Americans and the Quest for an Ethical International Law

Foreign critics sometimes accuse Americans of taking a hypocritical stance on international law. They say we preach an ethical international law to others, but practice a selfishly utilitarian international law ourselves. Here is the remarkable opinion, given just last year, of a leading European international lawyer. Martti Koskenniemi, a distinguished Finnish scholar, is Professor of International Law at the University of Helsinki and a Global Professor of Law at New York University. Koskenniemi believes that the Europeans speak the language of universal international law, but: How differently the Americans see the world! Legalization, is just a policy choice, a matter of costs and benefits - with no a priori reason to believe that the latter would outweigh the former. And no real obligation to obey international law, just a weak maxim of prudence. The international law professor is an almost extinct species at United States law schools. And why not? In his widely read pamphlet, Robert D. Kaplan called for leadership with a pagan ethos. The moral basis of our foreign policy will depend upon the character of our nation and its leaders, not upon the absolutes of international law. Nur der, der Kann, darf auch wrote Erich Kaufmann in 1911 from within another Empire. U.S. attitudes to law read like the imperial authoritarianism of early twentieth-century Germany. This lecture is a response to answer such foreign critiques. My thesis is that Americans have long been inclined to both morality and utility in international law and that both inclinations are equally genuine. We are not inherently hypocritical. The truth is more complex. Americans hold and promote both moral and practical values, albeit we sometimes delude ourselves that what is useful in international law is good, and what is good in international law is useful