An excerpt from
The Perils of Global Legalism
Eric A. Posner
What is Global Legalism?
Global legalists believe that a world government is not possible in the foreseeable future, but that international law, without a world government, can nonetheless solve or greatly ameliorate global collective action problems. International law, normally thought to be an object of government interest, becomes a subject: it develops, it expands, it constrains. And it develops in a certain way, enveloping states within its embrace, compelling them to act outside their interests, pushing them to greater and greater levels of cooperation, and hence to solving the global collective action problems.
Global legalism is not a doctrine or theory. It is akin to an attitude or posture—a set of beliefs about how the world works, one that, in various forms, dominates the thinking of academic international lawyers, as well as practicing international lawyers and some government officials. Global legalism has popular appeal and it affects government policies: many international institutions bear its imprint. Rather than defining it immediately, let me begin by describing “legalism” in general—as opposed to its global variant.
Legalism in America
Legalism is a set of assumptions about how the world works. It places great faith in the power of law and legal institutions to solve problems. The dominance of legalistic thinking in the United States is an old theme, first discussed by Alexis de Tocqueville in Democracy in America. Tocqueville was not concerned about the role of legalism in international relations; his discussion of legalism was focused on its domestic variant. About this version of legalism as it then existed in the United States, he famously said: “There is almost no political question in the United States that is not resolved sooner or later into a judicial question.” He meant that Americans expected law and legal institutions to resolve moral and policy disagreements that in other countries would be resolved by political, religious, or communal institutions. Tocqueville captured an important truth and seems to have uncannily predicted the future. Legalism in the United States is due to several factors.
The common law tradition. American judges, like British judges, have the authority to develop the common law, which is essentially a kind of constrained policymaking. The common law governs chiefly disputes between individuals—property disputes, breach of contract, accidents, and so forth—and in the course of developing the common law in the United States judges have resolved numerous policy questions concerning these subjects. By and large, Americans have been satisfied with common law development, and judges’ authority to make law in this domain is unquestioned. It is also subject to correction by state legislatures, and this has ensured that the common law has not deviated too far from the values and interests of the people.
The constitution. American judges claimed early on the power to nullify state laws that violate state constitutions, as well as state and federal laws that violate the federal constitution. Judicial review is more controversial than common law development, but it is just as entrenched. Because the U.S. Constitution is a short and ambiguous document, judges have been able to use it to advance policy goals, which they have done very aggressively. As a result, in the United States, all kinds of policy choices—regarding slavery, abortion, contraception, the minimum wage, taxation, voting districts, and much else—have been made, or heavily influenced, by judges.
Legal institutions and the legal profession. Tocqueville noted the dominant role of lawyers in American society and politics, likening them to aristocrats in Europe. Lawyers constituted a kind of ruling class. Aside from arguing cases and serving as judges, they also dominated political institutions such as legislatures. Lawyers share certain interests and ways of seeing the world—one that emphasizes the ever-present possibility of resolving conflicting interests rather than the inevitable struggle of entrenched classes or ideologies. This made them highly useful to everyone who has a problem—businesses, unions, repressed minorities and religious groups, anyone with a grievance—and possibly enabled them to be the glue that held together a society that lacked a common religion or religious establishment and was highly individualistic and disinclined to defer to authority. In exchange for their aristocratic position, lawyers must practice noblesse oblige. As professionals, lawyers see themselves as serving the public interest, and so, at least in principle, they recognize that certain kinds of behavior are off-limits because they exacerbate rather than resolve conflict.
The love of order. Tocqueville argued that lawyers love order more than liberty—a claim that would raise hackles in law schools today—but it remains as true now as it did in the nineteenth century. A few exceptions aside, lawyers distrust democracy, fearing that it will lead to chaos or (more commonly, today) the domination of either unjust majorities, who abuse racial and other minorities, or the domination of the wealthy, who use their money to influence elections. For American lawyers, Brown v. Board of Education is an unshakeable testament to the heroic judiciary facing down popular passions. For European lawyers, democracy is associated with the excesses of nationalism; by contrast, supranational legal structures, operated by bureaucrats and judges, are Europe’s highest postwar achievement.
The heterogeneity of American society. The United States has always been a heterogeneous society. The earliest citizens came mainly from British stock, but there were also Germans, Dutch, and others—not to mention American Indians, who had to be dealt with in one way or another, and Africans, who were mostly slaves. Even among the British, there were great and sometimes violently divisive religious differences, and people who traced their ancestry from different parts of Britain had highly different cultures. Sectional differences were also significant and, indeed, in the greatest failure of legalism in U.S. history, led to the Civil War. Meanwhile, additional migrants came from China, Japan, Italy, Ireland, and many other countries, and by the early twentieth century, the United States had become the highly multiracial society that we know today. The importance of this development for legalism cannot be exaggerated. When people cannot resolve their differences by appealing to common religious beliefs, or common ethnic norms, or common historic memories, or tribal elders, they can at least appeal to the law—to constitutional law, which they implicitly accepted when they migrated, to the common law that has continually proved its worth, and to statutes that have been passed by officials who have been elected by them.
