The ‘internationalisation’ of the domestic legal order

In essence, neo-conservative discontent with global liberal governance has to do with the extent to which the latter is transforming international law from a mechanism designed to regulate inter-states relations (a law of nations) into a mechanism designed to regulate the relationship between states and their citizens (a cosmopolitan law of human rights).Footnote ⁷ Here, neo-conservatives have been able to draw on the emergence of a juridical revisionism since the late 1990s which is deeply hostile to the internalisation of international law in US domestic courts. This juridical revisionism is led by a number of conservative jurists associated with the University of Chicago, the AEI and the Federalist Society such as Curtis Bradley, Jack Goldsmith, Eric Possner, John Yoo, Lee Casey, David Rivkin and many others. During the past fifteen years or so, revisionists have mobilised against what they see as the increasingly intrusive and unmediated incursion of international law in the American legal system. Central to their campaign is the complaint that the rules and norms of customary international law may now be introduced into domestic courts directly by judges without having been subject to approval by Congress. They argue that recent practice by some federal judges to rely upon the decisions of foreign and international tribunals in their opinions and for guidance in interpreting the American Constitution go against the core features of the American Constitution: the separation of powers, representative democracy and federalism.Footnote ⁸ Yoo refers to this phenomenon as the ‘outsourcing of American law’:

The revisionists owe their name to their effort at reversing the trend established by the Restatement of the Foreign Relations Law of the US, a document widely accepted as authoritative within the American juridical community and which asserts that international law is indeed part of American federal law.Footnote ¹⁰ In their view, large segments of international customary law are illegitimate because: 1) they concern matters like human rights that are property of the domestic and not the international realm and, 2) because they are not ‘customary’ since in several cases they do not correspond to state practices but simply express various forms of international agreements.Footnote ¹¹ John Bolton, George W. Bush's former Ambassador to the UN (2005–06), gave a particularly flamboyant rendering of this argument in his keynote address at the inauguration of GGW:

In fact, the legal revisionists overstate the degree to which the intrusion of international customary law into the US legal system is actually taking place. As John Gerard Ruggie noted, the Restatement of the Foreign Relations Law of the US attacked by legal revisionists represents an ‘overreaching’ by liberal internationalists of the time that exaggerated the extent to which US courts recognise the principle that international law is part of federal law.Footnote ¹³ Revisionists take the Alien Tort Claims Act (ATCA) as their main example and point of departure. But the ACTA is more of an anomaly than anything else.Footnote ¹⁴ The set of human rights treaties signed by the US at the end of the 1980s (the Genocide Convention, the International Covenant on Civil and Political Rights, the Torture Convention, and the International Convention on the Elimination of All Forms of Racial Discrimination) were all ratified by Congress with a series of reservations that effectively denied the self-executive character of those treaties in American courts.Footnote ¹⁵ The problem with revisionist arguments, critics point out, is not so much that they are flawed in legal terms but that they identify threats that in many respects remain hypothetical and fail to show what concrete public policy problems they would help solving.Footnote ¹⁶

The intricacies of the debates over the legal substance, merits and flaws of revisionist proposals should not detain us. What is really important for the present discussion is not so much the legal and policy practicalities of revisionist proposals as the political significance of those nationalist contestations. For what is at stake here is not only the self-executive character of international customary law within the domestic courts of the US or any other states. More fundamentally, it is the constitutionalisation of a system of international law that asserts the primacy of individual rights over those of the nation-state, and thereby subjects the latter to the authority of judicial bodies operating independently of the UN Security Council.Footnote ¹⁷ Opposition to these developments puts American legal revisionism firmly at odds with the legal climate of Europe, where those notions have already been institutionalised and welcomed as positive political developments.Footnote ¹⁸

It is this political dimension of the debate that has been tapped in by neo-conservatives over the last decade or so in their attack on global governance. Neo-conservatives argue that the internalisation of international customary law is unconstitutional, and that it undermines the political matrix through which America has understood itself over the last three centuries. According to neo-conservatives, globalisation and the spatio-temporal advanced of liberal modernity have given rise to a ‘globalist’ cosmopolitan culture and ideology in Europe and within American academic circles that is increasingly hostile to American values and to the democratic constitutionalism of the US. This post-national intelligentsia is belittling the principle of popular sovereignty and restricting America's domestic and international policy flexibility. Globalists, neo-conservatives complain, wish to anchor international cooperation into a global constitutional order and subject the democratic will of the American people in all substantive fields – human rights, labour laws, the environment, health and political-military affairs – to the authority of a world state in the making.Footnote ¹⁹ ‘This authority is exercised by new definitions (‘evolving norms’) of international law (really transnational law); transnational courts such as the International Criminal Court; myriad UN conventions that establishes new global norms, particularly in the area of human rights; supranational institutions like the EU; and non-government organisations (NGOs) that act as “global civil society”’.Footnote ²⁰ When sifting through neo-conservative polemics, we find that the social base of this politico-cultural offensive is composed of leading American and European international lawyers and academics (for example, Anne-Marie Slaughter, Harold Hongju Koh, Robert Falk, Jürgen Habermas, John Gerrad Ruggie and Strobe Talbott); UN and EU officials and bureaucrats; international judges; NGOs such as Human Rights Watch, Amnesty International and Friends of the Earth; wealthy American Foundations like Rockefeller, Ford, Mott and MacArthur; corporate executives who have a vested interest in eroding the sovereignty and territorial borders of the nation-state; and, more generally, practicing centre-left politicians in America in Europe who have ‘internalised’ this emerging cosmopolitan culture.Footnote ²¹

