David Lefkowitz’s response to EJILTalk! commentators

I am extremely grateful to Andreas Follesdal and Steven Ratner for organizing this symposium, to the European Journal of International Law for hosting it on its blog, and to Alejandro Chehtman, Adil Haque, Carmen Pavel, and Nicole Roughan for their generous praise of my book, and the thoughtful challenges they press against various arguments contained therein.  I wrote the book partly in an effort to entice more scholars and students to join the vibrant community of scholars working at the intersection of international law and philosophy.  This symposium offers yet further evidence of how fascinating, and important, these dialogues, can be.

Response to Haque

An inevitable consequence of its breadth, as well as my own limits as a scholar, is that my book makes no mention of a long list of worthy theorists, theoretical perspectives, and topics.  Among the most glaring of those omissions, Adil Haque observes, is the absence of any discussion of Hans Kelsen’s philosophy of (international) law.  I agree, and the regret I feel as a consequence of this omission grows larger when I recall the identity of my first instructor in the philosophy of law.  Fortunately, recent years have seen the publication of several excellent treatments of Kelsen’s philosophy of international law (e.g., here and here).  Certainly, an instructor or student exploring core questions of legal philosophy in relation to international law would be well advised to supplement my introductory discussion with some of Kelsen’s writings, and commentary on them.

Haque also takes issue with my reading of Hart’s claim that international law comprises a legal order but not a legal system, and my defense of that claim once properly interpreted, on the grounds that it misconstrues Hart’s objection to Kelsen’s invocation of a basic norm.  However, the basic norm plays (at least) two roles in Kelsen’s legal philosophy: it accounts for law’s normativity, and for its unity.  While Hart is skeptical of the arguments Kelsen advances for both conclusions, his reasons for rejecting them differ.  

Consider, first, law’s normativity.  The basic norm is a necessary presupposition of engaging in legal argument, for it is not possible to invoke the law (as a participant in a legal practice) without construing the law as a practical ought-statement, or what is the same, as providing a reason for action.  Properly understood, the basic norm is not a norm of the legal system; unlike a statue or a constitutional provision, it cannot be invoked by actors within the practice to justify their conduct.  it might be argued that Hart misunderstood this, that he characterized the basic norm as a rule that might be invoked to justify the claim that domestic officials should obey the constitution, or international legal actors obey the norms of customary law (including those governing the making, applying, and enforcement of treaties).  Or perhaps Hart did properly grasp the role the basic norm plays in Kelsen’s account of law’s normativity, but he thought there was no need for it.  Rather, treating various considerations as reasons for action is simply something human beings do, a fact about us that might call for certain sorts of explanations (e.g., how did human beings come to be this way?), but like the Sun rising in the East, does not call for any justification.  Or finally – and this is my favored interpretation – Hart interpreted Kelsen’s basic norm as synonymous with a rule of recognition, understood here not as a norm actors use to identify law or to systematically organizing laws, but as an ontological claim, a description of the facts in virtue of which rules R1, R2, etc., exist as the rules of a particular society.  As I argue here and in the book, Hart did not deny that we can formulate such a “rule” (i.e., descriptive claim) for international law.  Rather, he only denied the utility of what he took to be Kelsen’s formulation of such a rule, namely, “states should behave as they have customarily behaved.”  Hart’s remarks regarding the useless reduplication of the basic norm, which Haque quotes, all speak to this point.

They do not speak to the second function the basic norm serves in Kelsen’s philosophy of international law, which is to underwrite the unity of law, the cognition of international law and the domestic law of various states as a single legal system.  Hart contests Kelsen’s defense of this claim as well, albeit in a separate essay and not in Chapter X of Concept of Law.  I cannot do full justice to those arguments here, but I do want to indicate how a distinction I introduced in the previous paragraph, and that I defend in the book, coheres with what is arguably Hart’s primary objection to Kelsen’s unity of law thesis. 

