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Norms and Values:

Rethinking the Domestic Analogyl


Friedrich Kratochwil

he place of norms in political life has always been controversial,

T particularly in international relations analysis. Those who denied


that norms are important for international interactions called
themselveswith typical modestyrealists (thereby indicating that mem-
bers of the other fraternity were not to be taken seriously), and those who
were interested in norms were labeled idealists.~ The advocacy of law
among the latter group then could be based either on hopes for a world
government, on the establishment of peace through law, or on the often
somewhat embarrassed admission that international law, although useful
for certain purposes, was not really law.t In any case, the underlying
dichotomy between domestic affairs (law-governed) and international
affairs (anarchy) appeared to be reinforced. Thus, while world govern-
ment advocates shared with the realists a common Hobbesian frame-
work,4 two major issues remained. There was the problem of how norms
in general influence decisions and thus create social order, and second,
how order is possible in the anarchical realm of international relations.
If we are interested in answering these questions it is clear that we
have to overcome the conventional conceptual impediments. For this
reason, I want to utilize the present debate on regimes in international
............................................................
1 This article is excerpted from Friedrich Kratochwil, RuleJ, Norms, and Decisions (for[hconl-
ing), chap. 2.
2 For a good discussion of the idealist position in international relations, see F.H. Hinsley,
Power and the Pursuit of Peace (Cambridge: Cambridge University Press, 1967).
3 See the once rather influential book by Grenville Clark and Louis Sohn, World Peace though
World Law, 3rd ed. (Cambridge: Harvard University Press, 1966). See alsu John Austin, The
Province ofjurispudence Determined, H.L.A. Hart, ed. (London: Weidenfeld and Nicholson, 1954).
4 This point has been eloquently made by Inis L. Claude, Power and International Relations
(New York: Random House, 1962).
136 ETHICS AND INTERNATIONAL AFFAIRS 1987 Volume 1

relations as my point of departures A focus on regimes provides an


approach to the function of norms in international relations without
involving itself in the quagmire of realist assumptions or in the often
arcane squabbles of legal analyses.
Having stated the advantages of an inquiry via regimes, two caveats
seem in order. The first concerns the current premature emphasis on the
question of regime change-originally identified with regime decay. This
focus tends not only to make regimes little more than reflections of power,
it also obscures the way in which norms function in molding decisions.
.... What remains unclear is why actors follow rules in the first place,G and
why even hegemons find it necessary to resort to normative guidance
, , ,.
rather than to direct, imperative control based on their power. The
second caveat is directed to the apparent limitation of the regime
approach to questions of change in the international political economy.7
But, if norms and rules are important in molding decisions even for
hegemons then it is not intelligible why such a condition should not also
obtain in the security area. True, Robert Jerviss and Charles Lipsons
arguments seem rather persuasive in pinpointing the reasons why re-
gimes are likely to be weak in this particular areas Nevertheless, it would
seem necessary to separate the question of the strength or effectiveness of
....
rules and norms from the issue of their existence and function; otherwise
we are likely to end up with a circular argument or some type of ad
,,, , hoc-cry.
In assessing the utility of the regime approach for the study of norms
I shall use three criteria: usefulness, the ability of this approach to pose
interesting puzzles; conceptual elaboration, the appropriateness of the
concepts to capture the phenomena under study; and explanatory power,
most clearly exemplified by the impact of norms on decisions as well as by
patterns of deviance or of regime adaptation.
The last criterion also includes an appraisal of the importance of
... ............................................................
5 According to the consensus-definition in the special issue of International Organization on
international regimes, regimes are sets of implicit or explicit principles, norms, rules, and
decision-making procedures around which actors expectations converge in a given area of
international relations. See Stephen Krasner, Structural Causes and Regime Consequences:
Regimes as Intervening Variables, in Stephen Krasner, cd., International Regimes, special issue of
[international Organization 36 ( 1982) 186.
Gsee Friedrich Kratochwil, The Force of prescription s,International Organization 38( 1984)
685708.
7John Gerard Ruggie, International Regimes, Transactions and Change: Embedded
Liberalism in the Post-War Economic Order, in Stephen Krasner, cd., International Organization,
op. cit., 379-417.
8 Robert Jervis, Security Regimes, in Stephen Krasner, ed., International Organization, op.
cit., 35278. See also Charles Lipson, International Cooperation in Economic and Security
.,.. Affairs, World Politics 37 (October 1984) 123.
Norms and Values 137

values for social order and their connection with the more specific norms
and rules of a regime. My discussion rejects the conventional distinction
between the models that explain social interactions in terms of com-
munitarian attitudes and those which are largely individualistically ori-
ented and norm- and rights-based. An analysis of the two models of
society allows also for a first characterization of international relations as
a practical association, m Terry Nardins terms, based on the mutual
recognition of rights and shared practices but not on a vision of the good
life.~ It was precisely this concept of a special type of community that gave
rise to the conception of a ius inter gentes (legal relations among sovereign
entities), which made the emergence of a state system possible. Interna-
tional law thereby not only emancipated itself from the concept of a
natural, or even cosmic, orderl; it also called into question the conven-
tional way of thinking about lawthat rules and norms can function only
in hierarchically and/or teleologically structured social systems.

............................
I............................
The Usefulness of the Regime Approach

If patterns of international interactions can be satisfactorily analyzed in


terms of power then utilizing regimes as explanatory devices becomes
superfluous. Kenneth Waltzs constant utilization of the market as an
example of systemic constraints belies the possibility of such reduction-
ism. 11After all, markets are probably the social institution which are most
dependent upon a normative framework. While markets are anarchical in
the sense of lacking a central decision-making institution, it is unimagin-
able how they could function without the common acceptance of the
convention of money, without the protection of property rights, and
without the institutions of promising and contracting, which are governed
by rules.1~
These objections clearly indicate that at least some of the objections of
............................................................
9 Terry Nardin, Law, Morality and the Relations of States (Princeton: Princeton University
Press, 1983) chap. 1. See also Hermann Mosler, The International Society a$ a Legal Community
(Germantown: Sijthoff and Noordhoff, 1980) passim.
10Such ~ ~oncePtua]ization of a cosmic order was provided by Stoic natural law. For a
discussion of the historical development of international law and its emancipation from the natural
law tradition, see Arthur Nussbaum, A Concise Histo~ of the Law of Natiom (New York: Macmillan,
1947).
11Kenneth Waltz, TheOUof International Politics (Reading, MA: Addison WesleY~ 1979) chaPs.
35. For a critique of Waltzs argument, see Friedrich Kratochwil, Errors Have Their Advan-
tage, International Organization 38 ( 1984) 30520.
12For discussion of the various rule types, see Max Black, ~odeh and ~eta~hors (Ithaca:
Cornell University Press, 1962) 26185.
138 ETHICS AND INTERNATIONAL AFFAIRS 1987 Volumel