And so Americans argue about policy by appealing to the law. They say that the constitution, rightly understood, endorses this or that policy choice. They bring lawsuits whenever they disagree with elected officials’ policy choices. And thus judges continue to play a dominant role in setting policy. This development has not been smooth and uniform, to be sure. The rise of the administrative state of the twentieth century can be described as a repudiation of legalistic thinking, which had failed America during the Great Depression, when legalistic Supreme Court justices prevented the implementation of New Deal reforms. But America’s regulatory agencies are themselves highly legalistic, and although courts defer to their decisions in many settings, this is largely because the agencies themselves have adopted legalistic procedures.
What Is Legalism?
As should be clear from the previous discussion, legalism is a complicated and ambiguous concept, and any attempt to reduce it to a definition is hazardous. Still, one can identify several common elements.
Rules. Laws are rules that are issued in advance of the behavior they regulate. They are not always precise, though legalism favors precision over vague standards. But the key point is that the rules are set out in advance so that people have notice. The rules prevail over power. Thus, for the legalistic mind, abortion rights are settled by the U.S. Constitution and are not to be determined by religious and political forces slugging it out in the political arena. Smoking policy, similarly, is better determined by courts applying common law tort principles than by legislative horse trading.
Judges. One could imagine a rule-bound society that was not legalistic; for example, the rules could come from a religious text. A crucial element of legalism is the powerful role of the judge. Judges, by ideological reputation, lie outside politics; they resolve cases impartially by appealing to the rules. This gives them immense prestige. The legalistic mentality implicitly assumes that existing rules can resolve every problem. Actual judges know better. Like priests in an ancient society who know that their magic is just an illusion, judges purport to find law—that is, apply the rules—even as they make it. They make law by appealing to vague or conflicting rules that do not indicate a determinate outcome while making a policy choice on the sly. The trick works because like the ancient priests, judges use common sense and share the dominant values of society, and so can usually make cases work out in a manner that seems broadly fair. When judges dominate policymaking, a society become litigious: people seek to affect policy by bringing lawsuits.
Procedures and the adversarial system. Legalism loves procedures. In the ideal, a case is resolved fairly because neither side has a procedural advantage—thus, the substance of the law determines the outcome, and not the wealth of one party or the skill of his lawyer. Procedures ensure that both sides have access to all the evidence, have time to prepare their cases, are not surprised by revelations, are not disadvantaged by the judge or jury’s prejudices, predilections, or interests. Of special importance is the institution of review. The judge reviews the jury’s verdict, and an appellate panel reviews the judge’s decisions, and a high court may review the appellate panel’s views. Along the way, there are many opportunities for rehearings by the same judge or by a larger or different panel, and there may be additional opportunities for collateral challenges—in criminal cases especially, where defendants may get a second chance by filing a habeas petition in state court and a third chance by filing a habeas petition in federal court, and each time with additional layers of review.
Liberal legalism. There are other elements of legalism but the discussion so far should suffice to give its flavor. But one should recognize one other aspect of legalism which is important, and that is its longtime association with liberalism—in the classical sense that emphasizes individual freedom. The rule of law, for example, is thought to be a liberal virtue as well as a legalist virtue: it refers to the idea that people should not be subject to the whims of rulers, as this is inconsistent with freedom and autonomy. Although it is true that legalism bans arbitrary governance, it does not literally ban illiberal laws—such as laws against freedom of conscience and speech. But in practice legalists tend to be liberals and, at least in the United States, liberals tend to be legalists. Legalists do not believe that laws issued by dictators are truly consistent with legalism, and so they generally insist on democratic institutions, and for democratic institutions to work, there must also be open debate, freedom of speech, and so forth. Liberals could possibly endorse an unconstrained direct democracy, where everything would be determined by politics, as long as the public was itself liberal in thinking. But in practice liberals insist that judges must guard the liberal order on the basis of a largely liberal constitution, at least as those judges have interpreted it. So legalism tends to be liberal, but it need not be so.
In sum, legalism defined broadly is 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.
To understand the appeal of legalism, one needs to understand the appeal of the judge. Why would people place so much confidence in judges to resolve their disputes, rather than looking to traditional authorities such as religious figures, or to political authorities such as legislatures and executives?
