Professor Ian Hurd: “Law is not cooperation”
Ian Hurd is Professor of Political Science and Director of the Weinberg College Center for International and Area Studies at Northwestern University. His research on international law and politics combines contemporary global affairs with attention to the conceptual frames that serve to make sense of the world. He has written a series of very influential books, including ’How to Do Things With International Law (Princeton 2017)’ and the prize-winning ‘After Anarchy: Legitimacy and Power in the UN Security Council’ (Princeton 2007). He is co-editor of the Oxford Handbook of International Organizations (Oxford 2017) and The UN Security Council and the Politics of International Authority (Routledge 2008). His widely used textbook on the law and politics of global governance, called International Organizations: Politics, Law, Practice, was recently released in its fourth edition (Cambridge). He has been chair of the International Organization section at ISA and a visiting scholar at the American Bar Foundation, the Woodrow Wilson School at Princeton, WZB-Berlin, Sciences Po in Paris, and elsewhere.
In the third instalment of our series of interviews with academics we admire, Professor Hurd talks to Editor-in-Chief Emil Sondaj Hansen about his recent article in International Theory, “The Case Against International Cooperation”.
To begin with, I was wondering if you could speak a bit about your path into academia and what interested you about the fields of IR and international law specifically?
I started in international relations and thinking about international organizations. I was always curious about the ways in which people represent how the world works. I was most curious about the descriptions people give about the systems that are operating in international politics—legal systems, political systems, economic systems. I felt particularly influenced by a few pieces that stuck with me from my early student days: one by Alex Wendt on the agent structure problem, a well-known piece from the ‘80s, and another by Ellen Wood on the separation of the economic and the political in capitalism. Although I encountered them long after they were first published, both of these pieces had this really nice feature where they would take what seemed to be the common-sense understanding of how the world is divided into different components and show you that, in fact, the parts were so closely connected that it made a lot more sense to think of them together. Ellen Wood did this for the idea that there is a separate economic and political domain, and Alex Wendt with the idea that there are separate social structures that are distinct from the actors in society. Both of them, in really different ways, were saying ‘you know, actually, the harder you try to keep these things separate, the less sense you can make of the world’. I don’t know if they got the answers right on how the right way to understand things is but, for me, seeing them do that was kind of mind expanding because it made me think ‘you know, there’s really a lot to be done to think through these received wisdoms about how the world is constituted, and the terrain is wide open to think about different ways you can understand the various forces and pieces of social life and the story that you find might be radically different than before—and way more interesting and a lot more productive in a sense’. In a way it was maybe a little like what David Bowie did for fashion or like Jimi Hendrix did for Blues music. I had this experience reading those things as a student where I just thought ‘wow, you can do that? I didn’t know you were allowed to think sideways like that—and to put the world together in a different way’. Those early encounters stayed with me as a model for the kind of creativity I think is most illuminating in social science.
“The cooperation thesis builds a version of society where there are only winners from the rules, there are no losers. It ignores all of the distributive and coercive parts of international law and governance by which some people win and some people lose—some interests are advanced and others are impeded”
I’m sure Alex Wendt would appreciate the Bowie comparison. Besides Alex Wendt and Ellen Wood, do you have any other significant intellectual influences?
Well another that was really productive for me was actually Kenneth Waltz’s, Theory of International Politics from 1979. Again, in part, for what he tried to do stylistically. The way he tried to strip away almost everything that other people were writing about in international politics and focus just on these few bare, spare mechanisms and constants. Like a Picasso line drawing, he sort of tried to delete everything else and highlight these very few things, and then constructed a vision of the world based on just these few components that were constant and mechanical. I thought that was fascinating, and totally wrong—obviously totally wrong! But understanding where he went wrong became really productive for me. I spent a long time carefully tracing through his argument, thinking about at what point does his parsimony go off the rails and leave reality behind, and cause problems for his analysis? I found that a really interesting and really a vibrant path to think along in part because it felt to me so clearly wrong—but wrong in a very productive way, a very interesting way.
Do you still then, at this point in your career, try to engage with academics of a very different analytical point of view—eg. neo-realists—or people with different theoretical inclinations than your own?
Yes. I think I still do and I would imagine that for most people who I would find interesting to read, this is probably a common model. What’s intellectually stimulating for me is encountering people who see things quite differently and then trying to understand how it is that in their mind these things make sense, whereas for me it’s a challenge to see it that way—and then trying to figure out what goes in between and what I can learn from them and what kind of conversations we can have. So, yes, I think engaging with, with role models who maybe see the world differently than you is a really important path.