-, .(
structural or neo-realist criticisms to the regime approach are mistaken.
Nevertheless, there has been widespread agreement among mainstream
political scientists that certain issue areas, such as security, might not be
susceptible to more analysis. For example, Jervis argues that a security
regime exists only when the established norms facilitate not only cooper-
ation but a cooperative stance of a particular kind. Jervis attempts to make
the crucial distinction along the short-term/long-term continuum of
I interest: In order for a regime to exist, there has to be evidence of
cooperative behavior that is more than the pursuit of short-run self-
I interest. To comply with a robbers demand to surrender is not to
participate in a regime, even if the interaction occurs repeatedly and all
participants share the same expectations.la
Several points are worth pondering in this context. There is, first, the
assertion that in testing the existence or the functioning of regimes we
ought to examine whether long-term rather than short-term interests are
served. But such an argument appears to be problematic. If it is interests
we are to consult then interests alone should explain the emergence of
cooperation. In that case, norms and regimes are at best epiphenomena.
It seems, however, that we need norms precisely for the reason that many
actors face each other in single-shot rounds and/or in the absence of
sufficient information concerning each others pay-off structure. In other
words, the interacting parties often can neither rely on a common history,
precedents, or conventions nor expect future gains through the use of
tit-for-tat strategies. It is, therefore, the function of norms to fortify
socially optimal solutions against the temptations of individually rational
defections from the cooperative arrangement. It is more the internaliza-
tion of the norms generalized validity claiman attitude which is
obviously often counteracted by the incentives of defectionthan specific
utility calculations of a future reward that explains why socialized actors
follow rules.4
Utilizing the divergence of individual and collective rationality as a
i first cut in approaching the role of norms in decision making serves a
useful purpose, particularly when we are aware that most actors, most of
the time, do not face a clearly defined matrix with given utilities and that
the outcome of their choices is very seldom the result of simultaneous
choices. Thus, it is often only through the choosing itselfand through
............................................................
3 Robert Jervls, Security Regimes, op. cit., 357.
141 have argued elsewhere that since utility calculations become possitkonlyagainst
he
background of such generalized attitudes, these calculations cannot be the reason for the existence
of norms, as rule-utilitarianism makes it appear. To that extent certain rules are transcendental in
a logical sense, since they are constitutive of the self and therefore of the interests this self
conceives and pursues, For a further discussion, see Friedrich Kratochwil, Rules, Norms, Values
and the Limits of Rationality, Archzv fiir Recht.s- und Sozialphilosophie (forthcoming).
Norms and Values 139

the perceived responsethat actors become aware of their own utility


function as well as that of their opponents. It is here that norms can
become particularly useful in defining situations and thus in signaling to
the other that one understands the nature of the game in which one is
involved.
It is the security field rather than the market that provides us with the
appropriate illustration, specifically in the case of deterrence. Precisely
because deterrence is based on a psychological relationship between the
contestants, a common universe of meaning is crucial for its proper
functioning. When deterrence failsbecause one actor did not believe the
other would retaliate, because he hoped his defection could remain
ambiguous or undetected, or because the reversal of a quick fait accompli
is considered too costlythe reestablishment of common understandings
on the basis of shared meanings becomes important. 15Note in this context
that irrational actors such as terrorists cannot be deterred, and there-
fore a strategy of deterrence crucially depends upon normative
underpinnings.
Consider in this context crisis bargaining and, in particular, going to
the brink under conditions of mutual vulnerability. As Thomas Schelling
has pointed out, the utility of threats in these cases depends more on the
intensity and the balance of interests involved and upon the ability of
shifting the blame for missing the last clear chance before a dangerous
escalation than upon military capabilities. 16 Thus, disparities in force
posture matter little in the face of guaranteed levels of destruction. Jervis
has shown that under these circumstances the defender of the status quo
is likely to have a double advantage: first, attempts to change the status
quo will usually shift the burden of the last clear chance to the
challenger, and second, the intensity of interests establishing the balance
of motivations will favor the defender, since actors facing certain annihi-
lation will value their present possessions more than the prospects of
future gains. 17
Although this argument is compelling only under conditions of a
high degree of informational certainty, some actual examples seem to
bear out these hypotheses and thereby show its persuasive force. Accord-
ing to an apocryphal story, Nikita Khrushchev is said to have once
............................................................
15For a careful study of deterrence failures, see Alexander George and Richard Smoke,
Deterrence in American Foreign Policy (New York: Columbia University Press, 1974).
16Thomas Schelling, Arm and Influence (New Haven: Yale University press, 1966) chaps. 2
and 3.
17Robert Jervis, Why Nuclear Superiority Does Not Matter, Political Science Qumlerly 94
(Winter 1979/80) 617-33; also Robert Jervis, The Illogic of American Nuclear Strate~ (Ithaca: Cornell
University Press, 1984).
140 ETHICS AND INTERNATIONAL AFFAIRS 1987 Volumel

remarked to a Western correspondent that Berlin was not worth a war,


but he was reminded that this shared risk is a two-edged sword.

. Khrushchev, as if coached by Schelling, [replied] that you


are the ones who have to cross the frontier, showing in a
single vignette that [he] did think in terms of the manipu-
, >..
lation of shared risk as well as the manipulation of the status
quo as a means to pass the onus of the last clear chance to
the opponent.ls

This example is significant since it establishes that even in crisis-


bargaining situations much more goes on than the usual haggling about
distributional outcomes. As Roger Fischer and William Ury have rightly
remarked:

Each move you make within a negotiation is not only a move


that deals with rent, salary or other substantive questions; it
* ... also helps to structure the rules of the game you are playing.
Your move may serve to keep negotiations within an ongo-
ing mode, or it may constitute a game-changing move. This
second negotiation, by and large, escapes notice because it
seems to occur without conscious decision. Only when deal-
ing with someone with a markedly different cultural back-
ground, are you likely to see the necessity of establishing
some accepted process for the substantive negotiations. But
. whether consciously or not, you are negotiating procedural
rules with every move you make, even if those moves appear
exclusively concerned with substance. 19

It was the Cuban missile crisis that showed that the acceptance (or
reestablishment) of such a common framework of meaning is essential
before a solutionthe striking of a deal becomes possible. Khrushchevs
letter to Kennedy, which represented the turning point in the crisis,
eloquently made this point. Knowing that he had overplayed his hand, the
Kremlin leader signaled that he accepted the definition of the situation as
a major superpower confrontation and disclosed his willingness to de-
,.... escalate. The crucial passage reads:

You can regard us with distrust, but in any case you can be
. , ... calm in this regard, that we are of sound mind and under-
............................................................
18Jack Snyder, New Methods and Old Virtues in the Study of Soviet Foreign Policy,
mimeo (1986).
19Roger Fisher and William Ury, Getting to Yes (New York: Penguin, 1981) 10.
Norms and Values 141

stand perfectly well that if we attack you will respond the


same way. . . . This dictates that we are normal people, and
that we correctly understand and correctly evaluate the
situation. . . . We however want to live in peace and do not at
all want to destroy our country. . . . We quarrel with you, we
have differences on ideological questions. But our view of
the world consists of this: that ideological questions as well as
economic problems should not be resolved by military
means but on the basis of peaceful competition. zo

