Abolishing Coercion: The Jurisprudence of American Foreign Policy in the 1920s

By Zasloff, Jonathan | The Yale Law Journal, May 1993 | Go to article overview

Abolishing Coercion: The Jurisprudence of American Foreign Policy in the 1920s


Zasloff, Jonathan, The Yale Law Journal


Recent research has revised our view of American foreign policy during the 1920's. Historians now see American policymakers of that era not as naive isolationists, but as realistic appraisers of the nation's interests. They argue that the United States used its power to create an "informal" empire in which Washington dictated the rules of the global economy through intense involvement in international economic affairs.(1) Thus, the United States could expand economically without assuming the burdens of global leadership.

But while these historians have demonstrated how policymakers perceived America's global interests, they have neglected those policymakers' conception of the global order. It is one thing to determine that the nation's primary interest lies in economic expansion; it is quite another to determine how the international system can remain stable so that expansion can occur. U.S. leaders rejected traditional prescriptions for a balance of power system, believing that such a system had led to disaster in 1914. Yet they could not rely on international economic growth alone, for World War I began after nearly two decades of global economic expansion. What, then, did American policymakers believe would foster international stability?

One answer is that policymakers looked to international law for stability. This is plausible, for lawyers dominated U.S. diplomacy during the first half of this century.(2) Such a thesis, though, immediately raises questions. How did policymakers think that law would be enforced? And how could law pacify a world filled with conflict?

This Note argues that lawyers influential in foreign policy during the 1920's believed (wrongly, as it turned out) that the legal arrangements they crafted could, in effect, enforce themselves. Force would not be needed to support international agreements because nations would have powerful incentives to follow them. This Note suggests, moreover, that the belief in law's capacity to police world affairs was rooted in the prevailing legal ideology of the late nineteenth and early twentieth centuries, which this Note calls "scientific legal culture." Originating in response to domestic crises, the scientific legal culture constituted a set of assumptions, beliefs, and normative commitments that, when taken together, justified the conclusion that law could have effect without resort to force. Lawyers believed that law could achieve social control not because it was backed by coercive state sanctions, but because it represented the common interest of all in society. Since legal structures enabled these values to be applied apolitically, it was in everyone's interest to follow the law. The rudiments of social order were enforced not by the policeman, but by the threat of isolation for those who flouted agreed-upon rules. Fear of losing the cooperation of others restrained those tempted to break legal agreements. Many lawyers believed, following similar reasoning, that law could emerge as the principal guarantor of international stability. In short, the gap in the American foreign policy literature--an explanation of how U.S. statesmen expected to maintain global order without committing troops--can be partially filled by the literature of American jurisprudence.

To understand America's global role in the 1920's, this Note focuses on two lawyers--Charles Evans Hughes and Elihu Root. Hughes served as Secretary of State from 1921 to 1925 and was the chief influence at the State Department throughout the decade. Root had completed a distinguished public career by the time of the GOP's return to power in 1921, but as the party's eminence grise and founder of the eastern foreign policy "establishment," his ideas underpinned Republican policy throughout the period.

Part I of this Note describes three central facets of the scientific legal culture, which dominated American legal thought from 1877 to 1920. During this period, Root, Hughes, and other G. …

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