Moving on to your recent paper in International Theory, “The Case Against International Cooperation”. You call for a break with the understanding of international law as synonymous with global cooperation. What do you think the problem is with conceiving international law as a cooperative mechanism for solving disputes between states and other actors in the international system?
Well, law is not cooperation. And governance is not cooperation. I think that’s quite easy to see and to feel when we think about domestic societies. When I pay taxes or I apply for a permit to hold a protest, or if I follow the zoning rules for my local building ordinance, I don’t think that I’m cooperating with the government... I think we have in the domestic society a natural sense that governance is about authority and it’s about a central institution that has some capacity to force things to be a certain way. People might choose to disobey, of course, but there are sanctions for that. The key idea of governance, as of law, is that there’s a coercive aspect which builds a situation such that the individuals then more or less go along with it because they hardly have a choice. To model that as cooperation would be a little bit weird. Paying taxes doesn’t feel like cooperation. I think the same can be said of global governance and of international law. To the extent that global governance is about governance, it’s about an authority structure that imposes, or tries to impose, its outcomes on the society. That’s not really cooperation. And to understand it as cooperation is a little bit misleading because it makes it feel like this is the freewill of all the actors coming together in a spontaneous manner and choosing the outcome that’s good for everybody. I think that’s clearly problematic when we think about global governance because the cooperation thesis builds a version of society where there are only winners from the rules, there are no losers. It ignores all of the distributive and coercive parts of international law and governance by which some people win and some people lose—some interests are advanced and others are impeded. That seems to me to be at the heart of the idea of a rule, and of law. A rule and a law are made to encode certain outcomes, to tilt society towards certain outcomes and away from others. That seems great if you favour those outcomes, and if you disfavour those outcomes then that’s a harm to you—probably. It seems quite normal for me to think in global governance, then, about how the rules favour some interests and how others are asked to pay the costs for them. I think that’s a normal way to think about politics and society in the domestic sense, and I think it makes equal sense in global governance. The cooperation thesis makes it harder to see winners and losers and distribution and conflict.
“We want to understand how power and influence are shaping the possibilities for agreement, and that requires expanding our view beyond just the metaphor of cooperation”
Your alternative to this cooperation thesis is what you’ve coined a ‘political approach’ and you write that this, this alternative to the liberal cooperation thesis starts with the assumption that ‘people’s preferences are in conflict rather than in harmony’. While you argue that this is not a, a ‘return to realism’, it does strike me as somewhat of a pessimistic and almost Hobessian assumption about human nature. In what ways does your political approach differ from a realist approach to international law?
I think it’s a common mistake in IR theory to equate any scholarship that thinks about power politics and conflict with realism. I think that’s a mistake. There are wide areas, wide swathes of different social science approaches that think about power and coercion and imposition and conflict that you wouldn’t call IR realist—think of Marxists, think of Feminist Critical Theory. All kinds of people, basically everybody except the most diehard liberals, are thinking about a world where power really matters and conflict is built-in, and we want to know how power flows through these institutions and who wins and who loses. The study of power politics is much broader than realism. The problem may be that few people define realism specifically enough for it to really be distinguished from these other approaches. It’s not enough to say that the study of power politics makes one a realist. If that’s true, then basically everybody’s a realist and it’s hard to escape realism because we all understand that power matters. Instead, I think what IR realism does is take a really narrow slice of power—brute power, material power, bombs and rockets—and suggests that you can read from the distribution of material stuff something about international relations. This is getting back to the Kenneth Waltz piece that I found so interesting in decades past. So, the materialist model of power is what makes realism ‘realist.’ Everybody else who studies power politics might have a broader view of power—they don’t fit that into the realist school of thought. For me, my interest in international law as a political resource suggests that we can’t just think about material stuff in power politics, we want to think too about how governments are others are using things like the law and institutions to try to advance their goals. The political use of international law is a very powerful thing. We see it all the time, like when a government works hard to show that its use of force, or its treatment of prisoners, follow international law—they’re working hard there to fit themselves into this discursive scheme of legalism that’s got a lot of power. So those attributes of power politics are missed by a materialist, but they’re clearly important and so I would leave the realists behind and think more broadly about power.
Part of your critique against the cooperation thesis is that it loses this emphasis on power, distributions of gains and losses, winners and losers in international law. But does your approach not run the opposite risk of precluding any sort of cases where there might be ‘universal interests’ or desires to cooperate at play? Or do you not recognise the existence of universal interests as something present in international relations?
