A. Of Style and Substance

There is much that is disquieting about David Kennedy's latest book, Of War and Law. Initially it feels all style and no substance. Or rather, the substance is so uneasy—especially within the bounds of his chosen register—that it is tempting to dismiss it as inconsequent or as a mere effect of stylistic pyrotechnics. To do so, however, would be a mistake. For although Kennedy does not describe his inquiry in terms of an explicit theory—and indeed, frequently appears hostile to theory per se—the book nevertheless adheres to a considered theoretical apparatus, and derives much of its specific energy and orientation from an overarching picture of law and politics, albeit one that often remains subliminal in Of War and Law.

The style in question is familiar Kennedy—polished prose, loosely discursive, with minimal footnoting, much rhetorical candour and appeal to extra-disciplinary intuition, and a rare intellectual and scholarly range. Despite its conspicuous critical and interdisciplinary attitude, this is a style with deep roots in the legal studies tradition—deriving in particular from the American legal realists and their later 20th-century critical legal studies (CLS) heirs. Kennedy has honed this inheritance into a personal and extremely productive set of investigatory tools, particularly in the area of law and development, where he is today one of the keenest commentators (see further below). He takes from the realists a willingness to resituate every legal artefact within the political and economic context that produced it (or that it reproduces). He also inherits from them a somewhat Manichean tendency to view the law–politics continuum as an agonistic space of struggle between ‘formalists’ and ‘progressives’ in realist vocabulary—‘rightists’ and ‘leftists’ in CLS-speak. But Kennedy has usefully confronted these simpler CLS categories with the complexity of the realists at their best: he enjoys turning a traditionally ‘leftist’ style of criticism against the easy assumptions of the ‘left’ itself. In this, he embodies the best of a thoroughly modernist reflexive tradition,Footnote ¹ subjecting even the highest ideals to trenchant critique—it is this relentless truth-seeking (and -speaking) that propels his seminal essays on human rights and humanitarianism in the earlier collection, The Dark Sides of Virtue. At such moments, Kennedy's meticulous and critical revaluation of his terms drives a wedge between the realist style and its progressive substance. But this soon resolves into a sharp Nietzschean rejection of lazy or worn categories in favour of something richer and truer: style and substance reunite, or better, in true modernist fashion, style reconstitutes substance.

Of War and Law looks and feels like a sequel to Dark Sides—inquiring further into modern humanitarianism, teasing out more zones of complicity. But it takes that earlier project in unexpected directions, often itself stepping, or so it seems, into the dark side. From the outset, there is an audience problem. In the earlier book, Kennedy wrote persuasively as a human rights insider, one proposing ‘a posture or sensibility for humanitarian work’ that he hopes ‘will make it easier to … recognize and engage the dark sides of our work, to work through them strategically and pragmatically, and to act on our humanitarian yearnings, even when our analysis leaves us uncertain’.Footnote ² Although this book extends that desire, Kennedy seems no longer to count himself among the idealistic ‘humanitarians’. The much more difficult first person plural of this book clearly embraces a host of others, extending to military and other service professionals. Kennedy has, of course, worked with the US army; the book's blurb carries warm words of approval from two generals. Even so, what are we to make of a passage such as the following?

Beneath all the familiar cant about civilization and reason and so on—language that will find its mark easily enough with his targeted policy and military audiences—there also runs an apparent code (‘commercial present’, ‘imaginary past’, the ‘frame’ of ‘fear’) that might resonate with an entirely different group, not perhaps the human rights idealists languishing at the margins of Dark Sides, but those critical ‘leftists’ who entered into the spirit of that book. This is seductively discomfiting prose: it asks ‘us’ to join in that ‘we’; to suspend our doubts about ‘war on terror’ talk; to recognize it as strategy, and to accept that as such—as a strategic register—it is as inoffensively appealing as Lyndon B Johnson's ‘war on poverty’; it is ours to play with. One feels as though Kennedy, having already seduced the world's international lawyers with this casual, smart, discursive tone—a voice of intuition that reaches past learning and law into some truer emotionally aware (but still rational) self—now wonders if he can pull the army in as well, or at least a few liberal generals, and why not make a bid for mainstream politicians too? This doubled tone, which persists throughout, is one of the book's more remarkable and disconcerting achievements. But if Kennedy speaks with forked tongue, he has also here created a register that aims to cross all boundaries: it aspires to lift policymakers out of their worldly cliché and scholars out of their ivory basements.

Attempted dissolution of the boundaries of discourse is entirely appropriate to Of War and Law, which is concerned precisely with the blurring of categories and the transmigration of spheres. In particular, the spheres of war and peace are, according to Kennedy, seeping into one another. Where Clausewitz, a lodestar throughout this book, could speak of a distinctive grammar of war and diplomacy (despite their shared logic), Kennedy claims that the grammar too—that is to say, the applicable law—is less distinct now than it once was (165). The idea that war has infiltrated peacetime is commonly heard today, but Kennedy distinguishes himself sharply from those who, guided in particular by the Italian philosopher Giorgio Agamben, have argued that we are slipping into some sort of permanent state of exception.Footnote ³ Although Kennedy reaches a similar conclusion, he gets there by a very different route—indeed the reverse route. For whereas Agamben speaks of a burgeoning (if minimally defined) sovereignty that might be thought of as the source of extensive exceptionality, Kennedy rather finds sovereignty too—at least in its familiar form—in dissolution. Where Agamben defined sovereignty as the power of decision over the exception, it is precisely this power to decide that Kennedy identifies as in recession. So he discusses at length the complexity of contemporary decision-making about war (14–22):

When it came to war in Iraq, ‘by the time we focused on “the president deciding”, it is far from clear how much room for manoeuvre he still had’ (17). Yet, lest we hope this diversification is an expression of some rising popular sovereignty, Kennedy is quick to remind us that ‘those who share the war power with the president are not the world's citizens’ (16).

