Democracy and International Law according to Russell Buchan: Prescribing under the Guise of Explaining?

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Russell Buchan’s Lieber Prize-winning book entitled International Law and the Construction of the Liberal Peace (hereafter The Construction of the Liberal Peace) rests on a courageous enterprise. Indeed, it takes a lot of courage, especially given the dominant cynical mindset to which many international lawyers have succumbed, to seek to vindicate the democratic peace theory and, with it, the democratic legitimacy thesis. Buchan’s The Construction of the Liberal Peace also stands out for being elegantly written, aesthetically designed and conceptually strong as well as for denoting an impressive knowledge of international law and international relations theory.

The question with which the book grapples is obviously not unheard of. The role and status of democracy in international law have now been on the agenda of international lawyers for more than two decades. Thomas Franck famous 1992 article published in the American Journal of International Law is usually considered as having catalysed the interest of international lawyers for the topic. This interest (and concern) for democracy simultaneously led international lawyers to pay attention to the democratic peace theory that had been designed by philosophers and international relations theorists (see here). Interestingly, the scholarly interest for the question of democratic legitimacy and the democratic peace theory long remained confined to North America –a rare exception being James Crawford’s inaugural lecture at the University of Cambridge in 1993 (see here).

Indeed, it took until the turn of the century to see scholars in other parts of the world growing seriously interested in this issue. I myself turned my attention to the question at the start of the second decade of scholarly debates and probably belong – in contrast to the two other contributors to this book discussion – to the second generation of scholars having researched the matter. The Construction of the Liberal Peace can be seen as spearheading what constitutes a new and third generation of studies.

In The Construction of the Liberal Peace, Buchan kindly acknowledges my own work on democratic legitimacy and international law but expresses some veiled outrage at what he perceives as a turn-about in my scholarship (p. 4). His polite indignation is not unwarranted. After having held that the traditional requirements of legitimacy of exercise (mostly in the form of political and civil human rights) had been supplemented by new requirement about the legitimacy of origin of power (in the form of an obligation to abide by electoral democracy) (see here), I came, half a dozen of years later, to contend that requirements of electoral democracy were being debilitated in recent practice (see here). Buchan takes the exact opposite view by defending the undeniable and somewhat immutable emergence, in the Post Cold War era, of an international community of liberal states built around the value of liberal democracy.

My intention in the following paragraphs is certainly not to discuss whether the obligation to adhere to liberal (or electoral) democracy is or not prescribed by international law. The Construction of the Liberal Peace engages with a question which is, in my view, more fundamental than that of a positive requirement to adopt liberal (or electoral) democracy. The following observations thus discuss other aspects of The Construction of the Liberal Peace.

The argument of The Construction of the Liberal Peace

Buchan rightly points out the failure of the mainstream scholarship on the question to locate liberalism within an adequate conceptual framework in the literature pertaining to democracy legitimacy. This is certainly something that had been missing to the literature in the last two decades. Indeed, maybe with the exception of Susan Marks (see here), the literature in the last two decades has shown a great theoretical paucity. In that sense, Buchan’s book certainly comes to infuse some necessary theoretical breath to the existing scholarship.

The Construction of the Liberal Peace is constructed around three different paradigms: the existence of a community of liberal states within the pluralistic society of states, the existence of legal rules prescribing an obligation to be democratic and the democratic peace theory. Each of these specific paradigms performs a particular function in the whole argument and relates to the others in a specific way. The first paradigm –the existence of a community of liberal states –is the normative presupposition on which the entire work is based. It defines itself by the adherence to liberal democracy by a growing majority of states and distinguishes itself from the international society that supposedly seeks to protect state autonomy by virtue of rules like non-intervention or the prohibition to use force.

The second paradigm –the existence of rules of international law regarding democracy –is functional in nature. It is both what makes the first paradigm plausible and makes it play the function embodied in the third paradigm. Indeed, if bound by virtue of international law, states are part of an inevitable march towards liberal democracy and work on making other states adhere to their liberal virtues. This community –that this the association of liberal states –pursues a common objective to promulgate its liberal values to non-liberal states, the latter being deprived of their internationally recognised sovereign rights originally created by the international society to protect state sovereignty. In The Construction of the Liberal Peace, these two first paradigms coalesce in a third paradigm –i.e. a new version of the democratic peace theory. This third paradigm is explanatory in nature as the existence of an international community of liberal states (first paradigm) and its promoting of liberal democracy by virtue of international legal institutions (second paradigm) are supposed to explain why violations of international peace and security occur in the contemporary era (third paradigm).

