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Home Archive for category "EJIL Book Discussion"

A Response to the Discussants

Published on June 5, 2015        Author: 

The responses to The Thin Justice of International law from four international lawyers and two philosophers represent a welcome continuation of the dialogue I have tried to catalyze with my book. Most of the comments were directed to the theoretical framework, rather than my individual conclusions about the justice of particular norms. So I will focus on those broad concerns. At the same time, I hope readers will also judge the framework not merely in abstracto, but by how well it handles the individual norms that it appraises. If its discussions and conclusions about the justice of the rules on force, self-determination, sovereign equality, IO membership, and other topics prove convincing or at least set some terms for future debates, then the framework will have done what I wanted it to do.

The comments raise so many points that I can only address them briefly here. I will try to tackle them thematically, in a way accessible to readers of both blogs.

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Response to Ratner: “An international lawyer has got to dream…it comes with the territory”

Published on June 4, 2015        Author: 

The premise of Steven Ratner’s book is that political philosophers have paid scant attention, in their reflections on justice, to international law. Ratner seeks to correct this, by offering an account of international law in terms of philosophical conceptions of justice. The premise would only be true if one understood political philosophy as beginning with John Rawls. In fact, as the great jurist Hersch Lauterpacht wrote in his seminal 1927 essay “Spinoza and International Law”, “the relation between political theory & international law is of a more pervading character than is commonly assumed.” From Thucydides (see his intricate account of claims of treaty violation in relation to the start of the Peloponnesian Wars), through de Vittoria, Gentili, Grotius, Pufendorf, Montesquieu, Rousseau (a great innovator in humanitarian law), Kant, through the 20th century debates about global order between Carl Schmitt, Leo Strauss and Alexandre Kojeve, political thinkers – sometimes also jurists –have engaged with conceptions of legal order beyond the state.

What Ratner understands as “political philosophy” is what is conventionally accepted as such by the mainstream in philosophy departments in American universities. While political philosophers in the past have questioned the “state”, its meaning, its place in human order, Ratner simply accepts the “state,” and that international law is and will remain the law of a state system. Even the contemporary philosophers of global justice to whom he refers have imagined federative or democratic conceptions of world order, or have attempted to theorise forms of transnational political organization, above all the European Union. Mainstream international legal professionals may well be comforted by Ratner’s book in being confirmed that the status quo that they represent and reproduced can be defended as “thin” justice, or perhaps more properly, rough justice. Others will question whether there is any real philosophical grounding to Ratner’s efforts to control or cabin their dreams of a better world or their critiques of the actual one.

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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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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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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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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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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.

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The Law and Politics of the Kosovo Advisory Opinion

Published on April 20, 2015        Author: 

The Law and Politics of the Kosovo Advisory OpinionI’m happy to report that OUP have now published a collection of essays edited by Sir Michael Wood and myself on The Law and Politics of the Kosovo Advisory Opinion. Michael and I are especially happy with the cover, which is gloomy in a very nice way. Our intro to the book is available here, while a smattering of draft chapters is also freely available on SSRN.

Here are the blurb and the ToC:

This volume is an edited collection of essays on various aspects of the 2010 Kosovo Advisory Opinion of the International Court of Justice. The main theme of the book is the interplay between law and politics regarding Kosovo’s independence generally and the advisory opinion specifically. How and why did the Court become the battleground in which Kosovo’s independence was to be fought out (or not)? How and why did political arguments in favour of Kosovo’s independence (e.g. that Kosovo was a unique, sui generis case which set no precedent for other secessionist territories) change in the formal, legal setting of advisory proceedings before the Court? How and why did states supporting either Kosovo or Serbia choose to frame their arguments? How did the Court perceive them? What did the Court want to achieve, and did it succeed in doing so? And how was the opinion received, and what broader implications did it have so far? These are the questions that the book hopes to shed some light on. To do so, the editors assembled a stellar cast of contributors, many of whom acted as counsel or advisors in the case, as well a number of eminent scholars of politics and international relations whose pieces further enrich the book and give it an interdisciplinary angle. The book thus tells the story of the case, places it within its broader political context, and so attempts to advance our understanding of how such cases are initiated, litigated and decided, and what broader purposes they may or may not serve.