In a rich excursus into the history of the laws of war, Kennedy indirectly challenges Agamben's premise of a deciding sovereign (derived perhaps too uncritically from Carl Schmitt) as a relic of a particular moment of the legal past. Late 19th-century lawyers reversed earlier notions of sovereignty as a personal attribute identifiable from actually existing public powers (62), to a (formal, positive) attribute of the modern state that instead entailed these powers. Sovereignty marked the point of distinction between formally distinct legal spheres: public/private; national/international. Internationally, the 19th-century sovereign mediated the legal states of war and peace, marked by declaration. Domestically, the formalist distinction revolved in particular around the appropriate limits of the ‘police power’. According to a historical reading of great importance to the later CLS writers,Footnote ⁴ formalism, as theory and (later) practice was dismantled by the American realists in the early 20th century, opening the way to the New Deal administrative structures. By relying on social science expertise over traditional judicial mechanisms for decision-making, the new bureaucracies disrupted the hitherto sharp boundaries between law and politics, public and private. Kennedy draws an implicit analogy between this familiar account of US law in the 20th century and international law of the same period (see, eg, p 45). The ‘political science’ of international relations here plays a role similar to ‘social science’ domestically, revisiting international relations as something managed (balance of power) and manageable rather than, as international lawyers had assumed, a sphere of formally autonomous billiard-ball-like sovereigns (71–5). This political/managerial view of the international sphere overtakes the legalism of the late 19th century with the creation of the institutions of the League of Nations and United Nations and the rise of political science as the pre-eminent discipline of international affairs.

In telling this story, Kennedy audaciously (if quietly) indicates a commonality of perspectives between legal realism and that other, better-known, ‘realism’ of international politics. Although this relation appears counter-intuitive at first, given the very different ideologies associated with each, it is very much in keeping with Kennedy's own work and that of Duncan Kennedy (who is something of an éminence blanche behind this book) to identify how similar or related modes of inquiry and interpretation need not be bound to particular political perspectives and indeed frequently switch between them over time.Footnote ⁵ Style, in short, is no infallible guide to substance. Furthermore, the analogy is fairly convincing. Just as domestic sovereignty, driven by the encroaching management requirements of industrial nations (regulation of poverty, health, employment, old age, and so on), evolved into administrative structures that diluted law and policy at home, so sovereigns abroad are increasingly required to cooperate internationally, their autonomy bounded by the ‘common interest’, and foreign affairs are increasingly taken out of the hands of international lawyers and given instead to economic and political ‘scientists’.

Another theorist whose ghost is thoroughly concealed in this short book is Michel Foucault. Like Kennedy, the French philosopher's theoretical interest in sovereignty aimed at displacing its hold over theories of power.Footnote ⁶ Foucault identified an alternative organizing principle—disciplinary power—that is exercised through constant and increasing surveillance and through the systematic normalization of multiple mechanisms of self-control. Disciplinary power, he says, ‘is impossible to describe in the terminology of the theory of sovereignty’ and ‘ought by rights have led to the disappearance of the whole grand juridical edifice created by that theory’.Footnote ⁷ This has not happened, according to Foucault, because, on one hand, the language of sovereignty and right has provided an indispensable means of expressing both the autonomy of the citizen and the limits on monarchical or absolute power, and because, on the other, the continued dominance of the legalist language of right tends to conceal the actual centrality of disciplinary power. Nevertheless, the techniques of disciplinary power ‘invade the area of right’ such that ‘the procedures of normalisation come to be ever more engaged in the colonisation of those of law’.Footnote ⁸ Here we have a precise description of categorical blurring and transfertilization, but one that moves sharply away from the post-Schmittian apotheosis of the sovereign. Kennedy, of course, abjures Foucault's theoretical language in favour of his own unpretentious, even fireside, tone and vocabulary. But his project in Of War and Law appears closely to parallel that described by Foucault—with humanitarian law in particular, and its raft of debatable dos and don'ts, as the sample disciplinary discourse.

So Kennedy is left with real (ie formal legal) sovereigns (States) that do not enjoy in fact the full public powers, either domestically or internationally, they might possess formally. (It would be more correct to say the powers remain, but dissipated across multiple authorities, for whom the term ‘sovereign’ assumes a wholly artificial unicity.) In theory, it is no longer assumed that the legal power of decision-making in itself provides sufficient legitimacy to be exercised without wider consultation and expertise. In practice, public decisions are heavily influenced by a range of actors, many of them private (business, NGOs). After all, whatever else we think of the Bush decision to go to war, most would agree it involved a tremendous effort to establish legitimacy beyond mere sovereign right (both at the UN and in what Kennedy calls ‘world public opinion’). Indeed the failure of that legitimating sequence has been a primary source of the administration's woes ever since. Most would also agree that ‘private’ fingerprints can be found all over the decision to go to war and its conduct. And so Kennedy reaches the reverse conclusion to Agamben—the seepage of war into peace demonstrates rather the retreat of sovereignty than its metastasis.

Of War and Law makes clear that what interests Kennedy is strategy not theory. Regarded as itself a strategic intervention, it is easy to see why this small book eschews explicit theorizing in the interests of wider relevance, and why it works hard to produce a double register that might appeal equally to policymakers, military strategists, humanitarians and international legal academics. But is there a cost? Perhaps. This book is very concerned with the double-binding of humanitarianism and the military through shared legal narratives. The elegant iconography of the book's cover—the words ‘war’ and ‘law’ stretched along the arms of an International Committee of the Red Cross-like (ICRC) red cross on a white background—itself binds humanitarianism, law and war into a tight bundle: inextricable, perhaps even co-dependent. Occasionally Kennedy sounds like a ‘liberal who's been mugged by reality’ (as some neocons once called themselves)—dismissive of the naivety of those pacifists who thought law might restrain war; sympathetic to the humanitarian goals of the military. More often, though, he paints himself as the perceptive pragmatist, observing that today everyone—war- and peacemakers alike—use the same legal language to describe and contest the means, permissions, and purposes of war. War and its contestation have both, therefore, become increasingly managerial, a progression of cost–benefit analyses and moral balancing acts (differentiating weapons, forms of cruelty or coercion, military tactics).

All this is familiar from realism. But the fact that ‘humanitarians’ and the military share a language poses its own strategic problems: the military is becoming overly bureaucratic and legalized; ‘humanitarians’ are getting their hands dirty. The effects of blurring boundaries multiply: rhetorical wars mix with the real thing; war is no longer bounded by declarations; neutrality is eroding. Kennedy even comes close to suggesting that humanitarianism actually enables modern warfare, a tempting dialectical paradox. He comments, for example, that humanitarian law is precisely the language used by the military to ‘legally condition the battlefield’, that is, to remind the public that they ‘are entitled to kill civilians’ (8) or to tell the enemy that their defeat will be only as bloody as their resistance (136). The very perversity of such an intuition no doubt facilitates a more forthright step into the dark side. Pragmatic and critical, Kennedy sets aside all moralizing about war (surely the most morally charged of issues) and speaks of ‘lawfare’ purely as politics, as strategy.

