Law and the Shaping of American Foreign Policy: The Twenty Years' Crisis

Abstract

This piece follows up on an earlier article, which will be published this April in the NYU Law Review. In both pieces, I argue that American foreign policy during the first half of the 20th century - much of which was directed and conceived by lawyers - was deeply influenced by the legal culture of the time. That legal culture, which I call legal ideology, carried with it a set of assumptions about how arose, why it had effective force, and how it related to social order. I suggest that this legal culture powerfully implied that US foreign policy should reject traditional balance of power strategies and instead rely on international and legal institutions to maintain global order. The earlier article considered how classical legal ideology influenced US foreign policy through 1920. This article carries the story into the 1920's and early 1930's, when the United States rose to pre-eminent international standing. It was also the period that marks the greatest disaster in American diplomatic history: our refusal to assume necessary strategic obligations condemned the globe to the catastrophe of World War II. Lawyers and legal ideology played a crucial role in this refusal. I also suggest at the end of the article that trends in the new international law scholarship, which integrate international relations theory into legal analysis, threaten to duplicate the ideology of the early 20th century, and thus could lead to the same result. I hope, then, that in light of current events, my piece is not only historical but also extremely timely.