"The book is like Jens: bold, ambitious, and honest," Claire Finkelstein said of Professor Jens Ohlin's The Assault on International Law, from Oxford University Press. Finkelstein, the Algernon Biddle Professor of Law, Professor of Philosophy, and Director of the Center for Ethics and Rule of Law at the University of Pennsylvania Law School, was speaking as one of three panelists at a celebration for the book's publication, held at Cornell Law School on March 20.
In The Assault on International Law, Ohlin challenges the prevailing American hostility towards international law and offers a novel theory of rationality to explain why nations should comply with international law. The book offers, in particular, a rebuttal to the theories of "New Realist" legal scholars John Yoo, Jack Goldsmith, Adrian Vermeule, and Eric Posner.
"This book . . . is so wide-ranging and touches on so many areas-philosophy, law, ethics, and politics," said panelist Professor Matthew Evangelista of Cornell University's Department of Government. Evangelista honed in on the book's engagement with political science, particularly its examination of the post-9/11 Bush administration policies that flouted international laws such as the Geneva Conventions: "What is it about these laws and norms that the Bush administration finds so objectionable? This is where Jens Ohlin's book helped me a lot." He lauded the book's treatment both of theory and of such timely real-world issues as targeted killings and the categorization of combatants and non-combatants.
"I found the book absolutely riveting and really helpful," said Professor Bradley Wendel. "I'm going to cite it constantly. It really clarified a lot of issues that are of importance in moral philosophy generally, legal theory generally, [and] domestic law. It's far deeper than just a response to this New Realist attack on international law." Addressing both the moral philosophy and the legal theory at play in the book, Wendel touched on thinkers from Plato to Kant to Oliver Wendell Holmes to David Gauthier, whose concept of the "constrained maximizer" plays an important role in Ohlin's arguments. Wendel lauded Ohlin for meeting the New Realists in "their own territory" and making a powerful and successful argument against them there.
Finkelstein, the final panelist, praised the courage of Ohlin's "frank and biting criticism of productive and influential members of the legal academy" and referred to herself as a "believer" in the project but took the opportunity to challenge Ohlin on a few points. She first asked about the relationship between the two elements of new realist thought: their attack on international law and their advocacy of expansive executive authority. She then went on to analyze aspects of the rational choice theory with which Assault grapples, making multiple trips to a nearby whiteboard to chart out an illustrative scenario involving "Humean farmers."
Afterward, Ohlin briefly responded to some of the panelists' questions and challenges, including a point raised by Evangelista about the causal relationship between the theories of the New Realists and actual U.S. policy. While taking care "not to overstate the causal argument," Ohlin asserted that "these intellectual arguments that suggested that international law is not binding, or that it's not enforceable, or that it's not real law, have made it easier for American presidents to ignore international law when it doesn't suit them. That isn't to say that they wouldn't have ignored international law anyway, but it's to say that it made it easier for them to do so, because it reduced the costs of non-compliance." He added "For that reason, I think we have to take these intellectual arguments seriously."
To view the book celebration, please click here.