Who Says What The Law Is?

Abstract

The Perils of Global Legalism. By Eric Posner. Chicago, IL: University of Chicago Press, 2009. 296 pp., $29.00 paperback (ISBN-13: 978-0-226-67574-9). Governance, Order and the International Criminal Court: Between Realpolitik and a Cosmopolitan Court. Edited by Steven C. Roach Oxford, UK: Oxford University Press, 2009. 275 pp., $95.00 hardcover (ISBN-13: 978-0-199-54673-2). The Sword and the Scales: The United States and International Courts and Tribunals. Edited by Cesare P.R. Romano New York: Cambridge University Press, 2009. 492 pp., $103.99 hardcover (ISBN-13: 978-0-521-40746-5). Aggression, Crime and International Security: Moral, Political, and Legal Dimensions of International Relations. By Page Wilson. New York: Routledge, 2009. 192 pp., $120.00 hardcover (ISBN-13: 978-0-415-48524-1). A cottage industry has emerged in the study of international relations analyzing the proliferation and effectiveness of international law and courts. The selected books, each in their own way, assess efforts to “legalize” International Relations and detail the political challenges to, and consequences of, shifting from a system where states make the rules to a more cosmopolitan legal order where nonstate actors, such as, IGOs, NGOs, and individuals participate in creating a global legal order. They also address the impact of this process on the development of international criminal justice. This essay reconstructs the central arguments of these volumes, highlighting their strengths and weaknesses. In The Perils of Global Legalism , Eric Posner argues that “politics, idealism, and careless thinking conspire to produce a picture of international law that bears little resemblance to reality” (p. xv). To support this central theme, Posner sets up the dichotomous positions of the rationalist perspective that sees international law as the result of states acting in their self-interest and the global legalist perspective that views international law as transcending states, controlling their behavior and shaping their interests. Beginning from the premise that the rationalist view of international law reflects the current reality, Posner constructs the argument that global legalism without global government is not possible because legalism depends on the prestige of the law, which, in turn, allows many political and moral problems to be placed in legal categories that can be solved by lawyers and judges (p. xii). The problem with global legalism is that the prestige of the law depends on whether the law and corresponding legal institutions function in a highly effective manner. To be effective, the law must be created through agreed upon legislative, executive, and judicial mechanisms. The central problem for global legalists is that the legislative and executive …