Having established such a framework of rationality, norms can, in


addition, provide the templates for solutions. Here the power of prece-
dents, of dividing the difference, or of returning to the status quo ante
(because of saliency) has been noted in the bargaining literature.
The Cuban missile crisis shows in still another respect that real-life
situations are much richer in their normative texture than the conven-
tional games of bargaining theory make them appear. Consider in this
context Kennedys insistence on not simply breaking the other partys will
irrespective of the costs to the other party and irrespective of its
implications for the future. Rather, he sought a redefinition of the game
on the basis of mutual role-taking, which infused the situation with
normative considerations that went beyond the immediate question of
winning and took a wider variety of factors into account. By putting
oneself in the shoes of others, the exchange of perspectives usually leads
to a sharing of aspirations, fears, and weaknesses that not only reassures
the opponent but leads to a rediscovery of a common sociality. This in
turn makes a limitation of demands possible since the perceptions of the
opponent, as well as of the stakes, change. In opposing an ultimatum to
Khrushchev, Kennedy is said to have remarked:

There is one thing I have learned in this business and that is


not to issue ultimatums. You just cant put the other fellow
in a position where he has no alternative except humiliation.
This country cannot afford to be humiliated and neither can
the Soviet Union. Like us, the Soviet Union has many
countries which look to her for leadership and Khrushchev
would be likely to do something desperate before he let
himself be disgraced in their eyes.zl
............................................................
w Walter La Feber, ~a~~ern Europeand the Soviet Union, vol. 2 of the collection of documents
edited by Arthur Schlesinger, The Dynamics of World Power (New York: Chelsea House and
McGraw-Hill, 1973) 700.
21Edward Weintal and Charles Bartlett, Facing th~ Brink (New York: Scribner, 1967) 68.
142 ETHICS AND INTERNATIONAL AFFAIRS 1987 Volume 1

....
I Although the last sentence seems to indicate that such considerations
are based on rational calculation, it is nevertheless a type of calculation
I
.,,,.,. which is not fixated upon utilities as measured by a superior capability to
inflict greater pain on the opponent. Instead, a conception of reciproc-
ity, as an evoked set of commonly accepted values, serves as the
background for calculation.
The obvious objection to such an interpretation of the crisis could be
that Cuba was an atypical situation which is not helpful for understanding
international politics in general or the resolution of crises in particular.
Thus, it could be argued that even admitting the important part norms
played in resolving this conflict, it was after all the conventional and
nuclear superiority that decided the outcome. Without wanting to deny
the importance of military capabilities, it is obvious that these resources
mattered largely because they shaped the perceptions of the respective
decision makers. But to the extent that norms, too, are part of the decision
environment, their influence also has to be carefully studied. Resorting to
some reductionist explanations, which by definition derive the outcomes
from the force posture, is hardly advancing our understanding.
The limitations of capability analysis became particularly obvious in
the debate of countervailing strategy. The underlying idea of this doc-
trine is that because the threat of nuclear annihilation is incredible, the
U.S. needs a variety of options with which to meet Soviet challenges on
lesser levels. Such a strategy in turn entails a capability for limited nuclear
strikes. The particular reconciliation between the requirements of en-
hancing deterrence and those of providing greater flexibility in fighting a
war is, however, hardly convincing. After all, the U.S. capacity to attack
Soviet targets selectively with nuclear weapons is less a function of the
options created by the American military posture than it is a function of
the (well-founded) fear of Soviet retaliation against the vulnerable pop-
ulation centers of the United States. In addition, there is an important
flaw in the argument which can be resolved only if we assume that
!.,

important normative constraints will prevail in a limited nuclear ex-


.?
*, change, resulting in the termination of war rather than in unlimited
escalation. As Jervis points out:

While the countervailing strategy pays at least some atten-


tion to the credibility of threats, it completely ignores the
need to make credible promises. Unless a war ends with one
side running out of ammunitiona most unlikely contin-
gencysome sort of negotiations will be required. Each side
will have to believe not only that continued fighting is costly,
but that peace is possible. This situation involves making and
accepting promises for an immediate ceasefire and the belief
Nom and Values 143

that the other is not merely waiting for a favorable oppor-


tunity to renew the fighting. The ability to provide the
necessary assurances is an indispensable part of war termi-
nation, a part no U.S. policy can overlook.**

To the extent that such a functioning of deterrence entails the


credibility not only of threats but also of promises and commitments that
destruction will be kept in abeyance, the importance of norms in govern-
ing these interactions cannot be doubted. This type of normative guid-
ance in crisis situations might not satisfy the requirements of a regime, but
it is nevertheless of decisive importance for an adequate understanding of
international politics.
When we move from crises to normal politics, we notice that even the
most hardened realists have to confess that the application of force is a
very costly way to achieve ones objectives and that sensible powers have
therefore followed a policy of prestige.*a Prestige itself, however, is an
ambiguous concept. It might simply mean establishing a bad reputation,
similar to gangsters attempts to keep challenges to their position to a
minimum, or it may be tied to shared aspirations. In either case prestige
depends on the other persons expectations about the likelihood, scope,
and domain of (retaliatory) action. The more explicit this framework
becomes the more prestige becomes mediated by a normative order.
While this observation does not establish the moral character of such
normative expectations, it nevertheless demonstrates that power and
influence are often derived from the role of protector of certain rules and
core values. Examples are the notion of a great power in the European
state system and the concept of hegemonic leadership in ancient Greece.24
The discussion of reputation and rules of the game leads back to
Jerviss argument concerning the commands of a robber in forcing a
particular action and concerning the role of expectations. While Jervis is
in a way correct in denying regime status to the expectation of being
robbed, the reasons for doing so remain obscure. It seems that three
further problems need clarification: the implied identification of norms
............................................................
22Robert Jervis, The Illo@cof American Nuclear Strategy, op. cit., 84-85.
23 See Hans J. Morgenthau, Politics Among Natioru, 4th ed. (New York: Knopf, 1967) chap. 6.
24Whether it is useful to endow these rules of the game with the dignity of some type of legal
prescriptive force, as some scholars suggest, is a difficult question. On the notion of a great power
see Martin Wight, Systems of States, Hedley Bull and Carsten Holbraad, eds. (Leicester: Leicester
University Press, 1977). In this context, see also Friedrich Kratochwil, On the Notion of Interest
in International Relations, International Organization 36 ( 1982) 130. On the rules of the game, see
Richard Falk, The Interplay of Westphalia and Charter Conceptions of the International Legal
Order, in Cyril Black and Richard Falk, eds., The Future of the International Legal Order (Princeton:
Princeton University Press, 1969) vol. 1, chap. 2.
144 ETHICS AND INTERNATIONAL AFFAIRS 1987 Volumel

