- Law Without Nations? Why Constitutional Government Requires SovereignStates, by Jeremy A. Rabkin (Princeton: Princeton University Press, 2005). 350 pp.
This is an ambitious book in which its author Jeremy Rabkin, a professor at the George Mason University School of Law, attempts to: 1) explore the early-modern history of the concept of sovereignty and international law; 2) “clarify the assumptions about the world that led the American Founders to ‘construct’ constitutional arrangements as they did and to show why their grounding assumptions remain hard to reconcile with new ‘constructions’ in contemporary international politics”; 3) demonstrate that the modern system of sovereign nations-states is essential to the health of liberalism and individual rights; and lastly, 4) shed light on the dangers of the utopian projects championed in an emerging world of international law and governance, with its closely aligned organizations.
Early on, Rabkin sets a pattern that he follows throughout the rest of the book: he writes daringly about international matters that he nonetheless claims are not the subject of the book, while writing about American national institutions, his intended subject, in a pedestrian fashion and without being aware of the ironic character of his remarks. In the introductory chapter, he cleverly links contemporary internationalism to Roman imperialism and later Fascism and international communism, before decrying the hostility of European elites to continuing national differences that serve as barriers to “international institutions [that] can bypass religion and establish perpetual peace.” But in making this argument, Rabkin never pauses to consider the close parallels between the millennial aspirations of the current American administration, most particularly in its war in Iraq, and the Europeans for whom he has such contempt. Accordingly, European hubris clothed in the protective camouflage of internationalism is dangerous, while American hubris decked out in the language of nationalism, liberalism, and individual rights is not.
Rabkin also quickly turns his attention to distinguishing sovereign national governments from soft international governance while defending the utility of the former. Particularly effective and welcome is his exploration of the unusual nature of international human rights treaties. Describing their proliferation, Rabkin writes that they rest on a foundation different from all others and that instead of depending on the willing participation of sovereign states they depend on “international monitors and private advocacy groups” to take responsibility for hectoring “states which fail to comply with them in full.” The reader, with Rabkin’s help, begins to understand the strange and shadowy world of international non-governmental organizations (INGOs) that hope to play a powerful role in international governance.
Rabkin demonstrates his wide reading in numerous literatures in his two chapters of intellectual history—but he also displays some of this volume’s weaknesses. He begins the first of these chapters with an interesting overview of secondary literature on medieval political arrangements in which sovereignty was hard to find, if it existed at all, before shifting his attention to textual exegesis of Bodin’s 1576 Six Books of the Republic, John Locke’s 1690 works, the 1787-88 American Federalist, and select passages from Lincoln and later American sources. Other than Bodin, who Rabkin claims was the first author to emphasize sovereignty, it is not clear why these texts were chosen. If his focus is the development of the concept of sovereignty in eighteenth-century and later America, then the inclusion of Bodin, rather than British source materials, is questionable. If his aims are broader, then the reader is left uncertain whether these authors are, in some manner, representative of changing standards, causal in fostering later changes, or simply favorites of Rabkin. In brief, this chapter does not offer the kind of comprehensive conceptual history that the author may have hoped for, and yet his exegesis of Bodin is far too detailed for readers whose interest is in contemporary international affairs.
These problems continue and multiply in the second of his intellectual history chapters, for it too throws together select readings of early-modern materials with Rabkin’s reflections on early American constitutionalism and contemporary international law. Not one of these subjects is treated adequately. Thus, we find Rabkin beginning with a five-page synthesis of Grotius that captures some of the salient characteristics of his thought, while ignoring far more. Most importantly, Rabkin fails to take note of the environment to which Grotius was responding, the horror of the Thirty-Years War and how this, in opposition to those who followed him, shaped so much of his thought. Pufendorf, one of the great thinkers of the period on all matters moral, legal, and political, gets one paragraph whereas Rousseau, whose Social Contract devotes at most two paragraphs to international themes, is treated at length. Even less defensible is that another of the most prominent authorities on international law in the mid-eighteenth century, and one of the most important thinkers in shaping American legal thought of the period, Burlamaqui, is never once mentioned.
When Rabkin discusses Vattel, whom he rightly emphasizes as being of great importance to Revolutionary-era Americans, his treatment is also highly selective. Thus, Rabkin compares Locke to Vattel, but fails to mention that Vattel had been initially dismissed as nothing more than a popularizer of the author whose work he followed so closely, the German philosopher Christian Wolff. Similarly, Rabkin completely ignores the tensions in Vattel’s thought, in particular his view of the aggregate as the entity whose rights were of greatest importance and to which the individual transferred his rights. No mention is made of Vattel’s role in defending revolution, not surprisingly of special interest to his American readers. Possibly most troubling is Rabkin’s failure to distinguish between Grotius’s internationalism and Vattel’s dominant Westphalian nationalism. This is at the heart of a contemporary struggle in the U.N. yet Rabkin erases Grotius’s and Vattel’s salient differences. Instead, in Rabkin’s treatment, Vattel, a true son of Geneva whose fear of the universal Catholic Church did much to drive his hostility to internationalism and who defended for the same reason the necessity of state religious establishments, is rendered too simply as some kind of proto-typical enlightenment thinker.