Several answers suggest themselves. When a population is highly diverse, different groups will appeal to different traditional authorities—different religious figures, or charismatic figures, or tribal leaders, or what have you. Thus, the authorities cannot resolve disputes involving people from different groups, at least not without the difficult process of bargaining over differences. We might attribute the early growth of legalism in the United States to the diversity of the population. Many (but not all) empires with diverse populations—the Roman Empire, the Austro-Hungarian Empire, the British Empire—have also been legalistic.
But why not rely on political authorities? The answer may be that legalism becomes more attractive when regular government is weak, fragmented, unpopular, or otherwise incapacitated, while the courts themselves are effective and enjoy a good reputation. As noted above, American courts inherited power and authority from the British system, and their appeal in the nineteenth century must have been enhanced by the weakness and remoteness of the national government; state legislatures were also widely distrusted. In Europe today, a legalistic mentality has taken hold in part because of the success of the European Court of Justice in knitting together sovereign states that had otherwise refused (until recently) to give much power to Europe’s major political institutions, which were hampered by strict voting rules and featured other weaknesses.
Further, it may be that elites and the power holders fear mass democracy and see judges, who are by training and temperament more likely to identify with the elites than with the masses, as a bulwark against the people. This is similar to Tocqueville’s argument that the legal profession serves as a governing aristocracy, although where Tocqueville saw the legal profession as relatively benign and crucial for maintaining order, one might also see a class defending its interests.
Finally, one needs to explain why judges would be willing to take on the burden of policymaking, when they might believe that doing so would undermine their reputation for impartiality and weaken public support for the judiciary. One possible answer is that individual judges have policy preferences and, all else being equal, would like to impose those preferences on others. And because the public seeks policy guidance from judges, failure to engage in policymaking might weaken public support for the judiciary.
Legalism is not just faith in the judges; it also involves faith in the law—for example, the belief that a vague document written in another era, like the U.S. Constitution, can provide guidance for policy today, or that the common law provides a basis from which one can derive right answers, or that statutes have inherent meanings. These views have been under furious assault in the legal academy for almost a century, but the public seems to hold them as strongly as ever. It may be that people have internalized the self-conception of the legal profession—illustrated by such mantras as “judges discover law rather than make it”—because legalistic nations have been relatively free and prosperous. It may be that legalistic thinking appeals to ordinary habits of mind. Or it may be that people prefer the rule of judges to that of politicians but have been unable to reconcile this preference with the ideological appeal of democracy. Whatever the case, legalism is a powerful force.
Legalism Spreads Across the World
The legalism I have described is the specifically American version with which I am most familiar, and the American version seems to be its purest manifestation anywhere in the world. But legalism has spread and plays an increasing role in other countries, especially the Western democracies.
There are many reasons for the spread of legalism. As I noted before, legalism has existed in other countries aside from America, though usually in a more diluted form. Britain’s traditions of judicial independence influenced all of its former colonies, not just the United States. Fascism and Communism subordinated the courts to party rule; the collapse of those systems in major states from the end of World War II to 1991 gave a boost to liberal democracy and judicial independence. And the institutions of the United States are widely admired and imitated. In recent years, legalism has made further gains. Governments grant new powers to judges, judicially enforceable bills of rights become more popular, the number of lawyers increases around the world, and issues of politics increasingly move to the courts. As noted above, Europe presents an important case. The European Court of Justice has played an important role in entrenching European law by persuading the national courts of European countries to defer, in many instances, to the European Court’s judgments and interpretations. The spreading appeal of legalism worldwide can be attributed to the same factors that explain the appeal of legalism in the United States: increasing effort at cross-border governance of highly diverse populations, the weakness and fragmentation of national governments, and efforts by political elites to entrench themselves or their values or interests against their own populations. That the United States and, increasingly, other legalistic Western democracies are prosperous, powerful, and free must suggest to foreign observers that, in fact, legalism has some merit; governance by judges may be superior to plausible alternatives.
Global Legalism in International Relations
Whether legalism can take hold and do well for people in countries without legalistic traditions remains to be seen. If one confines one’s attention to the vast developing world, there is perhaps nothing as impressive as the distance between their legalistic ideals and the behavior of governments. Many countries have ambitious, generous constitutions that grant significant rights—to education, to health care—that are simply not enforced. Judges may write well and impressively about the importance of these rights and the government’s obligation to respect them, but they cannot enforce their judgments. More often, the judiciary is corrupt or incompetent or controlled by the government; people can queue up to the courts but not expect a judgment for a decade or more.
Even in the West, legalism has always had its critics. In the United States, critics argue that legalism and especially an obsession with rights has corrupted national debate, interfered with democratic self-governance, burdened judges with decision-making for which they are ill-suited, and led to excessive litigiousness. In Europe, justified pride in the development of effective supranational institutions has been accompanied with deep uneasiness about the so-called democratic deficit—the evident lack of interest of European publics in European politics, and a distrust for the supranational institutions over which they have little control.
