[Marxism] Fwd: H-Net Review [H-Empire]: Wang on Coates, 'Legalist Empire: International Law and American Foreign Relations in the Early Twentieth Century'

Andrew Stewart hasc.warrior.stew at gmail.com
Tue May 2 09:07:10 MDT 2017

Best regards,
Andrew Stewart 

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> From: H-Net Staff <revhelp at mail.h-net.msu.edu>
> Date: May 2, 2017 at 10:45:15 AM EDT
> Subject: H-Net Review [H-Empire]:  Wang on Coates, 'Legalist Empire: International Law and American Foreign Relations in the Early Twentieth Century'
> Reply-To: H-Net Staff <revhelp at mail.h-net.msu.edu>
> Benjamin Allen Coates.  Legalist Empire: International Law and
> American Foreign Relations in the Early Twentieth Century.  New York
> Oxford University Press, 2016.  296 pp.  $35.00 (cloth), ISBN
> 978-0-19-049595-4.
> Reviewed by Jingbin Wang (Elizabeth City State University)
> Published on H-Empire (May, 2017)
> Commissioned by Charles V. Reed
> Legalism and the American Empire
> The United States has long had an uneasy relationship with
> international legal institutions such as the World Court and the
> International Criminal Court. It has often been in a minority
> refusing to ratify international treaties. The recent Bush
> administration stood out. It is easy to dismiss international law as
> insignificant in American foreign policy. In his _Legalist Empire:
> International Law and American Foreign Relations in the Early
> Twentieth Century_, however, Benjamin Allen Coates disputes this
> seemingly inevitable conclusion, although he agrees that the United
> States has for the past few decades lacked a proud record of
> respecting international legal institutions and international law.
> Drawing on the literature on international law and international
> relations, Coates identifies two popular conceptions of international
> law: judicialist legalism and realism. International law means either
> self-enforcing universal principles or "a transparent tool for
> justifying atrocities" (p. 5). In either case, it is assumed that
> "international law and state power are antagonists" (p. 1). Coates
> does not altogether deny this antagonistic relationship between law
> and power under certain circumstances, but calls attention to a
> situation in which they can be mutually reinforcing.  That is, law
> not only "constrains states by forcing them to do something that they
> would not otherwise do," but also "has often permitted the use of
> force" to advance national interest (p. 5). Coates therefore paints a
> complex picture of when US leaders followed and even moved to promote
> international law and when they chose to disregard it.
> Coates places the United States in the larger context of the New
> Imperialism (1875-1914). Focusing on the years from 1898 to 1919,
> Coates maintains that the American empire was "in important ways a
> legalist one" (p. 2). Specifically, international law was "an
> essential component of" the rise of the United States to great power
> status, and international lawyers were "at the center of the effort
> to create and administer the American empire" (p. 2). Invoking the
> discourse of civilization, American legalists helped defend the new
> imperial power by identifying it with its European peers, which had
> embraced empire as a new international norm to civilize remote and
> backward nations. Sharing the White Men's burden, the American empire
> was both sanctioned by international law and expected to help
> establish the rule of law in "uncivilized" nations.
> Coates convincingly demonstrates that international law derives its
> meaning in a specific political and ideological context. Early on,
> the transatlantic discourse of civilization informed international
> law, which in turn justified the American empire. In this sense,
> international law shaped empire. In other words, power projection was
> not the prerogative of the military but also the job of international
> lawyers. Conversely, as Coates indicates, empire shaped international
> law. Empire could not become a new international norm without
> recourse to the discourse of civilization, which was ultimately
> backed by power. Indeed, international law was never divorced from
> power realities, which was reflected even in the establishment of
> American Society of International Law (ASIL) in 1906: "The secretary
> of state, Elihu Root, served as ASIL president, and the organization
> counted among its vice presidents three Supreme Court justices, three
> former secretaries of state, and a future US president" (p. 67). On
> the other hand, many international lawyers worked for the federal
> government, especially the State Department. Others worked with US
> overseas corporations. Still others continued to speak for the
> American empire through annual meetings and publications.
> Coates is explicit that the early twentieth century was the high
> point of US zeal for international law. But he reveals that
> international law during this period was more about non-Western
> nations than about the Western powers, which were already assumed to
> be law-abiding members in the family of nations. The legalist aspect
> of the American empire therefore did not mean any international legal
> constraint on the United States. Rather, it meant constraint on
> non-Western nations. International law was now intended to constrain
> "uncivilized" nations from continuing to go their own "barbaric" way
> and enable "civilized" Western powers to even use force to turn them
> around.