References to the rule of recognition serve two different functions in Hart’s analysis of law.  One is epistemic.  The (or a) rule of recognition is a norm that actors can use to identify the law of a particular society, and as Hart notes, “provision may [also] be made for their possible conflict by their arrangement in an order of superiority” (Concept of Law, 95).  The other is ontological; here ‘rule of recognition’ refers not to a norm but to the practice of holding accountable that makes it the case that rules R1, R2, etc., are rules of a particular society.  In his essay on the unity of law thesis, Hart maintains that we cannot infer from the existence of a systematic relationship between two (sets of) norms that they are norms of the same legal system.  That is, we cannot draw an ontological conclusion – membership in a single legal system – from the existence of epistemic norms; i.e., norms certain actors use to identify and systematize (some) other legal norms.  Instead, to determine whether two norms belong to the same legal system, we must look to the considerations that the participants who use those norms to hold people accountable take to be necessary and/or sufficient for valid law.  Thus, we confront a question of descriptive sociology: what considerations do, e.g., legal officials in the U.S., take to be necessary and/or sufficient for the validity of U.S. law.  A bit roughly, if the best answer does not reference other states (international legal actors) delegating to U.S. officials the authority set out in the U.S. Constitution, then we should conclude that U.S. law is not simply one part of a single legal system that also encompasses international law (and the municipal law of other states).  Rather, it is a distinct legal system, albeit one that includes norms that create various systematic relationships between U.S. law and the laws of other legal systems.

I want to conclude my response to Haque with two additional observations.  First, I argue that the phrase “legal system” is ambiguous between a systematic ordering of legal norms, which might include a hierarchical structure, and a systematic ordering of actors, a hierarchy of rulers and ruled, or officials and subjects.  Hart clearly recognizes this distinction, and does not maintain that a legal system in the first sense requires a legal system in the second sense.  So, contra Haque, I do not maintain on Hart’s behalf that the sort of ordering of international legal norms he describes in his comment requires centralized institutions.  Rather, when Hart asserts that international law is a legal order but not a legal system, he means that international law is largely a horizontal legal order.  Second, Haque asks us to consider a scenario in which States accept that any treaty ratified by two-thirds of them binds them all, and asks if international law would then contain distinct categories of ruler and ruled, and a standing legislature.  He says no, but I disagree.  States would collectively comprise a standing legislature, and they would collectively rule each of themselves individually.  In this regard they would be no different than members of a domestic legislature, each individually subject to law that he or she may or may not have voted to enact as a member of a collective body empowered to create law binding on all.

Response to Pavel

As Carmen Pavel notes, the chapter on the international rule of law in Philosophy and International Law serves two ends.  The first is to provide a critical analysis of the concept of the rule of law, one that foregrounds disputes over its content (e.g., does it include respect for basic human rights?) and its value (e.g., is it merely instrumental and conditional on the law’s content, or is it valuable in itself and independent of the content of the law?).  The second is to provide a preliminary assessment of the extent to which the international legal order currently exhibits fidelity to the ideal of government in accordance with the rule of law.  My conclusion is that it fares poorly in this respect, though I hold out hope for improvement.

Pavel concurs with many of the claims I defend in this chapter (and offers her own defense of them in her excellent new book).  One matter on which we disagree, however, concerns the proper interpretation of the claim that the rule of law requires equality before the law.  I defend a formal interpretation: equality before the law requires that legally like cases be treated alike, or put another way, that legal officials not discriminate in their application of the law.  Equality before the law is not a substantive standard; that is, it does not require that the law treat people equally, in the sense that it not rely on morally dubious distinctions when it specifies the rights and duties subjects enjoy.  In contrast, Pavel maintains that this is precisely what equality before the law does require.    

The primary advantage of the formal interpretation of equality before the law is that it enables us to clearly distinguish different types of complaints we may level against those who rule.  Suppose a society accords men but not women a legal right to vote in legislative elections.  Suppose some of its officials then deny men of a certain race, religion, political party, height, or dress access to the polls.  The men so deprived may justifiably object that they are being denied equal treatment before the law, and that in virtue of that fact the officials in question are failing to govern in accordance with the rule of law.  Women who are denied access to the polls cannot advance the same complaint.  Of course, that is not to say they have no basis for objecting to their treatment.  In fact, they have two valid complaints.  First, they are denied a voice in how they are governed to which they are morally entitled.  Second, in denying them that voice while granting it to men, the law demeans women; that is, it expresses the view that women are inherently morally inferior to men.  These complaints target the justice of the law, and may also have implications for the law’s claim to legitimate authority.  My hypothesis is that we will do better at morally evaluating and improving government if we adopt a narrower construal of the rule of law, one that concerns only how government power is exercised, then if we adopt a broader one that includes as an element the exercise of government power for certain substantive ends, such as respect for basic human rights.  (I think a version of this position can still be defended even if we adopt a non-positivist account of law such as Ronald Dworkin’s, but considerations of space preclude doing so here).