and rules with commands; the denial of rule status to illegitimate


demands, as judged from a certain base line of expectations; and the lack
of a distinction between explicit and implicit rules (the latter givin~ rise to
expectations but not to a full-fledged regime).
Mistaking norms and rules for commands has a long and distin-
guished ancestry, shared by such unlikely companions as positivists,
voluntarist philosophers, and theologians.zs But even in the last case,
when the obligatory character of prescriptions is derived from an absolute
sovereignGodlanguage clearly distinguishes between a command and a
,,
I
commandment. While commands are situation-specific and commandments
,,. I (which show rule-like characteristics) are always thought to be applicable
to broad classes of events, rules, as H.L.A. Hart points out, are standing
orders.*G This characteristic is best elucidated when rules are stated in
the if-then form, thereby clearly indicating the circumstances and range
of the rules application.27 Rules are also valid ergs omnes (applicable to all)
and are thereby quite different from commands. After all, the famous
gunman asking for your wallet is not claiming to have established a rule
or norm also applicable to himself. (This latter corollary surely is not part
. .. . of the language game of asking for your money or your life.) Even when
I
rules empower someone to issue commands in specific situations, the
1
command and the rule are clearly distinguishable. As Morton Kaplan and
-,,.,.
Nicholas Katzenbach have stated, rules that empower in this sense are
always part of a larger normative context.zs It is the lack of legitimacy of
such demands that makes it implausible to include an acceptance of being
robbed as part of the normative discourse, even if that acceptance is based
on stable expectations.
This leads me to the second silent premise in Jerviss (and Harts)
account: the identification of a rule with legitimacy. While such an
identification is surely in order when we use rules and norms within a
discourse on grievances in trying to come to a fair decision as to the
violation and/or weight of the contenders respective rightsthere are
1 some circumstances in which we can appropriately use the term rule
.,, ,,.
f without much concern for the rules legitimacy. Consider once more the
example of the gunman, but this time from the perspective of the average
New Yorker, who will not fail to tell you that you will get robbed if you
go through Central Park at dawn, dusk, or night. Even the police are
............................................................
25 se. Thomas MayberrY~
Laws, Moral Laws and Gods Commands, TheJournal of Value
Inq+ 4 (Winter 1970) 28792.
26Alf Ross, Directivesand Norms (London: Routledge & Kegan Paul, 1968); H.L.A. Hart, The
Conzept of Law (New York: Oxford University Press) chaps. 2 and 3.
27Gidon Gottlieb, The Loffc of Choice (London: Allen and Unwin, 1968).
28Morton Kaplan and Nicholas de B. Katzenbach, The Political Foundation of Internatioruzl Law
(New York: Wiley, 1969) 4.
Norms and Values 145

most likely to shrug their shoulders if someone complains about this


admittedly intolerable situation. In other words, there seems to be a pretty
well-established regime in place, in spite of its illegitimacy. Given the
difficulty of enforcing the law in the face of large-scale noncompliance,
everybody is supposed to take this generalization as a rule for his or her
behavior and is not to venture into the park at certain times.
The notions of rule and legitimacy appear to be more contingently
related to each other than both Jervis and Hart claim. It is precisely this
reason that justifies the distinction among different contexts in which
rules are used, as Thomas Franck has done.zg Thus, what is acceptable in
one context is not necessarily so in another context. It would be adding
insult to injury to tell an aggrieved person in a court that he or she did not
suffer unjustly because being robbed was, after all, what had to be
expected.
There remains the third problem mentioned above, the binding
force of norms, which leads to the argument that certain rules of the
game, although giving rise to expectations, are not full-fledged rules but
are at best implicit or tacit norms. Again, a short reflection shows that the
term tacit is used in a variety of senses. Thus, we can say that the
observance of SALT II by the U.S. was due to a tacit agreement because
this treaty was never ratified and has long expired. Similarly, unilateral
pronouncements, such as claims to the exclusive use of ocean space for
purposes of testing missiles or atomic weapons, have been heeded by both
the U.S. and the USSR, and compliance with these requests has been
explained in terms of a tacit understanding. Then there are the famous
rules of the game developed in the Korean War which Schelling men-
tions, such as not bombing beyond a certain meridian or river in return
for a similar restraint on the part of the opponent.30 In these instances the
bargaining was truly tacit as no formal written or spoken communication
took place and the opponents had to communicate by doing. Finally,
there are certain instruments, such as the Helsinki accords or certain
gentlemens agreements of the IMF, which are the result of very explicit
bargaining and even drafting but whose binding force is again held to be
implicit, or tacit.31
If we want to understand how norms work we obviously need a
clearer conceptualization. The two-by-two table below is an attempt to
............................................................

g See Thomas Franck, The Structureof [impartiality (New York: Macmillan) chap. 1.
m Thomas Schelling, Arm and Znfuence, op. cit., chap 4.
+1The problems of soft law are ably discussed in Ignaz Seidl-Hohenfeldern, International
Economic Soft Law, Recueil de Cours 163 (1979) 169ff. See also Joseph Gold, Strengthening the
Soft International Law of Exchange Arrangement, American Journal of International Law 77 (July
1983) 44389.
146 ETHICS AND INTERNATIONAL AFFAIRS 1987 Volume 1

deal with theinitially bewildering complexity of the above examples. It


distinguishes two variables, which are divided dichotomously along the
tacit-explicit continuum. The first variable concerns the basis on which a
validitv claim is implied (commitment); the second variable deals with the
tacit (~mplicit) or explicit nature of the formulation of the norm.sz

COMMITMENT

Tacit Explicit .

unspoken rules custom/conventions


Tacit
Schellings rules implied contracts
EXPRESSION
gentlemens agreements
Explicit contractshreaties
unilateral declarations
I

The least problematic cases fall into the cell on the bottom right. The
validity of the explicit commitment is governed by practice-type rules
which are either well codified (in international law, for example, the
Vienna Convention on Treaties) or, as in domestic law, have received
treatment in various restatements of the law of contract. The cells at the
top right and bottom left are to a certain extent mirror images; they vary
in either the explicitness of the rules their expression-or the explicit-
ness of the commitment itself. Thus, while custom is as binding as the
obligations incurred through formal contracting, the implicit or tacit
underlying rule (o@zzo juti sive nece.sdatis) often makes it difficult to
ascertain precisely what counts as custom. On the other hand, within
well-defined practices, a mere sign, such as hailing a cab, is sufficient to
construe an obligation. Although the boundaries between these cases and
gentlemens agreements are often fuzzy, there seems to exist an important
distinction in that the phrasing of the commitments is very specific while
the nature of the obligation remains ambiguous.
Implicit rules in the top-left cell, or, as Paul Keal has called them,
unspoken rules,ss are the least understood. They emerge largely
............................................................
32Fora slightlydifferentconceptualization, see Raymond Cohen, Rules of the Game in
International Politics, International Studies Quarterly 24 (March 1980) 12950. See also Oscar
Schachter, The Twilight Existence of Non-Binding International Agreements, American Journal
of International Law 71 (1977) 296-304.
33Paul Keal, Unspoken Rules and Super-Power Dominance (London: Macmillan, 1984).
Norms and Values 147

through unilateral calculations which may take verbal as well as nonverbal


clues into account. Although the inclusion of verbal messages seems to
violate the implicit character of the rule in question, it is important to
realize that implicitness and explicitness do not necessarily refer here to
the existence or absence of verbal utterances, but rather to the rules
function within communicative action. The decisive criterion for unspo-
ken, or implicit, rules is whether direct communication takes place among
the parties concerning the norm, or whether its meaning is inferred or
imputed from the others action.
Unilateral calculation occurs on the basis of expectations about alters
reaction to egos action. For international politics, this results in the
following dynamics:

As expectations of B will include an estimation of Bs expec-


tations of A. This process of replication, it must be noted, is
not an interaction between two states, but rather a process in
which decision makers in one state work out the conse-
quences of their beliefs about the world; a world they believe
to include decision makers in other states, also working out
the consequences of their beliefs. The expectations which
are so formed are the expectations of one state, but they
refer to other states.s4

