Introducing David Lefkowitz’s Philosophy and International Law

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David Lefkowitz’s new book Philosophy and International Law: A Critical Introduction (Cambridge University Press, 2020) comes at a critical time in the conversation between international law scholars and practitioners, on the one hand, and philosophers, whether legal, moral, or political, on the other.

More dialogue among scholars of international law and philosophy

Until about fifteen years ago, philosophical inquiry related to the international legal order was generally limited to a few issues within political and moral philosophy, notably distributive justice and just war theory. Since that time, an expansion has taken place in two directions. First, political and moral philosophers are writing about other aspects of the global political order, including title to territory, refugees and migration, climate change, international trade, and the proper role of international courts. A small smattering of examples would include Simon Caney 2006, Thomas Christiano 2015, Serena Parekh 2020, and Anna Stilz 2020.  As for international rules themselves, some philosophers have made them the target of their inquiry, or integrated them in different ways into moral theories, though others seem to dismiss them as political artifacts or regard them as merely as a vessel into which to deposit their top-down moral theories.

Second, legal philosophers – particularly those trained in the Anglo-American approaches — have come to see foundational questions about international law as worthy of attention. These topics range from the nature of customary international law to the meaning of the rule of law at the international level.  Examples include Jeremy Waldron (2011), Ronald Dworkin (2013), and Nicole Roughan (2017). 

These two lines of scholarship naturally overlap. Key early studies, such as those by Allen Buchanan and David Golove, and a volume edited by Samantha Besson and John Tasioulas tended to lump these issues together as part of the philosophy “of”’ international law. 

International lawyers have participated in this dialogue too, but, it seems, more reluctantly. Felix Cohen’s observation of eight decades ago that legal scholarship seeks refuge in concepts at the expense of analysis of the ethical determinants and consequences of legal decisions remains regrettably apt. Some legal scholars, like Chios Carmody, Frank Garcia, and John Linarelli, and the two of us have brought political philosophy squarely into our work, but much of the field remains at arms distance from contemporary international ethics. At the same time, ethical precepts and concepts (legitimacy, hegemony, exploitation, etc.) continue to play a strong part in theoretical work, notably in scholarship within the orbit of critical legal and post-colonial approaches, such as those of Anthony Anghie, M. Sornorajah, Neha Jain, and others. And of course some scholars of international law work with philosophers or engage directly with contemporary legal philosophy (see, e.g., Besson 2009; Brunnée and Toope 2010).

Even though both philosophers and legal scholars cherish stringent and clear arguments, we acknowledge, as David Luban has reminded us, important methodological differences between philosophical and legal approaches to international relations. Philosophy will often be more abstract and foundational in some sense than law, with its focus on existing practice and institutions. A good philosophical argument about the underlying morality of the international order is grounded in principles and intuitions. A good legal argument, on the other hand, is more clearly grounded in, and more constrained by, legal sources, precedent and practice. Relatedly, the two fields treat the messiness of real life quite differently.  Some philosophical arguments rely on necessary and sufficient conditions, where one counterexample may defeat an otherwise sound argument. The legal scholar, on the other hand, accepts that every law is in some way over- or under inclusive and thus a sort of rule of thumb, with the goal of prescriptive scholarship to find a reasonably workable rule. Finally, international lawyers and philosophers often have fundamentally different expectations of the role law should play in the international system, with the former more often resigned to the role of power and politics – indeed sometimes seeking to engage with those forces – and the latter often seeking to blunt their influence on thought and action. 

Why Should International Lawyers Care about Philosophical Approaches? 

As Lefkowitz’s book makes clear, international lawyers lose out if they remain oblivious to the insights of political and legal philosophers writing about international political morality and international law.     

First, philosophy first provides a set of analytical tools to get to core questions that underlie the structure and rules of IIL. To take international economic law, philosophical work offers a rigorous way of arguing about who should bear the benefits and burdens of transnational economic interactions, whether trade, investment, or finance. Such foundational work can open up space for lawyers to realize which box they are thinking within, explore other available alternatives, channel and structure discussions, and propose new better justified legal norms or institutions, or adjust the existing ones better for a contemporary problem. Lawyers can benefit from understanding those moral distinctions. At the same time, legal rules must be capable of comprehension and administration, create incentives for compliance, and remain robust against some forms of misuse and abuse and thus will never mirror all the morally significant distinctions.

