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I begin with several disclaimers. First, note the title. I wish to propose a liberal theory of international law. There are many possible theories derived from or based on liberal political philosophy, ideology or international relations (IR) theory; mine is only one. It is based on a particular account of a liberal theory of international relations-a positive theory rather than a normative theory-that I seek to transpose to international law. Second, as the word transpose suggests, I use the term theory of international law in its broadest sense: as indicating an approach or conception. I begin from the proposition that seeing the international political system as some political scientists see it-from the bottom up rather than the top down-radically changes our view of the international legal system. The "theory" of international law developed here sketches the broad contours of that re-vision.
Having disclaimed, however, I will claim that the prevailing account of liberalism in international law is simplistic and misleading. In the words of Gerry Simpson, "[W]here domestic liberal theory appeals to a conception of the individual as a bearer of rights and a democratic actor, classical liberalism substitutes the State for the individual and posits the nation-State as the free and equal object and subject of international law."' There are many variations on this theme, all venerating sovereign equality as the concomitant of individual autonomy, and the concomitant impossibility of distinguishing between states or looking within them. Martti Koskenniemi's From Apology to Utopia, for instance, is built on this premise2; it is the foundation for his and many others' application of the Critical Legal Studies (CLS) critique of domestic liberalism to international law. Only in the past decade, with the revival of Kantian liberalism by scholars such as Fernando Teson and Thomas Franck, have international lawyers begun to reexamine these assumptions. But the label liberal in international law is still generally used to denote the classic international paradigm of a consent-based system of sovereign states without regard to the individuals who live within them.
Andrew Moravcsik offers a positive liberal theory of international relations that reflects or is consistent with the thinking of such liberal thinkers as Kant, Mill, Cobden, Mazzini, Hobson, Wilson, Norman Angell, and Keynes.3 But the label liberal is ultimately...