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Wanted - Dead or Alive:
Realism in International Law
Richard H. Steinberg
“Realism” is the theory international lawyers love to hate. Dozens of commentatorshave attacked realism or written its epitaph. Some commentators have even asked:is anybody still a realist? (Legro and Moravcsik 1999).
Many international law (IL) scholars challenge “realism” because most think it
means that international law is epiphenomenal and so devoid of meaning - which
could make their jobs irrelevant, wasteful, and quixotic. But they also seem to love
realism - or a version of it - because the misunderstood and mischaracterized
structural realist straw-man claim that “international law does not matter” serves for
them as the perfect foil for arguments that international law is important. It is the
null hypothesis that enables international lawyers to show that their argument and
life’s work does have meaning. So, in a sense, even those who hate “realism” actually
love it - in the same way that prohibitionists hated alcohol, Joe McCarthy hated
Communism, and family values conservatives hate pornography. What would they
do without it?
And there’s another reason IL scholars may dislike realism: it is seen as an amoral
theory, at best. Realism is almost exclusively positivist (in Comte’s scientific sense
of the term, not the Austinian jurisprudential sense). It offers a basis for attack-
ing the feasibility of much of the normative work that espouses changing the
status quo in international law. In IL, a field that remains driven largely by nor-
mative agendas, realists constantly raise annoying facts and analyses that spoil the
party.
Moreover, most realists are skeptical of the extent of shared international norms,
the existence or longevity of an international “society” or “community,” and the evo-
lution of soft law into hard law (Krasner 1999). Realists are skeptical of many assertions
The author thanks Jeffrey Dunoff, Judith Goldstein, Oona Hathaway, Barbara Koremenos, Robert Keohane, Andrew Moravcsik, AthanassiosPlatias, Mark Pollack, and KalRaustiala for their useful comments on earlier drafts.
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of customary international law: they want unambiguous state-by-state expressions of
opiniojuris that would evidence consent. Hence, realists don’t see nearly as much
customary law in the world as most international lawyers who aspire to build a more
legalized world order.
What’s not to hate?
This essay argues that realism remains very much alive, not only because inter-
national lawyers have kept it alive by attacking a straw man misinterpretation of the
structural realist variant, but also because it is a useful tool for positive analysis of
international law: even its structural realist variant (correctly understood) has heuris-
tic power, and realist concepts may be combined with insights of other approaches -
for example, cooperation theory in economics, liberalism, social construction the-
ory, or empiricism - to constitute a valuable research program in international law,
with substantial explanatory and predictive power. Finally, realism is critical for
the advancement of normative agendas in international law. Realism’s epitaph is
premature. Realism in international law remains alive and vibrant.
The first section of this chapter, “Realism’s Core Elements and Causal Narratives in International Law,” distills the core elements of the realist tradition in international law over the millennia: the state, state power, state interests. It then briefly posits realism’s main causal narratives.
The next section, “Varieties of Realism in International Law,” presents a revisionist
intellectual history of realism, showing how different versions of realism have put
these elements together in different ways. Thucydides, Machiavelli, and Morgenthau
all thought that powerful states (or their rulers) conclude treaties to advance state
interests. Interests were sometimes divergent and sometimes convergent. Hence,
powerful states could sometimes impose international law on weaker states, and
sometimes states could agree among themselves on issues of common interest.
Classical (Thucydides), early modern (Machiavelli), and traditional (Morgenthau)
realist approaches to international law included some additional elements, however -
such as norms, religion, and type of government - that affect the making of or
complying with treaty obligations. A more contemporary version of realism, the
structural realism distilled by Kenneth Waltz and applied to international regimes
by Stephen Krasner, presented a highly stylized theory devoid of these additional
elements and argued, inter alia , that international law can’t contradict the structure
of the international system. A version of that structural argument was misinterpreted
by scores of commentators as a broader claim that international law has no effect
on any international outcomes or state behavior - a claim that would never have
been made by realist predecessors and that does not follow logically from structural
premises. And it is that straw man that has been confounded by many as “realism”
over the past thirty years.
The third section, “You Can’t Live with It; You Can’t Live without It: The
Endurance of Realism in Hybrid Theories,” shows how realist elements have
been used in hybridized accounts of international law. Realism has been regularly
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combined with elements of other major international relations (IR) theories (ratio-
nalism, domestic politics theories, constructivism) and empiricism to yield useful
hybrid models that are theoretically progressive and do not subvert realist concepts.
These hybrid models add complexity to (and diminish the parsimony of) the
structural realist approach, but they expand the explanatory power of realist-oriented
argumentation and carve out more broadly effective roles for international law.
The fourth section, “Realist Understanding of International Law-Making, Interpretation, Compliance, and Global Legal Structure,” discusses what we have learned about international law from realist and hybrid approaches that employ realist elements. Realism is powerful for explaining international law-making, interpretation, and compliance with international law, which are the microfoundations of realism’s insights about the structure of international law.
