The Perils of Global Legalism.

• Author: Eby, Christopher J.
• Position: Book review

ERIC A. POSNER, THE PERILS OF GLOBAL LEGALISM (UNIVERSITY OF CHICAGO PRESS, 2009).

1. INTRODUCTION

   In our increasingly complex and interconnected world, problems emerge that cannot be solved by the actions of one nation. For those problems that exceed the scope and capability of individual governments, international law and international government become the only possible solution. If international law aligns with state interests, compliance is both expected and easy to explain. However, when a state is confronted with international law antithetical to their self-interest, nothing prevents the state from simply violating or withdrawing from the international law.

   Global legalists believe that international law will solve complex global problems and that states will comply because a legalistic culture will establish faith in international law. American global legalists generally believe that "the very high value of international law creates a presumption against violating it that is so strong that, for all practical purposes, it may never be violated." (1) European global legalists argue that "international law has value for its own sake ... and therefore it is wrong for states to evaluate potentially illegal conduct with a cost-benefit analysis that uses national interests as a metric." (2)

   Nevertheless, states do use self-interest as their standard when contemplating compliance. These interests are result of a nation fulfilling its obligations to its citizens. "A state's interest is fixed--the product of the domestic political process, reflecting the values and preferences of the public in a democracy, and those of a narrower elite in an authoritarian system. In short, the state's interest comes from within, and mainly concerns the security and prosperity of the state's citizens." (3) While campaigning, President Obama declared, "[p]romoting--and respecting-clear rules that are consistent with our values allows us to hold all nations to a high standard of behavior, and to mobilize friends and allies against those nations that break the rules. Promoting strong international norms helps us advance many interests...." (4) Recommendations from the United Nations Association of the United States of America in an occasional paper titled "Renewing America's Commitment to International Law" framed many of the recommendations in terms of American self-interest. "To secure agreement and cooperation on issues central to American security, the US needs to lead by example and ratify and implement existing arms control and environmental treaties." (5) "US adherence to the international treaty regime is essential to America's ability to induce other nations to join in the cooperative action necessary to address the great many global problems that are far beyond our ability to solve alone." (6)

   Global legalism creates an illusion of order that loses its luster when removed from the vacuum of theory and exposed to the harsh light of global reality. In The Perils of Global Legalism, Professor Posner critically examines the arguments set forth by leading global legalists, addressing the fundamental flaws in their logic. He categorizes global legalism as "an excessive faith in the efficacy of international law" and cautions against adopting this mistaken view of the world. (7)

   In this book review, I analyze Professor Posner's arguments by answering the following questions: (1) What is global legalism? (2) What are the flaws of global legalism? and (3) What impact does the presence of a large network of international courts have when considering the validity of global legalism?

2. DEFINING GLOBAL LEGALISM

   1. Collective Action Problems

   Nationally, goods services exist that private organizations cannot routinely provide for citizens. Classic examples of these public goods include transportation and national defense. Globally, the same types of problems exist; private organizations and national governments cannot solve them on their own. Professor Posner categorizes these as "collective action problems." (8) Examples of these problems are war, pollution, overfishing, disease, terror, global macroeconomic shocks, and transnational crime. (9) The efforts of any one nation are simply insufficient to combat such problems. However, they have serious ramifications and the potential to impact the quality of life for every citizen of every nation.

   Unfortunately, resolving these collective problems on a global level is a far more challenging task than identifying them. Exceeding any single nation's authority or capability, collective action problems require just that: collective action. This cooperation is hard to come by for several reasons. First, states are motivated by their self-interest. "International law emerges from states' pursuit of self-interested policies on the international stage." (10) Additionally, the tremendous heterogeneity of the global population brings countless values and needs to the bargaining table. (11) The divide is particularly wide between developing and industrial nations. Industrial nations have the ability to address long-term problems like environmental protection. (12) "For the developing world, the pressing environmental problem is not over-development, but rather the absence of economic development. The horrors of poverty, war, disease, malnutrition, and starvation are immediate evils in themselves, and they contribute directly to environmental devastation in the developing world." (13) This heterogeneity is unavoidable and complicates the development of international law. States acting to further their conflicting self-interests frustrates the goal of a well-defined, well-functioning international law.

   These challenges are so great that some, including Professor Posner, argue that the resolution of global problems is unlikely.

   It seems plausible that global collective action problems cannot be solved--or not very well. If it is true that national governments are needed to solve national collective action problems, then it seems that it would follow that a world government would be needed to solve global collective action problems. If a world government is not possible, then solving global collective action problems is also not possible. (14) B. Global Legalism

   Global legalism has been offered as a solution to these collective problems. "[L]egalism defined broadly is the view that law and legal institutions can keep order and solve policy disputes. It manifests itself in powerful courts, a dominant class of lawyers, and reliance on legalistic procedures in policymaking bodies." (15) Strong legal institutions and ideology support legalistic societies. The codification of rules, thorough procedural safeguards during the trial process, the adversarial system, and the central role of detached judges increase the faith citizens have in the law. (16) Global legalism applies these factors on an international level. Global legalism "is most easily understood as an alternative to the other approaches to solving global collective action problems. According to global legalism, international law will solve these problems. Global legalism is the world government approach except without the government." (17) In spite of the severe limitations of world government, global legalists believe that international law can solve global problems. (18) However, "global legalism is not a doctrine or theory. It is akin to an attitude or posture--a set of beliefs about how the world works, one that, in various forms, dominates the thinking of academic international lawyers, as well as practicing government officials." (19)

   Global legalists believe "that law without government can nonetheless solve global problems." (20) International disputes should be resolved through international law. For example, "[w]ars should not be fought without the approval of the United...