Although expectations that prove to be correct in a number of instances


thereby attain a certain stability and provide some guidance for decision
making in analogous situations, compliance with these unspoken rules will
be unproblematic only when the perception of a common interest is
sufficiently strong.
Obviously, this will be the case in instances in which the situation
resembles a game of coordination, that is, when the interests of the
interacting parties are neither opposed nor mixed. However, if states
perceive the situation as one resembling a prisoners dilemma (when
mixed motives prevail and the incentives to defect are larger than those to
cooperate), rules and norms, which attempt to shore up the cooperative
solution, will be under pressure. In that case a regime will be weak,
particularly since no explicit discourse about the tacit rule is possible
without either opponent wanting to enter into such a discussion. Not only
are violations therefore difficult to detect and communicate but there is
the additional problem that no explicit discussion about either the scope
............................................................
34 paul Keal, Umpoken ~zde~,oP. cit.,50.
148 ETHICS AND INTERNATIONAL AFFAIRS 1987 Volume 1

or applicability of such a rule to a controversy is possible.35


Casting rules in explicit verbal form is not only the most basic form of
institutionalization, it also makes the violation of the rules separable from
the overall pattern of social interaction. It thereby enables disputing
parties to discuss their grievances in the face of disappointments about
each others conduct.
These above considerations could be useful for advancing the discus-
sion of security regimes, which, if they exist at all, are often made up by
such tacit understandings. Furthermore, it is also clear that even explicit
rules are in themselves insufficient to make a regime robust, that is, able
to survive intended or unintended acts of defection. Since no rule in itself
can specify all possible ranges of application, disputes are bound to arise
concerning the meaning of crucial terms of the relevant characterization
of a particular action. To that extent the dispute-settling mechanism
becomes necessary, even if explicit rules and norms have been agreed
upon and the parties can be assumed to be willing to abide by the
agreement.

............................
II............................
Conceptual Elaboration

While the above discussion dealt largely with the usefulness of regimes for
analyzing international relations in generalor certain issue areas within
itthe last few remarks already raised some further questions as to the
appropriateness of the conceptual apparatus. Regimes have not only been
called woolly concepts, but, it has been argued, the impetus for
developing the regime approach derived more from the faddism of the
profession than from the requirements of the field or subject matter.sG
Although I think these conclusions are exaggerated, serious conceptual
problems remain.
By conflating informal understanding (tacit or implicit rules) with
explicit norms and by lumping together rules and formal institutions,
important information concerning the functioning of rules as well as the
distinctive contribution of formal organizations is lost. Similarly, although
rules, norms, and principles are distinguished from each other, it is not
clear on what basis their prescriptive forcewhich obviously unites all
. . . . . . . . . . . . . . . . . . . . . . . . . ...*. ..............................
35On the problems associated with compliance with norms, correcting the mistake that only
sanctions (as opposed to discovery and authoritative decision) count, see Oran Young, Compliance
and Public Authority (Baltimore: Johns Hopkins University Press, 1979).
36Susan Strange, Cave, Hic Dragones, in Stephen Krassner, ed., International Organization,
op. cit., 479.
Norms and Values 149

these conceptsrests. Besides, there is no criterion for the differentiation


among norms other than the logical category of specificity versus gener-
ality, which points to a certain conceptual impoverishment. However,
conceptual distinctions among norms are as important as their common
status as directives,
To that extent, the definition of regimes in terms of convergence of
expectations is also inaccurate. While the convergence of expectations
might be a sufficient reason for following norms that are virtually
self-enforcing (coordination norms), it is precisely this convergence that
has to be explained in prisoners dilemma situations, when the demon-
stration of long-term joint gains is often not sufficient to motivate actors
to cooperate. The prospects for relative gains might be decisive in the
minds of the actors and thwart cooperative ventures.37 Consequently,
much will depend upon the ability of the participants to overcome the
impediments to cooperation by persuasion and/or the establishment of
formal institutions. In this context, the present emphasis on the collabo-
rative potential of pure rational egotists and on the emergence of
collaboration through reciprocity seems somewhat exaggerated. 38
Given the fact that different moves in the real world are fairly
complex, ambiguous, and in need of interpretation, the issue in interna-
tional relations is precisely to figure out what represents a concession that,
in turn, deserves reciprocation. For example, Soviet signals for rap-
prochement after Stalins death were not taken seriously by the U.S.
because they were seen as a sign of the internal weakness of the Soviet
system, which required the crowding of the opponent rather than a
tit-for-tat strategy,:~~~
Similarly, unilateral troop reductions or the cancel-
lation of weapons programs on the part of either superpower might be
dismissed by the other as caused by domestic or economic difficulties
rather than by the willingness to commence a self-reinforcing spiral of
cooperative ventures.
In addition, cultural factors decisively influence our interpretations
of what constitutes a concession and what deserves to be reciprocated. For
example, we usually do not reward good behavior, except in cases of
imbeciles or during the moral training of children. Nobody in his right
............................................................
~TThis pint is ~owerfully made by Kenneth Waltz in TheoU of ]nternationat Politic.$, op. cit.,
105. See also Robert Gilpin, U.S. Power and the Mukinatio?lal Corporation (New York: Basic Books,
1975) 34.
38 see Robert Axe]rod, <-rhe E~e~~ence of Cooperation among Egotists, Amencanpolitical
Science Review 75 (198 1) 30618; and Harrison Wagner, The Theory of Games and the Problem
of International Cooperation, American Political Science Reuiew 77 ( 1983) 33041. See also Karl
Weick, The Social Psychology of Organizing, 2d ed. (Reading, MA: Addison Wesley, 1978) 105ff.
39 see John Foster ~ulles>s remark to that effect in Townsend Hoopes, The Deui~and John
Foster Dulks (Boston: Little, Brown, 1973), 180.
150 ETHICS AND INTERNATIONAL AFFAIRS 1987 Volume 1