Meanwhile, however, legalism seeks to conquer new realms. Having infiltrated many national polities, and one regional polity, it now seeks to govern the world.
Global legalism is the extension of legalism to international relations. It is most easily understood as an alternative to the other approaches to solving global collective action problems. According to global legalism, international law will solve these problems. Global legalism is the world government approach except without the government. Legalists recognize that a world government is not likely in the near future, but they believe that law without government can nonetheless solve global problems. Like economic integrationists, global legalists believe that states will solve global collective action problems because it is in their interest do so, but global legalists, as we will see, do not put as much faith in decentralized action: global legalism is an odd mixture of top-down and bottom-up institutionalization, with states both creating international law and finding themselves caught in its snares against their will. Like ideological integrationists, global legalists believe that states are converging toward ideological agreement, but the ideological agreement is not so much about liberal democracy as about the value of legalism. Global legalists also emphasize institutions to a greater extent than ideological integrationists do.
First, global legalists believe that international political disputes should, as much as possible, be resolved according to law and by legal institutions. Wars should not be fought without the approval of the United Nations; disputes should be submitted to international courts. Increasingly, people argue that customary international law binds states that object to it, and thus political and moral disagreements—for example, over the use of the death penalty—can be resolved by appeal to the law, even when the law cannot be traced to state consent.
Second, states should enter more treaties, especially multilateral treaties, and treaties should be as specific, detailed, and comprehensive as possible. As noted, global legalists also believe that customary international law—international law that evolves outside of treaty making—should be interpreted robustly. Jus cogens norms should evolve and expand.
Third, international courts should have jurisdiction over a broad array of disputes, jurisdiction should be compulsory, and judges should be independent of the governments of states. Judges should not be the pawns of powerful states; they should be highly qualified and selected through a fair procedure.
Fourth, other types of international legal institutions—legislative and executive—should be promoted to the extent possible, though global legalists acknowledge that a full-fledged world government is not possible in the near term.
Fifth, global legalists believe that domestic political institutions should be bound by international legal obligations. In the United States, legalists believe that courts should use customary international law and treaties as sources of law, even without the approval of the political branches.
Sixth, many global legalists see the growth of international law as inevitable, a byproduct of larger historical forces that no state can control. In some work, international law takes on a life of its own—expanding, ramifying, weaving itself among the states and their institutions. Sometimes, this type of thinking comes across as a Whig history–style conviction that international law has always advanced (to be sure, with temporary setbacks) and will always continue to advance.
Global legalism should be distinguished from the views of political scientists and lawyers who believe that international law can serve the interests of states and that the extent to which an area of international relations is subject to international legal regulation should (in normative scholarship) or does (in positive scholarship) reflect cost-benefit tradeoffs. In the political science literature, for example, a group of scholars has been debating the advantages and disadvantages of legal forms in international relations, focusing on the precision of rules, the existence of legal as opposed to political obligation, reliance on third-party dispute resolution mechanisms, the availability of standing for individuals as opposed to states, and so on. With its emphasis on the specific (and changeable) interests of states, on considering the costs as well as the benefits of law, and on empirical verification, this research program diverges from the assumptions underlying global legalism.
The difference between these scholars (with whom I agree) and the global legalist can sometimes be obscure. Many international legal regimes—such as those that solve coordination problems involving communication and transportation—are robust and desirable from the perspective both of the rational choice theorist and the global legalist. The camps diverge with respect to the question of whether such “law without government” can solve more significant global problems, such as global collective action problems. The rational-choice theorist is skeptical. The global legalist is not, or is less so. These differences stem from a methodological choice as well as a general view of the world. Rational choice theorists believe that compliance with international law must be in the rational self-interest of governments, or of the individuals and groups that compel governments to act. Global legalists have no such methodological commitment. Most American international law scholarship simply takes compliance for granted; only a few scholars have tried to explain why states would comply with international law.
What explains the rise of global legalism? The simple demand-side explanation is that the implausibility and failure of the world government, economic integration, ideological integration, and hegemony approaches to global collective action problems have left a gap that global legalism has filled. The world needs institutions that will solve global collective action problems and, if these other approaches have failed, international law itself has not been directly refuted.
Moreover, the view that law without government can solve global collective action problems can point to some successes. It received a boost from the Nuremberg trials, which demonstrated—however imperfectly—that international trials could take place and result in convictions that seemed less arbitrary and more legitimate than traditional alternatives such as summary execution or immunity. International tribunals are proliferating. The international trade system has worked well. The United Nations has not fulfilled the ambitions of its founders but it has earned a measure of respect. Other ambitious legal regimes, such as the Law of the Sea Convention, have come into effect. If world government seems as distant as ever, international law offers some real hope.
So isn’t it churlish to criticize global legalism? To that question we now turn.
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