The Battle of Mars and Venus: Why do American and European Attitudes Toward International Law Differ?

Abstract

Why do American and European attitudes towards law appear to differ so profoundly? What explains the United States' (supposedly) characteristic unilateralism in law? This essay examines one very plausible and attractive theory of the difference - that of Professor Jed Rubenfeld of the Yale Law School - and advances another. To be more exact, the essay analyzes Professor Rubenfeld's theory, which is framed primarily in terms of the differences between American and European constitutional values, and attempts to weight its merits against those of a theory that focuses instead on divergent political interests. Rubenfeld's theory depends on a contrast between two distinct conceptions of constitutional law: one that he calls and the other that he calls international constitutionalism. Democratic constitutionalism, which reflects a characteristically American outlook, traces the nation's organic law to a founding act of popular lawmaking. International constitutionalism sees constitutional law, not as deriving from an act of democratic self-government, but as deriving from universal, hence transnational, principles and rights. These principles and rights - in effect, an overarching structure of natural law in which particular national regimes should be embedded - operate to restrain rather than to express democracy. On Rubenfeld's account, constitutionalism underlies the legal systems of at least some of the major western European nations. Each of these conceptions of constitutionalism generates, in turn, a distinctive approach to law. In this essay, the author argues that an alternative theory seems to have equal, if not more, explanatory power. The author offers a theory of the law divergence between the U.S. and Europe that sounds in interests rather than in values. On this alternative approach, both U.S. and European policymakers and elites use law instrumentally, to promote and serve competing national interests in various ways. Finally, the author outlines a possible approach that seeks to reconcile Professor Rubenfeld's values-based theory with the theory that emphasizes national interests. Viewing Euro-American differences over law as a two-level game, one can appreciate, first, that important European domestic political constituencies may have strongly critical views of American foreign and military policies, based on the values and norms that those constituencies espouse; second, that European governments, including of course their executive branches, will inevitably be highly sensitive to those constituencies' demands, and will reflect them in their policy deliberations and choices; but also that, third, those executive branches will be dealing with the United States across a wide array of matters of common concern, will look for the United States' support and cooperation on many of them, and will therefore be reluctant to offend the United States (or its executive) unduly. Hence one would expect to find a pattern of, on the one hand, highly vocal, values-based European condemnations of American foreign and military policies that uses the language of law and, on the other hand, a more muted, less censorious approach to the same American policies on the part of European governments, especially executive branches.