mind would consider rewarding someone who claims not to have lied or
to have desisted from robbing or stealing. It is against this normal, that is,
normatively expected, behavior that we judge special efforts that justify
special responses. Even if something is clearly recognized as a gift, we
usually tend to reciprocate only when we consider the donation a costly
matter for the donor as well as an indication of some special attention
thereby displayed. The gold watch at the retirement party hardly evokes
gratitude, and a meager gift in recognition for special services counts
more as an insult than as a gift, the assertions of utilitarians notwithstand-
ing.40
Although it is always difficult to analogize international relations to
interpersonal relations, it nevertheless seems that the same reasons inhibit
the operations of reciprocity in cases where an offer consists only of a
gesture that falls within the range of normally expected behavior. To that
.,,
,1 extent, treating prisoners of war according to the Geneva Conventions or
,
allowing the normal functioning of embassies are examples of moves
which, although not unimportant in themselves, are very unlikely to
arouse much enthusiasm for reciprocation.
Further complications arise for regime analysis from the fact that
various norms often regulate action in conjunction and that they fre-
quently stand to each other in a relationship of subordination or
superordination. In this context the regime literature distinguishes be-
tween principles, which are beliefs of fact, causation, and rectitude;
norms, which are standards of behavior defined in terms of rights and
P obligations; and rules, which are prescriptions or proscriptions for action.
.,h,
In addition, decision-making procedures refer to prevailing practices for
4 making and implementing collective action.4 1
Without wanting to enter into an extensive discussion of the appro-
priateness of these distinctions, there seems to be an implied hierarchy
among them. This type of conceptualization, originally derived from the
w
free-trade regime,42 is too instrumental and simplistic. In most cases,
especially in international relations, such simple, instrumental relation-
............................................................
=ioIn ~hi~ ~Ontext, it is important that a tit-for-tat strategy works only if the first round is
played cooperatively, If one of the players plays uncooperatively the first time around, the players
follow a clear tit-for-tat rule, and no further communication is allowed; in this case it is very
doubtful whether the players can end up with a cooperative solution.
q 41 Stephen Krasner, Structural Causes and Regime Consequences: Regimes as Intervening
Variables, in Stephen Krasner, cd., International Organization, op. cit., 186.
AZI am grateful to John Ruggie for pointing out to me that in the original regime discussion
free trade provided the justifying principle since in the postwar era decision makers believed its
effects would lead to peace as well as to prosperity. Most-favored nation treatment and other
more specific rules seemed then to follow logically.

,,
,*
.7
Norms and Values 151

ships between overarching principles, norms, and rules do not exist. Two
reasons suffice to show why this is so.
First, regimes are usually the result of accretion and incremental
choices. Consequently, there is neither a deliberate design nor consensual
knowledge, as in economic theory, which clearly links principles and
norms. One suspects, therefore, that the special case of economics is
highly misleading when taken as the paradigm for the normative compo-
nents of regimes in general. Second, even when regimes are explicitly
negotiated and thus some purpose or underlying will can be construed,
the regimes most often serve not only one but several purposes. Thus,
some more specific rules or norms might be compatible with one legiti-
mate purpose but not with the other, leaving us often at a loss in
determining what type of trade-offs were intended by the negotiators.
Here the jurisprudential literature is helpful. The discussion about
naive instrumentalism in law has shown that many legal purposes are not
susceptible to the neat distinction between goals and means.43 Precisely
because goals such as fairness, predictability, and reliability are inherent
in the legal process itselfand are safeguarded as suchthey fit neither
the conception of a goal that a particular law or statute proclaims to
servelike the enhancement of highway safety or the prevention of
restraint of tradenor the concept of means.

...........................
III...........................
Evidence and the Impact of Norms

The strength of a regime has conventionally been explained either by a


hegemons power or by the coherence of the principles, norms, and rules
of the regime. Either explanation, though insufficient in itself, gains some
plausibility because it appears to be related to two familiar paradigms
which structure our perception of international relations. At the root lies
either the Hobbesian image of international relations (or rather, the
conventional realist interpretation of Hobbes) or the more benign
Lockean or Humean version in which actors through reason accept
certain limitations in the pursuit of their objectives.
The hegemonic-stability thesis, close to the neo-realist paradigm,
reduces the impact of normative structures on actions to some reflection
............................................................
~:+These ~roblem~ ~rl~e perhaps most forcefully in constitutional cases when liberty has to be
weighed against equality, or when the protection of life, liberty, and the pursuit of happiness has
to be defended through the fight against crime while not violating the rights of the accused. See,
for example, R.S. Summers, Naive Instrumentalist and the Law, in P.S. Hacker and J. Rasz,
eds., La), Morality, and Society (Oxford: Clarendon Press, 1977) chap. 6.
152 ETHICS AND INTERNATIONAL AFFAIRS 1987 Volume 1

of power. It is, however, somewhat embarrassed by the lag between the


decline of the hegemons capabilities and the decline of actual regime
*1
effectiveness:AA In this view, regimes act largely as constraints upon action
and determine the outcomes as proximate causes in a more or less direct
fashion. However, as the jurisprudential discussion has shown, only very
few rules and norms are constraining; many legal prescriptions are
instead enabling rules that set actors free to pursue their own goals.
Rule-following is therefore not a passive process in which the impact of
rules can be ascertained analogously to Newumian laws governing the
collision of two bodies. Rather, it is intensely dynamic. Actors are not only
programmed by rules and norms, by their practice they also reproduce
and change the normative structures by which they are able to act, share
meanings, communicate intention, criticize claims, and justify choices.45
Thus, one of the most important sources of change, neglected in the
present regime literature, is the practice of the actors themselves and its
concomitant process of interstitial lawmaking in the international arena.
The Lockean or Humean perspective, on the other hand, emphasizes
coherence of the regime components as an indicator of regime strength.
The unexamined, additional premise seems to be that actors guided by
reason usually follow rules and norms unless internal contradictions
,
within the normative structure create opportunities for defections, either
by making confusing demands or by providing loopholes for noncompli-
ance. However, compliance and consistency might be more contingently
related in regimes, as Ernst Haas observed. In his investigation of the
U.N. security regime he concluded that the improvement of regime
coherence during the first period (the concert, 194547) did not lead to
a stabilization in the second period (permissive enforcement with bal-
ancing, 19481955).46 Similarly, the elaboration of preventive diplo-
macy, which provided an alternative pattern of conflict management,
decayed rather than prospered after the 1960s. Haas suggested that the
.; new consumers of the regime those countries that were increasingly
4
,:*J entering the U .N. during this timerefused to go along with the
,y

elaborated procedures and made it impossible for the secretary-general to


routinize and stabilize the procedures. Although this explanation plays
down the unwillingness of the great powers to accept an activist U.N.
which could become some type of independent force, it shows that the
............................................................
44 For ~ critique along these lines, see Robert Keohane and Joseph Nye, Power und
Interde endence (Boston: Little, Brown, 1977).
f 5 For a sociological critique of the blueprint model of society, see Judith Blake and
Kingsley Davis, Norms, Values and Sanctions, in Robert Harris, ed., Handbook of Modern Sociology
(Chica o: Rand McNally, 1964).
4! Ernst Haas, Regime Decay: Conflict Management Since 1945 , International Organization
37 (1983) 189-256.
Nornu and Values 153