Here we might hesitate. Whereas Dark Sides straddled the worlds of power and its critique, that book's author clearly sided with the latter. The voice here, though, has crossed the border: this voice feels power too close to offend and is perhaps a little dizzy at the prospect. Dark Sides constantly destabilized the self-righteousness of human rights advocates by raising relentlessly the austere substance behind their casual claims to justice. No such moral substance disturbs in this book: everything collapses into strategy. Having achieved a marriage of convenience between the two, Kennedy can perhaps allow himself to side rather with the political realists (Clausewitz/Morgenthau) than the legal realists (Holmes/Hale).Footnote ⁹ No longer hand-wringing over possible complicity, he has ceded instead to the levity of power, wherein violence is drained of moral seriousness and can be judged on its outcomes alone, much like assessing the credibility of a novel's plot. Yes, hard questions echo across these pages—is this really what we want from law?—but with no replies forthcoming they quietly fade away. Perhaps it is the vertigo of a decompressing gravitas that renders much in this book notable for its striking articulation rather than its enlightenment.

Moreover, in narrating the co-dependence of humanitarianism and military operation, Kennedy seems to indulge in occasional sleights of hand. Building on his own already overbroad use of the term ‘humanitarian’ in Dark Sides, he here conflates multiple meanings from that word's richly nuanced history. At the end of the 19th century, humanitarian stood for lots of things that today go under the broader ‘human rights’ rubric. Now, by contrast, its mainstream usage refers to non-legal interventions—aid with few or no strings attached, packages of food or clothing dropped from airplanes after famines or floods. At the same time, its legal application remains highly specific—the law of armed conflict (ius in bello), notably of the Hague and Geneva Conventions, that purports to govern how parties to a war treat enemy soldiers and prisoners, how war is ‘done’. The latter laws clearly benefit those who manage wars—by preserving manpower, limiting property destruction, and so on—as well as those who actually fight them. So when Kennedy uses the term ‘humanitarian’ to cover all these groups—those who protested the Iraq war (or oppose war in principle), human rights activists (some of whom support ‘humanitarian intervention’, some who do not), and those observing humanitarian law on the battlefield (soldiers, generals, the ICRC), he sets up a somewhat illusory identity about which he can say more or less whatever he likes. Who, after all, is not humanitarian?

Humanitarian law is a professional language, that of war in progress. When we focus on it, we are already immersed in a war environment, deploying a vocabulary of violence and military objectives. We learn something of the strategies of war-making today, perhaps, but little about the strategies behind it—who makes war, why, who benefits, who loses—and the role of law in determining these. This absence shapes the book profoundly (albeit negatively), and is the more gaping as Kennedy has for years drawn attention to the way seemingly technocratic decisions create winners and losers. Rather than addressing that story, he has instead allowed individuals to disappear from the tale, except as vehicles of strategy. Indeed, by choosing early on to de-emphasize the locus of decision-making, Kennedy takes those questions off the table, much as any general in the field does. True, the Schmittian sovereign is overly simplistic, but absent any theory of sovereignty, politics tends to drain away—decisions without decision-makers appear as impersonal or natural forces. To many in policy or the military, war decisions may appear just so: inexorable or buoyed by a momentum too complex to parse.Footnote ¹⁰ But followed through, Kennedy appears to suggest that war-making is agentless—an absurd and dangerous proposition.

Might this blind spot be due to the fact that, as he makes clear early on, he is speaking primarily to an American audience about American realities and options?Footnote ¹¹ For by positioning himself thus, the hardest question about war in the early 21st century also begins to dissolve into inevitability: what is peculiarly American about warfare today? Unintentionally, Kennedy lends weight to notions such as that of a US empire (a term he does not use) by merely assuming a global context wherein US actions, motives and aims are identical with the ‘international’, and wherein US policy rhetoric is itself the primary subject of international law analysis. He refers often to something called ‘global public opinion’—but he himself would no doubt admit this is rather a cipher for the projection of desire (especially from North America). That he takes the predominance of US interests so thoroughly for granted—or that broader transnational interests (political, commercial) can appear adequately represented by US ‘sovereign’ acts—is an oblique endorsement of the dubious notion of American empire.

If never sloppy, Of War and Law is often slippery, relying on rhetorical devices to cast its subject in tones sometimes designed to glitter rather than illuminate. In his eagerness to treat contemporary war as a hard fact of legal life and law itself as mere calculation and staged debate, Kennedy appears to have disabled himself from coherent critique of either the strategies in question or the mobilization of law to achieve them. We are treated to a set of explanatory devices that look a lot like those trotted out by the Bush administration, indeed by warfarers throughout history: new threats and crises; proliferating violence; new technologies; non-State actors; outdated laws needing revision. This fits well with an off-the-shelf variety of ‘inexorable’ globalization, a vision that in turn serves the sovereign erosion argument well. Much that Kennedy offers as ‘new’ in this book, turns out on inspection not to be—asymmetrical warfare, technology-driven legal evolution, war without declaration, the erosion of neutrality—each of these have been features of colonial wars long before the 21st century. Nor is it novel to think of war as elite empowerment or as a public distraction from private redistribution. True, the specific instances of technology and media in warfare are often new—but no sustained explanation is offered here as to how these have actually altered warfare and its law, if at all. And if ‘rhetorical’ and ‘real’ wars are confounded, that too is surely a strategic, not a natural, development.

Finally, the analysis is sometimes weak even in areas where we might expect Kennedy to be really good—he might, for example, have brought a Hohfeldian lens to the respective allocations of rights, privileges and duties managed through the laws of war today, or to the distributive effects of uneven enforcement mechanisms. Some fascinating insights—such as that a spectrum of legality of weaponry, combat persons, and targets tends to favour the stronger (‘leaders outlaw weapons they no longer need’), or that the kerfuffle over Guantánamo detainee rights siphons off criticism that ‘might otherwise have been directed at the broader war’ (or, he might have added, at broader economic redistribution at home)—spin off into the vacuums between the gems of prose.

One has the impression that Kennedy is aware of the criticisms raised here and of many possible others besides. His throwaway remarks throughout, and the paths not followed, are too many and too insightful to be arbitrary. It may be that his military readers will have their expectations destabilized here, much as his ‘humanitarians’ did in Dark Sides. Yet one feels the book will be well received by its main audience—because he not only leaves intact the core logic and rhetoric of war-making in the US today; in many places he repeats and augments it. At the same time, for all its easy familiarity of tone, something about this book is untimely. It feels like a moment of significant deconstruction of the too-obvious—something necessary before present novelties can be properly grasped. From that perspective, and despite eschewing theoretical jargon throughout, Of War and Law is a far more coherent work of theory than many more voluble efforts.