The final section concludes the chapter, distilling the limits and strengths of realism, and suggesting the importance of the realist tradition for advancing the science and art of international law.
i. realism’s core elements and causal narratives in international law: the state, state power,
and state interests
Realism has a long pedigree that runs back at least two-and-a-half millennia through
some of history’s most important political thinkers. Although many historians,
philosophers, lawyers, political scientists, and commentators could be considered
realists, four stand out for their paradigmatic realist approach to international law1
in the particular epoch in which they wrote. Thucydides (classical realism), Machi-
avelli (early modern realism), Morgenthau (traditional realism), and Waltz as applied
by Krasner (structural realism) have their differences (which are examined in the
section “Varieties of Realism in International Law”), but all share three core ele-
ments and three causal narratives in their approach to international law. Nonrealists
emphasize other factors and narratives to explain international law and its effects.2
First, realists see the state as the central actor in international law.3 The state
is, of course, an analytic abstraction. The form of the state varies across history -
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from city-states in ancient Greece, to the absolutist state in early eighteenth-century
France, to the contemporary nation-state. Type of government, which partly defines
the role of the state, varies as well - whether a democracy, autocracy, theocracy,
or something else. Hence, sometimes the state is embodied in a prince or a ruler
(Machiavelli 1908). Sometimes it is a bureaucracy (Weber 1947). Or, it may be a
set of domestic institutions that interact with each other or with substate actors to
generate state behavior (Goldstein and Steinberg 2008). In a weak version, it could be
liberal processes that generate state behavior, with the state as intermediator between
political parties or domestic interests.But, if the “state” is merely a conveyer belt,
then it does not have autonomy in the way most realists conceptualize it (Moravcsik
1997). Notwithstanding the counterclaims of Vernon’s Sovereignty at Bay (1971),
Kindlebebrger’s claim that the state is through as an analytic entity (1969), or other
approaches that diminish the centrality of the state - for example, transnationalism
(Keohane and Nye 1972; Koh 2004), transgovernmentalism (Slaughter 2004), global
norms cascades (Sunstein 1996; Finnemore and Sikkink 1998), cosmopolitanism
(Charnovitz 2002), and global administrative law (Kingsbury, Krisch, and Stewart
2005) - for realists, the state remains the central actor in international law (Steinberg
2004a), as it is for legal positivists.
Second, each state is endowed with interests. Interests are usually determined
exogenously or posited. Material interests are often assumed, but not implausibly:
survival is posited as a goal of every state, and states are often assumed to be welfare-
enhancing, seeking economic gain (measured now by such things as gross domestic
product [GDP] growth, job creation, establishment or maintenance of strategic sec-
tors, etc.). Normative or ideational interests are also sometimes posited, assumed,
generated from other theories, or otherwise injected, such as the protection of cul-
ture, the spread of democracy or human rights, or acceptance of the Washington
Consensus. Interests among states are sometimes divergent and at other times con-
vergent; in Waltz’s structural realism, which was focused on explaining the structure
of the international system and its effects, interests are depicted as divergent (zero-
sum, focused on relative gains for survival and accretion of power) (Waltz 1979).
Other than the assumption that states seek survival, realism does not require a com-
mitment to any particular assumption about the content of state interests, but state
interests are placed at the heart of the analysis.
Third, each state is endowed with material power capabilities that are brought to
bear in the international battle to shape the substance and structure of international
law. The definition of “power” is contested, but it is defined here conventionally
as the ability to get another to do what it would not otherwise do (Dahl 1957).
Measuring power is notoriously difficult. In some contexts, state power is measured
and employed by issue area - for example, in terms of GDP when measuring
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trade or bargaining power (Steinberg 2002); in other contexts, it may be measured
in the aggregate, as in efforts to evaluate the structure of the international system
(Waltz 1979; Gilpin 1981). But state power - particularly when used by powerful
states to coerce weaker states to accept international laws they would not otherwise
accept (Krasner 1999) - is central to realist theory and is its most distinctive feature.
Indeed, whereas liberal and constructivist theories import sociological concepts and
processes to explain international law, and rationalist institutionalism is built on
the back of economics, realism is - by virtue of the centrality of power - the most
distinctly political of contemporary approaches to international law.
Building on these three core assumptions, realists tend to make three types of
causal claims about the role of international law in international politics. First,
state capabilities are brought to bear to advance interests that become embodied
in international law, so international law reflects the interests of powerful states.
Second, international law may make states better off than otherwise. Third, if
an international law contradicts the long-term interests of a powerful state, then
it will not comply with it. These narratives will be described more expansively
below.
In summary, all realists employ three core factors and three causal narratives to
understand international law. But realism in international law is not monolithic: it
has many variants. Its core elements and causal narratives are put together in various
ways.
ii. varieties of realism in international law
These three realist factors and narratives have been used in theories about interna-
tional law for millennia, but classical, early modern, and traditional realism each
employed additional factors to explain international law and its meaning. In the early
1980s, structural realism exposed some shortcomings of those past efforts to blend
realist elements with additional factors: the additional factors led to indeterminacy.