Now, of course, the characterisation of this intra-civilisational struggle for cultural hegemony as a clash between globalists and anti-globalists is misleading. Far from being out of step with globalisation, the ‘Americanist’ camp is strongly committed to free trade and free market economics. As Fonte emphasises in his own extensive research on this ongoing debate, the ‘critical argument’ in fact is over ‘whether the form of Western global engagement in the coming decades will be transnationalist or internationalist’. It is whether global engagement will take a post-national character (what he calls transnational progressivism) or if it will remain bounded by statist categories like sovereignty, patriotism, nationalism, citizenship and the assimilation of minorities.Footnote ²²

Democratic legitimacy and the limits of rationalism

As the above comments indicate, what neo-conservatives present as a culture clash between globalists and Americanists over the continued relevance of the sovereign nation-state as the dominant form of political organisation expresses a broader ideological conflict over competing understandings of the relationship between democracy, law and individual rights. For neo-conservatives, the idea that international legitimacy can be derived from the will of an international community transcending any individual nation-state is a dangerous leap of faith. Because the international community is not concretely anchored in a global democratic constitutional order, it cannot confer legitimacy upon international and state institutions from above. Whatever legitimacy international institutions may have, it is argued, this legitimacy is handed up to them by duly constituted democratic majorities at the level of the nation-state and can be withdrawn at any time by the latter.Footnote ²³ As Francis Fukuyama put it, the chance that a democratic world government will ever come into being, ‘is as close to zero as you ever get in political life. What will be practically possible to construct in terms of international institutions will not be legitimate or democratic, and what will be legitimate and democratic will not be possible to construct’.Footnote ²⁴

Although certainly no great supporters of participatory democracy at home, neo-conservatives criticise institutions of global governance on the ground that: 1) they reduce the possibility of individual and national parliamentary participation in the political process and, 2) that they redistribute power and decision-making authority from elected governments to a conglomerate of international bureaucrats and technocrats. For them, the problem is not only that this supranational technocracy suffers from a serious democratic deficit. It is also the fact that global governance opens the formal political process to NGO participation ‘from below’ and thereby renders the constitutional order vulnerable to capture by a multitude of interest groups, all operating outside the bounds of democratic accountability.Footnote ²⁵

The EU is of course a primary target here and the source of much anxiety. According to Jeremy Rabkin, for example, the European model of shared sovereignty poses a threat to the popular sovereignty of non-member states because it transfers a great deal of state power to supranational institutions in the public sector and to NGOs in the private sector that are all bent on regulating environmental, human rights and social issues. Rabkin argues that because this ‘Euro-tizing’ process could incite other states to adapt their own regulations to the standards set by another group of states, the EU is an offence to the popular sovereignty of non-member states.Footnote ²⁶

At the more philosophical level, neo-conservatives oppose the interpretation of democratic legitimacy defended by advocates of global liberal governance because of its rationalist, ‘noumenal’ character. International law and the institutions of global governance, they argue, sever the moral basis of international legitimacy from the political principle of democratic consent. Rather than reflecting the contractual will of the peoples concerned, they are the expression of a set of universalistic rules of morality that are deemed to be binding – even if actually rejected by the majority – because no free and rational human being would reject them.Footnote ²⁷ The cosmopolitan scholar Jürgen Habermas, for example, formulates the rationalist position targeted by neo-conservative polemics in the following terms: ‘[at the global level] the democratic procedure no longer draws its legitimizing force only, indeed not even predominantly, from political participation and the expression of political will, but rather from the general accessibility of deliberative processes whose structure grounds an expectation of rationally accepted results’.Footnote ²⁸ Now as many critics have pointed out, the problem with this rationalist position is that what counts as a ‘rationally acceptable result’ is always contestable and must therefore remain a political decision. Neo-conservatives accordingly reject this rationalist ‘doctrine of derived consent’ as a folly of the French Enlightenment, a totalitarian idiosyncrasy akin to Rousseau's ‘doctrine of the general will of forcing the individual to be free’.Footnote ²⁹

For neo-conservatives, it is precisely because the shadow of war is often a derivative of the egoistic disposition cultivated by liberalism that we ought to impose democratic safeguards on universal reason. As Peter Berkowitz argues, ‘What if the universal rational norms are invoked not on principled grounds but on grounds of self-interest? What if the self-interest is not enlightened but cynical? And what if the cynical appeal to self-interest does not reflect the sort of human lapse concerning which we must always be on guard but is rather a by-product of the spirit that liberalism fosters?’Footnote ³⁰ Neo-Kantian advocates of global governance want to bring about a cosmopolitan order of right guided by rational universal norms. From an imaginary ‘original position’ (Rawls) or an ‘ideal speech situation’ (Habermas), they derive ethical principles that will guide political and socio-economic reforms. But these abstract theoretical constructs, neo-conservatives retort, are precisely just that: abstractions that take no heed of the natural constraints that human nature imposes on rational education.Footnote ³¹ Neo-conservatives see the progressive displacement of Hobbes's ‘state of nature’ by rationalist conceits like the ‘ideal speech situation’ or the ‘veil of ignorance’ as the basis of a liberal theory of justice is a dangerous intellectual slippage. For them, conflict is not social but existential. It does not stem strictly – or even primarily – from irrational institutional arrangements but from the natural instincts and aspirations of human beings. As Jeane Kirkpatrick argued in the early 1980s, neo-Kantian rationalism disregards Hobbes's most valuable insight: ‘because men are as prone to quarrelling about power, status, and virtue as about the distribution of wealth, they will quarrel forever’.Footnote ³² Fukuyama also makes the point repeatedly in his much misinterpreted The End of History and the Last Man:

These neo-Hobbesian exhortations ultimately take their cue from a Schmittian-Straussian reading of Hobbes that has been highly influential in conservative, classical realist and neo-conservative circles in America after the Second World War.Footnote ³⁴ In this neo-Hobbesian world, the nation-state (politics) and the state of nature (anthropology) are not extrinsic to one another. Unlike in a neo-Kantian interpretation of the civilising process, liberal governance does not constitute a progressive transcendence of the ‘natural dangerousness’ of human societies. Rather, the nation-state here harnesses this natural dangerousness for its own life-preserving end and invokes it to justify its domination of society. In other words, liberal governance hinges on the transformation of the anthropological violence of the state of nature into a ‘pre-emptive counter violence’ that is monopolised by the state and legitimated by its order generating function (the social contract).Footnote ³⁵ This irreducible violence at the heart of the modern liberal state is a remnant of the state of nature in which states interact with one another. It manifests itself periodically and at different intensities through labour militancy, urban riots, student activism, terrorism, anti-war protests, and other such clashes between domestic and transnational social forces over the legitimacy of the dominant order. This generates a close interdependence between the indivisible character of the sovereignty of states in the international arena and the need to minimise elements of heterogeneity within the domestic sphere (more on this in a moment). Now, the limits of rationalism from this perspective have to do with the fact that, although state violence is ‘legitimated’ by the life-preserving function of sovereign power, it can never be completely ‘civilised’. A genuine emancipation from the state of nature would involve that sovereign power submit itself to a set of legal rules determined by its ultimate end – the security, right to life and well-being of citizens. Yet this Lockean notion is irreconcilable with the Hobbesian view that individuals found the state in the first place to negate their own ‘natural dangerousness’. Were sovereign power to be subordinated to any formal legal obligations towards civil society, it would no longer be sovereign and become subject to the very same dangerous human nature that it was meant to keep in check in the first place. As Strauss and his students have repeatedly pointed out, this is why Locke and his followers have never succeeded (and will never succeed) in eliminating the arbitrary political violence that constitutes the liberal state. For all that the liberal insistence on the rule of law has achieved is to incorporate this violence into the broader constitutional framework under the deceptive name of emergency powers or what Locke called ‘special prerogatives’ (‘This Power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it […]’).Footnote ³⁶ But the constitutionalisation of ‘special prerogatives’, of course, does not resolve the problem. It only assumes that virtuous leaders will use these powers wisely in the name of a shared conception of the good life that will give meaning and purpose to the lives of individual citizens.Footnote ³⁷

The upshot of this neo-Hobbesian narrative is that the transcendence of the Westphalian order of the sovereign nation-state through international law can only be achieved through the creation of a global leviathan. This global leviathan would centralise the legitimate means of violence and entrust a global elite to pursue and enforce an overarching conception of the good life on all existing cultural communities. And this, of course, is an implausible and deeply undesirable recipe for global tyranny.Footnote ³⁸ According to Irving Kristol, the statesman who seriously entertains hopes for such a peace is simply not fit for office:

No governance without government

This critique of rationalism feeds into a decisionist legal-constitutional interpretation of the international normative order that has been the source of much tension between America and Europe since the end of the Cold War, especially since 9/11. As we have just seen, neo-conservatives are deeply ambivalent about the transformative and self-generating power of reason and liberalism in political life. In their view, given the empirical implausibility and ethical undesirability of a global leviathan, what allows for the liberal character of the contemporary global order is not the false security of international treaties, the benevolent civility of NGO networks or the invisible hand of commerce but ‘fear of overwhelming US power’.Footnote ⁴⁰ More precisely, it is the existence of a hegemonic power that has the capacity to unilaterally exclude itself from the legal order so as to institute a new set of norms or protect existing norms when the latter are under threat or have become inadequate. In Robert Kagan's famous terminology, governance requires a Hobbesian power that ‘man's the wall’ of Kant's constitutional paradise but that ‘cannot walk through the gates’ by virtue of its systemic responsibilities – a ‘unilateralist iron fist inside the multilateralist velvet glove’.Footnote ⁴¹

It is, of course, to Carl Schmitt that we owe this decisionist interpretation of sovereignty. ‘Sovereign’, Schmitt famously argued, ‘is he who decides on the exception’.Footnote ⁴² I will not elaborate extensively on this particular dimension of the neo-conservative project since it received a fair amount of attention during the Bush presidency.Footnote ⁴³ But a number of brief conceptual clarifications concerning the main characteristics of Schmitt's decisionism are nevertheless necessary in order to appreciate the set of philosophical and conceptual assumptions that underpins this particular position towards international norms.

Schmitt's decisionism can be understood as a neo-Hobbesian response to Max Weber's neo-Nietzschean/neo-Kantian interpretation of the ‘crisis of modernity’.Footnote ⁴⁴ Weber saw the ‘crisis of modernity’ as a crisis of legitimation generated by the demise of religious worldviews and the inability of reason to justify and ground its own activity in reason. He showed how this crisis of legitimation extended to all fields of human endeavour and how this had necessarily led to the fragmentation of modern social life into a multitude of belief systems, all normatively independent from one another. The consequence of this differentiation of value spheres is what Weber described as a ‘pluriverse’ of ‘warring gods’ in which all gods can confer meaning to their respective value sphere but none of them can give meaning to the totality – that is, to life as a whole. As he put it, ‘as long as life is left to itself and is understood in its own terms, it knows only that the conflict between these Gods is never-ending. Or, in non-figurative language, life is about the incompatibility of ultimate possible attitudes and hence the inability ever to resolve the conflict between them. Hence the necessity of deciding between them’.Footnote ⁴⁵