B.Some Empiricism About Empire

Kennedy aside, talk of US empire is everywhere recently, in academic writing and pop critique alike. It is certainly spectacular, but is it useful? The contributors to Empire's Law, a recent collection edited by Amy Bartholomew presumably think so: each of them speaks casually of the US as an ‘imperial’ power. This usage contravenes—and is intended to—that of Michael Hardt and Toni Negri, the writers who, in 2000, brought the metaphor of empire back in from the cold war and for whom ‘the United States does not, and indeed no nation state can today, form the centre of an imperialist project’.Footnote ¹² Leo Panitch and Sam Gindin, who ‘theorize American Empire’ at the outset, dismiss Hardt and Negri's recourse to ‘postmodernism's and globalisation theory's superficial conceptions of decentred power in a borderless world’ (25). Even in 2000, they say, the latter theory was ‘bizarrely out of step with the times’: its (academic) popularity can only be ascribed to the coincident emergence of a quite different kind of empire—that of the United States as bellicose superpower. Certainly, Hardt and Negri's seminal text (Empire) was published in a very different world to today's—at least if we think of 9/11 and the Iraq war as epochal events to some degree. Their theory of empire—a newly emergent transnational sovereignty in which ‘peace, equilibrium and the cessation of conflict are the values towards which everything is directed’—seems almost otherworldly now.Footnote ¹³ It is precisely the reverse tendency—towards war and disequilibrium—that animates (and angers) the contributors to Empire's Law.

With charges of US empire a dime a dozen these days, there is arguably demand for a sustained analysis of the term's precise reference and utility. Empire's Law does not deliver, however—and, worse, it fails to establish a coherent argument even on its own terms—with different contributors presenting varying and sometimes contradictory notions of what US imperialism is supposed to be. The heavy hitters (Jurgen Habermas, Samir Amin, Andrew Arato) have little or nothing to say about ‘US empire’: their excellent articles appear to be patched in from a quite different debating room. As Panitch and Gindin offer the only considered ‘theoretical framework’ for the volume, it is unfortunate they choose to reject Hardt and Negri's original and sophisticated framework out of hand. In doing so, they demonstrate the perils of theorizing—the risks of easy abstraction, selective examination of events, and casual deduction from a simplified worldview (in this case the irrepressible dominance of ‘global capitalism’).

What do they offer in place of Hardt and Negri? Rejecting both old-school ‘Marxist inter-imperial rivalry’ and more recent analogies with ancient Rome (because, they say, ‘an analogy is not a theory’), they pick up instead on the ubiquitous self-reference to empire that rattled around the Washington beltway and the pages of Foreign Affairs in this century's early years. For these writers, talking up empire appears to have been as much about instilling a transformative mindset among policymakers and ‘ordinary Americans’ as signalling US ‘imperial’ intent to the rest of the world—which itself apparently reduces to a renewed willingness to use force.Footnote ¹⁴ Panitch and Gindin take this as the explicit recognition of a long-term US ‘national interest in terms of the reproduction and spread of global capitalism’. The US is, they claim, ‘filling in for global capitalism's absent “global state”’. This involves both the ‘informal incorporation of other capitalist states’ and the ‘policing’ of rogue States. The United States is an ‘informal empire’, uniquely equipped—by its constitution,Footnote ¹⁵ its expansive New Deal-era bureaucracy, and its military and financial muscle—to take over Britain's imperial mantle when the latter proved unable to absorb the leading economies after the Second World War. The US empire ‘rule[s] … through other states’, having successfully disseminated its ‘neoliberal’ financial architecture worldwide. It is the difficulty of turning the rest of the world into ‘effective states’ through proxies like the World Bank, say Panitch and Gindin, that has led ‘American imperialism today to present itself in an increasingly unconcealed manner’ (32): hence Iraq. However, this unmasked posture is losing the US legitimacy and so, the authors assure us, we may expect that ‘anti-imperialist struggles … will have growing mass appeal and force’ (41). So that's alright then.

If all this sounds a lot like unreconstructed Marxism (and ‘vulgar Marxism’ at that, to use Walter Benjamin's expression), the authors might counter that the US today exemplifies unreconstructed (and vulgar) imperialism. But for that we would still need a working definition of ‘empire’: what does the term contribute that is not already covered by ‘hegemon’ or ‘superpower’—two terms that, if casual, are at least widely understood? The European colonial powers arrived to the register of empire late in their careers of conquest, and did so partly for jingoistic reasons, partly to recognize the fact, however accomplished, of direct jurisdictional authority over territories beyond the nation State. (The analogy, pace Panitch and Gindin, was always Rome.) Neither reason carries in the case of the United States today. The only jingoism associated with ‘empire’ now is that anti-jingoism long sponsored by the US, a familiar rhetoric that, somewhat ironically, defines the tone of this collection. The authors do, however, offer something like a jurisdictional definition:

The key term here is presumably ‘could arrogate’—an intriguing formula, poised between law and fact. Arrogation is, like derogation, a mark of sovereignty. Certainly, if the US could arrogate unto itself ‘rights’ that other States cannot, it would appear to benefit from some kind of imperium or jurisdictional reach beyond mere Statehood. But despite the authors' apparent confidence, the mere fact of unilateral US military activity is hardly in itself sufficient evidence of imperium. In Hohfeldian terms, the US may be at liberty to invade other States, or may be immune from sanction, without yet having a ‘right to intervene’.Footnote ¹⁶ The term ‘immunity’ might best describe US power in this regard—the country cannot be held accountable for having invaded Iraq despite apparent unlawfulness. International law might then, on a (less vulgar) Marxian reading, structure that immunity: it might play an ideological role, masking group interests behind talk of universal liberty and equality. However, the Panitch-Gindin reading of international law is wholly different, owing something to a distorted Schmittian frame of the ‘decision on the exception’. US imperialism is revealed in its defiance of international law. But it is defiant precisely because it cannot control international legal opinion. This involves the contradictory thesis that the international sphere has been increasingly in hock to US (capitalist) interests since the Second World War while, at the same time, the US is also increasingly unable to determine outcomes by lawful means. Well which is it?