Structural realism then offered its own account, the main deduction from which was
misunderstood in much of the law and political science literature, thus enabling it
to become the whipping boy for IL and IR scholars for the next thirty years. Properly
understood, the use of core realist concepts and causal narratives in international
law has great heuristic strength.
A. Realist and ÒNonrealistÓ Factors in Classical, Early Modern,
and Traditional Realism
In addition to the three core factors identified above, classical, early modern, and
traditional realists each used additional factors to help explain treaty commitment
and compliance. When those approaches are distilled into a theory of international
law, the additional factors, and their interaction with the core elements, add post hoc
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explanatory power to realist analysis of international law, but at the cost of predictive indeterminacy.
Thucydides’ History of the Peloponnesian War(1954) is the paradigmatic classical
realist account. City-states are the fundamental unit of analysis, and Thucydides
explains their motivation for each strategic move. Treaties of alliance and peace are
concluded to advance city-state interests. Treaties of alliance, such as the founding of
the Delian League, and the various arrangements between Sparta and Persia starting
in 407 BC, are depicted as arrangements in the strategic interest of the parties, making
them more secure than otherwise (Platias and Koliopoulos 2010). Similarly, the major
treaties of peace, such as the Thirty Years’ Peace between Athens and Sparta (445
BC), as well as the Peace of Nicias (421-415 BC) following the Archidamian War,
were also concluded in the strategic interest of the parties (Kagan 1974). Hence, the
classical realist paradigm used the three core realist elements identified above to
explain international law and its consequences.
At the same time, Thucydides’ account includes other factors affecting treaty com-
mitment and compliance. Religion permeated ancient Greek city-states, motivating
some decisions about treaty commitments that ran counter to a city-state’s strategic
interest: for example, Thucydides wrote that Corinth delayed alliance with Athens
because it had “sworn upon the faith of the gods” not to give up Thrace. Similarly,
Thucydides believed that a state’s form of government could impact its international
behavior. For example, he argued that leaders of democracies were often corrupt,
greedy, and ambitious, pursuing their own honor and profit at the expense of the
city-state’s interests, and, at other times, the democracies of Athens and Argos allied
with each other less out of strategic interest than out of a kinship with a “sister
democracy.”4
Niccolo Machiavelli famously revived realism during the Italian Renaissance.
Normatively, Machiavelli’s early modern realist princes are corrupt and cynical,
usually lacking any religious inclinations - unlike some leaders in Thucydides’
Greece and the Roman Catholic international law philosophers who dominated
Western European legal thought in the Dark Ages. Hence, Machiavelli was a con-
stant target for criticism by naturalist and Christian international law philosophers
(and their moral philosophical progeny) for centuries, including Grotius5 (who,
although he had elements that would coalesce into positivism, was fundamentally
naturalist) (Lauterpacht 1946).
For Machiavelli, treaty commitment and compliance depended fundamentally
on the strategic interests and relative power of Italian city-states. He wrote that
alliances are broken by consideration of interests; kings will break treaties if it suits
them, and treaties concluded by force will hold until the threat of force disappears.
Like Thucydides, however, Machiavelli introduced additional factors affecting treaty
.
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commitment and compliance, such as form of government and sense of moral obligation. Machiavelli wrote that democracies are more likely to comply with their treaty commitments than are kings, and he wrote that Athens had once rejected using a treaty in a way that was in Athens’ interest, but was dishonest.6
Contemporary IL scholarship owes a huge debt to Hans Morgenthau, who
brought behavioralism to the field in the United States in the mid-twentieth century
(Morgenthau 1940). Before Morgenthau, American IL scholarship was idealistic and
doctrinal: states did what international law said they [should] do; international law
was international relations. Morgenthau demanded an ontological shift in under-
standing international law - from considering only treaty texts and treatises, to also
considering state behavior, a shift analogous to that which had started taking place
in American law scholarship more than a half-century earlier, starting with Holmes’
skepticism of the science of law (Holmes 1881) and becoming explicit with Roscoe
Pound’s American legal realism (Pound 1921).
Morgenthau’s theory was that international law exists only if it is in the common
interest of all parties to adhere to it or if a power configuration enforces it - a for-
mulation employing the three core concepts identified in the preceding section. He
argued that international law could be divided into two types: “non-political inter-
national law” includes treaties and customary rules that benefit all states regardless
of international power constellations (e.g., the law of treaties, diplomatic immu-
nity, international commercial law, and admiralty) and “political international law,”
which could also be beneficial for all states, but depends on a particular power
constellation (e.g., treaties of alliance and peace) (Morgenthau 1940).
For Morgenthau, state interests could be determined materially or normatively.
He argued that shared norms are a powerful basis for international law, rules backed
by both interests and norms are more likely to enjoy compliance than are those
backed by interest alone, and that compliance with international law is the norm
(Morgenthau 1940, 1978). However, as the Cold War became deeply institutional-
ized, realist commentators (eventually including Morgenthau) made it increasingly
clear that where international norms (and international law backed by norms) run
contrary to state security interests, security interests will prevail and norms-based
international law will not constrain behavior (Hoffmann 1971; Morgenthau 1978).