In the legal sphere, this foundational crisis expresses itself in the fact that ‘the axioms of natural law have lost all capacity to provide the fundamental basis of a legal system’.Footnote ⁴⁶ No longer capable of deriving its validity from transcendent theological-cultural beliefs, modern law must take a positivist form and draw its validity from a logically abstract set of formal rules immanent to the legal sphere. In this positivist framework, all expressions of substantive values must be integrated into a formal process that requires the application of laws to go beyond the specific case and that institutes a mechanism of checks and balances to mediate between competing interests and values. Authority in this self-enclosed legal system is therefore both formalised and rationalised. All norms immanent to the legal sphere must derive their validity from a previous norm. This leads to an impossible attempt to ban all subjective moral or emotional judgments concerning the substance of the law and to organise the latter by rationally and legally defined procedures. As Weber argued, modern logical formalism necessarily de-personalise the legal system and subsumes all concrete facticity under abstract rules. It ‘enables the legal system to operate like a technically rational machine’ and confines the judge or decision-maker to the mechanical application of already-existing law.Footnote ⁴⁷ Yet, as Weber knew all too well, this abstract formalism in reality is never really cleansed of subjective judgement. For, there is always a gap between concrete reality and abstract law (fact and norm) that must be mediated by the subjective interpretation of the individual decision-maker.Footnote ⁴⁸

Schmitt developed his decisionist jurisprudence at the juncture between factual power and legal form. For him, the modern legal positivist attempt at objectifying political authority and subjecting it to the formal and rational rule of law rested on an ill-fated logical impasse that could only be resolved through an existential – that is, normatively ungrounded – political decision. If the highest underived power is the norm that establishes the rule of law, it must necessarily be subject to law itself otherwise it simply exempts itself in the same manner as sovereignty operates. Yet if this highest underived power is enclosed within the predefined procedures of the legal system, it cannot be the highest underived power since its actions must be declared legal or illegal by an authority that must necessarily be higher. To arrive at a point of origin, an underived norm that will determine the right procedures, there must be a political act of creation ex nihilo – that is, a normatively ungrounded decision on the substance of the legal form. For Schmitt, and this is the core feature of decisionism as a constitutional-legal theory, the arbitrary exercise of power is a permanent and immanent condition of the normative order.Footnote ⁴⁹ As he emphasised in his Nomos of the Earth, the structure of international law is, and has always been, underpinned by a concrete, spatially delimited hierarchy of powers that is invested with symbolic meanings – that is, a nomos. When this hierarchy dissolves, either war ensues or a new ordering principle is enforced by the dominant powers to replace the older one. So that at the foundation of all state, of all empires and of all legal systems there is an original violence, not a founding norm.Footnote ⁵⁰

Had Schmitt lived for another decade, he would not have been surprised to see that the collapse of the Cold War frame of intelligibility has brought the ‘problem of sovereignty’ back on top of the political agenda. Today, however, the ‘problem of sovereignty’ is rendered transnationally and against the backdrop of an emerging global public sphere. As Fukuyama put it in the aftermath of the Iraq War, the one defining question in global politics during for the 21st century will be

For neo-conservatives the answers to these questions are straightforward. America is the only power that has the global reach and competence to police the international order and bridge the gap between fact and norm when the latter cannot be closed through normal procedures. Against liberal institutionalists, neo-conservatives maintain that the end of the Cold War, globalisation and recent technological developments have produced a security environment which is at odd with both the Westphalian modus operandi of contemporary international society and the woolly and encumbering multilateralism of global liberal governance favoured by Europeans. Terrorism, state-failure and the proliferation of weapons of mass destruction pose a series of ‘exceptional’ existential threats not only to America but to the modern international order as a whole that cannot be addressed within the limits of existing normative and legal frameworks. While the more cerebral among them recognise that hegemonic power needs a significant degree of legitimacy, they nevertheless insist that hegemonic legitimacy cannot presuppose multilateralism and law abidingness.Footnote ⁵² As Kagan argues in his latest book, if left unattended, the relative decline of American power since the last five years or so could spell the end not only of the American century but of the global liberal order as a whole:

As in Schmitt, the aim of these arguments is not discard the relevance of norms in conditions of anarchy (as in a neo-realist reading of the international system for example). Rather, it is to re-assert the continued and indispensable necessity of American sovereignty even as America's closest allies are moving away from the power politics of sovereignty towards the ‘brave new judicial world’ anticipated by advocates of global governance.Footnote ⁵⁴ Indeed, as James Ceasar explains, for neo- conservatives the necessity of rallying the nation behind the case for American sovereignty follows precisely from the waning of the metaphysics of sovereignty in Europe:

Beyond autonomy and policy flexibility

What should we make of these sovereigntist arguments? As various critics have argued, given the highly interdependent environment in which we live today the suggestion that sovereign, unilateral policies are optimal for the US makes little sense from a pragmatic point of view. Ruggie, for instance, argues that sovereigntists unwisely privilege ‘doctrine over practical considerations’ in making their case and along the way completely misconstrue the nature of international authority. Their attack on global governance, he argues, ‘externalizes and objectifies the very concept [of international authority], as though this authority were embodied in someone or something other than states’. ‘With rare exception’, he emphasises, ‘authority in global governance involves no formal relations of super-and-subordination, but remains largely horizontal in character’.Footnote ⁵⁶ Along similar line, Andrew Moravcsik argues that the picture of the EU as a nascent, socialist super-state whose governing elites are not accountable to anyone is obviously a gross mischaracterisation of the democratic deficit and the residual commitments to social democracy in Europe. In his view, American sovereigntists are deluded ‘“conservative idealists” for whom ‘“autonomy” and “sovereignty” is an end in itself, regardless of the concrete consequences’.Footnote ⁵⁷ Invoking the work of Robert Keohane and Stephen Krasner on international regimes, he emphasises that welfare-maximisation in a globalised capitalist economy requires policy coordination and stresses that the collective action problems of international cooperation can only be resolved efficiently with a high degree of institutionalisation.Footnote ⁵⁸

These are legitimate criticisms. Yet they are somewhat missing the point. First, the American Right is by no means opposed to forms of policy coordination that binds others through liberal institutionalisation – as long as America is granted ‘special prerogatives and exemptions’ from this process wherever it sees fit.Footnote ⁵⁹ Secondly, and more importantly, what is really at stakes for neo-conservatives in those debates is not only the policy autonomy and flexibility of the US. It is also the symbolic and cultural resources attached to the communitarian interpretation of democracy that they have been nurturing in support of their domestic political and economic agenda since the 1960s. My main contention here is that it is not really the link between the normative order and democracy as an emancipatory value in itself that is being defended by neo-conservatives in those debates. Rather, it is the tie between the normative order and democracy as an ideal that is constitutive of a particular way of life and sustains a particular pattern of hegemonic relations between domestic social forces.

