International Law and Political Science

by

Wouter Werner

• LAST REVIEWED: 24 February 2021
• LAST MODIFIED: 23 March 2012
• DOI: 10.1093/obo/9780199796953-0050

Introduction

During the first decades following World War II, international law and international politics became different fields of academic study. International politics and the role of power was studied in the discipline of international relations (IR), a discipline suspicious of utopian calls for “peace through law” and heavily influenced by rational choice theories and quantitative methods. International legal scholarship, on the other hand, turned away from politics, pragmatically focusing on technical-legal problem solving within the confines of positive law. The result was an absence of multidisciplinary discourse: two disciplines pursuing their own intellectual project. Developments in international society, however, made it increasingly difficult to maintain a strict separation between international law and international politics. Already during the Cold War, the proliferation of international regimes and institutions started to affect the foreign policy of states. These developments led to a renewed attention in IR scholarship for the development of normative practices or the role of normative regimes and shared expectations in international politics. In international law scholars drew attention to the possible legitimacy pull of international norms or the ways law structures decision making via values, procedures, and organizational structures. After the Cold War there followed projects that focused more explicitly on the political role of international law. Examples are (multidisciplinary) projects studying the “legalization of world politics,” the “politics of international law,” or the common conceptual underpinnings of international law and international politics. At the same time, international legal scholars increasingly acknowledged the intrinsic relation between international law and international politics. In the 1980s critical legal scholars explored international law’s underdetermined character and the ever-present danger that international legal arguments would lapse into apologies of political power. The 1990s and the early 21st century witnessed a growing number of publications that linked developments in international law to classical themes in IR literature, such as transnational and global governance, compliance theory, the social construction of reality, hegemony, imperialism, and the politics of legalism.

General Overviews

There is an impressive body of literature that discusses the relation between international law and international politics. Often studies take as their starting point the debates in international relations (IR) literature between realism, liberal institutionalism, and social constructivism. Typical questions in such studies are which theory is best suited to explain specific developments, events, or decisions in international law, or more modestly, which different aspects of international politics are highlighted when the theories are applied to concrete cases. Examples of this approach can be found in Armstrong, et al. 2007, which applies realist, liberal, and constructivist approaches to topics across international law. Other studies operate more specifically and in-depth within one of the three approaches. Examples are Goldstein, et al. 2001 on legalization that largely operates within a framework of liberal institutionalism and the conceptualization in Reus-Smit 2004 of the relationship between international law and international politics from a constructivist perspective. Echoes of realist skepticism toward international law can be found in Goldsmith and Posner 2005, which attempts to ground international law in national interest and rational choice theory. It should be noted, however, that rational choice approaches do not always result in skepticism regarding the force of international law. An example is Guzmán 2008, which seeks to explain the commitment to international law based on rational choice theory. In legal scholarship overlapping (albeit not identical) approaches have been detected. Koh 1997 argues that there are four major and recurring approaches that aim to answer the question of why states live up to their international legal obligations: Austinian approaches (denying the legal character of international law in the first place), rationalism (focusing on interests), Kantian approaches (focusing on a sense of obligation), and process-based approaches (focusing on engagement in discursive legal processes). It would be impossible, however, to confine the literature on the topic to only a limited number of theoretical positions. Scholars have used a plurality of theoretical positions, including critical studies, postcolonialism, and Schmittian approaches to conceptualize and understand the interrelationship between international law and international politics. Good overviews of the different theoretical positions can be found in some edited volumes. Byers 2000 provides an excellent overview of a broad range of different positions by leading scholars. The rather lengthy collection Simmons and Steinberg 2007 contains articles on international law and international politics that were previously published in the journal International Organization. Biersteker, et al. 2007 adds to the previous two volumes as it discusses the interplay between international law and politics based on case studies and from a practice-oriented perspective.

• Armstrong, David, Theo Farrell, and Hélèna Lambert. International Law and International Relations. Cambridge, UK: Cambridge University Press, 2007.

  NNNThe book discusses issues across international law predominantly from the perspectives of realism, liberalism, and constructivism. Provides an accessible introduction to some core topics in the disciplines of international law and IR.

• Biersteker, Thomas J., Peter J. Spiro, Chandra Lekha Sriram, and Veronica Raffo, eds. International Law and International Relations: Bridging Theory and Practice. New York: Routledge, 2007.

  NNNCase-based approach to the nexus international law–international politics, studying four policy areas in the field of global security: small arms control, terrorism, internally displaced people, and criminal law. For each field it brings together scholars from international law and IR as well as theorists and practitioners.

• Byers, Michael, ed. The Role of Law in International Politics: Essays in International Relations and International Law. Oxford: Oxford University Press, 2000.

  NNNThe volume offers an insightful overview of some major post–Cold War positions on the relation between international law and IR. Contains contributions from leading scholars from international law and IR with different theoretical and methodological backgrounds.

• Goldsmith, Jack L., and Eric A. Posner. The Limits of International Law. Oxford: Oxford University Press, 2005.

  NNNThe main thesis of this book is that international law rests on national interests as perceived by states. While the book aims to provide a more solid empirical grounding of international law, it has been criticized for its use of unfounded assumptions and its lack of empirical bases.

• Goldstein, Judith, Miles Kahler, Robert O. Keohane, and Anne-Marie Slaughter, eds. Legalization and World Politics. Cambridge, MA: MIT Press, 2001.

  NNNThe central questions of this volume deal with the reasons for governments to opt for legalized institutions and the consequences of legalization. The volume contains sophisticated discussions on legalization. Its heavy reliance on institutionalism attracted critique from constructivist scholars (see also Reus-Smit 2004).

• Guzmán, Andrew. How International Law Works: A Rational Choice Theory. Oxford: Oxford University Press, 2008.

  DOI: 10.1093/acprof:oso/9780195305562.001.0001

  NNNThis book contains an attempt to answer questions regarding the working of international law on the basis of rational choice approaches. States are portrayed as rational and selfish actors that nevertheless—via mechanisms based on reputation, reciprocity, and retaliation—manage to create a spectrum of international legal commitments.

• Koh, Harold Hongju. “Why Do Nations Obey International Law?” Yale Law Journal 106.8 (1997): 2599–2659.

  DOI: 10.2307/797228

  NNNKoh’s review essay has become a classical source for studies on compliance. Koh situates questions regarding compliance and the politics-law nexus in a broad historical overview, ranging from pre-Roman times up to the late 20th century; detects four recurring approaches toward compliance; and advocates a process-based answer to the question why nations obey international law. Available online by subscription.

• Reus-Smit, Christian, ed. The Politics of International Law. Cambridge, UK: Cambridge University Press, 2004.

  DOI: 10.1017/CBO9780511491641

  NNNReus-Smit’s is one of the few studies in the field that contains a sophisticated discussion of the concept of the political. Based on this notion, it offers an alternative reading of the relation between international law and politics, challenging inter alia the theoretical underpinnings of realism and rationalism (see also Goldstein, et al. 2001).

• Simmons, Beth A., and Richard H. Steinberg, eds. International Law and International Relations. Cambridge, UK: Cambridge University Press, 2007.

  NNNThis rather lengthy volume brings together excerpted articles on international law and international politics that were previously published in the journal International Organization. As may be expected from a top journal, all articles are of high quality. The relationship among the different articles is sometimes difficult to detect.