Surely if the war in Iraq has demonstrated anything, it is arguably the United States' incapacity to assert direct jurisdiction over even small areas of the globe. At the time of writing (May 2007) it seems clear the US cannot now end the ‘exception’ in Iraq by means of a mere decision—or indeed by any other means. How does that fit with ‘empire’?Footnote ¹⁷ Or is constant conflict itself to be thought an imperial strategy? But if so, how does that comport with classical notions of empire as zones of enforced peace (pax Romana, pax Britannica, Hardt and Negri)? Doesn't capitalism too thrive on peace and trade, rather than violence and insularity (and shouldn't we distinguish between ‘market capitalism’, ‘monopoly capitalism’, and mercantilism)? These are complex questions—perhaps too complex to be addressed in the confines of a single article. But no ‘theory’ can expect a pass on the basis that it raises contradictions it cannot resolve. The Panitch-Gindin thesis might conceivably appear sturdier if it was supported elsewhere in the volume. However, this is not the case: other papers either draw on a quite different theoretical apparatus or use the plastic term ‘empire’ in different, non-assimilable ways. Among the first group are Jurgen Habermas, Andrew Arato and Samir Amin, each of whom works within an already secure theoretical framework elaborated elsewhere, that informs their papers without overloading them. Among the second group, Nehal Bhuta pushes the empire topic in perhaps the most interesting direction, comparing the democracy-themed invasion of Iraq with Napoleonic revolution.Footnote ¹⁸

Panitch and Gindin's essay is not particularly representative of a book that has, in fact, an abundance of interesting reflections on and critiques of contemporary US activities. If I have dwelt on it, the reason is rather because their paper attempts something few others do—to flesh out the ‘empire’ catcall with meaning, because it provides an overarching framework for this volume, and because it establishes a tone that (with the editor's help) dominates the collection as a whole. This is largely a matter of style, evident also in the book's cover, subtitle and blurbs. There is nothing wrong with a collection of loosely associated papers on a broadly shared topic—but by giving pride of place to a self-styled ‘theory’ involving quite extravagant framing claims, the publishers have somewhat obscured much of the merit of the collection. Yet they have also provided a service—for by consciously foregrounding a ‘theory of empire’, they call into question the very casual references to ‘American imperialism’ that litter the rest of the book and, far beyond, much popular scholarship on both the left and right. Panitch and Gindin, in other words, thematize precisely the iceberg of assumption that underlies this extensive usage, and expose it (albeit inadvertently) as flawed and inconsistent.

Amy Bartholomew, the collection's editor, provides a thoughtful variation on the theoretical glue of Pantich and Gindin. She opposes ‘empire's law’ to the ‘law's empire’ of Ronald Dworkin, suggesting the two are mutually exclusive. The Bush administration has, on this view, instituted a ‘revolution’ in international law (6) that effectively replaces a lawful international authority (that of a ‘community’ of equal sovereigns) with a lawless one (itself). Bartholomew too speaks of a ‘right of Empire’ (7) that, she says, the United States has recently invoked, although she offers no examples. She doesn't say so, but her view—which is in fact firmly couched within mainstream liberalism—is quite incompatible with the Panitch-Gindin thesis. Where Bartholomew speaks of a pre-Bush international community of States, Panitch and Gindin saw that liberal order as itself already serving America's interests. Whereas she is concerned with the illegality of US behaviour, they consider that very register to be empire's own, a mask for power. Bartholomew's introduction and paper suffer from the same occasionally shrill tone that infects the book as a whole, but they are nevertheless sensitive and internally consistent. They do not, however, enlighten us to the value of the ‘empire’ register.

The problem, of course, is that ‘empire’ has, since mid-century, become a term rather of moral censure than of descriptive precision. It is also far too user-friendly: it is difficult, after all, to see how any universalizing project—and there is no shortage—could escape the label's looser applications. The great value of Hardt and Negri's work was their assignment of a specific value to this vocabulary—one that builds upon past experience—but is distinct from ‘State’ or ‘capitalism’ and focuses on legal effects. It is just these distinctions that are absent from Empire's Law. Earlier empires have not merely been States in metastasis. How do they differ from States? Perhaps empires lack the sense of a shared ‘public’ we think of as necessary to the State. Perhaps empires can sustain legal pluralisms that states struggle with. Perhaps empires embed notions of transcendental authority that states refute. The US may well be at the centre of an evolution towards empire in any of these possible senses. But if so, this is not captured in Empire's Law, where empire is instead elided with mere national self-interest—the presumed naturalness and normative centrality of the nation State—and political power is confused with economic (empire ‘is’ capitalism).Footnote ¹⁹

Empire's Law thus suffers from a surfeit of inconsistent gestures and definitions. Most glaringly, the legalist-rhetorical language of the American prosecutor is turned against its progenitor: the US ‘rides roughshod’ over international law, their behaviour ‘shocks the conscience’, they pose a ‘clear and present’ danger, and so on. There is a concomitant tendency to reify: the US is bad, the EU good; international law (good) is something simply ‘there’ to be obeyed or broken—as against ‘empire’ (bad), reducible to ‘national interest’ or ‘unilateralism’ or whatever our current bête noir is. Surely better to recognize that international law is constantly in flux, responsive in different ways to different needs, eloquent in its silences, malleable as any textual phenomenon, indeed—absent a final arbiter—more so than most. And better, at a minimum, to recognize how international law has always been close to imperialism.Footnote ²⁰

Instead, it is precisely ‘theory’ that lacks here: ‘empire’ is deployed for its rhetorical force, without a serious attempt to discover its historical or juridical significance. ‘Theories’ are put forward as ‘needed’ (‘what we need is …’; ‘what the US should do is …’), as though scholarly fashion determined politics rather than vice versa. But theory is not fantasy or abstraction: it is the world meticulously transcribed. It is not a fanciful litany of normative desiderata or parallel universes, but the hard slog of articulating clearly that which already exists. On the evidence of this book, political regression in the US today has propagated intellectual regression everywhere. If that is a sign of empire, it is captured here only in a dominating tone of polemic. Not, that is to say, in theory.

C. What is the Plural of ‘Rule of Law’?

According to both Empire's Law and Of War and Law, US international influence is supplemented—if not actually driven—by much more mundane domestic-level reform work underway globally. Since foreign investment is generally thought vital to development, and entrepreneurialism (at least since Weber) to rely on legal goods such as predictability and rationality—contemporary visions of international development habitually prioritize domestic legal construction, today called rule-of-law promotion. This is a remarkably flexible vocabulary: while ‘rule of law’ here signifies in particular the legal constraints typical of functioning market societies (security of property and predictable contract enforcement—both in turn dependent upon judicial ‘capacity’ and independence) the language also comports naturally with that of human rights and constitutionalism, both of which increasingly appear as international aid objectives. Thus considerable funding is today devoted to law reform and institution-building in target countries, along both private and governmental channels, through bilateral aid and the large financial institutions, and buoyed by a quasi-constitutional transnationalism that reaches beyond mere compliance with international law into the universal discourses of human rights and development.