question of effectiveness raises a whole host of issues that cannot be


reduced to problems of the coherence of the regime structure.
The upshot of this short discussion (and the arguments in the
previous sections) is that there exists no clear logical relationship between
higher-order norms and more specific rules, Consequently, it is less than
justifiable to infer regime strength from the logical properties of a
normative structure. After all, it is the inconsistency and the value
opportunism of a constitutional order that often prevents us from
knowing what the law is until a court has authoritatively established a link
between rules and principles or between conflicting rules themselves. But
this lack of clarity does not necessarily imply regime weakness.
The strength of a regime, therefore, does not seem to result from the
logical neatness of relating rules and higher principles to each other, but
rather from the deference to authoritative decisions that establish what
the law is or from the acceptance of norm-regulated practices. In other
words, the crucial variable here is institutionalizationthe acceptance of
decisions as authoritative which either are rendered by dispute-settling
organs or have been made collectively. Although a look at behavior is
certainly necessary when we want to decide on the effective guidance of
the rules provided by a regime, the converse inference that a regime must
be weak when we observe inconsistent behavior does not necessarily
follow. After all, the grammar of following a rule, or being guided by it,
also entails violating it.47 Again, the jurisprudential writings about the
effects of noncompliance are useful in this respect because they clear up
some of the more obvious confusions. Without wanting to enter into a
more extensive debate, some short remarks are sufficient.
First, as everyone familiar with international law knows, not every
violation of a bilateral or multilateral treaty annuls ifisofacto the treaty. In
order to even suspend a particular agreement, the breach has to be
material, that is, of sufficient gravity and centrality to its purpose.q~ Thus,
parties to an agreement, especially to multilateral agreements, can prob-
ably live with a great deal of inconsistency as long as they can reestablish
some form of consensus and/or no other viable alternative exists. Second,
in deciding whether a particular violation demonstrates the end of a
regime, it is important to look to the justification proffered by the
violating party or parties. Admission of guilt, apologies, and pleas for
understanding the extreme circumstances that forced such an action
............................................................
47 For ~ further elaboration of this point, see Friedrich Kratochwil, International order and
Foreign Policy (Boulder: Westview Press, 1978) chap. 3.
48See, for example, Article 60 of the Vienna Convention on Treaties (defining material
breach). For a further discussion of the legal remedies involving unilateral countermeasures, see
Elizabeth Zoner, Peacetime Unilateral Remedies (Dobbs Ferry, NY: Translational Publishers, 1984).
154 ETHICS AND INTERNATIONAL AFFAIRS 1987 Volume 1
!
., I are very important indicators of the acceptance and validity of the
prescriptions and, therefore, at least indirectly, of the force of the regime.
Although pleas and excuses can of course be cynically manipulated,
disregarding them and looking simply at overt behavior cannot by itself
disclose more accurately what is the case. Because human actions need
interpretation, the justifications and excuses are important yardsticks for
appraising particular choices. Thus, a violation of a rule, when admitted
? by the perpetrator, might actually strengthen the future adherence to the
rule by the trespasser and others alike.
These considerations show that, except in extreme casessuch as
when noncompliance is widespread, persistent, and unexcusedno facile
inferences can be drawn from observing overt behavior. Precisely because
rule-following is part of moral assessment, the question of whether a
norm accurately predicted the actual outcome telescopes into one factual
observation several important concerns that ought to be distinguished.
Such a reductive procedure fails to stimulate further questions as to why
an actor who-all things consideredshould have obeyed the norm chose
not to do so.
M
1 ...........................
IV ...........................
Norms and Values

One of our most clearly held convictions is that it is values that are decisive
in influencing compliance with particular norms and with the law in
general. Again the domestic analogy seems to explain the phenomena in
question. While the domestic arena is characterized by a value consensus,
such considerations, if not entirely absent, are at best of minimal impor-
tance in the anarchic international arena. While I do not want to take issue
with the last observation, the argument might indeed attempt to prove too
much. From the observation of the often murderous infighting among
people who profess the same values, such as true believers, it is obvious
that common values by themselves are insufficient to ensure cooperation
and avoid conflict escalation. Thus, a more detailed examination appears
to be appropriate.
As a first step I want to exemplify the difference in the impact of
norms and values upon our choices by means of two ideal-typical theories
of society that root social order in either values (attitudes) or in rights
(norms). In spite of the important insights both models provide, neither
one satisfactorily explains social cohesion and order. A rights-based
model stresses the cognitive dimension for making choices. On the other
hand, theories of society based on values emphasize the cathectic dimen-
sion of decision making, as such theories are rooted in more voluntaristic
Norms and Values 155

presuppositions. However, for a complete account, both dimensions have


to be analyzed. This argument, in turn, provides the backdrop for a
discussion of the role of values in international relations.
In the language of instrumental rationality we are accustomed to deal
with values as preferred events or simply as goals. However, values guide
actions in a way different from instrumental rationality.4g Values are not
only more general than rules or even certain norms (such as principles),
but they influence decisions on the basis of largely cathectic rather than
merely cognitive considerations. As opposed to rules that prescribe
specific actions, values inform the attitudes of actors. Rather than address-
ing the rational, calculating abilities of decision makers, values serve to
strengthen the will and emotional attachments to social objects or to a
particular state of affairs. Decency, justice, goodness, etc., are values in
this sense. The importance of values that go beyond the particular
instructions transmitted by rules (or the less specific but still action-
oriented principles) becomes obvious when actors know (or imagine) that
a way of life might be at stake in a particular situation and when they also
realize that immediate individual gains defeat long-term individual or
social purposes. Values are therefore important in overcoming the
weakness of will problem by stressing the importance of character and
reputation in a society and by insisting on the importance of social
solidarity and the spirit of sacrifice and self-abnegation.
Perhaps disenchanted with the abilities of clever actors to interpret
the law to their benefit, some political theorists and charismatic leaders
have argued against a juridification of social life and have emphasized
communal values and attitudes rather than rules and norms. It was
Rousseau who, starting from the importance of sentiments to be incul-
cated through socialization in the family, attempted to reconstruct polit-
ical life along the lines of sentiment and values rather than along those of
interest and normative guidance. Similarly, the idea that the best state is
that with the fewest laws is a classical commonplace. Rousseau emphasized
shared values and the emotional reaffirmation of unity through symbols,
ceremonies, and games rather than through arguments, clebates, and
third-party decisions. lhe latter measures are typical for the normative
guidance that rules provide.s~
The idea that a perfectly socialized man is united with his fellow man
............................................................
49 on ~hi~ point,Friedrich Kratochwil) Rules, Norms, and Limits of Rationality, op. cit.
see

50On the importance of sentiments, see Nicole Fermon, The Politics of Sentiment:
Rousseaus Teachings on the Family and the State, Ph.D. dissertation (in progress) at Columbia
University. For a good discussion of Rousseaus political teachings, see Stanley Hoffmann,
Rousseau on War and Peace, in Stanley Hoffmann, The State oj_War (New York: Praeger, 1965)
chap. 3.
156 ETHICS AND INTERNATIONAL AFFAIRS 1987 Volumel