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Editor’s Book Choices 2014: Christian J. Tams

Published on December 30, 2014        Author: 

I have 3 picks:

* Douglas M. Johnston, The Historical Foundation of World Order: The Tower and the Arena (2008)

* Mark Mazower, Governing the World: The History of an Idea (2012)

* W. Michael Reisman and Christina Skinner, Fraudulent Evidence Before International Courts and Tribunals: The Dirty Stories of International Law (2014)

An eye-opening ‘anti-tweet’: Douglas M. Johnston, The Historical Foundation of World Order. The Tower and the Arena:

My first pick is Douglas M. Johnston’s Historical Foundation of World Order: The Tower and the Arena, a hugely ambitious attempt to trace the role of international law in the gradual emergence of world order. Published posthumously (the author having completed the manuscript just weeks before his death), the book was quickly hailed as a major achievement, and in 2009 won an ASIL Certificate of Merit. But notwithstanding the early praise, I am not sure the book has been widely read or even noticed. If academic search engines are to be trusted, references to it remain scarce: to give just one example, it is quoted exactly once in the 1200 pages of the Oxford Handbook on the History of International Law, published in late 2012. (Once!)

This neglect is a mistake. Johnston’s book is exciting, engaging and eye-opening; it was my favourite read of the year 2014. Its historical sweep is vast, taking the reader on a journey from early Mesopotamian cultures into the new millennium. The focus is not (or not just) on international law as a set of rights and obligations, but on ‘the larger concept of world order’, understood to combine ‘an evolving, rather technical, “system” of laws, institutions and procedures designed for the inter-state community, … [and] a universal heritage of shareable values and sentiments that have gradually built the political and ethical foundation for a more equitable world society’ (pp. xvii-xviii). With a self-set brief like this, no reader can expect a comprehensive account, and Johnston’s treatment is eclectic and personal. This opens his particular account to criticism, but makes it a much more engaging read. It is, as Mary Ellen O’Connell said at the 2009 ASIL meeting, ‘the anti-tweet’ of legal scholarship. Read the rest of this entry…

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Editor’s Book Choices 2014: Does International Law Respond to Grassroots Inequality?

Published on December 29, 2014        Author: 

Crisis and stagnation in the global economy is the new normal, so say The Financial Times, McKinsey & Co., Business Insider, and the World Economic Forum at Davos in 2013. It is twelve days before the end of 2014 as I write this, and today’s new crisis is how the Russian rouble is spiralling dramatically in a deep currency crisis forcing Russia to take defensive measures against capital flight. Other main drivers of the world’s economy are not necessarily on safe footing. The Eurozone and the United States are still on the road to economic recovery from the global financial crises; Japan remains mired in recession despite the grand claims of ‘Abenomics’ to stem the tide; and this year, China – the main engine of global economic growth in the past decade – for the first time posted its slowest GDP growth rate in five years. Since the world plunged into global financial crisis around 2008, the promise and allure of globalization and global economic growth has waxed and waned, multinational and transnational business profit expectations have muted, and – as the International Monetary Fund put it rather bleakly in October of this year – growth will never be as good before the global crisis: “pessimism about the future was as strong [during the Great Depression] as it is now”. The International Labour Organization (ILO) dubs 2014 the year for the “risk of a jobless recovery”. If globalization is supposedly dying, as Princeton University Social Science Professor Dani Rodrik declares, is its inseparable fabric – international law – also headed for demise? In a postmodern crisis-saturated world now so riven by “economic insecurity and the rise of nationalism”, can international law still meaningfully respond?

My pursuit of this question throughout this year led me to three provocative books outside of international law – two in political economy, one in contemporary literature. These works helped me, at least, in provoking a reframing of the economic and social configurations we accept – and to a certain extent, author and promote – in international law, especially in international economic law specializations in trade, finance, and investment. Long before French economist Thomas Piketty’s Capital in the Twentieth Century became the rage in economic and political circles around the world in 2014, it was Nobel Prize laureate Joseph Stiglitz’s The Price of Inequality (W.W. Norton & Company, 2012) that made the powerful argument against the seeming inevitability of inequality, pointing out that so much of today’s debilitating income inequality – as seen in the example of the United States – is a product of the rents and inefficiencies created through the wrongful exercise of political power in legislative and regulatory processes. Read the rest of this entry…

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