Scholarly treatments of this enormous body of contemporary practice tend to fall into two broad camps: those concerned with measuring the success or otherwise of rule-of-law work in import countries (that is, its existence comparatively across countries or institutionally within given states or regions, and the usefulness or otherwise of foreign intervention to that end) and those more interested in the historical and theoretical determinants of this rising vocabulary in export countries. Broadly, the former view rule-of-law programmes as demand driven, recognized by both public and private actors in a country as desirable for a range of aspirations. The latter speak rather of the propagation of legal orthodoxies through transnational elite agreement. The contributors to Empire's Law, when they touch on this set of concerns, fall (unsurprisingly) into the latter camp. Their assumption that US promotion of the rule of law internationally underpins an imperial ambition fits easily with the demonstrable observation that empire has historically been a vehicle for the export of law and, indeed, of entire legal systems. The special pre-eminence of the US is shown by its enforcement of adherence to this commercial order through the threat of force—much as European empires did in the past. Iraq, then, is an instance of that threat in application.

This is overly simplistic. It is true that the Bush administration speaks of the rule of law at every opportunity; the noxious 2006 national security strategy, for example, is steeped in this vocabulary.Footnote ²¹ Extensive United States Agency for International Development (USAID) expenditure since the invasion too comes with a rule-of-law tag—leading Haifa Zangana to conclude, in Empire's Law, that US-funded ‘civil society’ NGOs in Iraq are little more than empire's stooges and collaborators.Footnote ²² On the other hand, this language was just as central in the very different Clinton years and, as Trevor Purvis points out in the same book,Footnote ²³ the Bush administration's smothering embrace of rule-of law-language might rather signal the beginning of the end of an over-cycled cliché. The expression's polysemy has made it a site of conflicting visions of the transnational domain. Thus, for example, the notion of an ‘international rule of law’—meaning, in particular, adherence to the ius ad bellum—goes to the heart of the UN's legitimacy but is much less resonant in US legal (or public) discourse. A greater zone of consensus surrounds post-conflict rule-of-law building—where perceived tabula rasa conditions open the way to institution building to consolidate democracy, human rights and market economies (delivered though a rising sub-industry of ‘rule-of-law officers’). Purvis worries in particular that the Bush use of (‘neoliberal’) rule-of-law language risks discrediting and undoing the liberal internationalist usage—especially given the US administration's own repeated violation of the rule of law (however defined).

But Purvis appears to miss a wider implication of the near-universal convergence around this rhetoric. The rule of law appears today to signal a core common value that applies across a transnational legal continuum, binding international to municipal law everywhere as a mark of ultimate legitimacy. ‘Having’ the rule of law itself becomes the measure of legitimacy: contemporary notions of authority seem inextricably bound up in the idea that law should rule even in the absence of any agreed authoritative source for that same law. To charge the US with violation of some ‘international rule of law’ for its invasion of Iraq (as Purvis does) is merely to repeat this logic of transnational authority without really interrogating its significance as an overarching language of legitimacy.Footnote ²⁴ This register misses the fact that the rule of law plays differently to different audiences: contrast, for example, the ‘international rule of law’ with the common idea that rule of law is fundamentally about procedure in judicial processes, and so is a national affair a priori, or compare its usage by economists (hard contract and property law) with that by lawyers (ante-law normativity). What is remarkable is that despite these different visions—and indeed the vastly different context in which the term can be made to apply—the rule of law is still thought of as a singularity: there is no space for cultural or historical variation. ‘The rule of law’ has no plural: it is everywhere the same. As such it provides a shared register across borders, an interface hooking a plurality of national orders into some universal transnational, an authority without a centre. The ubiquitous rule of law thus arguably offers a more coherent example of the rise of singularity that the scholars of ‘empire’ apparently seek to capture.

The six contributors to David Trubek and Alvaro Santos's The New Law and Economic Development bring a nuanced and rewarding critical lens to the contemporary rule-of-law trend—the book further displays a unity of purpose, conception and register absent from Empire's Law. This may be because the contributors have mostly been at the forefront of thinking on their subject for decades and might even be thought themselves to comprise the critical canon. David Trubek and his contemporary Duncan Kennedy were, so to speak, there at the creation in the late 1960s. David Kennedy, Scott Newton and Kerry Rittich are all established next-wave scholars with practical experience of the field, and Alvaro Santos, no doubt, represents the upcoming generation. They are clearly acquainted with one another's work and, side-by-side, their accounts have a quality of intelligent accumulation. The relative coherence of style and consensus on the object of study and its disciplinary contours gives this collection a feeling of a ‘school’ beside which the essays in Empire's Law are rather a random assortment on a theme. These essays thus provide an excellent example of theory in construction, an enterprise through which the themes and terms of a debate become shared and increasingly natural.

This volume puts a stamp on the parameters of rule-of-law promotion as a field—its chronology, primary and secondary actors, signatory themes, stakes, relevant language and theoretical postures. It is as though the writers wished to fix the field's core tenets: its doxa. Central to this project is the schema of chronological stages that informs, with some variations, each contribution. For David Kennedy, Newton and Trubek, contemporary rule-of-law promotion is the fourth ‘chastened’ (Kennedy and Trubek) or ‘post’ (Newton) phase in a history of law and development that had begun with tentative post-war legal engineering, moved into a ‘critical’ retreat in the 1970s, and reignited with a neoliberal resurgence in the 1980s through to the mid-1990s or so. The language of ‘phases’ and ‘moments’ also litters the editors' introduction and remains implicit even where the narrative scope is narrowed—Kerry Rittich speaks of two ‘generations’ of recent reforms; Alvaro Santos of three ‘periods’ of World Bank thinking from 1980 to the present; and Duncan Kennedy, in a remarkable essay to which I will return, of three ‘globalizations of law and legal thought’ between 1850 and 2000. This time-banded framing of the rule-of-law field has long been standard in the critical literature—but it has here reached its apogee: future critics may seek a new approach. Fortunately the two Kennedys respectively plumb the fullest possibilities of the standard narrative (David) and point the way out (Duncan). Here, I want to look briefly at the subthemes that emerge from this framing and why they may ultimately appear inadequate or unsustainable.

The insistence on a chronological clothes-horse produces a structural effect that appears natural on repetition. The choice of a post-war start date places the field within a very familiar history that the writers need not refer to explicitly. We are invited to think the field as new: we are to understand rupture rather than continuity with the pre-Second World War order. Legal aid, in these stories, comes into existence at just the moment when the European powers emerge from a conflagration of violence that leads ultimately both to the construction of a new international order, under American auspices, and to decolonization. Law and development belongs to this new context: it is both post-imperial and largely US-driven—two corollaries with a long mutual association in the US imagination and elsewhere. A familiar background story kicks in here of a post-war American interest in the world that is as yet unspoiled: constructive and reconstructive, rational, altruistic, anti-imperial, supportive of self-determination, responding to felt needs rather than expansionary desire. This is a simplification of course—the point here is merely to draw attention to a structural backdrop, a naturalized history, one that need not be spelled out.