Second, because international lawyers think about compliance with actual or proposed rules, they ought to appreciate that rules that can be defended in terms of their legitimacy, fairness, or even justice stand a better chance of providing international actors good reasons to respect the rules, or good reasons to change or supplement them,  – which may sometimes make a difference. If rules are defensible under a considered moral viewpoint those actors have additional (and arguably more persuasive) reasons for respecting them beyond the fear of adverse consequences for violations, or an appeal to respect for the law as law, and a good reason to appreciate the consequences of altering the law. But where the law does not meet that considered moral standard, we clearly have good reasons to change some rules, as well as guideposts for that change and for handling responses. Indeed, perceived unfairness may sometimes trigger or fuel pushback and civil disobedience also against international law.

Third, engagement with political philosophy might encourage lawyers and scholars to put their cards on the table and reflect on them – and perhaps even improve them. Lawyers need to recognize that when they engage in normative and even descriptive scholarship, they often are already taking an ethical position on issues of global justice, or the nature of law and legal decisions. And judges too. For all but the most mundane analysis, legal scholars and practitioners are assuming something about key global values, and the appropriate role of international law – and of their scholarship. In short, we should heed John Maynard Keynes’ warning, appropriately adjusted:

“… the ideas of economists and political philosophers [– and legal scholars, we should add – ], both when they are right and when they are wrong, are more powerful than is commonly understood. Indeed the world is ruled by little else. Practical men, who believe themselves to be quite exempt from any intellectual influences, are usually the slaves of some defunct economist [– or legal scholar, or philosopher..]. Madmen in authority, who hear voices in the air, are distilling their frenzy from some academic scribbler of a few years back. I am sure that the power of vested interests is vastly exaggerated compared with the gradual encroachment of ideas …, soon or late, it is ideas, not vested interests, which are dangerous for good or evil.”

That reality does not entail that lawyers should abandon accepted legal methods of legal interpretation, especially in certain contexts such as in front of tribunals. But as we evaluate whether to keep existing rules and prescribe new ones, we need to recognize, and perhaps challenge and improve, our ethical assumptions.     

And Why Should Philosophers Care? 

Lefkowitz philosophical engagement with international law also gives evidence that international law is an important subject for philosophical scholarship. (Our efforts to make the case to philosophers can be found here andhere.) International law is a key part of the normative universe of practices, institutions, and expectations that frame what philosophers call institutional normative reasoning. Indeed, law is the subject matter for many of the key claims about what a just world should look like – and the site where such claims are contested and ultimately resolved through rules.  As Andrew Hurrell writes, “law can be viewed as a sociologically embedded transnational cultural practice in which claims and counterclaims can be articulated and debated and from which norms can emerge that can have at least some determinacy and argumentative purchase.”

Second, the range of international law, and its influence on global behavior, makes it both a formalized instantiation, and in some cases even a causal factor, of the moral problems of global justice. All international legal regimes represent choices by states and other actors to regulate, or not regulate, international matters in ways that have winners and losers, sometimes but not always intentionally. As Terry Nardin writes, “the global order that exists is substantially constituted by public international law.”

Third, philosophers of law (within philosophy, but also jurisprudes within law) miss out on key conceptual questions if they ignore international law. Because international law results from different prescriptive processes, and consequently has different secondary rules, a focus on international law may nudge philosophers to reconsider some of their core assumptions and theories regarding the authority and legitimacy of law. 

International law may be important to political, moral, and legal philosophers in other ways. Methodological, international legal rules may assist philosophers (even those not committed to institutional normative reasoning) in building up their theories. At the initial stage, law can assist in what Christopher McCrudden has called “concept formation.” For instance, to understand the meaning of freedom of expression, we need to look at the forms of expression that humans attempt, which requires looking at those that governments have regulated in some way, as well as the responses of international courts like the European Court of Human Rights. The terms used in international law are also often useful starting points for philosophical reflections in the form of charitable reconstructions of such complex issues as ‘customary international law’, ‘constitutional values’ etc. 

