A Comment on Ratner on International Justice

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.

Clearly this is a project that ought to be assessed on its own terms and there would be no point in criticizing the book for what it is not. The book is not concerned as such with the elucidation of the nature of law, nor is it really a critique of the law (although that does not mean it is not critical of some of the law’s limitations). Law, argues Ratner, stands for certain moral propositions that ought to be taken seriously as if they were indeed moral propositions. If one sees international law either as wholly a by-product of power or merely the distillation of formal propositions, one is unlikely to be much swayed by Ratner’s almost sentimental attachment to justice. Yet the hypothesis that there is an inherent morality in international law, some sort of shared ethos is an intellectually plausible one: that international law for all its departure from ideal morality, stands for a certain morality. In this brief comment, I would like to point out some of the theoretical pitfalls of the sort of exercise that Ratner engages in before engaging in more detail some of his substantive claims.

First, at the meta-theoretical level, there is a never entirely resolved tension in Ratner’s book between an exercise in ethical hermeneutics of the law and the project of even a thin moral theory. At times, Ratner is clearly mostly interested in the latter in that he infers his moral principles from pure reasoning about justice, even as he seeks to steer close to “the reality of things” so that his theory does not become vulnerable to the accusation that it is merely one more contraption by a philosopher. At other times, and particularly in the chapters looking at discreet rules, the starting point is international law itself and the extent to which certain normative claims can be distilled from it. This back and forth between a basic structure and fundamental normative intuition is characteristic of a Rawlsian methodology that has clearly significantly influenced the author. Ultimately and quite interestingly, Ratner the international lawyer often defers to Ratner the moral theorist and the relative weight of references attest to the fact that Ratner is more interested in engaging the philosophical literature than the international law one.

Second, one may wonder whether the emphasis on non-ideal theory doesn’t mesh a little too well with international law as it is, warts and all. This is an evident risk of an exercise that sets out consciously to reveal the inner morality of the law and is not willing to sacrifice prospects of compliance in the name of some idealistic tangent. Because Ratner’s overall theory already includes the tension between goals (peace and human rights) he is more liable to show that existing norms are the fruit of moral compromises. In the end, Ratner’s is a smart defense of the relative justice of international law as it stands, which is surely an interesting basis from which to proceed about how one might move to “thicker” forms of justice. On the one hand, one might argue that retreat is often the best attack: by circumscribing the claims made on behalf of international law to a (significant) minimum, Ratner puts himself in a position where international law’s line of defense are not overstretched, and he can indeed mount a significant defense. On the other hand, that the result says little about the injustices of international law or provides little in terms of a new utopia is, to say the least, not surprising.

Third, the book is not very strong on why, apart from international lawyers’ insularity, it remains so intellectually difficult to speak of a moral theory of international law. In particular, there is little sense of the moral tragedy that led to the emergence of international law in the first place following the collapse of the jus publicum europaeum and of international law’s very problematic relationship to morality in a disenchanted world. Indeed, history is not the book’s forte and we are treated to a very synchronic, contemporary and intemporal vision of the law. The danger is that even a thin theory of justice will be vulnerable to the accusation that it is quite subjective and that international law cannot yield even a thin form of morality. In many ways, an interesting theory of the justice of international law requires us to engage in some of the very debates that international law was supposed to have protected us from.

This is an impression that is bound to increase with the reader as one moves through the opening chapters. It is not easy to backstop a theory of justice and avoid a problem of endless regression to some broader and broader norms (impartiality, fairness, etc). Perhaps inevitably Ratner is called upon to invoke what he considers to be the common intuition of international lawyers (e.g.: “it seems clear to me, as I believe it would be to any international lawyer, that the two basic values in that normative structure are peace and human rights”). However it is hard to escape the suspicion that this common intuition is probably not that common. For example, Ratner feels like he must choose sides between a utilitarian and a deontological view of the moral value of international law. Although he largely sides with consequentialism (with a deontological overlay), I wonder how viewing the justice of international law by looking at its results fits with notions of the “international rule of law.” Certainly, the way the discipline prizes consistency and universalism suggest a deep deontological bend as the default position.

In short, the theory remains parsimonious, but needs quite a few assumptions to work at the risk of becoming more unwieldy and even idiosyncratic, and not providing the overarching resolution that it hints at. One way in which Ratner does suppress dissonance is by offering what must be said is quite a selective set of sources. The avowed goal is to speak to those working at the intersection of moral theory and international law. Those fields being what they are, and without wanting to sound uncharitable, it remains that the vast majority of Ratner’s sources are taken from the aristocracy of (notably male) Anglo-American jurisprudence. No doubt this is a group that has proved hugely influential, but I do think the book might have looked significantly different had it extended its gaze beyond such confines to encompass a range of other takes on the justice of international law, perhaps even emphasizing the extent to which the moral definition of international law is the object of ongoing and very real struggles that are not reducible to philosophical speculation. As it is, the conversation about the morality of international law is at risk of sounding like a fairly elitist and academic exercise.

It seems interesting at any rate to examine Ratner’s substantive theory on its merits, even if it does not and cannot unproblematically provide the hidden normative key to understanding international law’s empire. The “Thin Justice” is perhaps noteworthy for foregrounding the importance of peace to the justice of international law. This might come as a surprise. For example, one might question whether peace has ever been that central to international law, as opposed to an abiding concern with stability and order. In focusing on peace, and including domestic peace (and unless one redefines peace very narrowly) Ratner takes a step that is quite ambitious, although it must be said his concept of peace remains a little underdeveloped (except as an absence of war) given the centrality of the theme to the book.

