The Flip Side of the Record

Robert Kagan ("A Matter of Record," January/February 2005) accuses us of contradicting our own previous writings in our essay "The Sources of American Legitimacy" (November/December 2004). Kagan claims that we intentionally distorted the historical record by asserting, among other things, that the United States pledged itself to international law in the aftermath of World War II. We reject these charges.

BONES TO PICK

There appear to be three main issues in the dispute: first, how to construe a U.S. diplomatic record in which a commitment to consensual decision-making existed alongside a proclivity for unilateralism; second, how to characterize a Cold War stance in which the United States accorded the UN Security Council a marginal role while claiming fidelity to "the principles of the UN Charter"; and third, how to reconcile the United States' professed commitment to the rule of law with its occasional departures from legal principles.

In "The Sources of American Legitimacy," we wrote that a pillar of U.S. legitimacy was Washington's commitment to consensual decision-making, especially within the Western alliance. Kagan insists that we emphasized unilateralism previously and were right the first time. But Kagan himself has argued in these pages ("America's Crisis of Legitimacy," March/April 2004) that "during the Cold War, even a dominant United States was compelled to listen to Europe, if only because U.S. policy at the time sought above all else to protect and strengthen Europe. Today, Europe has lost much of that influence." Apparently, then, we are in good company in finding a difference between the Washington that once listened to allies and the one that listens no longer. We appear also to be in good company in holding that U.S. legitimacy does have something to do with the principle of consensual decision-making, for Kagan himself advises that a greater sensitivity to allied concerns could help renew legitimacy.

The second issue concerns our treatment of the role of the United Nations in U.S. foreign policy. Kagan adduces quotations from earlier writings of ours that note that the UN Security Council played a negligible role in the nation's foreign policy during the Cold War. But he fails to point out that we wrote to the same effect in our most recent piece: "the collaborative system of decision-making envisioned by the UN Charter was an early victim of the Cold War." Kagan finds a contradiction between our earlier statements and our most recent assertion only by ignoring the relevant distinctions. In the late 1940s, U.S. leaders moved away from the system of collective security envisioned in 1945 and instead instituted regimes of collective defense, claiming that in so doing they were being faithful to the principles of the UN Charter. One may reject our belief that the United States should gain the consent of the Security Council for interventions that would otherwise be illegal, but we based that claim on the novel circumstances of the post-Cold War world--above all, the need for a constitutional check on the overweening power of the United States--and not on U.S. Cold War practice.

LEGAL EAGLE

The most important dispute we have with Kagan concerns the role of international law in U.S. foreign policy. In linking legitimacy to law we did not think ourselves to be making an extraordinary claim. After all, the dictionary definition of "legitimate" is "sanctioned by law," and it seems to us that to give an account of legitimacy without reference to law is comparable to explaining the nature of virtue without reference to morality. We concede that it might be done, but we should not like to attempt it ourselves.

Kagan argues that it is "ahistorical, even fanciful" to believe that the United States pledged itself to international law after 1945. His is a startling claim that is inconsistent with the repeated declarations of U.S. statesmen. They spoke of displacing the rule of force with the rule of law, of the "sacred" character of the rule of law, of the wrong of aggression, and of the need for the peaceful settlement of disputes. Kagan writes as if our attention to these professions came about only in 2004, but that is simply not the case: see, among many instances, The Imperial Temptation, pages 44-45, 100, and 184-85; Tucker's The Just War; and Hendrickson's "The Recovery of Internationalism," in the September/ October 1994 issue of Foreign Affairs, 31-32 and 41.

We admitted in our most recent essay that the United States occasionally violated in practice its condemnation of aggressive war and the corollary proscription against intervention. Intent on showing that in the past we held nearly the opposite view, Kagan writes that, in The Imperial Temptation, we argued that "U.S. foreign policy from the Truman administration to the first Bush presidency" was "a consistent 'record of departure from the first and foremost principle of world order.'" But the context from which Kagan takes this dressed-up quotation--which in fact was an analysis of George H.W. Bush's new world order and the central role that opposition to aggression played in his outlook--refers only to a record of departure in one region (Central America) by two administrations (Reagan in Nicaragua and Bush in Panama). We did not claim that such departures occurred everywhere and were countenanced by everybody.