through an attachment to basic values and shared emotional experiences


has, then, been a train of thought in political theory from Rousseaus
advocacy of small face-to-face communities to the new man in Marx and
Mao. This new man, or species being, is supposed to act out of feelings
of solidarity rather than self-interest, and the political order that unites
these beings is either idyllic and abundant or Spartan in its simplicity .51
2
Both versions, though, share a taboo on conflict and an institutionalized
means of resolving disagreements. Thinkers in this tradition assume
either that there will be no conflicts in the future or that conflicts are the
result of particular troublemakers. These persons are then simply exiled,
lost to the world, as in Moores Utopia and in many American utopian
communities,52 or they aregiven the less benign circumstances under
Stalinism or Maoismphysically eliminated.
Speculations based on emotional attachments and solidarity have
been opposed by those theorists who emphasize the stresses and strains
1
that appear in societies characterized by an increasing division of labor
,,
and the break-up of the face-to-face contacts of primitive society. This
type of literature stresses the emergence of calculating rationality, the
victory of bureaucratic organization, organic solidarity, and the rational-
ization of law over the communal values of traditional orders. ss
Although actual societies do indeed differ in the extent to which they
stress accommodation and communal values or emphasize controversies,
adversarial settings, and rights, it is questionable whether either ideal-
typical model alone provides much insight into the sources of social order.
After all, even modern societies with highly technical regulations must
make the nation a love object that arouses deep feelings of attach-
ment.s4 Personal identities and the possibility of rational action depend on
the creation and stabilization of such love objects, as does the ability of
collectivities to transcend generations and particular interestsRous-
seaus volonte do tow (the sum total of individual wills) .55 On the other
hand, even the most charismatic leader soon feels the need to institution-
............................................................
51See for ~xamPle, Karl Marxs remarks on die vergesekchafte Men.$cheit in his The~e$on
Feuerbach, and his comments on the new man who is to emerge from the abolition of alienation
in the German Ideology. Both are reprinted in The Marx-Engek Reader, Robert C. Tucker, ed. (New
York: Norton, 1972) 107--62.
52For a discussion of utopianism and its failures to admit and deal with conflict, see Frank
.
.@ Manuel, cd., Utopias and Utopian Thought (Boston: Houghton Mifflin, 1966).
53 see for example, Emile Durkheim, The Division of Labor in Society (New York: Free press,
.,
1964). On the importance of face-to-face contacts in primitive society, see Max Gluckman, Politics,
w
%
,tl Law and Rituul in Tribal Society (New York: Mentor, 1965). For a further discussion along these
lines, see Max Weber, Economy and Socie~ (Berkeley: University of California Press, 1978).
54 on the importance of stabilized love objects for social interaction, see Francesco
Alberoni, Movement and Institution (New York: Columbia University Press, 1984) chap. 4.
55The solution of both problems is crucial for the establishment of a collective identity, as
Norms and Values 157

alize the right way of life. This amounts, however, to the creation of more
specific norms and, connected with them, formal procedures to settle
disputes that arise out of the application and interpretation of norms.
Viewed from this perspective, even the international system of today
illustrates some of the traits represented in these two models. On the one
hand, our discussion of rules and norms showed that the international
anarchy does not necessarily entail the absence of norms. On the other
hand, it also is quite clear that neither the preservation of a way of life nor
the maintenance of any particular configuration of the systemshort of
the total destruction of civilization through nuclear waris one of the
transcendent preferences of the actors and their respective publics. Thus,
while the international arena is hardly one which is characterized by the
absence of norms, the lack of love objects located at the supranational
or even translational level is hardly debatable .56
Nevertheless, I do not mean to suggest that all value considerations
are absent from international politics. For example, Stanley Hoffmanns
discussion of duties beyond borders goes well beyond examining goals in
the conventional repertoire of statecraft.~T Furthermore, human rights
abroad as well as questions of intergenerational justice increasingly
appear as issues in the policy debates within many domestic societies. Es
The greater awareness of the potentials of worldwide pollutiondriven
home particularly well by the tragic mishap in Chernobylis another
indicator for the slow, but nevertheless perceptible, process of articulation
of wider policy concerns on the basis of more inclusive values,
The resort to values as the foundation of a way of life also forms a
residual but important technique for judges in finding the law. Judges
who have to close gaps or assign weights to competing normative
principles often have to resort to values in order to lend persuasiveness to
their arguments. Given that this is a technique into which all professional
............................................................
Rousseau realized in his teachings of the general will and in his educational projects such as
Emile. See also his remarks that a child opening his eyes should see nothing but his fatherland
(pztrie), and that it should imbibe with the mothers milk the love of the fatherland. Rousseaus
Political Writings, C.E. Vaughn, cd., 2 vols. (Oxford: Basil Blackwell, 1962) vol. 2, 437.
m To that extent, reformist ~c[ivis[s attempt to propagate the idea of a global citizenship as
an alternative to the identification with only national interests. See a critique of U.S. foreign policy
along these lines by Robert Johansen, The National and the Human Interest (Princeton: Princeton
University Press, 1980).
57Stanley Hoffmann, Duties Beyond Borde?~ (Syracuse: Syracuse University Press, 1981).
58 see & Various official certification procedures and evaluations of the human rights
record of foreign governments, particularly during the Carter administration. as well as the
watch of such ~rivate orrzanizations as Amnestv International and The Commission of Iurists.
The domestic debate on in~ergenerational issues k evident even in advertising: in one ad adyoung
boy accuses an older person in front of a jury of minors of having squandered the resources and
left the children with nothing but debts.
158 ETHICS AND INTERNATIONAL AFFAIRS 1987 Volumel

rule-handlers have been socialized, it is not surprising that even the


judges of the International Court of Justice (ICJ), in spite of their
awareness of the tenuous social backing of international legal norms, have
repeatedly invoked the aims and purposes of the Charter, the interests
of the international community, and even natural lawthereby going
well beyond the explicit sources of international law as enumerated in
Article 38 of the ICJ statute. These conceptualizations provide important
new crystallization for assessing the changing nature of international
affairs and for formulating alternative forms of consensus across state
boundaries. Nevertheless, it is quite clear that the values invoked by
various global activists or ICJ judges have more symbolic than direct
emotional pull in galvanizing the relevant publics.sg The times when the
international arena might move from a negative community to a concep-
tion of a global community stiil seems far off.

............................ v ............................
Conclusions

In a way, my inquiry has come full circle. In trying to refute the argument
of the international arena as a normless anarchy, I focused on the present
regime debate in the hope that this approach may provide some answers.
Although certain important insights could be gained from this debate,
there remained several conceptual problems that inhibited an accurate
assessment of the role of norms in international life. The review of the
regime approach focused therefore on three crucial areas: the usefulness
of the approach, its conceptual elaboration, and the impact of regimes
upon action.
The discussion of tacit rules and the problem of the normative
underpinnings of deterrence was designed to show that norms have some
important functions even in the realm of security issues. The discussion of
the conceptual elaboration of regimes established also that the distinctions
and linkages among different types of norms suffers from too instrumen-
tal a view of the function of norms, a view that misguides rather than aids
analysis.
The question of the impact of norms upon choices led also to a
discussion of the role of values and their contribution to compliance with
the law and thus to social order. Two polar models of society were
discussed, one which is largely attitudinal and value-baseda com-
............................................................
59FOran eXtensiveevaluationof such judicial pronouncements, see Oscar Schachter,
Towards a Theory of International Obligation, Virpnia Journal of International Law 8 ( 1968)
300-10.
Norms and Values 159

munitarian modeland one which emphasizes rights and rulesa liberal


model. While these polar types are obviously only heuristically fruitful
since most societies exhibit features of both ideal-types, societies never-
theless can be distinguished according to predominant modes of resolving
conflict which are specific to either type. These considerations led me back
to the theme of the sources of social order with which I began. It also
provided a preliminary answer to the issue of the appropriate character-
ization of the present international arena. While the international domain
is a far cry from an unregulated or anarchical state, value considerations
providing the foundations for the generalized attitude toward socially
recognized others are rather weakly articulated. Although global issues
are gradually leading world public opinion to adopt more inclusive values,
the international arena is still but a negative community. In other words,
it is a community which is, at best, based on a mutual recognition of rights
and united by common practices, but is not based on a vision of a common
good or a common way of life.