Legalist Empire: International Law and American Foreign Relations in the Early Twentieth Century by Benjamin Allen Coates, assistant professor of international relations at Wake Forest University, explores the connections between international law and empire in the United States from 1898 to 1919. It is a lengthy but excellent book with chapters on “International Law in Europe and America to 1898”; “Selling Empire 1898–1904”; “Legalism at Home: Professionalizing International Law, 1900–1913”; “Legalism in the World 1907–1913”; “International Law and Empire in Latin America 1904–1917”; “Legalism, Neutrality, and the Great War, 1914–1918”; and “World War, Collective Security, and International Law, 1914–1941.” The length of these chapters and the complexity of the subjects they address preclude covering all of them in this review. I conclude this review, however, with a discussion of the conclusion to this book, in which Choate reports on some of the actions and attitudes of President George W. Bush and his administration.

When I see the word “empire,” I immediately think of the Roman Empire or perhaps the British Empire. But a “legalist” empire? What is this? According to the Merriam-Webster Dictionary, a legalist is “one that views things from a legal standpoint, especially one that places primary emphasis on legal principles or on the formal structure of governmental institutions.” The same source defines an empire as “an extensive group of states or countries under a single supreme overlord, formerly especially an Emperor or Empress.”

The situation becomes even more confusing when I realize that the “one” who constitutes the legalist in this case and the single supreme overlord is the United States government. Moreover, on the very first page of legalist empire, in the introduction, Professor Coates notes that as a result of the Spanish-American War of 1898, “the country had not only solidified its position as an economic colossus but, by annexing Puerto Rico and the Philippines, had for the first time added semi-permanent, heavily populated colonies unlikely ever to attain statehood” (p. 1) Shortly thereafter, the United States had established a formal protectorate over Cuba, taken Panama to build a canal, and U.S. President Theodore Roosevelt had added a new corollary to the Monroe Doctrine, which proclaimed an American duty to “police” the Western hemisphere.

These actions stood in sharp contrast with George Washington's early declaration of non-entanglement with foreign territories or countries. They also raised serious questions regarding the role that international law played or should play in the conduct of foreign policy. Coates notes that debates over this role tended to assume that international law and state power are antagonists. “Weak states invoke international law, the thinking goes, to defend themselves from powerful ones, and strong states must find ways around the law in order to exercise their power” (id.). Coates goes on, however, to state that “the international lawyers of the early twentieth century saw international law as an essential component of the nation's emergence as a Great Power” (p. 2). Coates uses the rest of his book to explain why they thought so and “puts lawyers at the center of the effort to create and administer the American empire” (id.). He even goes so far as to state: “Contrary to the popular image, international lawyers were not isolated idealists spouting naïve bromides from the sidelines. Well-connected, well-respected, and well-compensated, they formed an integral part of the foreign policy establishment that built and policed an expanding empire” (p. 3).

Coates is by no means a naïve apologist for international law. He questions the notion of international law as a cost-free benefit to the United States. Such a notion, he suggests, depended on important assumptions that proved debatable. These were assumptions

Coates raises an issue that has long bedeviled international law and international lawyers: “If there was no global legislature, court, or sovereign, where did international law find its authority”? (p. 17). His answer to this question is worth quoting at length:

International law also developed through the creation of new international organizations by international lawyers. A prominent example was the Institut de Droit International in 1873. The Institut consisted solely of experts, limited to an elected membership of 120. International lawyers of the late nineteenth century began to distinguish between savages and civilized humanity. The basis of this distinction was the presence or absence of sociopolitical organizations. Civilized states were those that “had replaced the capricious rule of man with the rational rule of law” (p. 21). As John Stuart Mill explained in 1836, “‘in savage life there is little or no law, or administration of justice; no systematic employment of the collective strength of society, to protect individuals against injury from one another’” (id.). Civilized states had governments ready and willing to protect the life and property of foreigners. By the early twentieth century, most international lawyers recognized Japan as “civilized” because Japanese leaders had proclaimed adherence to the laws of war (p. 22).

In the chaotic aftermath of the Al Qaeda attacks of September 11, 2001, the administration of President George W. Bush resisted the constraints of international law. Administration officials dismissed international law as undemocratic, Europhilic, outdated, and anti-American. Attorney General Alberto Gonzales asserted that the new conditions of war rendered key portions of the Geneva Conventions “obsolete” and “quaint.” Other administration lawyers contended that practices such as waterboarding did not constitute torture. John Bolton, who served as U.S. ambassador to the United Nations between 2005 and 2006, and is currently serving as the U.S. national security advisor, denied that international law was law at all. To claim that that it represented anything beyond “a series of political and moral arguments” was “simply theology and superstition masquerading as law.” Along with other lawyers who moved between academia, private practice, and government, Bolton developed intellectual and legal arguments for why the United States should ignore international law whenever it was convenient.

In the last paragraph of the conclusion, Coates makes a statement that all readers of AJIL should keep in mind: