Abolishing coercion: the jurisprudence of American foreign policy in the 1920s.

AuthorZasloff, Jonathan

Recent research has revised our view of American foreign policy during the 1920's. Historians now see American policymakers of that era not as naive isolationists, but as realistic appraisers of the nation's interests. They argue that the United States used its power to create an "informal" empire in which Washington dictated the rules of the global economy through intense involvement in international economic affairs.(1) Thus, the United States could expand economically without assuming the burdens of global leadership.

But while these historians have demonstrated how policymakers perceived America's global interests, they have neglected those policymakers' conception of the global order. It is one thing to determine that the nation's primary interest lies in economic expansion; it is quite another to determine how the international system can remain stable so that expansion can occur. U.S. leaders rejected traditional prescriptions for a balance of power system, believing that such a system had led to disaster in 1914. Yet they could not rely on international economic growth alone, for World War I began after nearly two decades of global economic expansion. What, then, did American policymakers believe would foster international stability?

One answer is that policymakers looked to international law for stability. This is plausible, for lawyers dominated U.S. diplomacy during the first half of this century.(2) Such a thesis, though, immediately raises questions. How did policymakers think that law would be enforced? And how could law pacify a world filled with conflict?

This Note argues that lawyers influential in foreign policy during the 1920's believed (wrongly, as it turned out) that the legal arrangements they crafted could, in effect, enforce themselves. Force would not be needed to support international agreements because nations would have powerful incentives to follow them. This Note suggests, moreover, that the belief in law's capacity to police world affairs was rooted in the prevailing legal ideology of the late nineteenth and early twentieth centuries, which this Note calls "scientific legal culture." Originating in response to domestic crises, the scientific legal culture constituted a set of assumptions, beliefs, and normative commitments that, when taken together, justified the conclusion that law could have effect without resort to force. Lawyers believed that law could achieve social control not because it was backed by coercive state sanctions, but because it represented the common interest of all in society. Since legal structures enabled these values to be applied apolitically, it was in everyone's interest to follow the law. The rudiments of social order were enforced not by the policeman, but by the threat of isolation for those who flouted agreed-upon rules. Fear of losing the cooperation of others restrained those tempted to break legal agreements. Many lawyers believed, following similar reasoning, that law could emerge as the principal guarantor of international stability. In short, the gap in the American foreign policy literature--an explanation of how U.S. statesmen expected to maintain global order without committing troops--can be partially filled by the literature of American jurisprudence.

To understand America's global role in the 1920's, this Note focuses on two lawyers--Charles Evans Hughes and Elihu Root. Hughes served as Secretary of State from 1921 to 1925 and was the chief influence at the State Department throughout the decade. Root had completed a distinguished public career by the time of the GOP's return to power in 1921, but as the party's eminence grise and founder of the eastern foreign policy "establishment," his ideas underpinned Republican policy throughout the period.

Part I of this Note describes three central facets of the scientific legal culture, which dominated American legal thought from 1877 to 1920. During this period, Root, Hughes, and other G.O.P. leaders acquired their critical ideological assumptions. Part II suggests how the assumptions behind this legal culture manifested themselves in foreign policy. Part III shows how these assumptions shaped Root's vision of international order, and how he applied this vision in the fight over the Versailles Treaty of 1919. Part IV examines the legal culture's influence on Hughes, and discusses his most significant diplomatic triumph: the Washington Conference of 1921-22.

  1. AMERICAN LEGAL CULTURE, 1877-1920

    The leading historian of the period has referred to the years between 1877 and 1920 as "The Search for Order"(3) and has observed that by the 1890's many Americans thought that the nation "would either disintegrate or polarize."(4) Many Americans, however, rejected the idea that society had become a permanent power struggle between groups. Striving toward the ideal of consensus, they saw unity as an achievable goal.(5) As early as the 1870's, this camp, usually identified as the "middle class" by historians,(6) sought to transcend the divisions that appeared to be tearing the country apart. Lawyers, especially the elite bar, formed a key part of this diverse group,(7) and developed their own ideology, which I shall call the "scientific legal culture."(8) The scientific legal culture reflected a variety of sometimes conflicting intellectual sources but achieved remarkable coherence in seeking to demonstrate that society was not inherently conflictual, and that the apparent social cleavages of the time were, in fact, unnecessary.(9) These diverse intellectual origins created an ideology stressing three basic beliefs: the underlying mutuality of social interests, the separation of law and politics, and the law's ability to facilitate cooperation in areas of apparent conflict.

    1. The Mutuality of Interests

      The scientific legal culture took it as axiomatic that unified community sentiment created law. Joseph Beale, "the most self-consciously philosophical exponent" of late nineteenth-century legal theory,(10) argued that the law's power to constrain individuals originated not in state sanctions but in custom generated by social consensus. "To make law really law," he asserted, "you have got to have behind it justice--the custom of regarding things as just--and this custom . . . is based on . . . the customary morality of the body of the people . . . . [T]his . . . is the fundamental of the law."(11)

      When communities created laws for themselves, they gave birth to government. But such a government was not coercive. Instead, argued Beale, "[t]he general social organization becomes . . . upon its coexistence with law, what is called a state. . . . The state, then, is the representative of the social interest."(12) Beale could speak of the state representing a single "social interest" because he shared scientific legal culture's faith in the fundamental mutuality of interests.(13) Professor Gordon notes that the prevailing ideology held that "[l]awyers could help clients pursue their particular interests within a general framework . . . that harmonized that interest with the whole."(14) Such a view of law answered the ideological needs of those Americans who sought consensus because it held out the possibility of creating an ordered civil society free from coercion.(15) If there were any social struggle, it would be cured through the creation and refinement of legal instruments that reflected consensual values and harmonized interests.(16)

    2. Law versus Politics

      If social consensus created law, then why was there so much seeming conflict? To most late nineteenth-century thinkers, the difficulty lay in the perversion of politics by special interests and corrupt influence-peddlers. Essentially, people were cheating on the very system even though it was in their interest to support that system. Political machines, labor bosses, and corporate plutocrats had subverted governmental institutions.(17) Legal thinkers, however, could discover social organizing principles based not upon corrupt politics, but upon value-neutral science. If laws were inspired by science rather than poisoned by politics, they could eliminate social struggle because they would be fair and consequently in everyone's interest to follow.

      Thus, the scientific legal culture set as its central task the discovery of netural and scientific rules and procedures removed from politics. Langdell was the most outstanding exponent of this approach, but the goal of depoliticizing law dominated all of legal thought.(18) The central method was to find the few general and abstract (and hence apolitical) principles underlying a field of legal thought by examining cases.(19) Then, reason would enable judges to apply these principles to specific cases uncontroversially.(20) According to the scientific legal culture, rationally compelling reasoning dictated all outcomes.(21)

      Formalism(22) thus became the dominant mode of legal discourse.(23) Judges protested that they were not policymakers but impartial interpreters of neutral legal principles.(24) The Supreme Court saw neutrality as the central virtue of principled adjudication. The Court struck down social and economic legislation not because it mandated government involvement in the economy, but because it was "class legislation," that is, it redistributed wealth from one group to another and consequently was not neutral.(25)

      The focus on scientific neutrality permeated lawyers' public commitments as well as their ideology. When they involved themselves with public affairs, attorneys usually concentrated on efforts such as civil service reform, lobby reform, secret ballots, corrupt-practices acts, the streamlining of court procedures, the removal of crooked judges, and the devising of procedures to select capable ones.(26) Law would govern best when politics was eliminated, which could occur only when neutral governing structures were devised.

    3. Building Cooperation From Conflict

      The theorists and...

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