Well I think there may well be shared interests among some actors, and I think that’s worth examining. So if, let’s say, Donald Trump and Putin and Assad in Syria come together and they agree on some scheme for who should govern in Syria, you could say that’s kind of a cooperative act—they come together, perhaps they have shared interests, it’s multi-lateral. That might count as an example of international cooperation. The key though is to recognize that while this instance might reflect a shared interest among those three, as individuals or as government leaders, there are still losers. I would think, substantively, probably the people of Syria would be a loser from that arrangement, and the idea of democratic governance is probably a loser. But nonetheless, the cooperation thesis, those three coming together and agreeing on something, would be something to celebrate as an example of cooperative multilateralism. And you’d certainly be right to say they had a shared interest in whatever it is they agreed on in the end. What’s important is to remember the limits of that shared interest and that there will always be people on the outside of that circle of shared interest, and the agreement may well impose costs on those outsiders. So, for every agreement, for every collection of shared interests, there is an imperative to think about those who are made to bear the costs—and presumably that’s everyone who would have preferred some other outcome rather than the agreement that was made. I think that shared interests are certainly important in negotiations, that’s clear, but even in those cases we still want to think about how distributions of gains and losses are made, who’s bearing the costs, and who’s getting the benefit. I think it would be pretty hard to find an international treaty that manifests a universal interest.
You mention this merry band of brothers, Trump, Assad and Putin. Is there anything about this particular political moment that made you attentive to the shortcomings of a ‘global cooperation’?
No, I think this is almost a methodological point for social science research to remember that there isn’t a universal interest, and so we are here to study how the world actually works. And that benefits from thinking in pretty detailed terms about who gains and who loses from whatever institutional arrangements we’re living in. One thing about the current moment probably is that it’s easier for Americans to remember that it’s quite common to be governed by a leader who does not represent the interests of the collective. That’s an obvious disconnect if we want to think theoretically—the leader is never really working on behalf of everybody. But there’s a kind of happy, naïve myth that can circulate in political science that the leaders can be taken to be acting on behalf of everybody in a kind of symbolic sense. Well it’s easy these days in the US (and in many places of course) to see that that’s not an assumption that’s safe to make. If a leader is acting in their own interests, or in the interests of some minority or, or industrial sector, and not others, there’s always the way in which the decisions the leader is making are serving some parochial interest and not the general interest. It might be easier these days to, to feel what that’s like in this country, but it’s by no means a novel observation—we’ve known this forever.
Taking a step back, I’m curious to what extent this antagonism between actors go. If international law is political and thereby characterised by antagonistic interests, what do you make of the conceptualisation of international law as a shared “practice” as scholars such as Toope and Brunnée have argued? Would you not say it requires, kind of, shared understandings, common conjectures and cooperation to sustain the practice of legality?
I think that’s an interesting characterization. You’re right to suggest that international legal forms are a kind of practice, and I like the Brunnée and Toope characterization a lot—I think it’s really useful. We could think that practices are a bit like language. We will draw on the resources of language that we have around us, those that we know and we understand, and we would use them to communicate with others who have some similar understanding, and there’s always the possibility of things going a little bit array as our understandings differ a little. The idea of communication from Charles Taylor and others relies on this sense of a shared set of linguistic resources—we make sense of each other in the world and ourselves that way. I think that makes a lot of sense. To describe that as cooperation is a little bit weird. It is, or at least it is hard to see what I would gain from thinking about that as me cooperating with the person that I am speaking with. Certainly we’re relying on a shared set of resources to make ourselves intelligible, but to say that’s cooperation is a little strange to me because it would seem to push into the background all of the things that are actually interesting about that use of resources—which is to say, what kind of ideas are handed down to us through the language? What resources do we have at hand as linguistic tools for making ourselves heard? How do those communicate and resonate with the hearer? And what different things might come across than what we intended? How is that language constraining, but also empowering? All those things are interesting to me when it comes to thinking about the political use of international law and of international relations more generally, and they don’t really fit very well into the idea of cooperation. So, I can see your point that there has to be some shared understanding in order for us to make sense together in law and in other things. The metaphor of cooperation doesn’t seem to me to be particularly apt or particularly useful as a way of understanding what’s going on.
What do you think your argument about antagonism between actors in international law means for how we understand the international community, international society? Some scholars, such as Hakimi, argue legal conflict can in fact have systemic value for order, for international community. Do you reach a similar conclusion?
