Regulating the Use of Force: A Sociological Approach
University of Texas School of Law
This essay reviews Martha Finnemore's most recent book, The Purpose of Intervention: Changing Beliefs about the Use of Force (Cornell University Press, 2003). Finnemore's thoughtful study of military intervention explains how and why the legitimate purposes of war-making have changed over time - emphasizing the role that international law and institutions have played in the development of new norms. Finnemore analyzes the use-of-force issue from a sociological perspective - one that explains the conduct of actors by reference to the social structures in which these actors are embedded. Violence is, of course, a fact of social life. And society, as such, is in an important sense made possible by widely-accepted norms defining the circumstances in which the use of violence is legitimate. International society, Finnemore contends, is no different. In the last century, robust global norms regulating the use of force have emerged, as have highly-legitimated international institutions (most notably, the United Nations) empowered to monitor and enforce these norms. The central inquiry, for Finnemore, is how best to understand these developments - or, put differently, what do these developments teach us about the international legal and political order.
Finnemore identifies three rationales for military intervention that, at one time or another, have enjoyed broad legitimacy in the international order: debt collection, responding to humanitarian crises, and attacking states considered threats to international peace and security. Finnemore demonstrates that the prevailing rationales for military intervention have changed over time. And, more importantly, she analyzes how and why these purposes changed. She identifies several candidate causal mechanisms and assesses the plausibility of each in light of the historical patterns of intervention. She concludes that the identified patterns are best understood as a reflection of broader shifts in the cultural content of international society. For Finnemore, the purposes of intervention changed because of (1) shifting normative commitments in international society (including the emergence of sovereign equality, self determination, and human rights as foundational principles) and (2) the increasing importance of law and legal institutions in international society. In short, Finnemore argues that legal developments played a central role in effecting fundamental shifts in state practice regarding the use of force. In developing this account, Finnemore describes in great detail the various processes by which law influences state behavior. Finally, the text assesses the plausibility of these specific causal mechanisms in light of the empirical record - which in turn facilitates a more systematic assessment of power-based; interest-based; and identity-based theories of international law.
In this essay, I first outline and assess the findings and theoretical claims of the text. More broadly, I address whether the burgeoning empirical record (and the positive theoretical accounts growing out of it) might recast debates about the substantive and procedural content of international law governing the use of force. Careful empirical work such as Finnemore's is crucial to resolving these debates. Regime design questions are essentially empirical in nature - indeed, empirical matters are crucial to any prescriptive enterprise. There are two kinds of prescriptive issues at play in the use of force debates: (1) when is war justified, if ever - or what is the optimal level of war; and (2) what type of institutional arrangement is most likely to achieve the optimal level of war. Empirical work helps only indirectly if at all on the first question, but it is central to the second. Once we know - or agree upon - the optimal level of war, international lawyers must fashion international rules that maximize the probability that war occurs only when it is justified under the normative theory used to resolve question (1). The problem is how to do this.
These rules might include first order rules that define the proscribed (or prescribed) primary conduct; and second order rules that distribute decisional and interpretive authority. Assume, for the sake of argument, that war is justified only when fought in self defense against an actual armed attack. One obvious approach to the regime design problem is to promulgate first order rules that proscribe all uses of force except self defense. Whether this approach would work or not turns on the validity of several assumptions about how and under what conditions international law influences state behavior. Consider one example. The self defense approach assumes that the international legal system influences states in much the same way that functioning domestic legal systems influence individuals. This may be, as an empirical matter, a problematic assumption. Indeed, the systematic under-enforcement of international law suggests that stable focal points might only roughly approximate the substance of first order rules. What difference do the rules make if their violation does not reliably trigger sanctions? Of course, the law might alter state behavior via other mechanisms of social influence such as persuasion or acculturation - and this is an issue Finnemore analyzes in detail. The larger point is that international law effects change in non-obvious ways. If the most that international law can do is to raise the political costs of non-compliance, then it might be best to abandon the self defense approach in favor of a regime that prohibits all uses of force (the idea being that this approach might maximize the political costs of war) or perhaps a regime that prohibits all unreasonable uses of force (the idea being that this minimizes unwarranted uses of force by drawing states into a frank and open discussion about the propriety and legality of a contemplated attack). The upshot is this: Once we discern how international law and institutions produce behavioral regularities, we might better tailor first and second order rules so as to harness these mechanisms of influence.
These issues also implicate several current controversies about the use of force regime. Consider, for example, the humanitarian intervention (HI) controversy. Although typically played out in exceedingly moralistic rhetoric, this controversy is - at bottom - an empirical disagreement (with a normative overlay). Many international lawyers have concluded that HI as such is prohibited by the Charter (unless of course the Security Council authorizes the use of force - in which case it is lawful in virtue of this authorization and not because it is humanitarian). Others have insisted that HI is justified when necessary to stop or prevent mass atrocities. This disagreement does not turn on whether such intervention is, in the abstract, welfare-producing. Instead, opponents fear that broad, ill-defined exceptions to the general rule would invite abuse. Proponents, on the other hand, fear that a narrow reading of the U.N. Charter regime over-deters the use of force. In short, this debate turns on the kinds of empirical debates alluded to earlier. Similarly, the opposition to so-called preemptive self defense is grounded not in a normative critique of the very notion of preemptive self defense (indeed, it is extremely difficult to imagine what such a critique might look like - particularly if one accepts that self defense is normatively attractive). Instead, this opposition is concerned about both the potential abuse of any relaxation of the Charter regime (mirroring the principal concern in the HI debate); and the ill-effects that might issue from the Charter's distribution of effective decisional and interpretive authority. Again, the debate turns on empirical rather than normative disagreements.
Finnemore's model of how and under what conditions international law matters provides a useful framework for analyzing these issues. In this essay, I assess the utility of her approach by applying the sociological framework to three recent wars of questionable legality (Kosovo, Afghanistan, and Iraq II). This analysis (1) demonstrates that contemporary state practice supports Finnemore's sociological account of law's role in international politics; and (2) offers several lessons about optimal international regime design. Does international law matter? If so, do the ways in which law matters provide some clues about how best to design the international use of force regime? Overall, the review aims to inject some systematic, empirical analysis into the current debates about the role of law in regulating the use of force.
Keywords: International Law, National Security Law, Empirical Studies
Date posted: September 28, 2004