"Lawfare"

Here is the point I was trying to make in my discussion with Scott Malcomson in writing his short take on "lawfare" in the Sunday, December 12, 2004 NYT Magazine.

I agree broadly with John Fonte that there is a movement toward a certain globalized "new class" that cuts broadly across the international business and finance communities, the international NGO community, the international organization and diplomatic community. And I do indeed think it is a wrong headed and dangerous move. I've said this in many venues, including articles that can be read here. I have most recently and comprehensively expressed my skepticism about so-called Global Civil Society in a chapter written with David Rieff called, well, "Global Civil Society: A Sceptical View," which can be found in Mary Kaldor, et al., Global Civil Society 2004/5 (Sage 2004) (it is a yearbook on the international NGO movement, and whether one is an enthusiast or a skeptic, it contains utterly vital information, ranging from the conceptual to the statistical; for me it is an essential desk reference - you all should buy it).

In particular, I share Fonte's concern that the global "new class," the development of a transnational elite, is a threat to democracy in the only place it really matters, sovereign nation states. (Read Fonte's National Interest article here - slightly weird formatting, but the National Interest website requires a subscription.)

It is not that these emerging transational elites lack a morality. On the contrary, the development of a class and governing elite requires more than power, it requires a morality and an ideology from which to make claims to legitimacy. They have conveniently found one in the currently predominant form of human rights ideology - an ideology of human rights that conceives of human rights as being a species of international law and which locates the source of transcendent morality - the genuinely universal - as being (in my view dubiously) identical with the (merely) international. The general justification for this identification of the universal with the international is that any merely national or more local claim to the universal is inevitably not only partial and parochial, but partial in the sense of "interested"; only the international is truly "disinterested" in the way necessary for universal values. What this neglects, however, is the possibility that a global class might still have interests, even if they are not narrowly territorial ones; their interests, material as well as ideological, might equally well be interests but global ones. Global does not mean universal, and global does not mean disinterested.

This transcendent, transnational ideology is a risk to the universality of human rights - I am not a relativist, and I do accept the existence of universal human rights - because it makes false and ultimately fatally immodest claims about universality and the global class. But it is also a threat to democratic sovereignty which, in my view, does at least if not as good a job globally at supporting the values of human rights as internationalist ideology does. Why the human rights movement - the ideological guardians, Human Rights Watch or Amnesty International, for example - insist on tying the genuinely universal ideals of human rights to the mast of the ship of internationalism can only be explained, I think, in terms of the development of this kind of emergent transnational class. They need not commit themselves to the democratic nation-state, either; they need only be agnostic as to the source of universal human rights values. But they are have thrown themselves in with something that is not entailed by the concept of human rights as such, and only class consciousness of a certain type can explain it.

Very well. Why, then, do I describe this is a kind of Western hothouse flower? It is because it became possible as an ideology only with the end of the Cold War. But it also has an end as well as a beginning - if, as the Helprin article I posted earlier suggests, China continues to rise to genuinely world power pretensions rather than merely regional ones, to challenge, decades hence, the hegemony of the United States on which the ability even to engage in this sort of transcendental, transnational, global ideology of human rights as internationalism materially depends. Perhaps China will discover some form of idealism - about democracy, about human rights, about international law. Time will tell, and the future always holds great surprises. But it does not at this point appear likely, and if that is so, then the future discussion will not be with Europe still in thrall to the lawfare concept of liberal internationalism as against democratic sovereignty. It will be with a completely, thoroughly realist China.

One may complain however much one likes about a unilateralist United States pursuing its power interests, but as the last several years have shown, there is an irreducibly idealist core to American policy. It is scaring liberals into discovering their realpolitik inner child, and reducing them to a certain unattractive hypocrisy if one is so unkind as to remind them of all their brave speeches about the need to confront this dictator and that, and not to pay attention merely to stability when it comes to dealing with the wicked. It turns out that they didn't mean any of it or, at least, not a lot of it. Well, okay, everyone needs some realism to temper the idealism, even at the expense of embarrassing hypocrisy.

What has to be understood, however, is that on current indications that China, the nation-state most likely to challenge the hegemony of the United States - again, I stress, the hegemony upon which all the talk from Europe and global civil society and the rest depends - has expressed no interest in or awareness of any form of idealism whatsoever - whether the democratic sovereignty that I and John Fonte support or the liberal internationalism that Anne-Marie Slaughter supports. It is a realpolitik that is utterly tone deaf to any form of idealism. Perhaps that will change, but there is no indication of it. At that point, then the argument over lawfare becomes a good deal less important, because it is materially a function of American hegemony, even in apparently ideologically opposing it.