Scott Malcomson on "Lawfare" in NYT Magazine

The NYT Magazine, in its annual review of new ideas (Sunday, December 12, 2004), ran this short piece by Scott Malcomson (photo at left) on the Hudson Institute's John Fonte's critique of what he calls "lawfare." It reads in full:

Lawfare
By Scott Malcomson

"The Prussian military strategist Karl von Clausewitz never said that international law is war by other means. That distinction falls to the conservative pundit John Fonte, writing this year in The National Interest. In his article ''Democracy's Trojan Horse,'' he accused Human Rights Watch and Amnesty International USA -- standing in for the global human rights movement -- of waging ''what could be characterized as 'lawfare' against the exercise of democratic sovereignty by the American nation-state.'' Fonte worried that this century could become, in another coinage, ''the 'post-democratic' century -- the century in which liberal democracy as we know it is slowly, almost imperceptibly, replaced by a new form of global governance.'' Fonte paints a vivid word-portrait of a stateless, unelected class of ''transnational progressives'' who are quietly undermining democracy in the name of human rights (as they define them). Ultimately, he envisions the United States as locked in a two-front war both with post-democrats and with reactionary ''pre-democrats'' like Osama bin Laden, although he clearly finds left-leaning international lawyers more insidious and, over the long term, more dangerous.

Fonte is not alone in noting the rise of a new supranational class. His vision is echoed in an influential book by Anne-Marie Slaughter, ''A New World Order,'' published this year. Slaughter, a former president of the American Society of International Law and in no evident way a conservative, identifies an increasingly powerful transnational network of government officials, N.G.O. representatives and businesspeople that makes Fonte's nightmare seem rather modest. This network administers globalization, whether in trade, security or political idealism. Slaughter does not exactly champion her ''new world order,'' but she does present it as a reality of globalization. Better for a nation to, as Slaughter would put it, ''disaggregate'' some of its sovereign power now than to find itself cut from the global team later.

For Kenneth Anderson of American University, however, an aggressively international-law-based approach to human rights is something of a Western hothouse flower: it is able to survive only in the historical parenthesis between the end of the cold war and the coming rise of powers like China and India. ''No one's ever going to stop talking the language of international law,'' Anderson concedes. But in his view, a universal system of rules and values, agreed to by treaty and monitored and uniformly enforced by international bureaucracies and courts, will become a relic of elite utopianism -- regardless of whether it was considered a promise or a threat. Then the lawfare will end, while the real warfare will continue."

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(I'll take up in a later post what I mean by that rather cryptic quote. But I think Malcomson has written an elegant, short summary of the idea of the rise of an international "new class." But more on that later - I really do need to explain what I meant, though. I'm surprised I haven't yet received waves of nasty emails in my school email account.)