Law Without Nations? Why Constitutional Government Requires Sovereign States By Jeremy A. Rabkin Princeton, N.J.: Princeton University Press, 2005. Pp. 350. $29.95 cloth.
Since the end of the Cold War, the question of whether nation-states are and should be accountable to universal, transnational legal standards and to their adjudication and enforcement through supranational organizations has taken on special urgency. Calls for an expanded United Nations role or the establishment of an International Criminal Court provide a prominent example. The rise of the appeal of "legal supranationalism" is also evident in the turmoil surrounding the Iraq War. Critics argue that the United States violated international norms to remove Saddam Hussein, and even the president of the United States has emphasized his efforts to secure international endorsement of military action and continues to stress the multinational character of the invasion force. Jeremy Rabkin's Law Without Nations represents a direct attack on these developments. Rabkin is suspicious of the motives that lurk behind arguments for transnational law and critical of the efficacy of existing international institutions. More important, he claims that submission to international legal standards and to the organizations that are supposed to supervise their implementation directly undermines normative commitments to self-government that are foundational to the liberal-democratic tradition, especially as understood in the United States. In contrast to visions of "global governance," Rabkin argues that sovereignty, understood as the "right to make binding law in a particular territory" (p. 38), is central to the maintenance of effective, constitutionally constrained political systems that can protect individual liberty.
There is much to like about this book. Its author clearly cares deeply about the values he perceives to be under attack by advocates of global governance. The book is wide ranging and combines an impressive familiarity with the development of Western political and legal thought and detailed knowledge of contemporary history. Nonetheless, in the end the book is likely to leave many readers, including those sympathetic to Rabkin's concerns, dissatisfied.
Law Without Nations can be separated into three general parts. The first part sets the stage by posing the debate over transnational law against the backdrop of current tensions between continental European governments and the United States over the conduct of U.S. foreign policy, in particular the Iraq War and U.S. resistance to the creation of the International Criminal Court. The next part consists of the theoretical heart of Rabkin's argument. Rabkin traces the historical development of the concepts of sovereignty and international law, focusing on the works of Bodin, Grotius, Vettel, Rousseau, Hume, and Kant, as well as on the debates surrounding the American Founding. For Rabkin, this tradition places primary emphasis on the connections between sovereignty and constitutionalism. He argues that the rule of law, so central to Western conceptions of good government, emerges within sovereign states that can make and-highly important-enforce law within a specific constitutional framework that is accepted by citizens and therefore bestows legitimacy on political outcomes. According to Rabkin, in this tradition, international law plays only a limited role. It is understood as a body of norms that regulate the interactions of sovereign states, but leave each state to regulate its own internal affairs. Rabkin then turns to the development of U.S. foreign policy, arguing that since the Founding, American attitudes toward international affairs have not been (as is often claimed) isolationist. Instead, U.S. policy is best understood as consistent with a limited understanding of international law, general opposition to submitting to the authority of international organizations, and placement of primary emphasis on the defense of U. …