THE GREAT AMERICAN SMOKE OUT:

U.S. vs. Them: Opposition to American policies must not become the chief passion in global politics. (Francis Fukuyama, September 11, 2002, Washington Post)

To put it rather schematically, Americans tend not to see any source of democratic legitimacy higher than the nation-state. To the extent that international organizations have legitimacy, it is because duly constituted democratic majorities have handed that legitimacy up to them in a negotiated, contractual process, which they can take back at any time. Europeans, by contrast, tend to believe that democratic legitimacy flows from the will of an international community much larger than any individual nation-state. This international community is not embodied concretely in a single, global democratic constitutional order. Yet it hands down legitimacy to existing international institutions, which are seen as partially embodying it, with a moral authority greater than that of any nation-state.

Between these two views of the sources of legitimacy, the Europeans are theoretically right but wrong in practice. It is impossible to assert as a matter of principle that legitimately constituted liberal democracies can't make grave mistakes or indeed commit crimes against humanity. But the European idea that legitimacy is handed downward from a disembodied international community rather than handed upward from existing democratic institutions reflecting the public will on a nation-state level invites abuse on the part of elites, who are then free to interpret the will of the international community to suit their own preferences. This is the problem with the International Criminal Court. Instead of strengthening democracy on an international level, it tends to undermine democracy where it concretely lives, in nation-states.

There are three basic reasons for this divergence of views on the role of international law. The first, as Robert Kagan has noted, is the imbalance of power between the United States and everyone else. Weak states understandably want stronger ones constrained by norms and rules, while the world's sole superpower seeks freedom of action. But power alone cannot explain the gap, as the Europeans are rich and populous enough to project military power if they wanted.

A second reason has to do with the concrete experience of European integration, where European countries have been giving up key elements of sovereignty to the European Union. Like former smokers, they want everyone else to experience their painful withdrawal symptoms from sovereignty.

But the final reason has to do with America's unique national experience and the sense of exceptionalism that has arisen from it. Americans believe in the special legitimacy of their democratic institutions and indeed believe that they are the embodiment of universal values that have a significance for all of mankind. This leads to an idealistic involvement in world affairs, but also to a tendency for Americans to confuse their national interests with universal ones. Europeans, by contrast, regard the violent history of the first half of the 20th century as the direct outcome of the unbridled exercise of national sovereignty. The house that they have been building for themselves since the 1950s called the European Union was deliberately intended to embed those sovereignties in multiple layers of rules, norms and regulations to prevent those sovereignties from ever spinning out of control again.

The analogy--to cigarette smokers--is quite apt. The Europeans do indeed seem intent on punishing us for their own moral weaknesses. But it's hard to see why the U.S. should be bound by laws that are really intended to stop France and Germany from going to war every few years. Their irresponsibility does not require that we be fettered.
Posted by Orrin Judd at September 12, 2002 9:45 AM