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Comments on Jean d’Aspremont, Formalism and the Sources of International Law. A Theory of the Ascertainment of Legal Rules

Published on December 12, 2012        Author: 

Jean d’Aspremont’s book evokes subliminally two recurring nightmares – one social, one intellectual. Socially, it reminds us of the failure of law to secure its proper place in international society. Intellectually, it reminds us of the part played by the modern university in the disempowering of the human mind.

The conventions of monograph-writing require that the author survey the territory in which he or she intends to plant something new – employed, as John Locke modestly said of himself, ‘as an under-labourer in clearing the ground a little, and removing some of the rubbish that lies in the way of knowledge’.  In fact, as d’Aspremont himself notes, most self-conscious intellectual innovators, before the advent of the modern university, did not devote much explicit effort to disposing of the writings of their predecessors.  Locke himself certainly did not do so, either in the Essay or the Two Treatises.

In the present case, ‘clearing the ground a little’ produces a mountain of footnotes listing hundreds of writings expressing, and endlessly recycling, every conceivable view, and many inconceivable views, about the essence of International Law, or its lack of an essence. It requires the author to sift through the output of an industrial-scale intellectual effort, to sort out the countless academic sects (many of them blessed with brand-names ending in -ism), and to locate them in relation to each other.  And it requires him to perform the impossible – but academically expected – task of making sober judgments about their relative merits.

And, all the while, the wicked world goes on its merry way to ruin. Why would anyone choose to write creatively and intelligently about the philosophy of International Law? They are unlikely to be heard by those who exercise international public power – politicians, diplomats, civil servants, intergovernmental officials, international judges and arbitrators, legal practitioners – the international ruling class, a self-satisfied and self-regarding conspiracy, many of whose members have the crudest ideas about the nature of law, and many of whose members relentlessly abuse public power, national and international.

It is important to understand two things.  Holders of public power are the product of ideas, ideas that they did not invent.  Holders of public power use other people’s ideas as instruments of power.  If a more or less abstract idea might be useful to them, they will appropriate it – ideas of religion or philosophy or morality or political theory or natural science or human psychology – not only to justify their possession of power but also to exercise that power more efficiently. Words are power.  Words are weapons.  The power of the powerful includes the power to incorporate ideas into the language of power.

I won’t comment in detail on the intricacies of d’Aspremont’s exposition.  But I must say that I would differ from some of his accounts and judgments of legal philosophies and theoretical positions with which I am myself familiar.   (I’m sorry that he devotes respectful attention to Herbert Hart and Ludwig Wittgenstein – both of them being of minimal continuing intellectual significance.)   For me, the book is important at a more general level.   The important question is – what general lessons can we learn from d’Aspremont’s heroic work of synthesis and analysis?

The first lesson is that the intellectual closed garden of the modern university system means that more or less sophisticated ideas only escape haphazardly and fortuitously into the outside world where, if they are not appropriated by public power or mass culture, they wither and die.  The Monographismus of the universities, like the Essayismus of public intellectuals (to invoke Robert Musil’s perceptive nosology), immunises public power and the public mind from the threat of transformatory ideas.

The second general lesson is that the ideas that are appropriated by public power are chronically confused in their effects.  Good and goodish ideas may become less good ideas, or actually evil ideas, after their political appropriation.   (And now I’m going to imply some significant differences from d’Aspremont’s generally benign accounts and judgments.)

Vitoria’s theological universal law-thought reminded the new colonialists of the better side of their human nature; but they could read it as an implicit acceptance of the fact of mega-colonialism.   Grotius used a wild Renaissance historiography (including the Bible, mythology, miscellaneous literature, Greek and Roman self-fantasising) to remind the Thirty-Years-Warmongers that barbarism is a choice not a fatality; but, for warmongers, then and thereafter, this meant that barbarism remained a possible choice.  Hobbes intended to subject law to the highest purposes of society; but public power holders (including judges) could read it as the sacralising of ‘the law’, however immoral, not to say criminal, any particular ‘law’ might be (and, in England, that meant many of the – largely property-based – laws).

The US Constitution-makers and the Federalist Papers almost gave the game away about the ambiguous bargain of ‘democracy’.   The law protects the rich against the overwhelming natural power of the masses; and the masses may be permitted, by the powerful, to use the law to protect themselves against the inevitable abuse of power by the rich.  Adam Smith imagined an equality of economic freedom in the socialising-through-law of self-interest (with its roots in greed); but, for most people, collective social wealth-making came to mean ultimate personal and legal subjection, in accordance with Smith’s charming idea of the division of labour (that is to say, the ruthless integration of labour).

And the oh-so-elegant Vattel (‘one of us’, in the eyes of governments) used a modicum of Renaissance humanism to imagine an inherent and natural egalitarianism and voluntarism in international politics, which, paradoxically, allowed governments to believe that it must also be inherent and natural that the will of some of them is, in practice, very much more equal than the will of others.  Vattel’s system – the actual international constitutional system – is a system of limited and self-interested reciprocity among the most powerful, which may or may not happen to be in the interest of the less powerful, a system of international oligarchy.   Perhaps this reflects the true nature of all government, whatever the ingenious stories we tell about it.   That may be Aristotle’s unspoken conclusion in the Politics. Tyranny and oligarchy and democracy are three unstable sides of a single coin – and revolution is a toss of that coin.

So, the third lesson of d’Aspremont’s painstaking survey is that we must always ask, when faced with sets of ideas, not whether they are true or right or good or better (to which he devotes so much effort), but whether those ideas are capable of being appropriated by public power and, if so, whether public power could appropriate them in such a way that their potential good would be likely, when applied in practice, to outweigh their potential harm.  That is how I must judge d’Aspremont’s own ideas.