International law can also serve as a check on philosophical conceptions or theories of international political morality. The status of some norms as law could indicate acceptance by key global actors of a moral, and not merely a political, position. If the legal rules deviate significantly from the moral position of the philosopher, they would seem to represent a set of counterexamples that argue for revisiting one’s theory and asking whether there is a good reason for the deviation – not far from Rawls’ reflective equilibrium now axiomatic in much political philosophy (as one of us has written here).

On Lefkowitz’ contribution in Philosophy and International Law

Lefkowitz holds that international political philosophy should include more conceptual and explicitly critical normative reflection about international legal norms, the international institutions they create, and the interplay between the norms and institutions. Furthermore, legal and political philosophers have important contributions to make to long-running debates in international legal theory, and much to learn from them. His book serves as a weighty argument in favour of these claims.

The first part of the book – what he identifies as question of legal philosophy — engages with international legal skepticism on a broad front: Lefkowitz explores and challenges the various reasons people may hold that international law is not really law, or at least not legitimate law. Does law require coercive enforcement? Or institutions such as courts and legislatures? Or fidelity to the political ideal of government in accordance with the rule of law? Or conformity to substantive moral standards? These are not merely academic questions; rather, specific answers to them are implicit in every case where an actor invokes or disregards (so-called) international law as a reason for action.

The second part of the book – which he associates more with questions of political philosophy — presents and engages with central contested issues in selected domains of international law, including international human rights law, the law of war and of secession, international criminal law, and international trade law. Lefkowitz does not claim to offer an exhaustive account of philosophy and international law – indeed, he underscores that many important topics and thinkers go unmentioned in his book. Yet the discussions the book does contain, including Lefkowitz’s own contributions to a number of debates, makes a persuasive case for far greater attention to the role international law should play in international political philosophy.

About the comments

Our four commentators are part of a community of scholars now working on this interdisciplinary agenda. Well-versed in both law and philosophy, they have an important perspective from which to evaluate Lefkowitz’s arguments. 

Adil Haque challenges Lefkowitz’ discussion of whether international law is a system of law. Lefkowitz defends Hart’s denial, based on the claim that international law lacks certain specialized institutions to recognize, change, and adjudicate primary rules for the community of states. Haque challenges Lefkowitz – and Hart — drawing on Kelsen, Grotius, and jus cogens norms to argue that the absence of centralized institutions is not decisive .

Carmen Pavel addresses Lefkowitz’ discussion of how international law fails the rule of law ideals familiar from domestic settings. She challenges Lefkowitz’ position on the centrality of states. On the one hand, Pavel extends the standard of equality before the law beyond Lefkowitz’ account. Some fundamental rules should apply to all, challenging the current significance of state refusal of consent to treaties. At the same time, she insists that states may legitimately enjoy some deference as subjects of international law, and should enjoy some benefits of the rule of law, even though their value is largely instrumental.

Nicole Roughan considers Lefkowitz’ account of the legitimacy of international law’s authority, which is contingent on whether its subjects are willing to recognise it and respond to it as a legitimate authority rather than some other kind of power. To emphasize the beliefs about legitimacy creates a risk that a reason-based account instead focusses on the rhetoric of legitimacy, and leaves more to be said about the subjects’ responses to international law’s claims to authority.

Alejandro Chehtman focuses on Lefkowitz’ discussion of the laws of armed conflict and international humanitarian law, which addresses whether the morally best laws of armed conflict should treat belligerents on the just and unjust sides symmetrically or asymmetrically. Chehtman urges Lefkowitz to attend to how international law currently grants different forms of immunity to combatants depending on whether they are part of state forces, non-state armed groups, UN peace keepers and mercenaries. Lefkowitz – and others – should develop a unified account that captures and can criticize these nuances.

The comments presented here exhibit the same approach to David Lefkowitz’ book that also makes the book itself both illuminating and constructive: they all interpret charitably before turning to criticisms and queries. They seek to improve the arguments and prompt further development, in ways both the authors and we will find illuminating.

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