There’s a lesson here, perhaps for research methods before we think about substance. For a scholar who’s designing a research project, my advice would be to remember to look out for differing interests. And that will help avoid the unfounded assumption that the rules are acting as a public good by which everybody benefits, because the existence of differing interests, differing preferences over what should happen ensures that any set of rules will advance somebody’s interests, but will be harmful to somebody else’s interests. Research that admits that and brings it out into the open is going to be a lot more compelling than research that assumes that the constitutional structure serves the interests of all. On Hakimi and the productivity, I like her piece on this a lot. For me, I’m not in a position to say whether this conflict is overall good or bad. I’m more interested in social science inquiry that’s not looking to make judgements about what’s good or bad, or be pessimist or optimist, but instead that aims to describe the way things are in a way that helps make sense of stuff for the reader.
Going back to something you mentioned earlier, that what drew you to IR was this idea of different representations of how the world works. Do you think that practitioners, state leaders, diplomats, policy makers, have reached this realisation you’re laying out in the paper – that you have to be attentive to gains and losses when operating within the field of international law? Do you think they’ve come to that conclusion earlier than the academic community? Have IR scholars been a bit delusional when it comes to the real politick that might actually be taking place on the ground?
As IR scholars abstract from the practices of diplomats and governments, they risk leaving reality behind and creating a model that is useful for scholarly generalizations, but that doesn’t map very well onto what happens in the world. I suspect that if you talk to most diplomats, they would not understand what they’re doing when they enter into a negotiation with, let’s say, over a treaty or a resolution to the UN in New York, as a day of cooperation with others. I suspect they would feel more familiar with the idea that there are certain things that we want to accomplish as a delegation from our country, and we hope that in discussing it with these other countries, who are coming their own list of desires, that there’ll be enough overlap that we can drop some of our interests, they can drop some of theirs and it’ll result in a shorter list of things that we can agree on. But that begins from the premise that there are things that we want to accomplish, and we might prioritize these so that there are some that are non-negotiable—they are demands—and there are others that are desires, but we’ll let them go in the interest of the more important things. But still, there’s a menu of interests there that’s driving the interaction and that gives motivation to the government, and that provides the energy to the negotiation—it’s the substance, it’s the reason for being in the negotiation. Now, is there cooperation going on there? Well perhaps, because as you say, they engage in the diplomatic practices that I’ll understand and they’re looking for an area of agreement that overlaps enough with their non-negotiable demands. But, to describe it as cooperative causes us to miss all of the rest of what’s structuring that interaction, including the possibility that maybe we can’t walk away. Maybe we are Canada negotiating NAFTA with the United States and exit is not an option. Well that narrows the kind of result that we’re likely to get, feels coercive, but in the end, we have to agree –so there’s a veneer of cooperation. But to understand the negotiation, we really want to think about a lot more than just freewill and voluntary cooperation. We want to understand how power and influence are shaping the possibilities for agreement, and that requires expanding our view beyond just the metaphor of cooperation. So, I think you’re right that diplomats would viscerally understand that the job of international negotiation is a mix of looking to find agreement, but also trying to advance interests. The cooperation model makes it feel like agreement is the goal—and the only goal.
What do you think are the most interesting developments in your field right now?
It’s exciting to see that there’s a lot of room right now for work that thinks beyond a cause and effect mechanistic model of political life. I think that’s very exciting because it makes it possible to think more broadly about how social institutions are constituted and how they change over time, and how different ideas about the world are at play as people take action—which is I suppose is this post-positivist turn, or perhaps the practice turn, that doesn’t assume that there’s a stable relationship between a cause and an effect, that maintains itself across time and space. It’s more tuned into the importance of history and nuance and constitution. That’s very exciting. Substantively, I am quite interested in the developments happening between law and politics, international relations. That’s a very fruitful conversation, both substantively and methodologically. I think those two sides have quite different “taken for-grantedness”, and the encounter between those two promises to enlighten both. The lawyers can start thinking a little more about the politics, and the political scientists can start thinking a little more realistically about how law works, rather than taking a kind of naïve, universalist view.
Do you have any advice to young scholars considering a career in academia?
Well my sense is that the academic life is a long and slow-moving process that often feels like a slog. My experience is that the people who fare best in that long haul are people who keep track of their genuine interests, their real curiosities, their real passions for what they want to investigate. I guess my advice would be, if you feel like you get into a rut, and you’re stuck, remember to look back at the curiosities that first got into your head when you began in this area, and make sure that you stay close to those. I think for most scholars, those inklings and puzzles of curiosities, things they couldn’t make sense of stay with them. And they might explore them in very different ways over the course of a long career, but it’s those little itches in the mind that provide the motivation. I think, if you stick to that, you are more likely to be able to endure some of the indignities that the profession can throw at you.
Transcribed by Andrew Furlan
This conversation has been edited for clarity