Enchanted and Disenchanted International Law

Date01 February 2016
Published date01 February 2016
Enchanted and Disenchanted
International Law
Ian Hurd
Northwestern University
Scholars and activists commonly see international law in a privileged normative and political position in world politics, where
international legal institutions are assumed to advance important goals such as international stability, human justice and even
global order as a whole. I explore this attitude toward international law, which I call an enchantedview, and contrast it to
the disenchantedalternative. Where the enchanted attitude presumes the normative valence and political wisdom of follow-
ing international law, the disenchanted approach treats these as open questions for inquiry and discussion. The disenchanted
approach is more empirically minded, and more politically open, than the enchanted, and leads to a distinct research program
on legalization in international affairs one that is attentive to the politics of law, the connections between law and power,
the ambiguity that exists between legality and policy wisdom.
Among IR scholars, it is often held that the main f‌issure
around international law is the one that separates those
who see it as important and those who do not. The former
includes liberal internationalists and others who suggest
that international law can inf‌luence government decisions,
either because people believein it or because they f‌ind it
instrumentally useful.
The latter includes IR realists, Ameri-
can new sovereignistsand legal skeptics who for various
reasons hold that international law does not or should not
inf‌luence the decisions of governments.
This is a misleading characterization because it presents
as a deep philosophical difference Beth Simmons calls it a
choice between naive faith or cynical skepticism(2009, p.
4) something that is in fact a simple empirical question:
do states adjust their actions in light of international law?
To this, the answer is clear: of course they do. While how
and with what consequencesare open for discussion, the
supposed debate around does law matter in world politics?
is a nonstarter.
A more important schism is between those who operate
with an enchantedview of international law and those
who do not. I suggest that these two groups really are sepa-
rated by irreconcilable differences of philosophy and politics
and that these carry signif‌icant implications for the political
and moral status of international law as well as for the
research methods of scholars. Some version of this distinc-
tion has long been central to the work of some international
legal scholars
but it is almost entirely overlooked in the
growing literature on international law by political scientists
and international relations (IR) scholars. This is surprising
and unfortunate since the two represent alternative philoso-
phies on key questions of international relations at the inter-
section of law, politics, policy making and global order.
I take the language of enchanted and disenchanted from
Jane Bennett, who took it from Max Weber. Bennett uses it
to describe attitudes toward materialism and the natural
world: enchantment and disenchantment refer to sensibili-
ties about things in the world and ones relation to them
enchantment entails a state of wonderin relation to things,
experiences and sensations, while disenchantment identif‌ies
merematerial objects as separate from the domain of
human reason, freedom, and control(2003, p. 5, p. 3).
I borrow Bennetts terms but use them differently: in what
follows, enchantmentdescribes an intellectual position
which assumes that international law occupies a privileged
political and moral position, while disenchantmentrefers to
an attitude toward international law and politics that does
not include this prior commitment.
Enchanted and disenchanted
For international law, the enchantedview begins from the
premise that law represents an improvement over the politi-
cal or legal relations that it replaces. It distinguishes law
from politics by presuming that the turn to law adds
rationality, procedure, fairness or accountability to a pre-
legal antecedent condition. That prior condition is imagined
as dominated by the inf‌luence of power which the process
of legalization improves by supplying a better way for set-
tling disputes and deciding what should be done. The supe-
riority, moral and political, of the legalized condition over
the pre-legal state of affairs is taken as a given rather than
asked as a question or discovered as a f‌inding. This follows
in the tradition of Max Weber for whom (in Stephen Hum-
phreyswords) f‌idelity to law and legal process ... is the
guarantor of both an eff‌icient bureaucracy and of the
smooth functioning of a market economy(Humphreys,
2010, p. 15).
In the inter-state setting, law and legal institutions are
said to bring rules and regularity to international affairs
©2015 University of Durham and John Wiley & Sons, Ltd. Global Policy (2016) 7:1 doi: 10.1111/1758-5899.12299
Global Policy Volume 7 . Issue 1 . February 2016
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