Beyond Rationalism and Instrumentalism: the Case for Rethinking U.S. Engagement with International Law and Organization

This Essay advances an argument for rethinking the current terms of engagement of U.S. foreign policy with international law and institutions so as to avoid the current two extremes of power politics and imperial moralizing. First, it is necessary to distinguish between force and the status of political domination on the one hand, and consensus and the status of normative meaning on the other. While it may be possible for a superpower to exercise factual authority and control over foreign states and peoples through sheer assertions of force and will, the attainability of such a situation should not be confused with the ideals of justice or political community. At bottom, the move from Realpolitik to legal formalism rests on a simple idea: while certain views of the good may reasonably be denied, it is inherently unreasonable to deny the autonomy of others as “reason-giving” and “reason-receiving” subjects. In the absence of a basic “right to justification,” inherently-contested questions of how it may be possible to conceive and organize an international political community do not arise. To appreciate why such a notion of mutual respect should commend itself to us, we must first understand how and why current rationalistic accounts of state interests and state freedom are inherently unreasonable. Second, and as a corollary to this, in asserting any claim to “universal right” the boundaries and finitude of all forms of modern natural law reasoning must be acknowledged. The unavoidability of pluralism and reasonable disagreement argues for a form of social ethics, i.e. the idea that all moral norms be intersubjectively contested and justified. The first argument explains and justifies the move to international law; the second explains and justifies the need for international regimes and institutions