As we have seen, the challenge of global governance for neo-conservatives has to do with the transformation of international law from a mechanism regulating interstate relations to a regime of individual rights which demands that we think of individual identity and rights as being prior to political association. In this setting, the state remains an important institution but it ceases to be an end in itself and exists strictly to provide the environment in which individuals can pursue their interests at will. It is one of the many intermediate associations competing with ethnic groups, religious groups, professional guilds, corporations and other such identity-conferring social formations for the loyalty of its members. As the constitutional scholar Paul W. Kahn points out, this whole process institutes a whole new, ‘postmodern’ understanding of the relationship between law and rights whereby law ceases to ‘function as an expression of popular sovereignty that chooses to invest itself in particular rights […] and gains its legitimacy from the defence of rights’.Footnote ⁶⁰

Unsurprisingly, neo-conservatives argue that this ‘postmodern’ interpretation of the relationship between law and rights is fundamentally at odd with America's republican constitutional tradition. They insist that the legitimacy of positive law is derived first and foremost from the fact that it expresses the will of an historical community. From this republican perspective, the exceptional character of America's political experience stems not so much from the fact that the American constitution expresses a set of universal values, but from the fact that Americans have agreed to govern themselves according to universal principles of natural right.Footnote ⁶¹ Like in the ideal-typical model of liberal government, democratic politics here is about the representation of private social interests through the administrative framework of state institutions. But it is also conceived as a ‘reflexive form of substantial ethical life’ that expresses the self-understanding and the perspectival conceptions of the good life of particular groups.Footnote ⁶² Accordingly, the law in this context ties citizenship not only to a set of rights but also to a common obligation to maintain and carry the project of popular sovereignty into the future. As in all liberal interpretations, the law is seen as a critical means to prevent abuse of power and impose constraints on government. But it does so in the name of an historical community and its system of values rather than individual rights per se.Footnote ⁶³ Bolton makes this point starkly with regards to the death penalty in his tirades against human rights regimes: ‘Americans in the last several decades have soberly examined the death penalty, and by and large reaffirmed it in a textbook demonstration of popular sovereignty at work’.Footnote ⁶⁴

Neo-conservatives nevertheless insist that despite some relatively minor disagreements Americans understand their political experience to be fully compatible with the moral substance of international law and human rights regime. But they stress that such a common moral ground cannot be the basis for a common political identity. Moral values can only become constitutive of a collective political identity when they express the will of the democratic majority. And this, they argue, necessarily entails the drawing of boundaries to determine who is a member of the political community and who is not. As Rabkin argues:

Now from a normative perspective, the problem with this substantive understanding of democracy is that it ultimately rests upon a normative a priori which ultimately is just as ‘pre-political’ as the cosmopolitan interpretation of human rights regimes. Whereas the latter confer rights to individuals prior to political association, neo-conservatives define legal status in terms of civil rights that are made contingent upon membership in a democratic community whose boundaries are prior to and beyond normative justification. They are prior to and beyond normative justification simply because democracies cannot democratically determine their own membership.Footnote ⁶⁶ This democratic paradox is what Habermas calls the normative ‘conceptual gap in the legal construction of the constitutional state’. On the one hand, democratic constitutionalism as a joint practice necessarily requires some form of commonality. On the other hand, the social boundaries of any constitutional association are purely arbitrary since, beyond the fiction of the social contract, it is the reality of war, civil war and imperialism that has historically settled the civic and social boundaries of the different political communities.Footnote ⁶⁷ During the past centuries, nationalism has ‘concealed’ the arbitrariness of the nation's boundaries. It has done so by appealing to the notion of an organic national consciousness crystallised around the idea of a common history, ancestry and language and together worked to naturalise the boundaries of the different political communities. This ethno-nationalist interpretation of citizenship has contributed immensely in providing the cultural impetus necessary for the consolidation of the modern constitutional state as we know it today.Footnote ⁶⁸

The US is generally seen as an exception in this respect since the social compact in America took hold in a multiethnic setting. American nationalism, neo-conservatives like to remind us, is nothing like European nationalism. It is not based on blood and soil but on a civic religion sustained by ‘deep truths’ and a ‘set of universal principles derived from natural rights as enunciated in the Declaration of Independence’.Footnote ⁶⁹ Such claims, however, should be treated with caution. The two hundred year old constitutional history of the American republic is indeed a remarkable proof that the nation-state can take a republican form even in the absence of a culturally homogenous population. But this should not obscure the fact that the civic religion from which American nationalism draws its exceptional character is itself rooted in the majority culture of the White, Protestant Anglo-Saxon population. Historically, this hegemonic culture has performed a very similar function as ethnic nationalism did in Europe: it has provided the ‘pre-political’ basis of a cultural substrate for a legally defined republican citizenship status and set the terms for the assimilation of minorities into the shared political culture. This cultural substrate is ‘pre-political’ in the sense that it normatively and empirically skews the ethical embedding of the law in a manner that is strictly contingent on the social makeup of the population, which itself is extrinsic to the bundle of rights and legal principles of the constitutional state. As Habermas explains:

It is the ‘pre-constitutional’ hegemonic position of the majority culture in this liberal democratic framework that is at stakes for neo-conservatives in contemporary debates over the constitutionalisation of the global liberal order. Global liberal governance threatens to sever the tie between deliberative politics and the national consciousness of a macro-subject rooted in the ethical self-understanding of the majority culture. Instead, its leading advocates expect the success of democratic politics to follow from a higher and more abstract level of inter-subjectivity derived strictly from the institutionalisation of free and equal deliberative procedures ultimately grounded in a global constitutional order of rights – including cultural rights.Footnote ⁷¹

This is an all out negation of the neo-conservative vision of America, along with the whole structure of cultural and socio-economic interests associated with it. As we will remember, neo-conservatism crystallised as a movement during the late 1960s early 1970s as a reaction to the perceived disintegration of the majority culture in the face of cultural diversification and popular demands for the extension of democratic citizenship to include not only liberal individual rights and rights of political participation but also social and cultural rights. Taking their cue from Tocqueville's exceptionalist interpretation of American democracy, neo-conservatives maintain that the cultural revolutions of the 1960s and the ensuing ‘tragedy of multiculturalism’ have forever disturbed the consensus on the values of the majority culture that have for so long contained class and racial conflicts and made American capitalist democracy possible in the face of such racial and class inequality.Footnote ⁷² They argue that the New Left has undermined the universalist liberalism that inspired the American Revolution and in its place introduced a relativist liberalism that celebrates cultural individuality and asserts not only the rights of man but of man as a Black, a Jew, a Muslim, a worker, a woman, an homosexual, etc. As Allan Bloom put it in The Closing of the American Mind:

According to neo-conservatives, it was the strong moral convictions of the Protestant majority culture – with its ethos of self-restraint, self-reliance, delayed gratification and civic virtue – that have historically counterbalanced the individualistic impulses of America's liberal capitalist society and kept its democratic and economic expectations within the limits of reason and governability. They argue that today the erosion of the majority culture and the efforts of group interests to promote themselves through the political system have corrupted the true nature of the national interest by forcing on it the private economic and cultural interests of different ethnic, racial and linguistic constituencies. As a result, American democracy has been turned into what Bloom described as a ‘Disneyland version of the Weimar Republic’ – that is, overcrowded with special interest groups and overloaded with inflated democratic demands that are bound to frustrate expectations and cultivate nihilism.Footnote ⁷⁴ To the extent that this politicisation of values works as a means to neutralise the political tension between democracy and capitalism, it has over the years allowed neo-conservatives to enlist the support of large segments of the business class while at the same time allowing it to court the Christian Right and to cultivate a broad popular base among the white working class.

It is in this context that neo-conservative resistance to global governance and the constitutionalisation of the international order must be understood. Global governance and human rights regime are premised on a liberal interpretation of democracy in which the ethical self-understanding of the majority culture no longer mediates between the rule of law, popular sovereignty and democratic legitimation. To the particularism of a democratic community united by its historical commitment to a set of values held to be universal by its members, global liberal governance opposes a vision of democracy in which free individuals are united in the universalism of a multicultural and egalitarian legal community. The integrative force of this cosmopolitan framework is derived not from its substantive cultural content, but from its universal ethical value as a mechanism for mediating between different conceptions of the good and sources of political identity. As Fonte explains, ‘Democratic national sovereigntists more or less support a form of patriotic assimilation that was successful in twentieth-century America […]’. By contrast, for the global progressives, ‘“integration” means the incorporation of a specific immigrant community as a specific community that retains loyalties to authorities outside the host democratic nation-state’.Footnote ⁷⁵

Against global progressives, neo-conservatives maintain that the liberal constitutional state cannot sustain itself in the absence of a vibrant national consciousness which provides the ethical underpinnings for a legal system of liberal rights. They argue that downplaying national identity in favour of an open and tolerant post-national society can only lead to the disintegration of the political order into a multiplicity of conflicting ethical-cultural communities, each integrated around its own conception of the good.Footnote ⁷⁶ The ‘counterproductive multiculturalist policies that sheltered radicalism’ in Europe since the end of the Cold War, or so we are told, should serve as a warning of what such a post-national order has in store for ‘the West’ if those policies are not reversed at once: ‘Remember Theo Van Gogh and Shudder for the Future’.Footnote ⁷⁷ For neo-conservatives, global governance and the ‘new’ international law is not only a challenge to US sovereignty but also to the very existence of the American regime and its transmission to future generations. As Fonte argues:

For Fonte and his colleagues, the idea of subordinating American universals to some form of pluralistic, global constitutional order is simply the latest expression of a modernist relativism against which the American Right has sought to guard the republic since the 1960s. As Fukuyama explains, because the notion of democratic legitimacy from which international institutions draw their authority accommodates various types of moral and political cultures, it necessarily involves the abandonment of a standard of right and wrong independent of positive right. By associating and entrusting their commitment to a liberal moral order with global institutions, he argues, European and American advocates of global liberal governance adopt a procedural understanding of democratic legitimacy that in fact contradicts their belief in a hierarchy of moral values. For neo-conservatives, the legitimacy of a constitutional order must necessarily come from the ‘prior rights and norms that come from a moral realm higher than that of the legal order’.Footnote ⁷⁹ Here ‘there can be no clear dividing line between the domestic and the foreign’.Footnote ⁸⁰ Abandoning sovereignty and American foreign policy to this emerging legal culture would empty the ideal democracy of its moral and cultural substance and deprive the Right from a key site of political mobilisation in its effort to roll back multiculturalism, re-moralise the social contract and contain the debilitating effects of cultural modernity. As Kagan and Kristol put it in their 1996 neo-Reaganite manifesto: ‘The remoralization of America at home ultimately requires the remoralization of American foreign policy. For both follow from American's belief that the principles of the declaration of Independence are not merely the choices of a particular culture but are universal, enduring, ‘self-evident’ truth. That has been, after all, the main point of the conservatives’ war against a relativistic multiculturalism'.Footnote ⁸¹