One can, however, imagine a quite different narrative, one that would situate post-Second World War transnational legal interventions within a longer history of legal transplantation and legislation throughout the territories of the former empires.Footnote ²⁵ There are at least two reasons why the appearance of law and development mid-century might be seen in terms of continuity, rather than rupture, with the pre-Second World War order. First, at around the same time that a small group of American lawyers were working hard to improve the legal systems of Latin America, the receding imperial powers (Britain and France) were completing a long process of legal transplantation, writing up constitutions for their soon-to-be independent post-colonies that entrenched certain basic rights and consolidated colonial judicial systems, all of which we would today characterize as embedding the ‘rule of law’. These two post-Suez efforts might be thought of as—separately but in parallel—offering new States a helping hand on the road to independence, or, by contrast, consolidating post-imperial influence in the backyards of the various great powers. They may have complemented one another—together building a global architecture under public international law—or have existed in some tension—of, say, the ‘transnational’ versus the ‘international’. But it seems a stretch to assume they are completely unrelated.

Secondly, the early assumptions of law and development are generally characterized as Keynesian—that is, concerned with macro-economic management and the role of the State as nurse and guardian of the people and the economy. However, the technologies underlying this very approach were themselves developed in colonial territories—where the ‘problem’ of economic development had long been posed in terms of overarching bureaucratic solutions.Footnote ²⁶ John Maynard Keynes himself developed his thinking while working in the British colonial India Office. It is not difficult to imagine early law and development as intending completion of the bureaucratic/administrative construction commenced under colonial auspices: finishing the serious business of State-building. These observations do not, of course, suggest a straightforward relationship between the recession of colonialism and the rise of law and development, but they might nevertheless raise flags about the notion of a simple break or new start, about the self-image of American reforming lawyers as somehow inoculated against the ideological assumptions of that prior history, and about the self-sufficiency of law and development as a discrete field.

Similar assumptions underlie a second structuring device that inhabits this story—Trubek's justly famous publication, together with Marc Galanter in 1972, of the critique that sparked the second (hence ‘crisis’) period, ‘Scholars in Self-Estrangement’.Footnote ²⁷ That seminal moment is pivotal in the standard account of law and development's history, in part because it marks the field's own self-recognition as a field, but also because it represents precisely the incompatibility of the American and the imperial. The ‘shock’ for these idealistic young Americans of discovering the inherent cultural-centricity of reform work and of its propensity to prop up authoritarian governments led to the abandonment of the field as a whole, or such at least is the received wisdom, still nurtured by its protagonists and chroniclers in the present book. It was a sensitive time: as a slew of newly decolonized countries flexed their muscles in the UN and other fora in the early 1970s, claims of neocolonialism abounded. By the time foreign aid to legal systems reappeared, in the late 1980s, things had changed, walls were tumbling down, it became suddenly possible for reforming lawyers to arrive by invitation in newly liberated countries and demonstrate the workings of a modern liberal economy as though it were a mere technical matter. The crisis was over (a new one soon began). At a minimum, it had served to reiterate the tremendous distance between US legal aid and European-style imperialism—a distance to which the post-imperial European states also pretended.

A third structuring feature of the chronological approach is its easy trust in progress. With swings from thesis (naïve optimism) to counter-thesis (crisis) and back again, heading ultimately to a synthesis (‘chastened’ neoliberalism), it instantiates a typical Hegelian dialectic—as Scott Newton notes explicitly. Each stage is marked by a reaction against and a corrective for the excesses and errors of the last. It is not that these accounts assume that the work of transnational law reform is substantively improving (the evaluation of which takes up the bulk of other rule-of-law writing); it is rather merely that they understand a continuing refinement and sharpening of focus within the field's own terms.Footnote ²⁸ Nevertheless, progress accounts tend to have a self-validating quality—it is difficult to inoculate them from celebratory overtones. Perhaps it is not so surprising then that the most recent (‘chastened’) stage is treated, in all these accounts, as a real improvement. What does this mean? In part, it means a (dialectical) swing away from much maligned ‘neoliberalism’ towards a more critical and ‘reflective’ determining paradigm.Footnote ²⁹ In part it means the reincorporation of the ‘social’ in some form within the work of transnational development—as signified in programmes such as the millennium development goals, poverty reduction strategy papers, the Bank's comprehensive development framework, extensive human rights goals, and so on.Footnote ³⁰ In this way, these contributors manage to be on both sides of the fence: both critical of the field, yet also apprised of its potential for good.Footnote ³¹

A primary result is to disembed law reform work from the multiple complex transnational processes of which it constitutes only a small part, and represent it instead as a discrete field of activity, an internally consistent zone of knowledge. As such, it now has its own history—with a relatively clear mid-20^th-century starting date and a close and complex relation with contemporary global politics. It also has its own intellectual history, loosely bound to evolving mainstream economic thought (roughly from Keynes to Hayek to de Soto and Sen). It has a core set of actors—bilateral aid bodies, the ‘international financial institutions’, the Ford Foundation and other private donors, and (recently) human rights ‘activists’. And it has its embedded detractors: the history of critique to which this volume belongs is also part of the field's self-constitution as a field—concretely so, in the case of what might be called Trubek and Galanter's epistemic break. Most importantly of all, perhaps, its disciplinary context remains the science of economics. The original turn to legal engineering abroad owes much to the New Deal in the United States, and in particular the post-realist and post-formalist notion that law can and should be instrumentalized in pursuit of social and economic objectives.