Moreover, Ratner takes the distinctive step of foregrounding peace specifically, in case of tension, over the second pillar of his theory, basic human rights. The notion that security comes first, and rights a close second is of course a familiar refrain in much “domestic” political theory. It probably also makes sense of the dominant intuition among international lawyers about the ultimate normative finality of international law. If human rights were prioritized, then it would seem that not much of the sui generis benefits of the international system would be left, and Ratner is intent on not defending international law on cosmopolitan grounds. Bringing peace into the equation is a significant step towards helping us understand why we might not want a global theory of justice dominated only by human rights and why it may be acceptable, in some cases, to compromise certain rights for the sake of some greater value such as peace. By the same token, Ratner is clear that at least what he calls “basic human rights” should not be sacrificed to the pursuit of peace, for otherwise that peace would come at too high a cost. In presenting international law as a system in oscillation, constantly trying to offset the consequences of pursuing one goal at the expense of another, the “Thin Justice” will also resonate with international lawyers’ sense of inhabiting a somewhat tragic discipline, albeit one that is quite good at being its own moral contradictor.

Here however Ratner does not give us much to go on as to why peace is so important. He specifically and a bit summarily rejects the notion that it is because peace is itself a human right. Such a claim would have been helpful to the theory of “thin justice” and not in my view insurmountably “thick,” and it is not clear that Ratner doesn’t implicitly endorse it when he describes the negative impact of war on human lives. The fear is probably that it would in a sense collapse his whole theory into a single human rights pillar. Still, given the centrality that peace is made to play in the theory it is not clear that its value can simply be posited without being more strongly defended. This is especially so in view of the very weak role that peace assumes as a normative pillar in relation to Ratner’s discussion of trade and investment. By the time the relationship of peace and human rights to IHL, international criminal law or international environmental law has been described as ambiguous at best, it is hard not to think that the theory is misleadingly parsimonious. Rather than duly note these limitations in the penultimate chapter of the book, I wonder if Ratner could not have gone back to the model and tweaked it further so as to avoid this problem.

Together, the two pillars make a nice if maybe slightly asymmetrical frontispiece; but a foundation may be needed to make the theory stand as a more fully-fledged structure. In my view that foundation is the moral value, if there is to be one, of the state system itself. Now, because Ratner has decided to take the state system as his factual starting point, his normative theorizing proceeds from that existence, whether it be to determine who gets to be part of it, or what advantages flow from it. Ratner’s defense of the state is quite pragmatic and functionalist: the state is probably the best structure to promote individual welfare; at the aggregate level, sovereignty contributes to peace and does not in and of itself interfere with human rights.

The problem I sense is a tendency to focus on the role of international law as a remedy to the problem of war, without problematizing international law’s role in creating the problem of war in the first place. The goal of international law cannot be to simply remedy a problem of its own doing. What we would need, if we are not to let international law conveniently appear as the saviour in this story, is an argument that a system of states, one whose central property is the very possibility of war, is otherwise desirable, irrespective of the fact that it may do a decent job at offsetting its own costs. To be clear, this is not the same thing as justifying the state in general or the state “in theory;” what is needed is a moral justification of a system involving a plurality of states, and I fear that the “thin theory” here becomes too thin if it does not address the normative nature of the system, as opposed to the efforts deployed to “make it work.”

The place where Ratner get closest to doing this is chapter 4 and 5 but by focusing on, respectively, territorial integrity and the claims of peoples, Ratner already seems to buy into the moral promise of a world of states before he has made the case for it. Here I sense that what is missing is a sense, informed by a more deeply historical account of international law than the “Thin Justice” is willing to provide, that the Westphalian system, for all its many shortcomings, has also constituted a specific remedy to the problem of imperialism. The moral worth of sovereignty is that it stands for a certain ability to engage in forms of communal life that are irreducible to each other and that are deserving of being protected. Peace powerfully makes sense in this context, not just as the absence of violent deaths in war (after all, we have every of reason to think that there are many such deaths outside war that are just as blameworthy and condemnable) but as the symptom of a healthy pluralistic system of coexistence. I do not think, as Ratner does, that coming up with a theory of why a system of states might be justified would take his theory too far in the direction of ideal theory. On the contrary, it would grant it a more solid moral substratum.

A “Thin Theory of Justice” will probably frustrate those who are eager to make international law into an active instrument of global justice. The book adopts a relatively negative view of justice in which what counts as just is often what cannot be demonstrated to be actively interfering with just pursuits such as human rights. This is combined with a consequentialist methodology according to which whether a rule is just or not “all depends” on complex empirical questions to which definitive answers do not exist: hence what cannot be proved conclusively and on balance to lead to negative results tends to be validated as thinly just. When it comes to trade and investment rules, for example, Ratner, having refused to engage the fundamental distributive justice question, finds himself unable to conclude that the rules are intrinsically unjust. At times, it feels as if it is not entirely helpful to evaluate the justice of an entire corpus of rules, rather than discreet rules in discreet contexts. At other times, one cannot help thinking that international law is being evaluated from the point of view of a standard of justice that is precariously thin because it is in fact conveniently derived from itself. That the resulting intellectual showdown is not particularly vertiginous should perhaps not come as a great surprise.

Nonetheless, Ratner’s book defines an interesting defensive position from which to argue in favour of the moral record of international law. On that score, although Ratner signals positively in the direction of the emergence of thicker forms of justice for international law, one senses that his conclusion is that the very intermediary character of a “thin theory” is precisely what makes it just (or, to use a word that sometimes pops up, “decent”).