‘Culturalising’ sovereignty, ‘Americanising’ norms

Linking national autonomy with a culturally charged interpretation of democracy in this manner necessarily has implications for the way that sovereignty is practiced in the international arena. This is best illustrated by contrasting the neo-conservative position with a cosmopolitan rendering of the relationship between state sovereignty and the contemporary normative order. As Habermas argues, in the latter, sovereignty is tied to the private and public autonomy enjoyed by all who participate as free and equal subjects in the democratic process. External sovereignty in this case has to do primarily with the quest for state power and securing the existence of the political community. The deliberative model of democracy associated with this reading of sovereignty sets up strict criteria concerning how domestic political rule is legitimated and what a legitimate international order would ideally look like. But those criteria do not necessarily affect the way external sovereignty is exercised.Footnote ⁸² By contrast, the substantive notion of democracy defended by neo-conservatives assumes an essential link between the freedom and liberties of the people and the external independence of that people, since in this account the nation – a macro subject rooted in the ethical self-understanding of the majority culture – mediates between the rule of law and democracy. External sovereignty in this setting is therefore not only about preserving state power and the existence of the political community but also about securing its particular cultural character over and against other nations. ‘The meaning of democratic self-determination based on the majority culture is not the political autonomy of individual citizens but rather national independence – the self-assertion, self-affirmation, and self-realization of a nation in its specificity’.Footnote ⁸³

There is, of course, nothing exceptional about the fact that American nationalists consider the American experience to be exceptional and want to assert that myth through a politics of sovereignty. Many political communities have their own myth of exceptionalism and have appealed to it to justify various policies and claim various prerogatives in the past. But the crucial difference here is that American exceptionalism also claims to be universal in its particularity and must insist on the desirability and necessity of being emulated to validate and perpetuate itself. ‘Americans, we are told, ‘believe their nation has meaning […] only as it realises natural right and reason throughout the universe’.Footnote ⁸⁴ It is this existential projection of American universals that differentiates the conservative internationalism of neo-conservatives from the isolationist paleoconservatism of the likes of Pat Buchanan, Paul Craig Roberts and Paul Gottfried. As James Ceasar explains:

American exceptionalism in this interpretation therefore sees itself as the expression of the historical unfolding of a universal morality that is fundamentally at odds with the procedural character of modern international law. As Kagan argues, ‘By nature, tradition, and ideology the US has generally favored the promotion of liberal principles over the niceties of Westphalian diplomacy. Despite its role in helping to create the UN and draft the UN Charter, the US has never fully accepted the organization's legitimacy or the charter's doctrine of sovereign equality’.Footnote ⁸⁶ Neo-conservatives nevertheless insist that the US is unreservedly committed to the establishment and preservation of a liberal order. But it is a liberal order ‘with American power at the centre and with America as the indispensable nation’.Footnote ⁸⁷

These nationalist ruminations highlight the close conceptual link between the communitarian interpretation of democracy exposed above and the decisionist reading of the normative order discussed earlier. For neo-conservatives, American popular sovereignty draws its meaning from the instantiation of the nation's historical role as the ‘indispensable’ decider and enforcer of natural rights over the relativistic normative structure of international society. Thus what renders the practice of sovereignty particularly volatile in this setting is not only that it links external autonomy with the self-realisation of an historical community. It is the fact that it does so by asserting the unmediated ethical identity of a particular way of life with a universal system of moral values from which political principles of international legitimacy ought to be derived. In other words, neo-conservative discourses collapse the limits between fact and norms that are normally mediated by objective procedures and endow the law with general universal validity. International law here remains an indispensable means to restrain others, and therefore a valuable source of international stability. But it is envisaged as the institutionalisation of unmediated universals rather than as a set of procedural mechanisms for the management of political and cultural antagonisms.Footnote ⁸⁸

And this here is where the neo-conservative case for sovereignty against global liberal governance loses all plausibility. Its conceptual, political and normative failure stems from the fact that it rests upon two conflicting notions of politics – one particularistic and one universalistic. In the first, politics is defined by antagonism and the constant possibility of war. In this realist universe, conflicts can be resolved but human nature and the irremediable differentiation of modern society into incommensurable value spheres set limits on the possibility of a universally accepted notion of the good. This both guarantees the autonomy of the political from other spheres of human activity and ensures that arbitrary violence will always remain an endemic feature of liberal civilisation. Politics in this setting is therefore not a contest over the actualisation of a universal good, but a mechanism that negotiates and limits conflicts stemming from the impossibility of such a universal rational agreement. The other notion of politics underpinning the discourses surveyed above is one that sees politics as the historical unfolding of a ‘worldwide liberal revolution’ characterised by the pacific expansion of a universal morality led by the US.Footnote ⁸⁹ Here, politics is driven by a belief in the possibility of an eventual universal agreement on what constitutes the good society.