These last developments are outlined in detail in David Kennedy's tour de force in this book—which moves far beyond his initial engagement with these themes in Dark Sides (tour de force, it appears, is his primary prose style). Although he adheres closely to the narrative of phases that guides the collection as a whole, he incorporates as much extraneous material as that model can bear. This is a tremendous canvas, on which he manages to sketch the entirety of thinking on the field to date and rework it through a far more extensive and considered framework of analysis than has heretofore been applied. In a little over 60 pages, he captures in broad outlines the critical developments in the disciplines of economics, law and development studies, as well as their interactions together and within the relevant political context both internationally and locally in the US. He is at his best tracing the different and conflicting ways in which dominant ideas are received in different places, and how each new vocabulary inevitably spawns its own rightist, leftist and centrist versions—so whereas the globally redistributive New International Economic Order of the 1960s and 1970s seemed centrist within the UN (where it flourished for a while), it appeared extreme in the US (where it perished immediately). He identifies gaps between the European-influenced sociological approaches to law inherited by newly independent States in the 1960s and those prevalent in the United States at the same time—different kinds of anti-formalism, differing notions of sovereignty and rights, a preference for the ‘international’ over the ‘transnational’, and so on. Yet in the long run, the prevailing conceptions of the kind of law appropriate to development internationally, on Kennedy's own account, were those elaborated in the US—in the universities of Chicago and later Harvard, and at the Washington institutions. Kennedy traces the eventual dominance of this school over the wholly different (vertical, public law-based, explicitly redistributive—though Kennedy points out that such interventions are always, and are intended to be, redistributive) route being pursued at the same time internationally through the UN's organs. The dominance of the Chicago school in law and development work internationally was due in large part to the insistent support and repackaging of the largest financial centres, private banks—whose role grew exponentially in the 1970s—as well as the development banks and international financial institutions (IFIs). Yet, while ‘there is no doubt that within the elites, the new consciousness reflected the influence of American legal thought’, Kennedy reckons that ‘[n]eedless to say, that does not make it the instrument of American hegemony.’Footnote ³²

Such a conclusion fits with Of War and Law—and with the (currently somewhat marginalized) multilateral consensualism of US liberals generally. But it still feels partial. In a way, the story of contemporary rule-of-law reform must have an American flavour. Not only is the field dominated by US actors, but—as Kennedy points out—the conceptual debate itself takes place within terms set almost exclusively by US policymakers and scholars. So where numerous international actors, including at the EU and UN, have turned to ‘rule-of-law’ language in recent years, they have done so largely in response to the enormous success (in a dominant but contestable account) of US advisors in the immediate post-Cold War period, at a time when that Hayekian language was employed wholesale as shorthand for the urgent business of rolling back the (socialist) State. To this day, the language of legal interventionism is still more respectable within the US than elsewhere—no doubt in large part because there it avoids imperial overtones. The explicit manipulation of law and legal institutions towards economic ends tends to sit uncomfortably with lawyers from Britain and mainland Europe.Footnote ³³ Moreover, as the field has largely been generated within US campuses and thinktanks, critiques from those quarters display a greater familiarity with the terms of debate and are inevitably more nuanced and contextualized. Scott Newton (NLED 200–1) crystallizes a thought that inhabits all these papers: that the inherent and overbearing formalism of rule-of-law promotion has been recently moderated by a reversion to pragmatism. But his ‘farewell to grand theory’ itself carries a distinctively American (Deweyan) overtone. Indeed the shift, on the international stage, to both formalism and pragmatism in turn reflects developments that have themselves dominated internal US debate for at least two decades. Rittich and Santos further augment the creeping centrality of American processes to transnational events, placing the (US-guided) World Bank firmly at the centre, not merely as a directed institution, but also and increasingly itself an agent of change and of ideological reproduction.Footnote ³⁴

So what does it mean to continue to insist that rule-of-law promotion is ‘not an instrument of American hegemony’? This question is addressed head-on in Duncan Kennedy's contribution to The New Law and Economic Development, the volume's remarkable centrepiece. ‘Three Globalizations of Law and Legal Thought: 1850–2000’ has been in circulation, under various titles, for some time, and is still described here as ‘very much a work in progress’. In it, Kennedy brings the vocabulary of linguistics to bear on the geographical transmission of legal concepts—Ferdinand de Saussure's famous distinction between langue and parole—where ‘langue’ is a language or discourse shared by all those engaged in a field and ‘parole’ is any specific instance of speech. A given langue does not determine the content (or politics) of a given speech act, but each speech act (parole) nevertheless depends upon the background grammar and generality of its langue in order to be meaningful.

Kennedy uses langue to refer to a dominant system of legal thought, with parole signifying specific legal expressions at national or local level, in law or through courts. He traces three waves of thought about law (langues) since 1850, each of which has globalized. The first is ‘Classical Legal Thought’ (his capitals), the formalist and positivist approach to law that rose to prominence in the second half of the 19th century and fell from grace from around the outbreak of the First World War. With theoretical origins in Savigny, this wave regarded law as a science with the nation as its appropriate source. Having spread throughout Europe and the United States, it was ultimately exported around the world through European imperialism, with the nation eventually substituted by the State. Secondly, Kennedy describes an encroaching wave of ‘the Social’ (a register clearly borrowed from Hannah Arendt),Footnote ³⁵ the perspective spearheaded by realists and other reformers of the early 20th century, whereby law was viewed purposively as a ‘regulatory mechanism that could and should facilitate the evolution of social life in accordance with ever greater perceived social interdependence at every level from the family to the world of nations’ (22). Dominant through to about 1960, this langue was concerned with social justice and substantive equality and globalized in particular during the post-war rise of liberation and social justice movements. Duncan Kennedy characterizes his third langue (taking off around 1945) as concerned with policy within a moderated legal neoformalism. This phase is marked by constitutionalism, human rights and a new ‘civil society’, and regards the judge as the appropriate arbiter of conflict.

Critical to this account, the langues themselves do not necessarily embed a given ideology or politics—in each case they supply a shared language within which struggles are fought or consensus is reached. This observation allows Kennedy to escape the restrictive assumptions embedded in languages of ‘imperialism’ or hegemony. To learn to speak a language—and to channel a politics and set of social or economic objectives through it—is clearly different from being subjected to imperial authority of some sort. So, while Kennedy is clear that the third wave has globalized through developments originating in the US, his framework yields a nuanced and fluid picture of what that means in practice, and of the uses to which the dominant langue is and can be put in legal developments in different countries and regions. Thus:

This observation, while recognizing the US's pre-eminent role, can nevertheless make sense of numerous aspects of contemporary legal globalization that simply cannot be accounted for in an ‘imperial’ model. The absence of—and relative lack of interest in—establishing direct jurisdiction outside of the United States is only the most obvious symptom. Also, the lack of success of US-guided rule-of-law promotion—something that is well documented but barely understood—begins to make sense in Kennedy's account: such activities appear well meaning, hegemonistic and poorly thought through all at once. But they sometimes can and do take off when driven internally. Add to this the organic spread of US-based forms—the internationalization of the firm, the gospels of constitutionalism and civil rights—but with local or specific content. To be sure, the US and US-based actors are among the most powerful in the global arena today—but they are neither the only powerful actors, nor are they monolithic representatives of a single State or ideology. This theoretical model allows for a distinction between the language and forms that all relevant actors are constrained to use, on one hand, and the provenance and intentions of those actors, on the other. It is a model derived from direct observation of actual events—but decoupled from the potential distortions of any pre-existing received wisdom. As such it is an innovation whose utility will be applied far beyond the confines of this useful volume.