Twenty Years of Institutional Liberalism

The revival of legalism and its penumbra 

Since 1991, as I have noted, Institutional Liberalism has increasingly been legalized. The 

social movements of democratic liberalism have tried to institute what Ruti Teitel calls 

‘humanity law’: the ‘law of persons and peoples’ rather than the law of states.

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Liberals naturally turn to law as a constraint on power. For Institutional Liberals, this 

emphasis on law reflects neither a naïve belief in human goodness nor the automatic 

power of rules, but the view that human beings require institutional constraints to ensure 

that they behave well. Since 1991 there has been a remarkable increase in the number 

and significance of international legal institutions. Four prominent examples include the 

following: 

•

The International Criminal Tribunal for the Former Yugoslavia (ICTFY) was 

founded in May 1993 and is expected to operate for two or three more years. 

•

World trade law was legalized in the World Trade Organization, which came into 

force on 1 January 1995. 

•

The European Court of Human Rights (ECHR) was established on a permanent 

basis in 1998, with jurisdiction over 800 million people in the 47 member coun­

tries of the Council. 

•

The International Criminal Court (ICC) came into being on 1 July 2002, and now 

has over 115 member states. 

I have defined legalization earlier as a property of institutions, as in these examples. One 

can see such legalization purely in functional terms; legalization further reduces uncer­

tainty and other transaction costs, yielding more effective and efficient institutions. The 

World Trade Organization is the most important and, so far, enduring institutional result 

of the contemporary movement toward liberalization. But legalization can also stem not 

from such instrumental concerns but from deep belief in the rightness, or appropriate­

ness, of legal institutions as a way to solve problems and resolve conflict: that is, from a 

conception of social purpose. 

Normatively, therefore, movements for legalization may rest not simply on functional 

logic but on legalism: the belief that progress takes place through law. For Rudi Teitel, 

for instance, humanity law provides a deliberative, law-based way to protect persons and 

peoples: a universal and ‘open-ended and forward-looking form of legal ordering’ that 

can respond to emerging and future threats.

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 Here we see a form of contemporary 

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Keohane 

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legalism – the view that moral as well as legal progress can be made through the exten­

sion of law – in a coherent and in many ways attractive form. 

After being discredited by Realists in the wake of World War II and during the Cold 

War, legalism has also, along with moralism, made a striking comeback during the last 

20 years. In the broadest sense, this effort represents an attempt to domesticate world 

politics: to make it more like liberal domestic politics. And it is celebrated by those like 

Teitel who see legalism and law as offering a pathway toward a better world order. This 

movement therefore runs directly athwart a key principle of Realism as enunciated by 

Kenneth N Waltz: the dramatic difference between the ‘anarchy’ of world politics and the 

order of domestic politics.

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 Indeed, it seeks to refute the anarchy−order dichotomy by 

bringing legal order to world politics. 

But legalism as a doctrine generates as many problems as it solves. First, it typically 

misattributes causality, forgetting that law always rests on power and interests. Legalists 

imagine that order derives from law, not recognizing that power and interest alignments that 

are consistent with order are themselves necessary for law. E. H. Carr pointed out, by con­

trast, that ‘the law is not an abstraction. It cannot be understood independently of the politi­

cal foundation on which it rests and of the political interests which it serves.’ 

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 It would be 

too simplistic to say that law depends on order rather than vice versa, because there is a 

symbiotic relationship between them: given a sufficiently favorable structure of power and 

interests for order, law can indeed reinforce and extend order. But it cannot create order on 

its own, and when power structures conducive to legal orders collapse, law collapses. 

Legalism can also, as Carr emphasized, create a straitjacket for policy-makers, pre­

venting them from pursuing prudent courses of action in the face of great danger. 

Legalization therefore creates the danger of blocking the sort of adaptation to change that 

is essential for the successful pursuit of diplomacy in dangerous times. 

So I also give two cheers for legalism. It can provide a rationale for smoothing the 

edges of rough order, motivating people to create more consistent legal arrangements 

that do, under the right conditions, have a positive impact. And it can provide a model of 

consistent, normatively justifiable action, even if these arrangements are not formalized 

in law. But legalism that ignores power and interests misattributes causality and limits 

adaptation to change. Because of this misattribution of causality, it may generate exces­

sive attention to legal issues when more basic political and interest-based problems may 

need more urgent attention; and its constraints on adaptation may inhibit creative and 

flexible diplomacy. When structures of interests and power are coherent and stable and 

favor democracy, legalism may be quite benign; but when interests and power are chang­

ing rapidly, an excessive focus on law can divert attention from more basic problems.