Consider the specific examples Pavel offers to support her claim that equality before the law requires that the law not rely on morally dubious distinctions when it specifies the rights and duties subjects enjoy.  The Magna Carta insists on due process protections for free men, and insists that the king is bound by law.  The latter is a matter of supremacy of law, not equality before the law.  As I write in the book, supremacy of law ensures that those who rule are not outside the law in two ways.  First, it requires that they identify a legal authorization for any specific attempt to govern.  Second, supremacy of law locates every exercise of governmental power within a web of existing legal rights and duties, thereby ensuring that it will not unduly threaten others’ ability to rely on the law as a whole when deciding what to do.  Due process serves the goal of advancing government through law, supremacy of law, and formal equality before the law.  For example, it contributes to the identification of the content of specific legal norms, and what they entail for the case at hand, which sometimes include the legal norms officials invoke to justify their exercise of government power.

I agree with Pavel’s claim that states’ refusal to grant courts (compulsory) jurisdiction significantly weakens the international rule of law. But as I argue in the book, that is because it runs counter to supremacy of law and formal equality before the law. I also agree with Pavel that the current methods for generating international law frequently result in norms, and indeed regimes, that deny certain actors’ treatment to which they are morally entitled, or unjustly discriminate between actors, or both.  These defects in the content of international legal norms are best framed as injustices, and perhaps also as features that render international law illegitimate, rather than as deviations from the rule of law. 

Still, it may well be true that in the absence of an international rule of law we are unlikely to make much progress in realizing global justice or a legitimate international legal order.  Moreover, as I suggest in the book, it may be that the arguments for the rule of law, human rights, and democracy all lead back to a common fundamental value, such as respect for individuals as autonomous agents.           

Comments on Roughan

Nicole Roughan raises a number of important questions regarding an instrumental approach to justifying international law’s legitimate authority, to which correlates a moral duty on international legal subjects to obey international law.  Roughly, this approach holds that actors have a moral duty to obey the law if they are more likely to act as they have moral reason to act by deferring to the law’s judgment of what they ought to do than if they act on their own judgment.  This account of the conditions under which actors have a moral duty to obey the law has a number of important implications.  For example, if law serves the aim of enhancing conformity to morality’s requirements by facilitating coordination on common standards of right conduct, then as John Tasioulas observes, “public international law must not stray too far from implementing values that resonate widely with its would-be subjects.”  If it does, then international legal subjects will likely suspect that the law does not represent a good faith effort to enhance their conformity with morality’s requirements, but is instead an instrument via which some actors seek to advance their self-interest.  Relatedly, a complete theory of international law’s legitimate authority should tell us not only the conditions under which international legal subjects have a moral duty to obey the law, but also offer us guidance on how to determine when those conditions are satisfied.

Roughan worries that attention to the need to create or sustain international law’s de facto legitimacy, and to the considerations actors should treat as evidence that international law actually possesses the authority it claims, will distract us from more fundamental questions regarding the moral reasons that actually apply to various actors, and how they do so.  I agree.  Many international lawyers are loathe to take up these more fundamental questions, and consider only what States and other actors will agree to, as if that is all there is to say on the matter of international law’s legitimacy.  On the other hand, political philosophers often focus only on fundamental questions of justice, and legal philosophers on the nature of legitimate authority, with no attempt to bring their insights to bear on actual practices of law and politics.  Or worse yet, they do advance practical conclusions, but on the basis of a rather poor understanding of the practices they aim to reform, and the broader circumstances in which those practices function and have evolved.

Fortunately, there are a growing number of scholars, well-versed in both philosophy and law, who are able to combine careful work on fundamental moral questions, a deep understanding of the nature and possible grounds for law’s legitimate authority, and the workings of international law (and other legal orders).  These include the contributors to this symposium.  For instance, the sort of attention to the reasons at stake that Roughan calls for in a discussion of legitimate authority is best exemplified in my book in the chapter on the LOAC, where I too briefly discuss Haque’s terrific scholarship on the law and morality of war.  I do even less justice to Chehtman’s pathbreaking work on legitimate authority and extraterritorial punishment, which also rests on a Razian, instrumental, approach to justifying law’s claim to authority.  And, of course, there is Roughan’s own exploration, in this journal and elsewhere, of how to integrate that model of legitimate authority with legal pluralism.  So, my (tongue in cheek) answer to Roughan’s recommendation that I give more attention in my analysis of an instrumental approach to international law’s legitimate authority to the reasons at stake is that others are doing that work for me!

