The Assault on International Law

Hardcover | January 5, 2015

byJens David Ohlin

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International law presents a conceptual riddle. Why comply with it when there is no world government to enforce it? The United States has a long history of skepticism towards international law, but 9/11 ushered in a particularly virulent phase of American exceptionalism. Torture becameofficial government policy, President Bush denied that the Geneva Conventions applied to the war against al-Qaeda, and the US drifted away from international institutions like the International Criminal Court and the United Nations. Although American politicians and their legal advisors are often the public face of this attack, the root of this movement is a coordinated and deliberate attack by law professors hostile to its philosophical foundations, including Eric Posner, Jack Goldsmith, Adrian Vermeule, and John Yoo. In aseries of influential writings they have claimed that since states are motivated primarily by self-interest, compliance with international law is nothing more than high-minded talk. These abstract arguments then provide a foundation for dangerous legal conclusions: that international law is largelyirrelevant to determining how and when terrorists can be captured or killed; that the US President alone should be directing the War on Terror without significant input from Congress or the judiciary; that US courts should not hear lawsuits alleging violations of international law; and that the USshould block any international criminal court with jurisdiction over Americans. Put together, these polemical accounts had an enormous impact on how politicians conduct foreign policy and how judges decide cases - ultimately triggering America's pernicious withdrawal from international cooperation. In The Assault on International Law, Jens Ohlin exposes the mistaken assumptions of these "New Realists," in particular their impoverished utilization of rational choice theory. In contrast, he provides an alternate vision of international law based on a truly innovative theory of human rationality.According to Ohlin, rationality requires that agents follow through on their plans even when faced with opportunities for defection. Seen in this light, international law is the product of nation-states cooperating to escape a brutish State of Nature - a result that is not only legally binding butalso in each state's self-interest.

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International law presents a conceptual riddle. Why comply with it when there is no world government to enforce it? The United States has a long history of skepticism towards international law, but 9/11 ushered in a particularly virulent phase of American exceptionalism. Torture becameofficial government policy, President Bush denied t...

Jens David Ohlin is Professor of Law at Cornell Law School, co-author of Defending Humanity (OUP) and co-editor of Targeted Killings (OUP).

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Format:HardcoverDimensions:304 pages, 9.41 × 6.42 × 1.18 inPublished:January 5, 2015Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0199987408

ISBN - 13:9780199987405

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Table of Contents

PROLOGUE: DRAMATIS PERSONAE1. The Office of Legal Counsel2. The Emergence of the New Realists3. Conclusion1. GAMING THE FEDERAL COURTS1. The Erie Doctrine 2.02. The Filartiga Era: Enforcing International Law at Home3. Filartiga's Demise, Parochialism's Rise4. The New Realists go to Washington5. International Law as Interpretive Guidance6. Conclusion2. PRESIDENTS AND LEVIATHANS1. Public Opinion and Law2. Presidential Power: The New Realist's Normative Argument3. Democratic Decision-making versus Schmittology4. Executive Action During Emergencies5. Why Schmittian Administrative Law is Not Inevitable6. Conclusion3. THE ATTACK: MISUNDERSTANDING RATIONALITY1. The Game Theory Game2. The Prisoner's Dilemma and Nash Equilibrium3. Law and Self-Interest4. Objections to the Moral Obligation of States4. SOLVING THE PRISONER'S DILEMMA OF INTERNATIONAL LAW1. The Toxin Puzzle and Taking the Long View2. The Deterrence Paradox and the Limits of Follow-Through3. Assurances and Cooperation4. Why the New Realists Fail to Understand Rationality5. Rationality and Obligation5. WAR AS COOPERATION1. War as Cooperation2. Who can be Targeted? Combatants, Civilians, and CCFers3. Geographical Constraints on Armed Conflict4. Co-Applying the Laws of War with Human Rights6. REENGAGING INTERNATIONAL INSTITUTIONS1. Global Legalism vs. Rational Choice: A False Dichotomy2. Does Globalization Need Taming?3. The United Nations4. The International Court of Justice5. The International Criminal Court