The Assault on International Law

Ohlin sharply critiques the “new realist” school of legal thinking, which questions the basic normative and legal foundations of modern international law and urges the United States to be skeptical of international legal obligations. He focuses on the writings of a small group of prominent scholars, including Jack Goldsmith, Eric Posner, and John Yoo. Ohlin argues that such thinkers have provided intellectual support for the recent intensification of U.S. opposition to international treaties and legal commitments, including the International Criminal Court and conventions against torture. Ohlin criticizes what he sees as the new realists’ overly narrow view of rationality and self-interest—a view in which complying with international law often conflicts with domestic constitutional authority and compromises a country’s ability to determine its own vital interests. Ohlin wants legal scholars and policymakers to adopt a more expansive notion of rational self-interest. Truly rational states, he argues, would seek to build stronger international laws and institutions, giving up some autonomy—and some exceptionalism, in the case of the United States—in exchange for a more stable and legitimate world order.