Roughan asks whether the uneven application of international legal norms, the fact that their content sometimes favors (and is clearly designed to favor) certain actors over others, and a lack of enforceability, let alone enforcement, of various international legal norms weakens international law’s de facto, as well as its de jure, authority.  I think the answer is yes, on both counts, and so I want to emphasize two points I make in the book.  First, I am not committed to rebutting skepticism of international law’s legitimacy.  Rather, I suggest that on a number of different approaches to justifying international law’s claim to legitimate authority, such skepticism may well be warranted (at least for some actors, and with respect to some international legal norms).  Second, as Roughan notes, while I argue that we have compelling moral reasons to seek to make international law more legitimate, the absence of legitimacy does not necessarily entail that actors have no reason to conform to the standards set out in international law.  What they lack is a particular kind of reason, namely a moral duty to obey the law.

Response to Chehtman

The chapter of Philosophy and International Law that addresses the LOAC considers various approaches to morally justifying two central elements of the LOAC, the equality of combatants and non-combatant immunity.  But as Professor Chehtman observes, talk of equality of combatants oversimplifies the rights the LOAC actually accords or denies to various belligerents.  For example, while combatants who wage war on behalf of states enjoy immunity from foreign or international legal sanction so long as they conform to the LOAC, the same is not true for members of non-state armed groups, who are typically liable to criminal prosecution for waging war even if they scrupulously adhere to the LOAC. Or at least this is the case for adults.  In the case of child soldiers, the LOAC generally accords belligerents the same immunity from trial and punishment accorded to state combatants.  On the basis of these and other examples he provides in his comment, Professor Chehtman concludes that any attempt to morally evaluate the LOAC that focuses only on the equal status it accords to state combatants, or that examines the justifiability of doing so only in terms of combatants possessing or lacking a just cause for war, will necessarily fail to do justice to the more nuanced normative landscape the LOAC actually constitutes.

One important lesson we should draw from Professor Chehtman’s remarks is that law can provide an invaluable resource for systematic moral reasoning.  It can, and often does, embody a collective wisdom, one built on the experience and insights of many actors making moral choices across a wide-range of situations.  To engage with only one element of that collective wisdom is to leave money on the table.  At best, we are likely to ignore insights that are both theoretically and practically important.  Worse yet, our critique or endorsement of the element of the law we do consider may be distorted by our failure to locate and interpret it within the broader practice of holding accountable that constitutes the legal practice in question.

Nevertheless, even when we do broaden our assessment of the LOAC in the manner Professor Chehtman recommends, we may still think one of the four frameworks for morally assessing the LOAC that I describe in my book is the one we ought to employ.  Should the legal rights the LOAC accords child soldiers mirror their moral rights?  Or should the LOAC accord child soldiers whatever rights will best enable other combatants (and those who hold combatants legally accountable) to conform to morality’s true demands – even if that means granting child soldiers’ legal rights that do not correspond to their moral rights, or denying them a legal right to treatment to which they have a moral right?  Or, in assessing the LOAC’s treatment of child soldiers, should we eschew all concern with protecting moral rights, and focus instead on the rules that will best conduce to minimizing harm (at least in circumstances characterized by the absence of government in accordance with the rule of law)?  Each of these frameworks offer us a different way to think about the relationship between (international) law and morality, and each strikes me as capable of integrating the various considerations Chehtman flags as relevant to a moral assessment of the LOAC in all its complexity. 

In his remarks, Professor Chehtman focuses largely on the legal protections against punishment that the LOAC accords or denies various actors.  Construed in this way, the LOAC’s immediate addressees are state or international officials empowered to hold individuals accountable for their conduct of war.  Combatants are interested parties, of course; they want to know whether in waging war, or in committing a particular act of war, they will make themselves liable to legal sanction.  But they may also want to know whether they are justified in committing certain acts of war, and not simply whether they will be liable to sanction if they commit them.  Should combatants look to the law for such an answer?  If they should – if, for example, they have a moral duty to obey the law – then attention to the more nuanced LOAC Chechtman describes may place even greater strain on the law’s capacity to serve both as a guide to what is permitted and to what should be sanctioned.