Method and ideology in international law scholarship (post 2 of 4)

Ideology and acrimony. Jose Alvarez, in a discussion about international law scholarship at the upcoming Vancouver ASIL-AALS meeetings (at which I will be a panelist, and which all readers of this blog should attend!), asks what is wrong, as well as what is right, with how we do international law scholarship today. I will say in a moment, below, that much of what is wrong with comes from confusing matters of method and matters of ideology, and from assuming that one necessarily establishes the other. Much of the confusion, and confusion fueling a certain acrimony within current international law scholarship arises, it seems to me, from the failure to distinguish the two.

Yet there is also a certain amount of “natural” acrimony that arises any time an old guard, in this instance liberal internationalism, has to contend with the emergence of new normative movements, such as, in this case, democratic sovereignty. I recall the peculiarity, a few years ago, of being at a conference deliberately devoted to debating democratic sovereignty. A very senior faculty member at the host institution, who had declined the invitation to take part, remarked to me out in the corridors that we inside were dinosaurs, debating issues that had long since been settled in international law in favor of liberal internationalism. There was a certain irony since, with one or two exceptions, including me, everyone else at the conference was a mere youngster in the academy: the word he wanted, perhaps, was not dinosaur, but reactionary, but even that would not be precisely accurate, for the reason that neo-conservatism was many things, but reactionary was not really one of them. Part of the acrimony stems from the rise of a new school, in the time honored fashion of the academy, but with the special acrimony that attaches to a project that is not merely intellectual but moral.

That specific ideological acrimony has lessened as the years since 9-11 have lengthened. People have got used to having a certain amount of intellectual and political disagreement as part of what used to be far more a largely closed club of the thoroughly like-minded. The collapse of the neoconservative project, too, has somewhat taken the teeth out of the democratic sovereigntist movement – always fairly marginal anyway – within the US academy. That collapse has also perhaps permitted a reinvigoration of the liberal internationalist project, and certainly the sense that it is no longer under attack – having had, for the first time in living memory, to defend itself intellectually – and that it is, within academic circles, firmly back in the driver’s seat. Within the ASIL itself, the convergence of so many scholars from abroad has tended to dilute methodological debates that mostly resonate within a specifically American academy. One can perhaps sense this general relaxation at ASIL annual meetings these days compared with a few years ago; Peter Spiro remarked in passing at Opinio Juris a few months ago to the effect that the sovereignty moment had passed and the pendulum was now swinging back, and about that within the academy, I think he is right.

Method and ideology. But there remains an increasing intellectual confusion, and with it some friction, in the conflation of ideology and method. One way to express it is this. For many years, Anne-Marie Slaughter and a few others argued for reaching to IR social science paradigms as a means of arguing for liberal internationalism and, more recently, global network theory. Yet despite Slaughter’s preeminence in the international law field, and despite a certain kind of seepage of specifically IR theory (more specifically still, Robert Keohane’s political science) into international law scholarship, the primary take-away from social science in international law scholarship, as perceived by the international law academy in the United States, has been the assumption that to argue from basic law and economics methodologies such as rational choice theory is to argue as a matter of ideology against liberal internationalism and for some version of state sovereignty. (I think this is right. And one of these days I will do the work necessary to back up this assessment of international legal scholarship!) The assumption has been, as Oona Hathaway and Ariel Lavinbuk aptly noted in their Harvard Law Review review-essay of Goldsmith and Posner’s The Limits of International Law, that to adopt a descriptivist method entails reaching a certain and, for many, uncongenial, normative conclusion.

This assumption, I would suggest, has been predominant among liberal internationalists casting a very wary eye (despite Slaughter’s indefatigable urgings to greater methodological ecumenicism and a favorable view of IR theory) upon descriptivist, rational choice, empiricist, and other such social-sciencey ways of doing international law scholarship. And not without reason, since that assumption has also been shared by many descriptivist international legal scholars, starting with Goldsmith and Posner. It is not, to take Goldsmith and Posner in particular, merely that their personal inclinations are sovereigntist. It is, rather, that their particular descriptivist theory endorses, entails even, a sovereigntist conclusion – in other words, some versions of descriptive theory do indeed prescribe and proscribe certain normative conclusions, including sovereignty and liberal internationalism as normative positions in international law scholarship.

In the case of Goldsmith and Posner, it works this way. They argue, from a certain rational choice model, that states act from their interests (even if interests are defined to allow the inclusion of values), and that other mechanisms, such as cosmopolitanism, are not sufficient to overcome the fact of states acting from their interests (however they define them). As they set it out, liberal internationalism – as an independent causal actor – becomes something that is a causal fifth wheel, unnecessary to explain things, while state sovereignty becomes something like the “last man standing” after other explanations are ruled out or shown to be superfluous. (They do not say so, but in this regard, it is really an argument from Occam’s Razor). They may, of course, be right or wrong about this. The point, rather, is that if they are right, then their methodology – a particular iteration of rational choice theory – has, if not precisely endorsed an ideological outcome, at least ruled the most prominent one, liberal internationalism, off the table on methodological grounds alone. In other words, at least some versions of apparently descriptivist method entail ideological outcomes, and The Limits of International Law provides a good example.

But not all descriptivism entails normative conclusions in this way – indeed, most are just that, descriptive. That is, if most methodologies are independent of ideology, or not intrinsically tied to an ideology, then one can imagine a picture of international law scholarship in which there are rational choice theorists who are liberal internationalists, or rational choice theorists whose conception of rational choice leads them to liberal internationalism. And sovereigntists who get there by means of values rather than by some rationalist method. And many other possibilities. Any particular one might be right, might be wrong, but my point is that it would be a mistake to presume, walking into the department store of theory, as it were, that method and normative conclusions must all line up a certain way. They need not do so. But some of the acrimonious arguments that today go on, it seems to me, arise because we have not sufficiently carefully separated out the methodological issues from the normative issues, and we have assumed that one must automatically map onto the other. If only we were able to get past those arguments based on confusion, we could get down to the acrimonious arguments within international law scholarship that really matter.