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The Assault on International Law (Hardcover)
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The Assault on International Law (Hardcover)
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International law presents a conceptual riddle. Why comply with it
when there is no world government to enforce it? The United States
has a long history of skepticism towards international law, but
9/11 ushered in a particularly virulent phase of American
exceptionalism. Torture became official government policy,
President Bush denied that the Geneva Conventions applied to the
war against al-Qaeda, and the US drifted away from international
institutions like the International Criminal Court and the United
Nations.
Although American politicians and their legal advisors are often
the public face of this attack, the root of this movement is a
coordinated and deliberate attack by law professors hostile to its
philosophical foundations, including Eric Posner, Jack Goldsmith,
Adrian Vermeule, and John Yoo. In a series of influential writings
they have claimed that since states are motivated primarily by
self-interest, compliance with international law is nothing more
than high-minded talk. Theses abstract arguments then provide a
foundation for dangerous legal conclusions: that international law
is largely irrelevant to determining how and when terrorists can be
captured or killed; that the US President alone should be directing
the War on Terror without significant input from Congress or the
judiciary; that US courts should not hear lawsuits alleging
violations of international law; and that the US should block any
international criminal court with jurisdiction over Americans. Put
together, these polemical accounts had an enormous impact on how
politicians conduct foreign policy and how judges decide cases -
ultimately triggering America's pernicious withdrawal from
international cooperation.
In The Assault on International Law, Jens Ohlin exposes the
mistaken assumptions of these 'New Realists, ' in particular their
impoverished utilization of rational choice theory. In contrast, he
provides an alternate vision of international law based on a truly
innovative theory of human rationality. According to Ohlin,
rationality requires that agents follow through on their plans even
when faced with opportunities for defection. Seen in this light,
international law is the product of nation-states cooperating to
escape a brutish State of Nature--a result that is not only legally
binding but also in each state's self-interest.
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