This apparent contradiction only partially dissolves when we appreciate that this second notion of politics is in fact predicated on the first. As I hope the above analysis makes clear, neo-conservatives are communitarian ‘realists’ above all else. As Robert Kagan put it in his Of Paradise and Power:

Yet the problem with this cynical and relativist view of politics is that it imposes unbearable psychological costs for a polity whose national identity has been so significantly shaped by enlightenment criticism. As the same Robert Kagan explains in another text, there is ‘something about realism that runs directly counter to the fundamental principles of American society […] If the US is founded upon universal principles, how can Americans practice amoral indifference when those principles are under siege around the world? And if they do profess indifference, how can they manage to avoid the implication that their principles are not, in fact, universal’?Footnote ⁹¹

It is this moralisation of the political that, in a very important manner, differentiates neo-conservative decisionist discourses of sovereignty from those of Schmitt discussed earlier. Schmitt defended state sovereignty and the state's right to wage war as a correlate of his interpretation of the antagonistic nature and autonomy of the political. In his view, the need for a sovereign who stands both inside and outside law and that has the factual capacity to decide on the exception necessarily followed from the inevitable grouping of humanity into friends and enemies. But he insisted that the friend-enemy distinction should always be drawn on a strictly political manner, not on an ethical basis. Schmitt's defence of the sovereign state as a culturally homogenous unit against the pluralist and differentiated civil society of liberalism was at the service of a pluralist international order of formally equal sovereign states. For him, preserving the autonomy of the political was a means to allow for the possibility of legitimate dissent and the management of estranged relations between states.

Like Schmitt, neo-conservatives presuppose the inevitable grouping of humanity into friends and enemies, and they build their defence of American sovereignty against global liberal governance and multiculturalism on its behalf. Yet they ultimately end up collapsing this fundamental political distinction into a universal ethics that purports to establish the moral authority of US sovereignty over the procedural universalisms of international law and institutions. This move generates a particularly aggressive and totalising form of conservative internationalism which is radically anti-pluralist both inside and outside the state and leaves no possibility for dissent to find any legitimate form of expression. It is a crusading conservatism that paradoxically thrives on the cultivation of otherness while at the same time seeking to overcome all estrangement from the ‘other’ by putting enemies beyond the realm of humanity and cultivating moral contempt for dissenting friends and allies who challenge unmediated expressions of American values.Footnote ⁹²

The absence of a legitimate ‘other’ in the neo-conservative construction of US sovereignty discredits whatever legitimate grievances neo-conservatives may have against the contemporary project of global governance. Sovereigntists have good reasons to question the viability and desirability of the constitutionalised global order wished for by the high priests of global governance. The constitutionalisation of the global order amounts to no less than a complete reversal of the ordering principle of the international system. International law in this setting would no longer exist to guarantee the formal equality of states but to ensure the compliance of the latter to a set of ideals whose political impartiality and ethical universalism remain highly contentious. To reduce politics to the application and policing of an abstract rational consensus is to deny the plurality of interests and values that characterise politics as a human activity. Kant himself warned against attempts at establishing constitutions that are geared towards ethical rather than political ends. For him, a normative order could only be established upon a set of tensions that leaves room for the indeterminacy and contingency of political action.Footnote ⁹³ Beyond these ethical considerations, the practical problem of enforcement raised by sovereigntist critics of global governance should also be taken seriously. As one commentator pointed out, the main problem here is that advocates of global governance must presuppose that coercive power as an attribute of states can be severed from its source in social relations and be ‘borrowed’ by international institutions ‘from domestic government officials to implement supranational rules and decisions’.Footnote ⁹⁴ Such an asocial and functional view of power rests upon a silence on the real possibility of disagreement and dissent that mirrors the ideological zeal and asocial understanding of power of the most ardent American hegemonists. Those who call for new set of norms involving a radical re-interpretation of the notion and function of international law tend to forget that this ‘brave new judicial world’ can itself only be imposed through conflict and political struggle. This much we have learned from the process of decolonisation.

Yet, and this is where both Schmittians and neo-conservatives go wrong, politics needs law to legitimise its objectives. Law does this by ‘universalising those objectives and inscribing in formal procedures the guarantees and sanctions tied to the pursuit of democratic objectives in a world of inequality and violence’.Footnote ⁹⁵ As Jean Cohen argues, ‘The concept of sovereignty is a reminder not only of the political context of law but also of the ultimate dependence of political power and political regimes on a valid, public, normative legal order for their authority’.Footnote ⁹⁶ True, in times of uncertainty it is power that puts an end to endless deliberations and resolves differences of opinion. However, although it may indeed be born of legal nothingness, the sovereign decision on the exception is not a self-justificatory act. There is a gap between act and justification and between rule and legitimacy that is independent from neither politics nor law but that cannot be reduced to any one of them. In the international arena, this gap between pure power politics and positive law is where international institutions operate and can, however imperfectly, mediate between competing universalisms and conflicting conceptions of the good life.Footnote ⁹⁷ As Patricia Owens emphasises in her Arendtian critique of neo-conservative politics, even our deepest and dearest moral truths are opened to contestation. That the Founding Fathers held principles such as ‘all men are created equal’ to be self-evident universal truths was not a matter of transcendent natural ‘truth’ as such but of ‘necessarily relative’ but agreed opinion: ‘the opinions were held not because they were self-evidently “true”, but because they were necessary for democratic politics to begin’.Footnote ⁹⁸ This is why it matters a great deal whether universal values are pursued within the bounds of agreed multilateral frameworks or not.

The American Right, and the US more generally, paid a high price for not taking international institutions seriously during the Bush presidency. Yet, in spite of its humbling defeat in the November 2008 elections, it is very unlikely that the Right will ever become more accommodating in this respect. For, as our analysis suggests, its opposition to global liberal governance goes beyond the usual realist concerns over the inexpediency of multilateral diplomacy and the lack of viable enforcement mechanisms in the absence of a global leviathan. The Right has a vested interest in opposing American participation in legal frameworks of global governance simply because the procedural ethics that underpins the latter reduces the scope for a moralisation of politics outside of positive law. Global liberal governance deprives the American Right of its favourite political terrain. It mines the cultural categories and domestic patterns of hegemonic relations that the conservative movement wants to preserve and that ultimately constitute its very raison d'être.