39 Pages Posted: 12 Feb 2010
Date Written: February 9, 2010
Foreign affairs legalism, the dominant approach in academic scholarship on foreign relations law, holds that courts should abandon their traditional deference to the executive in foreign relations, and that courts and Congress should take a more activist role in foreign relations than in the past. Foreign affairs legalists argue that greater judicial involvement in foreign relations would curb executive abuses and promote international law. We argue that foreign affairs legalism rests on implausible assumptions about the incentives and capacities of courts. In U.S. history the executive has given more support to international law than the judiciary or Congress has; this suggests that foreign affairs legalism would retard rather than spur the advance of international law.
Suggested Citation: Suggested Citation
Abebe, Daniel and Posner, Eric A., Foreign Affairs Legalism: A Critique (February 9, 2010). University of Chicago, Public Law Working Paper No. 291. Available at SSRN: https://ssrn.com/abstract=1551300 or http://dx.doi.org/10.2139/ssrn.1551300