On Rules and Order

I recently wrote this piece at The National Interest, arguing that we don’t, can’t and never will live in a ‘rules based’ world order, despite the frequent claims that we do.

Butch Bracknell wrote a critique of my argument here.

My response to Butch is here, below. Hopefully we will keep our dialogue going, and I’ll post up any further ripostes:

I am grateful to Butch Bracknell’s response to my article, and say that not just as a throat-clearing protocol of debate. This question matters. It goes to the heart of the kind of world we live in, the world we ought to strive for, and above all, what kind of world is possible. Bracknell’s critique is terse but full of ideas that need unpacking. I hope readers will forgive a lengthy response.

His argument, in brief, is that I judge the concept of a ‘rules based’ world order by a false standard. There is a rules based order, he claims, only it is not omnipotent and neither does it have to be. What’s more, the test is whether rules shape behaviour: and they do. They have normative power, informing actors’ decisions about how things should be and how they ought to behave. States care about legitimacy and mostly comply. Non-compliance with a set of rules does not nullify those rules. Deploying a domestic law metaphor, Bracknell notes that people violate criminal laws in Chicago, but those laws still are valuable, and withdrawing them would make things worse. America’s obligation, he concludes, ‘is to continue to strengthen the international order, not to undermine it because it is occasionally imperfect or ineffective.’

Let’s start with our points of agreement. I have no quarrel with the suggestion that rules exist, that they have an effect, and that this is a non-trivial part of international life.

My argument, quite simply, is that our world, for all its rules, is not fundamentally ‘rules based,’ at least when it comes to the strongest states when they are make some of their most historical decisions.

The overriding issue here is what the concept ‘rules based’ means, if anything. To say that it is ‘rules based’ is implicitly, and necessarily, to exclude or at least marginalise other possible things the world could be ‘based’ on. To say ‘based’ is to suggest hierarchy. If it doesn’t mean that rules are the overriding, overarching and fundamental determinant of global interactions, at the expense of other forces that could drive international life, then what precisely does it mean?

Bracknell’s alternative test is so low as to be banal: ‘whether the norms affect state and state actors’ behaviours, not whether one hundred percent compliance is achieved.’ In that case, the phrase ‘rules based’ borders on meaninglessness. Other forces, too, shape behaviours: insecurity, honour, greed, resource scarcity, or domestic politics. What elevates ‘rules’ above these? To claim that a global system is ‘based’ on something is more ambitious than merely suggesting one variable has an effect.

For us to take ‘rules based’ seriously, Bracknell is right that it does not have to be ‘omnipotent.’ But it shouldn’t be impotent either, regarding the behaviour of major powers on major questions. And this is the embarrassing reality for legalists. At critical junctures, involving high-stakes issues, where major states are concerned about their most pressing interests, the rules become impotent, or at least very weak.

The overwhelming evidence is that the world is also ‘based’ on ‘rules violation’, as every great power sets rules aside at will.  These violations may not be the majority pattern. But they are major transgressions of such significant quality that they cast the central thesis into doubt. To say that the rules and the doctrine of strict rules-observance is ‘intact’, after Iraq, Kosovo, the South China Sea, Tibet, the Crimea, and the flouting of international courts, with impunity, by every one of the permanent five states, is laughable. It calls to mind the joke about the man who asks Abraham Lincoln’s widow after their night at the theatre, ‘aside from that, Mrs Lincoln, how was the show?’

Bracknell argues that occasional non-compliance does not shake the order. “A law does not lose legitimacy because a few bad actors choose to disobey it.” This is where his domestic analogy breaks down. We are not talking about a few bad actors breaking the law in a governed city, with a police force deterring and pursuing offenders and a legal system, backed by force, upholding the law. It is more like a post-apocalyptic Chicago, with no government or supreme authority, and unaccountable and predatory major gangs violating laws with impunity, yet continuing to insist others obey. Observing that, we would say that the rule of law had collapsed. We wouldn’t be cheering ourselves up by citing cases of weak offenders being rounded up by stronger ones.

One final issue. Bracknell and I agree that the US ‘should strengthen international order, not undermine it.’ Contrary to the implied claim, it is not me barracking for chaos and Bracknell barracking for order. Rather, ours is a dispute about competing concepts of order. We have different ideas of what ‘order’ means.

I think the prudent pursuit of ‘order’ means adopting a more restrained, more accommodating and more measured multipolar and power-sharing diplomacy, backed by deterrence and material strength, and that this may involve compromises on rules.  Obeying or imposing rules might threaten, not bolster, international order. Should Washington have bowed to the UN’s ‘sole’ authority over Kosovo? Should Washington consistently obey the law even where conscience or interest make violating it compelling? Should the prospect of a P5 veto override the urge to intervene? Faced with illegality or atrocity, what should we choose? Four-word phrases, no matter how often repeated, won’t resolve the dilemma.

Bracknell, by contrasts, confuses and conflates ‘order’ with ‘rules’, and fails to recognise the tensions and dilemmas between the two distinct concepts. This is what I meant, when I suggested that the fallacy of legalism is to suppose that rules can supplant power politics. By confusing rules with order, Bracknell demonstrates that legalism is not a ‘straw man’ but a real thing indeed.

When the issue becomes intense, as was recently said, rules are powerful against the powerless, but powerless against the powerful. Hence Bracknell’s nod to the problem of the Africa-targeting bias. The millions killed and maimed in unauthorised and unpunished great power wars, like the many victims of warlords beyond the writ of the state, recede to the background when Bracknell affirms that ‘Some actors, unmoored from an internal moral or religious regulation of the desire to kill other humans, are nonetheless deterred by the prospect of arrest, trial and imprisonment.’ Some.

 

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