BARRY ALAN SHAIN is Associate Professor of Political
Science at Colgate University and the editor of
The Nature of Rights at the American Founding and
Beyond (2007).

Law Without Nations? Why Constitutional
Government Requires Sovereign
States, by Jeremy A. Rabkin
(Princeton: Princeton University Press,
2005). 350 pp.

This is an ambitious book in which its
author Jeremy Rabkin, a professor at
the George Mason University School of
Law, attempts to: 1) explore the early-modern
history of the concept of sovereignty and
international law; 2) “clarify the assumptions
about the world that led the American
Founders to ‘construct’ constitutional arrangements
as they did and to show why their
grounding assumptions remain hard to reconcile
with new ‘constructions’ in contemporary
international politics”; 3) demonstrate
that the modern system of sovereign
nations-states is essential to the health of
liberalism and individual rights; and lastly, 4)
shed light on the dangers of the utopian
projects championed in an emerging world
of international law and governance, with its
closely aligned organizations.

Early on, Rabkin sets a pattern that he
follows throughout the rest of the book: he
writes daringly about international matters
that he nonetheless claims are not the subject
of the book, while writing about American
national institutions, his intended subject, in
a pedestrian fashion and without being aware
of the ironic character of his remarks. In the
introductory chapter, he cleverly links contemporary
internationalism to Roman imperialism
and later Fascism and international
communism, before decrying the hostility of
European elites to continuing national differences
that serve as barriers to “international
institutions [that] can bypass religion
and establish perpetual peace.” But in making
this argument, Rabkin never pauses to
consider the close parallels between the
millennial aspirations of the current American
administration, most particularly in its
war in Iraq, and the Europeans for whom he
has such contempt. Accordingly, European
hubris clothed in the protective camouflage
of internationalism is dangerous, while
American hubris decked out in the language
of nationalism, liberalism, and individual
rights is not.

Rabkin also quickly turns his attention to
distinguishing sovereign national governments
from soft international governance
while defending the utility of the former.
Particularly effective and welcome is his
exploration of the unusual nature of international
human rights treaties. Describing their
proliferation, Rabkin writes that they rest on
a foundation different from all others and that
instead of depending on the willing participation
of sovereign states they depend on
“international monitors and private advocacy
groups” to take responsibility for hectoring
“states which fail to comply with them
in full.” The reader, with Rabkin’s help,
begins to understand the strange and shadowy
world of international non-governmental
organizations (INGOs) that hope to
play a powerful role in international governance.

Rabkin demonstrates his wide reading in
numerous literatures in his two chapters of
intellectual history—but he also displays some
of this volume’s weaknesses. He begins the
first of these chapters with an interesting
overview of secondary literature on medieval
political arrangements in which sovereignty
was hard to find, if it existed at all,
before shifting his attention to textual exegesis
of Bodin’s 1576 Six Books of the Republic,
John Locke’s 1690 works, the 1787-88
American Federalist, and select passages from
Lincoln and later American sources. Other
than Bodin, who Rabkin claims was the first
author to emphasize sovereignty, it is not
clear why these texts were chosen. If his focus
is the development of the concept of sovereignty
in eighteenth-century and later
America, then the inclusion of Bodin, rather
than British source materials, is questionable.
If his aims are broader, then the reader is left
uncertain whether these authors are, in some
manner, representative of changing standards,
causal in fostering later changes, or
simply favorites of Rabkin. In brief, this
chapter does not offer the kind of comprehensive
conceptual history that the author
may have hoped for, and yet his exegesis of
Bodin is far too detailed for readers whose
interest is in contemporary international affairs.

These problems continue and multiply in
the second of his intellectual history chapters,
for it too throws together select readings of
early-modern materials with Rabkin’s reflections
on early American constitutionalism
and contemporary international law.
Not one of these subjects is treated adequately.
Thus, we find Rabkin beginning
with a five-page synthesis of Grotius that
captures some of the salient characteristics of
his thought, while ignoring far more. Most
importantly, Rabkin fails to take note of the
environment to which Grotius was responding,
the horror of the Thirty-Years War and
how this, in opposition to those who followed
him, shaped so much of his thought.
Pufendorf, one of the great thinkers of the
period on all matters moral, legal, and political,
gets one paragraph whereas Rousseau,
whose Social Contract devotes at most two
paragraphs to international themes, is treated
at length. Even less defensible is that another
of the most prominent authorities on international
law in the mid-eighteenth century,
and one of the most important thinkers in
shaping American legal thought of the period,
Burlamaqui, is never once mentioned.

When Rabkin discusses Vattel, whom he
rightly emphasizes as being of great importance
to Revolutionary-era Americans, his
treatment is also highly selective. Thus,
Rabkin compares Locke to Vattel, but fails to
mention that Vattel had been initially dismissed
as nothing more than a popularizer of
the author whose work he followed so closely,
the German philosopher Christian Wolff.
Similarly, Rabkin completely ignores the
tensions in Vattel’s thought, in particular his
view of the aggregate as the entity whose
rights were of greatest importance and to
which the individual transferred his rights.
No mention is made of Vattel’s role in
defending revolution, not surprisingly of
special interest to his American readers. Possibly
most troubling is Rabkin’s failure to
distinguish between Grotius’s internationalism
and Vattel’s dominant Westphalian nationalism.
This is at the heart of a contemporary
struggle in the U.N. yet Rabkin erases
Grotius’s and Vattel’s salient differences. Instead,
in Rabkin’s treatment, Vattel, a true
son of Geneva whose fear of the universal
Catholic Church did much to drive his
hostility to internationalism and who defended
for the same reason the necessity of
state religious establishments, is rendered too
simply as some kind of proto-typical enlightenment
thinker.