As the above mentioned sketch should suffice to show, The Construction of the Liberal Peace thus rests on a subtle articulation of normative, paradigm and explanatory paradigms. It would be of no avail to seek to evaluate whether each these paradigms dovetails with the positive rules of international law. It is true that I do not believe that the rule prescribing electoral democracy is as firm as Buchan thinks it is. Nor do I think that illiberal states are, by virtue of positive law, deprived from the benefit of rules like non-intervention or the prohibition to use force. These legalistic questions about the positive rules of international law probably, however, constitute a debate that ought not to be taken on here. Likewise, it seems vain to discuss the inevitable hegemonic –and maybe colonialist –character of the very idea of a virtuous community that deprives some illiberal villains of the benefit of some of their rights –something very reminiscent of John Rawls’Law of Peoples. Such a charge probably holds for any scholarship seeking to promote liberal democracy in the international society. This is why, rather than testing Buchan’s argument on positivist or moral grounds, the following observations critically reflect on the agenda and methodology of The Construction of the Liberal Peace.

The agenda of The Construction of the Liberal Peace

The Construction of the Liberal Peace portrays its agenda as being explanatory, for it seeks to enable us to account for recent changes to the political and legal structure of the world and allow us to better understand why violations of international peace and security occur. In other words, the book claims that it attempts to construct a model that can explain why states act in the way that they do and the implications that their conduct has for international peace and security. The book simultaneously makes the explicit claim that it does not seek to make judgement about the desirability of the conduct of states or international organisations, nor to make normative judgement about whether or not the liberal peace thesis represents the most secure foundation upon which to build international peace and security.

It is contended here that the overarching explanatory project of The Construction of the Liberal Peace cannot so easily be stripped of its fundamentally normative character. Indeed, like any explanatory framework, the argument made in Buchan’s book is dependent on some explanatory tools which are themselves grounded in some preconceived frameworks. And, like with any preconceived framework, the limit between explanation and prescription sometimes grow thin. This is well illustrated by the first paradigm on which the argument is constructed and, more specifically, the concept of international community in which the explanatory framework of The Construction of the Liberal Peace is grounded.

Indeed, the community is as much the substructure as the overarching aspiration of the argument. In that sense, it is not coincidence that Buchan’s distinction between international society and international community proves so reminiscent of Wolfgang Friedmann’s distinction between the law of coexistence and the law of cooperation which was not only an explanatory framework but also a normative enterprise. In this respect, the argument could be pushed further and it could be contended that Buchan’s invocation of an international community constitutes a deductive move that is not so different from those found in (neo-)natural law theory. This impression is reinforced by the fact that a legal prescription on democracy is, in the end, not really necessary to uphold the explanatory ambitions of Buchan’s argument.

The methodology of The Construction of the Liberal Peace

The methodological arrangements that are at work behind the three-tier construction of Buchan equally call for a few remarks. The argument developed by Buchan, whist resting on the three above mentioned normative, paradigm and explanatory paradigms, necessitates that four questions be answered: whether there is a commitment to liberalism from states, the extent of that commitment, the extent of the implementation of this commitment and, finally whether there is any causal relation between the implementation of that commitment and why violations of international peace and security occur in the contemporary era. Obviously, the methods adopted to answer each of these questions do not necessarily need to be the same. What is expected, however, is that methodological choices are defined for each of them. Buchan does a good job at indicating his main methodological choices but for one aspect.

Indeed, if the idea of international community and its agenda to promulgate non-liberal states towards liberal democracy are meant to explain why violations of international peace and security occur in the contemporary era, the way in which causality functions needs to be spelled out. Said differently, a certain type of causality is necessary for The Construction of the Liberal Peace’snormative theory to perform the explanatory function ascribed to it. As we have learnt from Hume’s scepticism, causality, even in natural science, is never a given. It is always constructed according to certain (equally normative) choices. It is regrettable that The Construction of the Liberal Peace does not elaborate on the type of causality that makes it explain how compliance with international peace and security is affected by the community of liberal states and their promotion of liberal values. By eluding the question of causality, Buchan’s elegant and impressive book, while undoubtedly raising the theoretical level of the debate on democracy and international law to an unprecedented level of refinement and in an original way, reinforces the above mentioned doubts as to its explanatory nature, for, in the end, only prescriptive theories do not need causality.

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Mariano de Alba says

November 18, 2014

Interesting post. I have to concur that the state of affairs in the international community has not yet reached the point where the lack of democracy (or other liberal values such as the respect for human rights) is the only consideration (Western) States take into account when deciding to intervene in another State's affairs.

On a related note, it would also be interesting to assess how Western States that have entered into formal international obligations to upheld democracy have failed to so because of political and economic considerations. I am specifically referring to the Inter-American Democratic Charter, which has not been put into practice in cases such as the presidential elections in Venezuela in 2013. There were sufficient elements in the table calling for at least a recount of the votes but the Organization of American States (through the vote of the vast majority of its Member-States) decided not to get involved in the matter, presumably to retain economic benefits that is receiving from the Venezuelan government such as oil at a discounted price.

I believe that regrettably, even in the Western hemisphere, we are still in a state of affairs in which, unless there are massive loss of human lives, an incredibly obvious disregard of popular will or extremely severe violations of human rights, the international community will not intervene.