In the seventh and eighth chapters, Rabkin finally makes this volume well worth reading. He proves his worth here for there are few students of the world of NGOs, European unelected bureaucrats, and international human rights conventions that are not simultaneously true believers. Rabkin is not and is at his cynical P. J. O’Rourkian best in describing this world. He writes, in particular, of the various U.N. conventions that “they are less like contracts between states than like religious revival meetings, where one person may be inspired to come forward and renounce sin by the example of others doing the same and all may be strengthened in their resolve to sin no more by taking a pledge to do so in common.” But even here where his insights are so striking, even at times brilliant, Rabkin works with a glaring blind spot. Thus, he fails to appreciate the difficulties of his contemptuously writing of contemporary internationalists that “rights talk escaped from the confines of settled constitutional orders, first into the neverland of international conferences, then on to the real world of deadly conflict.” What he misses is that much the same could be said of his much-loved eighteenth-century rights talk as it moved over two centuries from theological speculations, within the protected and ordered confines of the Church, into the coffee houses of radicals in London and the salons of Paris. But happily, his penetrating focus here is not early-modern history but the strange world of human rights advocates that took shape in 1945 in the U.N. Commission on Human Rights and its 1948 Universal Declaration of Human Rights.
As important and powerful as the seventh chapter is, the eighth is still more so as Rabkin outlines how “European experience suggests this obvious lesson: Talk about human rights may not lead very far but arrangements to regulate trade can end up reaching very far indeed.” What he insightfully shows is that trade and economic treaties supported by the political right are likely to become the carriers for the ambitious goals of world governance of the political left. More particularly, the internationalist aspirations of the 1990s resulted in the transformation of the GATT into the World Trade Organization (WTO) and most particularly its ambitious court, the Appellate Body (AB). What demands attention, as Rabkin makes so very clear, is this body’s power to consolidate trade laws along with other “accepted” international law, and its willingness to accept amicus briefs. The otherwise readily ignored hortatory and moralizing international conventions on human rights, thus soon may be able to gain legal standing by being incorporated into enforceable trade agreements. In short, Rabkin warns that “the Appellate Body might evolve into an international counterpart of the European Court of Justice” in which it could address both the economic concerns of countries, as well, as the interests of NGO advocacy groups trying to force changes in labor laws, or social and environmental practices in another country or, just as likely, in their own.
Considering the four ambitious goals of this book, on balance one must conclude that it will dissatisfy the professional and scholarly reading public (neoconservative academics may be the exception). His intellectual history of the early modern era fails to incorporate many of the most important figures and entirely misses the most significant contemporary inheritance from that period, the differing views of internationalism developed by Grotius and Vattel. His remarks on the development of American political institutions and constitutional structures are appropriate only for those without an understanding of the complex interplay of British constitutionalism and Reform Protestantism in the social, political, and economic spheres in early-national America. His critically important effort to link, in a necessary fashion, state sovereignty and liberal rights, is more successful than the previous two goals but still, in the end, falls short. And in Rabkin’s bringing to light the nature of the ambitions harbored by adherents of various international organizations, surely almost all internationalist academics and practitioners will find little of value.
It is, however, concerning this last subject where Rabkin makes an enormously important contribution. Unlike his unsatisfactory exploration of the other matters, his notes and broad reading in the field suggest that he has mastered it and can serve, Beatrice-like, as a guide to his readers through this bizarre world of shadows. Here, freed from his otherwise burdensome and blind devotion to things American, national, and liberal, he offers fair warning to his readers of the dangers of the International Criminal Court (ICC) and even more presciently, I fear, those of the WTO. In doing so, he draws a frightening analogy between the 1940s “commerce clause” jurisprudence of the United States Supreme Court and the contemporary aspirations of the WTO court. His remarks here are powerful and should be read by every man or woman who shares with Rabkin his suspicions of projects that promise salutary world government through universal schemes.
The link that Rabkin makes clear between the 1940s Supreme Court and the emerging new jurisprudence is that they share a certain Trojan Horse quality: that is, both use projects that appear to serve classically liberal economic goals to introduce normative ends that cannot be advanced in the domestic politics of many nations, most particularly America. In short, what Rabkin leads his reader to understand is that with the Supreme Court currently unwilling to advance progressive causes and with little immediate hope for national political success, international organizations have come to provide an alternative and undemocratic conduit for American progressives to achieve their domestic political objectives.
This book, then, with a more sustained focus on what Rabkin understands so well, contemporary international law and organizations, and far less attention paid to inadequately developed or researched themes in early-modern intellectual history or American constitutional development, could have been a truly great and most timely work that would have provided readers with a much needed corrective to the dangerously optimistic reveries of most students and advocates of international organizations. This book is, often, that book. Too bad, in trying to do far too much, it isn’t consistently that book.
Barry Alan Shain teaches Political Science at Colgate University. This review was originally published in the Winter 2008 issue of Modern Age, and it is republished here with permission from the Intercollegiate Studies Institute.