> One wonders how much legalism the American empire had. Coates defines
> legalism as "a commitment to expanding the use of legal techniques
> and institutions to resolve international problems" (p. 3). The
> question is to whom those "techniques and institutions" were legal.
> They were surely legal to the West, considering Coates's definition
> of international law as "what states have agreed it to be" (p. 17).
> This is clearer when Coates explains that the Western conception of
> international law granted full sovereignty only to "civilized"
> nations, not "uncivilized nations." The so-called international law
> in the early twentieth century was practically European or Western
> law, which not only enjoyed little support from outside the West, but
> also met with opposition from the anti-imperialists within the
> Western world. Given his full admission of the limitation of
> international law of the time, Coates's positive conclusion about the
> legalism of the American empire is a little surprising.
> Legalism in _Legalist Empire_ also means that the United States not
> only followed international law by joining the European powers in
> embracing empire as a new international norm, but also promoted
> international law on US terms. In Coates's account, well before the
> Spanish-American War in 1898, the United States had sought to make
> "neutrality" and "arbitration" into international law as ways to
> maintain political non-entanglement, as George Washington had
> admonished. At the 1907 Hague Peace Conference, the US delegation was
> the leading proponent of a permanent international court on the model
> of US Supreme Court. Even in Latin America, the United States
> attempted to push a legalist empire to their wary neighbors. Backed
> by Secretary of State Elihu Root, James Brown Scott, cofounder and
> long-time secretary of ASIL, even managed to found the American
> Institute of International Law with the cooperation of a Chilean
> jurist in 1912. Here, while the Latin Americans expected this
> pan-American legal institution to help preserve their sovereignty,
> Scott wanted it to help legalize US hegemony in the Western
> Hemisphere, thus not only affirming the Monroe Doctrine but also
> providing legal justification for military intervention to protect US
> investors.
> In a broad sense, Coates seeks to convey that there is in
> international law a built-in ambiguity that leaves states torn
> between state sovereignty and universal principles. Because
> international law necessarily has a built-in national side, both in
> its sources and in its interpretations, one should not be surprised
> that the United States respected international law only to the extent
> that it was consistent with American values. This is a familiar
> point. But Coates makes a less familiar point. That is, the United
> States was still interested in fostering international law to help
> exercise power legitimately rather than play crude power politics.
> Coates should be commended for highlighting the power-political side
> of law that the judicialist legalists have tended to ignore and the
> legal side of power that the realists have downplayed. Yet one can
> still ask how much legitimacy such international law had. Focusing
> mainly on the domestic context, Coates admits that it could not
> convince everyone, but insists that it could sway enough to support
> the American empire. This was true. President William McKinley was
> reelected in 1900 amid anti-imperialist protests. So was President
> George W. Bush in 2008 despite the widespread opposition to the Iraq
> War.  Even so, one can ask a further question. Did those who
> championed the American empire do so for legal reasons or for
> ideological reasons? If it was hard to separate the legal and
> ideological factors in the West a century ago, this does not seem to
> be the case in a more diverse yet more inclusive world today.
> When World War I broke out in 1914, according to Coates, the United
> States was a legalist empire in the sense that American legalists
> moved to defend international law by moving away from the traditional
> US conception of "neutrality" as avoiding political entanglement and
> asserting its own rights toward one in favor of engaging the rest of
> the world and bringing it up to US standard, thus "defending the
> possibility of a law-governed world" (p. 143). The United States
> chose to ally with the Allies to oppose the Germans because the
> former accepted a law-governed world, but the latter rejected it. As
> far as the postwar world order was concerned, it is well known that
> the US Senate rejected the Versailles peace treaty in 1919, and the
> United States therefore failed to join the League of Nations. In
> Coates's view, legalism "played an important role in this outcome"
> (p. 164). Split among themselves, American legalists had enough power
> to contribute to the defeat of what Coates views as President Woodrow
> Wilson's anti-legalist League of Nations, but were not strong enough
> to push through an alternative legalist-sanctionist league as
> represented by the League to Enforce Peace. To Coates, this was a
> result of competing internationalisms, which "had helped set back
> internationalism itself" (p. 167), not one of the victory of
> isolationism over internationalism. Here the usual isolationist
> Senator William E. Borah came forth as an internationalist who
> "offered frequent rhetorical support for international law," although
> he was "a vehement opponent of the League" (pp. 172-73). Coates thus
> not only highlights the work of American legalists, but also nicely
> presents an alternative view of the treaty fight and America's
> failure to join the League of Nations. His effort to distinguish
> between different forms of internationalism, from Scott's utopian
> judicialists through the legalist-sanctionist League to Enforce Peace
> to Wilson's anti-legalist League of Nations, is innovative and
> thought-provoking.
