Comment on Lefkowitz, Philosophy and International Law: a critical introduction

David Lefkowitz has produced a book of remarkable clarity, depth, and insight, which directly explains and addresses international legal scepticism. It is a persuasive demonstration of how to enrich the philosophy of law through attention to matters other than myopic insider debates and systems other than state law; and how to cut through to the core of key questions in jurisprudence (most importantly, ‘what is law’ and ‘is there an obligation to obey it’?) to see their implications for understanding and evaluating international law. The book demonstrates that, in the hands of such a careful and astute scholar of both disciplines, there remains real value in the contributions of legal philosophy for international law, and vice versa. Specifically, Lefkowitz demonstrates the payoff from working back through the philosophy of law, so that understandings of what law is, and whether there is a moral duty to obey the law, not only supports theoretical evaluation of actual legal institutions, but also moral deliberation about what those institutions should be and do.

This brief comment focuses only upon Lefkowitz’s work on the legitimacy of international law, found primarily in chapter 6 where Lefkowitz rounds off his examination of the sceptical objection over whether international law is really law. Lefkowitz understands this part of the objection to include doubts about whether there is a moral obligation to obey the law. In response, Lefkowitz explains why we should care about the standard of international law’s legitimacy, even if it falls short of meeting that standard. Work on legitimacy is crucial to the book’s evaluations of specific areas of law (which commence in the following chapter) because before we can use the evaluative standards that philosophy of law (including philosophy of international law) offers, we need to understand how they relate to each other, as well as what it means for international law to fail (or to succeed) against them.

Lefkowitz carefully disentangles debates over the idea of legitimacy, which he explains as the question whether law has legitimate moral authority. This focused sense of legitimacy provides a standard to evaluate whether an agent has a moral obligation to obey international law, without subsuming all other evaluative standards within its reach. The focused sense of legitimacy demonstrates how subjects can have reasons to support institutions even when they do not have a moral duty to obey them. Lefkowitz then argues that, while legitimacy is a demanding standard, it is less demanding than justice. (“An agent may concede law’s legitimacy while working to change it” (128). This suggests that a standard of legitimacy offers a sort of mid-point among the evaluative questions surrounding international law.  This does not render it unimportant. According to Lefkowitz, “from a moral point of view increasing the international legal order’s legitimacy might even take priority over making it more just” (98).

To isolate the standard of legitimacy amidst other evaluative questions, Lefkowitz defends a notion of legitimacy as legitimate authority. Lefkowitz then examines four leading and competing conceptions of legitimate authority, conditional upon (i) authority’s capacity to serve subjects by helping them better conform to reasons; (ii) subjects’ consent to authority; (iii) duties of fair play and reciprocal benefits and burdens; or (iii) the democratic credentials of international law-making.

Lefkowitz argues that against any of these standards, international law will fall short of actual legitimacy, but such failure does not undermine the standards. Instead, he articulates how the latter three undermine themselves: democratic accounts are beset by the familiar problem of the need for a public law (that is not itself subject to democracy) to determine what counts as fair participation; fair play accounts need to turn to (and arguably into) consent theories if they are to protect against some persons imposing schemes of cooperation on others; while consent theories need some non-voluntarist account of what counts as valuable consent and what sets its valuable limits.

In light of those difficulties, Lefkowitz appears to offer a qualified endorsement of the first conception. This is roughly the influential Razian conception in which the “normal justification condition” for legitimate authority is that it helps subjects better conform to reasons that apply to them – e.g. through harnessing information and expertise that subjects could not generate alone, through the development of legal norms to enable coordination addressing common challenges, or the development of a system of norms through which to administer justice. He then examines whether and how international authority could provide this service to subjects, building on the ways in which both Samantha Besson and John Tasioulas have developed Raz’s account for the specific institutional and social phenomena of international law, where both coordination and expertise are hotly contested.

For Lefkowitz, that is not quite sufficient; we also need “guidance on how to identify legitimate international law, reasons to believe that [it can] meet the normal justification condition” (109). He argues that the elements of Allen Buchanan and Robert Keohane’s more complex standard of legitimacy, which is broader than legitimate authority, nevertheless offers factors to support the identification of that (narrower) authority. Subjects might be able to better identify legitimate international law if it displays consistency with Buchanan and Keohane’s requirements for consistency with core human rights, efforts at improvement, coherence with purported aims and commitments of governing institutions, and accountability mechanisms. All of these elements, Lefkowitz suggests, are outside of the standard for what makes international law’s authority legitimate: that depends on whether international law helps subjects conform to reasons. They may, however, contribute to the identification of that legitimate authority by assuaging subjects’ doubt that following international law will help them better conform to reasons that apply to them. 

Here is where the qualification comes in, and where I will press Lefkowitz for deeper engagement (perhaps unfairly, given the introductory aim of his book). If international law’s main claim to legal authority lies in its capacity to coordinate and administer a system of justice through public legal standards, then the more implausible that claim is, the less effective international law can be, and the further it falls behind on its claims. Lefkowitz suggests that more belief in legitimacy may generate more actual legitimacy; and uses this structural feature of international law’s authority – namely that its existence depends upon its subjects’ identification and inclination to treat it as authoritative – to highlight why questions of legitimacy matter for international lawyers.

In doing so, Lefkowitz foregrounds authority’s dependence upon subjects being able to identify international law as having (or at least plausibly claiming) legitimate authority. This makes the legitimacy of international law’s authority heavily dependent on the readiness of its subjects to recognise it and respond to it as a legitimate authority and not some other kind of power. I think this attention to the receipt of authority is crucial to a successful theory. There is a risk, however, that emphasizing the importance of beliefs about legitimacy, the identification of legitimacy, and argumentsdemonstrating legitimacy (e.g. 101), subsumes the importance of actual reasons to follow an authority. It may lead the rhetoric of legitimacy to supplant the substantive question of whether an authority does in fact help subjects better conform to reasons, in which case that authority is legitimate for that subject.

To offset that risk, and indeed to reply fully to the international legal sceptic, Lefkowitz could offer more attention to the reasons at stake: not only what they are, beyond standard examples of international coordination, but also how they apply to different actors whose ability and/or readiness to identify legitimate authority may be widely variable. Given the significance of the subject side of the story, in which recognition of authority matters to its very existence and to its legitimacy, an account of authority needs close attention to what both reasons and recognition entail, for subjects. This is hard enough when those subjects are individuals. It is more difficult when they are complex collective agents as well as agents occupying institutional offices (as state or international officials), and still more difficult when subjects include each of those types of actors, in complex relations to one another.

A related pressure point then asks how international law’s claim to authority specifically contributes to the realisation of its authority. Claiming authority becomes a very important part of the story, and so it matters how international law makes its claims. For instance, does the prevalence of ‘soft law’ instruments upset the general recognisability of international law’s claim to authority? Does a lack of enforceability (let alone enforcement) of parts of international law mean that international law, even where claiming authority, tends to be recognised as merely guiding or suggesting conduct? On the other hand, does the uneven application or imposition of rules upon some (typically less powerful) international actors, and not others, mean that international law is more likely to be recognised as a form of coercive rather than authoritative power?

This is a request for more from Lefkowitz, rather than a challenge to what he does offer, which is a work of such impressive quality that should become a go-to for theorists of jurisprudence as well as international law. While Lefkowitz has admirably examined the relation of international law’s claimed authority to its pursuit of justice, the full response to the sceptics requires greater attention to legitimate authority’s relation to other questions of (law’s) power, including both influence and coercion, which from the subject’s side of the story can appear to be indistinguishable from authority, and so continue to fuel the sceptical objection.