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A Comment on Ratner on International Justice

Published on June 4, 2015        Author: 

What if we took the justice of international law seriously? This is the gamble that Ratner makes in his new and exciting book, which proposes a theory not of international justice per se nor of the nature of international law, but of the nature of the justice that is in international law. I should say from the outset that I think this is a worthwhile pursuit and that Ratner’s book can serve as a useful bridge between international lawyers and global justice theorists. Whilst the former traditionally profess to not be particularly interested in questions of justice, they have always flirted with the notion that international law is somehow just; and whilst justice theorists have long proceeded happily to devise theories that are oblivious to international law as it is, one cannot say that the result has always been felicitous. At any rate, this is a conversation worth having and it is interesting to have that particular book written by an international lawyer who is open to normative theory rather than the other way round, at least for the purposes of engaging the international legal discipline.

Ratner is nothing if not methodical, moving with great circumspection alongside what is in the end quite a narrow path. The book is rigorous, honest and searching, even as its author ultimately does not shun from taking positions. Its breadth of knowledge and intuition is stupendous, and it is constantly challenging analytically. One of the most deserving aspects of the book is the way in which the theory is deployed systematically to test the ethical character of existing norms. In the end, some rules are judged more ethical than is commonly assumed, and others insufficiently so. Ratner does not shy from the conclusions to which his theory leads him, and is forthcoming about what the theory cannot be expected to achieve.

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Filed under: EJIL Book Discussion
 

International Law’s Empirically Generated Justice: Natural Law Theory Reinvented

Published on June 2, 2015        Author: 

The weight of any argument or theory that is empirically grounded is unparalleled. In contemporary legal discourses, no argument or theory fares better than an empirical one, that is when its foundations can be validated by facts, practices, and existing institutional arrangements – which are, on that occasion, considered self-sustaining. This is what is called empiricism. International lawyers have long understood the argumentative convenience of empiricism, which has accordingly been thriving in contemporary international legal thought. Only international lawyers amenable to the natural law tradition have continued to prefer to ground legal argumentation in normative and theoretical postulates and have played down the foundational role of facts, practices, and existing institutional arrangements which, in their view, cannot be self-sustaining. It is accordingly no surprise that the resilient debates between mainstream empiricists and moralists have been revolving around the validating role of these facts, practices and institutional arrangements.

This dichotomous image of the structure of international legal argumentation is challenged by The Thin Justice of International Law (hereafter TJIL) written by Professor Steven Ratner. Indeed, in this book, he offers us an elegant refinement of the natural law tradition in international law by seeking to bridge the abovementioned divide between empiricists and moralists in international legal thought. It will however be argued in the following paragraphs that the most innovative aspect of TJIL does not lie with the stylish blend of empiricism and morality it relies on but rather with the epistemic union between international lawyers and moral philosophers which it calls for.

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Filed under: EJIL Book Discussion
 

Thin is beautiful – or are international lawyers anorectic?

Published on June 2, 2015        Author: 

Thin and thick and the two-pillar test

Steven Ratner’s book measures international core norms against a standard of “thin justice”. That justice is thin, because it is less demanding than the standard we would use to judge domestic law and domestic institutions, “it is a justice that reflects the thinness of the community in which it operates” (p. 90, see also p. 416). The distinction between domestic thickness and international thinness is inspired by and parallels Michael Walzer’s thick and thin morality. Ratner does not espouse a radical cosmopolitanism which claims that the standards of justice need to be independent from state boundaries, and which would not allow for distinctions based on the nationality of involved persons or on the territoriality of situations.

In the book, Ratner undertakes three operations: First, he identifies and fleshes out the thin-justice-standard. Importantly, “thin” does not mean “procedural” only, but has some substance. The standard consists of two principles or “pillars”, as Ratner calls them. The first pillar is the advancement of international and intra-state peace, the second pillar is the respect for basic human rights. In addition to a norm’s capacity to further peace and/or human rights, Ratner (at some places) employs two additional criteria: procedural fairness, as an expression of internal morality vis-à-vis participants and as an outgrowth of the rule of law (p. 409), and/or the prospects of such a norm for compliance.

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Filed under: EJIL Book Discussion
 

Introducing The Thin Justice of International Law

Published on June 1, 2015        Author: 

I begin with thanks to the editors of the two blogs that have organized this mini-symposium and to the five authors, from ethics and international law, who have agreed to comment on my book. I hope this experiment in interdisciplinary blogging will be the start of something bigger.

The project that eventually became The Thin Justice of International Law began out of a sense of frustration that two of the core disciplines central to developing ideas and norms of global justice – philosophical ethics and international law – were not engaging with each other. Political and moral philosophy can give us the carefully worked out ideas for improving the existing world order. Yet much of it lacks institutional awareness. In particular, I saw a dominant trend among philosophers to dismiss existing rules of international law as lacking in moral stature, as if their origin in power politics or compromise meant they could not have any independent moral grounding; or simply to ignore legal rules and institutions in their theorizing about global justice.

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Filed under: EJIL Book Discussion
 

Discussion of Steven Ratner’s The Thin Justice of International Law

Published on June 1, 2015        Author: 

The Thin Justice of International Law A Moral Reckoning of the Law of NationsThis week we will be discussing Steven Ratner’s recent book with OUP, The Thin Justice of International Law: A Moral Reckoning of the Law of Nations. We will be running this discussion in tandem with the blog of Ethics & International Affairs, the journal of the Carnegie Council, who will be having their own discussants – be sure to visit!

Steve is a leading international law academic; he is currently the Bruno Simma Collegiate Professor of Law at the University of Michigan Law School. His book will be discussed over the course of the week by Anne Peters, Rob Howse, Jean d’Aspremont and Frédéric Mégret, who will be joined over at EIA by Kristen Hessler and David Lefkowitz. Steve will start off the discussion with an introduction, and wrap it up with a response to all of the discussants. We are grateful to all of them for their participation.

Filed under: EJIL Book Discussion