> Despite his focus on the years from 1898 to 1919, Coates continues to
> underscore the importance of international law in the interwar period
> (1919-41), but not so much for its policy impact as for its influence
> as legal discourse. He notes that World War I discredited the
> civilizational discourse and thus judicialist legalism, which assumed
> the progress of civilization. But he insists that American legalists
> "remained prominent" with their usual faith in "legalism as a project
> for global order" (p. 170), although they were divided between those
> liberal internationalists who embraced a new communitarian conception
> of international law and those advocates of American exceptionalism
> who opposed it. As the latter gained the upper hand, the United
> States failed to join the Permanent Court of International Justice
> (PCIJ) founded in 1921. American legalists could only agree to adopt
> the high-sounding but ineffective Kellogg-Briand Pact in 1928. Coates
> points out that "many legalists doubted the efficacy of merely
> declaring war illegal" (p. 173). Then he moves to underscore "an
> initial plan" behind the pact to create an international court and
> codify international law. Thus, although there remains the same
> emphasis in this part of the book on the legalism of the American
> empire, its substance was apparently getting thinner during the
> interwar period.
> In the concluding chapter, Coates briefly explains why the United
> States has often shown open contempt for international law since the
> end of World War II. One major factor was decolonization. The United
> States had distanced itself from Europe after World War I discredited
> the shared civilizational discourse. It now moved further away from
> the world for fear that new independent states might use
> international institutions to "challenge domestic racial segregation
> or grant enhanced economic or social rights" (p. 181). Another major
> factor was that international lawyers lost influence in the foreign
> policy establishment as "a casualty of the Cold War" (p. 181).
> Consequently, Coates agrees that the "second half of the twentieth
> century ... witnessed a disenchantment with international law and an
> increasing repudiation of it by the United States" (p. 182).
> Nonetheless, Coates counters that "international lawyers did not
> vanish; in fact, they multiplied." And "international law's
> centrality to foreign policy has persisted" (p. 182). Even the second
> Bush administration "attempted to ground the use of force more firmly
> in legal interpretation, an approach that his successor, Barack
> Obama, has followed" (p. 183). Coates explains away rejections of
> international court jurisdictions against the United States by
> distinguishing adjudications from law. Here his tendency to place
> legalism above legitimacy is most striking. In fact, he warns that
> such legalism "did not always result in 'legal' behavior" (p. 13).
> _Legalist Empire_ reveals the United States to be a legalist empire
> in the early twentieth century primarily from the Western
> perspective. To a greater or lesser degree, its penchant for legalism
> has since been manifest as well. To the extent that even
> authoritarian governments today operate under constitutions and tend
> to justify in legal terms what are repressive policies to the outside
> world, however, it is obviously not sufficient to prove that the
> United States has been a legalist country. More important is the
> issue of legitimacy. Coates does address it, but sees legitimacy more
> in state actions than in universal principles of justice. In fact, he
> gives equal attention to both in theory. Ultimately, his tilt toward
> the state privileges the great powers over the rest of the world and
> makes the American empire appear more legalist and legitimate than it
> was. Moreover, he stresses a built-in legitimacy in legal discourse
> itself as though it were enough to simply invoke legal language, not
> only from a narrow national but also from a domestic partisan
> standpoint. In so doing, he risks being an apologist for self-serving
> legal interpretations in defiance of world opinion, especially when
> it comes to the contemporary period.
> _Legalist Empire_ has added a much-neglected legal dimension to the
> study of American foreign relations. Coates has thrown enormous light
> on the role of international lawyers in American foreign policy. His
> book illuminates not only the ambiguous nature of international law,
> but also the subtle ways power is exercised. Moreover, it is a
> wonderful example of cross-fertilization between history of American
> foreign relations and international law. It is therefore exemplary in
> its interdisciplinary approach as well. It suggests how one can
> benefit from an outside perspective by working across disciplines and
> literatures.
> Citation: Jingbin Wang. Review of Coates, Benjamin Allen, _Legalist
> Empire: International Law and American Foreign Relations in the Early
> Twentieth Century_. H-Empire, H-Net Reviews. May, 2017.
> URL: https://www.h-net.org/reviews/showrev.php?id=49490
> This work is licensed under a Creative Commons
> Attribution-Noncommercial-No Derivative Works 3.0 United States
> License.
> --

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