Rereading Root.

Author:Slaughter, Anne-Marie
Position:Includes commentary by Anthony Carty and Jonathan Zasloff - The Legacy of Elihu Root - Proceedings of the One Hundredth Annual Meeting of the American Society of International Law: A Just World Under Law

Elihu Root was a Wilsonian living at the dawn of a new century, a time that he perceived as an age of globalization and democratization. "The greatest change in the conditions of national life during the past century," Root wrote, "has been in the advance and spread of democratic government," an advance that he argued was necessary for international law to survive. (1) Root was also an idealist who believed in practical problem-solving. "Politics is the practical exercise of the art of self-government, and somebody must attend to it if we are to have self-government." (2)

Sound familiar? The 2006 National Security Strategy announces that "the goal of [U.S.] statecraft is to help create a world of democratic, well-governed states that can meet the needs of their citizens and conduct themselves responsibly in the international system." Moreover, the U.S. approach "is idealistic about our national goals, and realistic about the means to achieve them." (3)

But how can this be? Elihu Root, revered founder of the American Society of International Law and champion of a law-governed international system'? And George W. Bush, the president who, in his first term, resolutely set the face of his administration against international rules and institutions and indeed international constraints of any kind?

There are many answers to the question, and many differences between Bush and Root. But there are in fact many similarities, which means that rooting around in the differences is an interesting, if sometimes dark, mirror on the nation we were then and the nation we have become.

I propose to reread Root for three purposes: as revelation, as revisionism, and as ritual.

REREADING ROOT AS REVELATION

It seems meet and fit to reread Root on the occasion of the centennial of one of the great societies he founded, the other two being the Council on Foreign Relations and the American Law Institute. As members of the Society, we can steep ourselves in the verities of our past. Unexpectedly, however, rereading Root sheds a very interesting light on the direction of present American foreign policy. As just noted, he shared not only the goals but in many ways the worldview that our present secretary of state and secretary of defense do, but he had quite a different vision of how they should be pursued.

The Similarities

Let's begin with the similarities. In 1908 Root gave a presidential address at the second annual meeting of the Society, entitled "The Sanction of International Law." He framed his entire discussion of international law in the context of globalization. "In former times," nations were isolated from one another and "regarded only the physical power of other nations." "Now, however,"

there may be seen plainly the effects of a long-continued process

which is breaking down the isolation of nations, permeating every

country with better knowledge and understanding of every other

country, spreading throughout the world a knowledge of each

government's conduct to serve as a basis for criticism and

judgment, and gradually creating a community of nations. (4)

As is often noted, the period of globalization just prior to the first world war was as intense, and perceived as such, as is the period of globalization that has occurred over the past several decades, accelerating after the Cold War.

Nine years later, Root gave another presidential address at the Society's annual meeting, this one entitled "The Effect of Democracy on international Law." His context for this address was unavoidably "the great war, which is steadily drawing into its circle the entire civilized world." He acknowledges indirectly the dashing of his great hopes for the steady progress of international law governing a community of nations, asking his audience to "consider how it may be possible to reestablish the law of nations upon a durable basis," and, specifically, to "inquire whether the political and social conditions" after the war would permit the establishment "upon some basis of principle a system of international law which can be maintained and enforced."

Root's answer, in a nutshell, is that a durable system of international law can be established only within a community of democracies. He begins by analyzing the causes of the "continued and persistent progress" of democracy in countries all over the globe, concluding, "The existence and assured continuance of development of democracy is the great fact forecasting the future conditions under which the effort to reinstate the law of nations is to be made." (5) Conversely,

The progress of democracy ... is destroying the type of government

which has shown itself incapable of maintaining respect for law

and justice and resisting the temptations of ambition, ... [and

is] substituting a new form of government which in its nature is

incapable of proceeding by the same methods, and necessarily

responds to different motives and pursues different objects

from the old autocratic offenders. (6)

Compare, once again, the language and the reasoning of the 2006 National Security Strategy:

It is the policy of the United States to seek and support

democratic movements and institutions in every nation and

culture, with the ultimate goal of ending tyranny in our

world. In the world today, the fundamental character of

regimes matters as much as the distribution of power among

them.

More specifically, the authors of the National Security Strategy echo Root's seemingly essentialist logic. "Governments that honor their citizens' dignity and desire for freedom," they write, tend to uphold responsible conduct toward other nations." Conversely, "[G]overnments that brutalize their people also threaten the peace and stability of other nations. Ergo, "promoting democracy is the most effective long-term measure for strengthening international stability" and "extending peace and prosperity."

Many spluttering members of the audience are already preparing to pounce, pointing out that Root talks of the future of international law, whereas the National Security Strategy speaks rather of international stability and peace. And true enough, search in vain through the National Security Strategy for any mention of international law. But these differences help make my case that rereading Root today illuminates a great deal about problems with the logical underpinnings of the current Strategy--or perhaps with the lack of such underpinnings. For now, suffice it to establish that Root's rhetoric and professed goals mesh neatly with those of both Woodrow Wilson and of George W. Bush.

The Differences

Let us turn now to the differences. What is particularly interesting about Root's perception of globalization in his era is his emphasis on the way in which increased knowledge of the behavior of other nations served "as a basis for criticism and judgment." Familiarity did not breed contempt, but it did breed mutual examination and evaluation. Even more striking, this process of reciprocal criticism and judgment leads not to conflict, but to community-building. Within Root's perceived community of nations, he saw "standards of conduct ... being established, and a world-wide public opinion ... holding nations to conformity or condemning them for disregard of the established standards." (7)

The power of global public opinion plays a critical role in Root's famous account of the "sanction of international law." He tells the tale of how the enforcement of international law cannot depend on force, but must instead rest on the force of public opinion. Indeed, Root argues that domestic law similarly relies on the power of public sanction: "In the vast majority of cases men refrain from criminal conduct because they are unwilling to incur in the community in which they live the public condemnation and obloquy which would follow a repudiation of the standard of conduct prescribed by that community for its members." (8) And when "law and public opinion point different ways," it is public opinion that will carry the day. (9) Root takes pains to demonstrate the ways the "impulse of conformity to the standard of the community and the dread of its condemnation" shape individual behavior in virtually every aspect of public and private life.

As with individuals, so with nations. For Root, the development of "world-wide public opinion" as a result of globalization meant that all "civilized nation[s]" must heed it. Indeed, "The deference shown to this international public opinion is in due proportion to a nation's greatness and advance in civilization." (10) Make no mistake, however--nations, like individuals, do not conform to the dictates of public opinion because they like to be liked. National interest plays a healthy part, based on a perfectly rational calculation of both the costs of "condemnation and isolation" attendant on a breach of "the standard of nations" and the benefits of "securing the protection of the law" by complying with it. (11)

And what is international public opinion? It is "the consensus of individual opinion in the nations." It is exercised "not so much by governments as by the people of each country whose opinions are interpreted in the press and determine the country's attitude towards the nation whose conduct is under consideration." (12)

Here is the link to Root's faith in democracy. He has no illusions about the "great wrongs" that democracies are "liable to commit." (13) In the end, however, democracies are saved by the absolute necessity of their subjection to law. Only law can hold a democracy together, "and, as in a democracy the law is an expression of the people's own will, self-respect, and personal pride, and patriotism demand its observance." (14) The public that makes the law is the public that enforces it, once again "by the power of public opinion." Moreover, the "most important difference" between a democracy and an autocracy is that a democracy cannot fall sway to the "sinister policies of...

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