Strangely, despite the book’s subtitle, he only puts forward an explicit theoretical proposal of his own in a modestly expressed section in the last part of the book.  I was hoping that most of the book would be devoted to a revolutionary new theory of the sources of International Law – or even a revolutionary restoration of the true sources – customary law (in the ancient sense of that term – in which opinio iuris has nothing to do with opinion) and treaties (as a source of legal relations and an emerging form of legislation – compare: the development of the sources of law in national societies).

A constantly repeated theme of the book is that one should distinguish three things – the process for the ascertainment of a rule as a rule of law; the evidence suggesting that a particular rule is accordingly a rule of law; and ascertainment of the content of that rule.  The word formalism is entangled in so many different theoretical disputes about law that it might have been better to avoid using it as a keyword in this book.  Sources is a better word.  The main bulk of the book is concerned with the first of the three topics.   Can there be a rule of law determining, on formal grounds, what is to be regarded as a rule of law?

I agree strongly with a view expressed in the first chapters of the book that one might think that settled ideas about the nature of law are at least as necessary in international society as they are in national society.  A legal system without an accepted and efficient idea of the law-making sources of law cannot be an effective legal system.

And I strongly support the idea (expressed here in my own words!) that the Rule of Law, a great achievement born of arduous social experience, is a farce if the essential and distinctive character of law is not an idea that dominates the minds of actual holders of public power.  Incidentally, d’Aspremont evidently understands the idea correctly – as opposed to many who do not understand it or, for their own purposes, choose to misunderstand it.   The idea of the Rule of Law means that all public power is subject to the law, as finally determined by the courts.  And international public power is public power.

The book seems to me to be suffused with an undercurrent of longing to rise above the fearful cacophony (d’Aspremont’s word) of the theoretical writing – and to bring rational order to the dreadful mess of practical international behaviour – with its crazy proliferation of forms of intergovernmental acts and instruments, the more or less worthless theoretical ruminations of international courts and tribunals, the sublime indifference of governments and legal practitioners to the theoretical anarchy of their behaviour.

Until I read this book, I hadn’t realised the extent to which the conceptual structure of International Law has decayed (to borrow Tony Carty’s word) over recent decades. Over the last sixty or seventy years, International Law has increased immensely in volume, density and complexity, approximating more and more to the substance of an advanced legal system.  But it seems that a (the, even) prevailing view now is that law is what people think it is, a legal rule is what people think it is, a legal act is what people think it is.  It is an appalling state of affairs.

The primary function of the constitution in national legal systems is to assign and control law-making power. And the reason for this is a lesson learned from many millennia of human social experience.  Law determines the lives of people, using legally authorised physical force if necessary.  It follows that the people must know the source of the law that determines their lives; and the holders of public power must know that they have no other legal power than the power that the law gives them.  Law seen in this way is one of the greatest achievements of the self-ordering human species.  (Even in the UK, with an unwritten constitution, we, the people, can know that we have three sources of law – in a descending hierarchy – EU law, statute law (made by or under an Act of Parliament), and the Common Law – the first having been added by a virtually revolutionary event in 1973.)

Jean d’Aspremont proposes that we should introduce some more rigour into the subjectivity of law ascertainment.  He refers to the view (news to me) that Hart’s system is a ‘social thesis’ of law (the source of the validity of law is a matter to be determined by society – a wonderful banality compared with Kelsen’s Kantian analysis of the logically necessary self-contained structure of a legal system).  And he mentions Wittgenstein’s remarkable personal discovery (of the age-old philosophical position) that the meaning of language is socially constructed, so that law-language, even when law is speaking about itself, must also be socially constructed!

He passes in review the various ‘social actors’ who might be included ‘in the determination of the communitarian semantics constitutive of the meaning of law-ascertainment’ (page 204)  [ghostly presence of American Pragmatism, Habermas, Rorty…]  – international courts and tribunals, domestic courts, the International Law Commission (God forbid!), legal scholars (God forbid!), the better sort of international NGO, among others.  For me, the most important ‘social actors’ are the people the least likely to be heard.

Certainly governments would want to have their say. They have useful experience in the making of the international system.  In the 19th century, they appropriated ideas of law and consent from post-revolutionary democracy in national societies, leaving behind the rest of the paraphernalia of democracy. In the 20th century, they appropriated the idea of a court, but without the essential characteristics that attendance at court is not voluntary and the law applied by the court is not made by the parties before the court. After 1918, they appropriated the dubious ideas of just war and self-determination, and incorporated them into international systems that remained under their control. After 1945, they appropriated the idea of human rights, reconceived in superficial remorse for horrors that they themselves had caused, legislating and institutionalising the idea into something unthreatening. And governments used their ILC to articulate a fantasy category of state responsibility, as opposed to the legal liability that attaches specifically and inherently to every legal relation, undermining the effectiveness of countless international legal relations.

And now governments are allowing their International Law Commission to apply its collective mind to a new topic – ‘the formation and evidence of customary international law’. Ultimate political appropriation of an ultimate idea. The Commission will, as always, seek the views of governments, and other holders of international public power, on this interesting problem of legal philosophy.  And no doubt they will consult with ‘social actors’, possibly even ‘legal scholars’.

And, if the worst comes to the worst, governments may finally succeed in establishing law in its proper place in international society – in accordance with their own understanding of the word ‘proper’.  And we, the people, will persist in our effort to make International Law into the true law of a true international society.

 

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