The Democratic Foundations of Policy Diffusion: How Health, Family and Employment Laws Spread Across Countries. By Katerina Linos. Oxford, New York: Oxford University Press, 2013. Pp. xiii, 231. Index. $105, cloth; $29.95, paper.
In The Democratic Foundations of Policy Diffusion: How Health, Family and Employment Laws Spread Across Countries, political scientist and legal scholar Katerina Linos makes the novel, empirically based case that voters' receptiveness to international and foreign models offers a way to stop the particular seesaw between effectiveness and legitimacy that gives structure to much contemporary U.S. scholarship on international law. Recipient of multiple awards in political science, including the International Studies Association's 2014 prize for the year's best book on international organization and multilateralism, Linos's innovative study of policy diffusion among Organisation for Economic Co-operation and Development (OECD) countries has also been welcomed by international lawyers for its fresh focus, state-of-the-art research methods, and original findings. (1)
In this review, I begin by describing the seesaw and Linos's solution, offering some observations on the implications that she identifies for the design of international law and institutions. Next, whereas Linos pursues the implications for international agreements, I suggest that her analysis of policy diffusion also relates to the formation of international custom and particularly to the derivation of general principles of law. My assessment reveals a different and bleaker reading of international law in The Democratic Foundations of Policy Diffusion, one that casts a harsh light on the particular seesaw structure to which the book responds. In other words, Linos's book can be read against the grain as valuably as with it--surely the mark of a lasting contribution to scholarship.
A SEESAW BETWEEN EFFECTIVENESS AND LEGITIMACY
Over the past decade and a half, two challenges to international law have thrived and intertwined in U.S. scholarship. (2) As to its status in the international order, the challenge persists that international law is not really law. Whereas this challenge is traditionally a jurisprudential one, its current U.S. incarnation tends to be couched in terms of effectiveness promoted by the rise of rational-choice scholarship in international law (3) and associated more broadly with the realist and rationalist traditions in international relations. (4) The argument to be rebutted is that international law carries little weight with states independent of its capacity to advance their self-interest and thus that it will rarely constrain them when compliance ceases to be in their interest. With respect to the domestic order, the challenge is not that international law is ineffective but that it is illegitimate. Here, the concern is international law's place in the U.S. legal system, particularly the potential for U.S. judges to use international law in ways that are inconsistent with the nation's democratic self-determination. (5) The first challenge is framed as behavioral and hence a research agenda mainly for political science, while the second challenge implicates the ideal of the polity and thus presents a series of problems for constitutional law to solve. (6)
The recent turn to empirical scholarship in international law (7) includes work that counters the charge of ineffectiveness by shifting focus from the international to the domestic sphere. For example, Beth Simmons argues that domestic politics are the key to a robust theory of compliance with international human rights treaties. (8) Ratified human rights treaties can produce domestic effects by influencing the legislative agenda, helping to develop a homegrown human rights jurisprudence, and supporting social and political mobilization around rights. (9) But these effects are precisely the problem for those who charge that international law is illegitimate because it undermines domestic democracy, especially when it influences courts' interpretation of the Constitution. Such critics are already inclined to regard judges as unaccountable, in contrast to legislators, and international law intensifies this concern by expanding the interpretive latitude available to judges and enabling them to subject the popular will to outside norms.
Another important line of research disputes international law's weakness by remaining focused on the international sphere but broadening the field of view to encompass international law-like phenomena: soft international law, forms of transnational regulatory coordination, comparative constitutionalism, model laws, best practices, and so on. (10) This picture of the "real" world order is presented as more democratic, both because it moves away from international institutions plagued by democratic deficits toward networks of national officials and because the functionally organized networks that it foregrounds (e.g., central bankers, national drug czars, and top-court judges) can shore up governments against illiberal pressures. However, it too runs into the charge of illegitimacy. The power of transgovernmental networks has raised concerns about the threats posed by substituting management for law and about the antidemocratic implications of governance by transnational technocratic elites--unaccountable judges who are now also globe-trotting, status-conscious cosmopolitans. From an international perspective, transgovernmental networks have also drawn criticism because the less formal the process of norm creation is, the more room exists for powerful states to set the standards and exert influence. (11)
Linos's focus on the electorate distinguishes The Democratic Foundations of Policy Diffusion from these existing alternatives--studies of the roles played by activists, interest groups, and other local norm sponsors in "bringing international law home," (12) and works featuring transnational elites as international policymakers--neither of which stills the critics' seesaw between effectiveness and legitimacy. In addition, her findings about how policies spread identify a solution that will surprise and appeal to many international lawyers accustomed to the conventional wisdom that the U.S. public is particularly resistant to international norms. From an analytical standpoint, implementing international law through domestic legislation is the solution to the seesaw problem: effectiveness goes up without legitimacy going down. When international models influence domestic law reform, these models become effective without a democratic price to be paid because they are adopted by popularly elected representatives. It follows from the conventional wisdom, however, that politicians have no interest in advancing international models and, therefore, that domestic legislation is an analytical but not an actual solution.
Linos shows otherwise. In The Democratic Foundations of Policy Diffusion, she establishes that politicians in Western democracies who refer to...