals’.Footnote ¹⁹⁹ Elites wield these values in a ‘transnational culture war’ that circumvents popular democratic will.Footnote ²⁰⁰ Bork identified both himself and the ‘great mass of citizens’ with a contrary conception, centred on ‘particularity – respect for difference, circumstance, tradition, history, and the irreducible complexity of human beings and human societies’.Footnote ²⁰¹ These values form the populist heart of illiberal nationalism, which is incompatible with the deliberately elitist intent of internationalist legal conceptions that seek to remove popular passions from foreign policy. Daniel Bodansky clearly distinguishes Bork from Goldsmith and Posner in this respect, for viewing IL as solely a constraint rather than a tool for American foreign policy.Footnote ²⁰²

The conception is distinct from illiberal internationalism to the extent that it interprets IL through substantive cultural values at all. Michael Ignatieff observes that Senator Jesse Helms and Southern senators generally have made the United States unique among its peers for having ‘a strong domestic political constituency opposed to international human rights law on issues of family and sexual morality’.Footnote ²⁰³ Bork specifically criticised the transformation of modern IL into ‘a body of rules about the rights of individuals against their own nations’Footnote ²⁰⁴ and the trend for courts to strike down traditional moral prohibitions by reading ‘universal’ values into the constitution.Footnote ²⁰⁵ Doing so may ensure that ‘we are all more free’, but it would be an improper freedom ‘to act in ways that most of us had decided were unacceptable’.Footnote ²⁰⁶ Ultimately, there ‘can be no authentic rule of law among nations until they have a common political morality or are under a common sovereignty’, neither of which is at hand.Footnote ²⁰⁷ Illiberal nationalists thus diverge from illiberal internationalists in willingly acting against ‘short-term interest’ to defeat the existential threat that IL will ‘constrict the United States’ over time.Footnote ²⁰⁸