The New Imperialism: Violence, Norms, and the Rule of Law

The goal of this Article is to participate in the challenging project of carving out a new area of study in the place where international law, comparative law, and domestic law intersect. In this Article, I use the story of flawed rule-of-law assistance efforts to demonstrate the importance of this inquiry. I take as a basic premise that there are many situations in which it is justifiable and beneficial for the U.S. and other actors to seek to promote human rights and the rule of law abroad, and that at times even military interventions are a necessary and justifiable part of this effort. These are controversial statements (and do not imply endorsement of any particular past intervention), but I will simply assume their truth for the limited purposes of this Article. If we assume that efforts to promote the rule of law are important and justifiable, however, we need to make those efforts as effective as possible. The initial goal of this Article, then, is to convince readers that there is indeed a problem with how we go about promoting human rights and the rule of law. I argue that the root cause of the problem is the failure to take seriously issues of norm creation, and the complex relation between law and norms. In part, truly acknowledging this problem must involve recognizing something lawyers are often reluctant to acknowledge - that at times the law in its formal sense is of peripheral importance at best. Although we imagine that the trappings of formal law are central to creating order and reducing violence, there is little evidence that this is so. Second, this Article seeks to map out a preliminary research agenda for this new field, outlining the kinds of questions we urgently need to start asking, and suggesting some of the things we will need to do to start feeling our way towards some answers. I recognize, of course, that we may never have complete answers to questions of such complexity, but insist nonetheless that we can be at least a little bit more sophisticated than we currently are. Finally, I want to suggest some very preliminary hypotheses about what those answers might look like