In the seventh and eighth chapters, Rabkin
finally makes this volume well worth reading.
He proves his worth here for there are
few students of the world of NGOs, European
unelected bureaucrats, and international
human rights conventions that are not
simultaneously true believers. Rabkin is not
and is at his cynical P. J. O’Rourkian best in
describing this world. He writes, in particular,
of the various U.N. conventions that
“they are less like contracts between states
than like religious revival meetings, where
one person may be inspired to come forward
and renounce sin by the example of others
doing the same and all may be strengthened
in their resolve to sin no more by taking a
pledge to do so in common.” But even here
where his insights are so striking, even at
times brilliant, Rabkin works with a glaring
blind spot. Thus, he fails to appreciate the
difficulties of his contemptuously writing of
contemporary internationalists that “rights
talk escaped from the confines of settled
constitutional orders, first into the neverland
of international conferences, then on to the
real world of deadly conflict.” What he
misses is that much the same could be said of
his much-loved eighteenth-century rights
talk as it moved over two centuries from
theological speculations, within the protected
and ordered confines of the Church, into the
coffee houses of radicals in London and the
salons of Paris. But happily, his penetrating
focus here is not early-modern history but
the strange world of human rights advocates
that took shape in 1945 in the U.N. Commission
on Human Rights and its 1948
Universal Declaration of Human Rights.

As important and powerful as the seventh
chapter is, the eighth is still more so as
Rabkin outlines how “European experience
suggests this obvious lesson: Talk about human
rights may not lead very far but arrangements
to regulate trade can end up
reaching very far indeed.” What he
insightfully shows is that trade and economic
treaties supported by the political right are
likely to become the carriers for the ambitious
goals of world governance of the political
left. More particularly, the internationalist
aspirations of the 1990s resulted in the
transformation of the GATT into the World
Trade Organization (WTO) and most particularly
its ambitious court, the Appellate
Body (AB). What demands attention, as
Rabkin makes so very clear, is this body’s
power to consolidate trade laws along with
other “accepted” international law, and its
willingness to accept amicus briefs. The otherwise
readily ignored hortatory and moralizing
international conventions on human
rights, thus soon may be able to gain legal
standing by being incorporated into enforceable
trade agreements. In short, Rabkin
warns that “the Appellate Body might evolve
into an international counterpart of the European
Court of Justice” in which it could
address both the economic concerns of countries,
as well, as the interests of NGO advocacy
groups trying to force changes in labor
laws, or social and environmental practices in
another country or, just as likely, in their
own.

Considering the four ambitious goals of
this book, on balance one must conclude that
it will dissatisfy the professional and scholarly
reading public (neoconservative academics
may be the exception). His intellectual history
of the early modern era fails to incorporate
many of the most important figures and
entirely misses the most significant contemporary
inheritance from that period, the
differing views of internationalism developed
by Grotius and Vattel. His remarks on
the development of American political institutions
and constitutional structures are appropriate
only for those without an understanding
of the complex interplay of British
constitutionalism and Reform Protestantism
in the social, political, and economic spheres
in early-national America. His critically important
effort to link, in a necessary fashion,
state sovereignty and liberal rights, is more
successful than the previous two goals but
still, in the end, falls short. And in Rabkin’s
bringing to light the nature of the ambitions
harbored by adherents of various international
organizations, surely almost all internationalist
academics and practitioners will
find little of value.

It is, however, concerning this last subject
where Rabkin makes an enormously important
contribution. Unlike his unsatisfactory
exploration of the other matters, his notes
and broad reading in the field suggest that he
has mastered it and can serve, Beatrice-like,
as a guide to his readers through this bizarre
world of shadows. Here, freed from his
otherwise burdensome and blind devotion to
things American, national, and liberal, he
offers fair warning to his readers of the
dangers of the International Criminal Court
(ICC) and even more presciently, I fear,
those of the WTO. In doing so, he draws a
frightening analogy between the 1940s “commerce
clause” jurisprudence of the United
States Supreme Court and the contemporary
aspirations of the WTO court. His remarks
here are powerful and should be read by
every man or woman who shares with Rabkin
his suspicions of projects that promise salutary
world government through universal
schemes.

The link that Rabkin makes clear between
the 1940s Supreme Court and the emerging
new jurisprudence is that they share a certain
Trojan Horse quality: that is, both use projects
that appear to serve classically liberal economic
goals to introduce normative ends that
cannot be advanced in the domestic politics
of many nations, most particularly America.
In short, what Rabkin leads his reader to
understand is that with the Supreme Court
currently unwilling to advance progressive
causes and with little immediate hope for
national political success, international organizations
have come to provide an alternative
and undemocratic conduit for American
progressives to achieve their domestic political
objectives.

This book, then, with a more sustained
focus on what Rabkin understands so well,
contemporary international law and organizations,
and far less attention paid to inadequately
developed or researched themes in
early-modern intellectual history or American
constitutional development, could have
been a truly great and most timely work that
would have provided readers with a much
needed corrective to the dangerously optimistic
reveries of most students and advocates
of international organizations. This
book is, often, that book. Too bad, in trying
to do far too much, it isn’t consistently that
book.