Determined to be binding
An interesting article in First Things, discussing Maritain’s work, may help give an alternative explanation for the “bindingness” view of IL in Europe or even of law of war/use of force views at the UN level, and why Americans often have such a different view. On the European side, maybe “French values”, as Alvarez describes them in his post-mortem post (citing Gilbert Guillaume), of “dissociation of morality from law [not so sure about this one -- A.G.], the importance of formalism, and the separation of economic concerns from law” (for now putting aside all the crit views coming from Europe), originate in part from a view of historical determinism/development and not just from a post-natural law world or even formalism as classically defined. Maybe a similar view also plays a role in what are usually seen as natural law or post-natural law justifications, critiqued so often by Glennon (especially its use in the UN and in the use of force realm) and others.
As Maritain observed, it might not be that Americans are ignorant of history, rather that history is not seen as guiding the present to the same extent some in Europe might see it. While this might be interesting in terms of popular views of IR and IL, it might help explain not only positivism’s rejection of natural law but also, paradoxically, alternative theories that abound in the US (even overtly natural law-based theories) that try to bring in other fields and viewpoints. If one is free from the weight of history (or at least if those in a position to make the rules feel that way) then one can make up the rules and one is free to look around for inspiration in economics or psychology or wherever. Whether one sees this situation as “anarchy” (in the colloquial sense) that needs to be controlled or a kind of creative space is an ongoing divide in the US of course, politically and otherwise, and in legal spheres it can lead to anything from Holmes rejecting grand visions of history through his disillusionment in the Civil War to “happier” views of those rejecting “history” due to the supposed youth and possibility of America. But as an example, seeing economics as a tool to take to IL, rather than as either an all-encompasing power (in Marxist/materialist terms) or as a distinct field in its own path (perhaps outside the grand arch of history), perhaps could only happen in the US. There was less baggage to economics, so it was easier to carry it over to law. Same thing with crit views and deconstructionism and all, to the extent they are used in law. One doesn’t have to drag along the ages of history and battles between ideas, along with the implication that this is all part of that historical tragectory; one can simply cherry-pick ideas to support arguments. In this prism, the dominance in the US of positivist and realist viewpoints makes sense, along with more populist morality-tinged natural law views, even overtly religious ones. As the article notes, this also may explain why Marxism/communism never really caught on in the US (its “root incompatibility” as the article cites Maritain), because it requires a Juggernaut of history (or at least a view of history being as such) preceding it. And one can go before Marx to Hegel of course, and then run around through the determinist cannon.
It is at least possible to conceptualize a divide not just on positivism or realism v. natural law or post-natural law or even positivism or realism v. formalism but also on positivism or realism v. historic determinism or at least “requirements” demanded by history which in part justifies the “inherent bindingness of IL view” through the prism of history binding actors, including individuals, states, etc.. It also suggests why European formalism is not merely privileging form for its own sake or why the UN and others are not necessarily relying solely on the underlying validity of the norms being put forward (whether their basis be “rationality” or “morality” or “religion” or “human nature”) but perhaps in part at least privileging the force of the past and the “development” of history as sometimes evidenced by form (and of course as interpreted, politicized, etc.).
So should anti-European-style-law, or especially anti-UN-”fluffy natural law do good”-types spend some time not only critiquing St. Augustine, but also take a shot at Hegel? Or is this simply a corollary to a view of natural law moving from a religious basis to more human-nature bases? I suppose it is, if historic determinism is just another part of “human nature” or fits under the “natural law” umbrella writ large. Or it is something else entirely? Is “determinism lite” playing any role in the creation of IL, is there any real evidence that this is a factor, or is this just a selective interpretation and a buying-into of stereotypes of Europeans and Americans?
The article suggests other debates, from the scope/existence of American exceptionalism, whether the US has its own narratives of history, to the use of European scholars in the US or what have you – all very worthy discussions in the field of IL.
