On Judging v. Legislating in the International Legal System

Gleider Hernández’s impressive book updates Hersch Lauterpacht’s 1933 classic, The Function of Law in the International Community.  Despite Lauterpacht’s more general title, his focus, like Gleider’s, was on adjudication of international law in the international community.  Lauterpacht makes a case for courts as critical institutions of international law.  He responds to concerns of his day challenging the very possibility of courts of law delivering judgments binding on sovereign states.

The International Court of Justice (ICJ) and its predecessor, the Permanent Court of International Justice (PCIJ), have now been in existence for over 90 years.  This long history might suggest that the importance of a world court is now accepted. To a certain extent this is true.  Comparing the topics Lauterpacht dealt with and those chosen by Hernández indicates real progress.  Yet, major issues relative to the ICJ’s existence and its claim to be a true court of law remain. General and compulsory jurisdiction were goals of the world’s mass peace movements in the late 19^th and early 20^th centuries.  Today, the interest in expanding the ICJ’s compulsory jurisdiction has nearly vanished. (See Mary Ellen O’Connell and Lenore VanderZee, “The History of International Adjudication,” The Oxford Handbook of International Adjudication (C.P.R. Romano, K.J. Alter, and Y. Shany, eds. 2013).)

Moreover, the feature that separates the ICJ from the formal ideal of a court more than any other may well be the requirements respecting judges and nationality.  Guaranteeing five states judges of their nationality and allowing for a judge ad hoc when no judge of a party’s nationality is already on the court is a vestige of the party arbitrator.

Gleider does not discuss compulsory jurisdiction or the P-5 judges.  He accepts almost without critique the judge ad hoc. (pp. 136, 145-46) Instead, his book seems aimed not at the international community and its attitude toward the ICJ, but at the ICJ itself, which he conceives of in corporate form, rather than as a collectivity of judges.  He is interested in the “ICJ’s” view of judicial function.  He wants the ICJ to adopt an activist stance, arguing throughout the book for “progressive development of the law.”  (See, e.g, pp. 280-293.) Judge Tomka in a foreword comments on the “significant risks in demanding too much of [the court] in terms of progressive development.” (p. viii)

Tempting as it is to consider the risks of progressive development, in these brief comments, I will instead look at an assumption underlying Gleider’s call to activism.  He holds strongly to the view that the ICJ “makes” customary international law; it does not “merely” (p. 260) find it based on assessing general state practice followed out of a sense of legal obligation. (pp. 85-93)  If courts are making law, then asking them to be more active and progressive in doing so is not as radical a thesis as it would be from the perspective that courts find the law.

So do courts make law? Gleider’s view that they do is based on several factors, principally that this is the position Lauterpacht took; that judges make the common law; and that other activities judges undoubtedly do—interpreting, applying and even developing the law—are forms of law-making, so law-making straight up must be included, too.

Lauterpacht does use the term “judicial legislation” approvingly. Yet, looking closely, his concept seems far more modest than what Gleider is proposing.  (E.g., Lauterpacht, pp. 23-24.) Recall, too, that Lauterpacht wrote The Function of Law in 1933, when legal realism was the dominant school of Anglo-American jurisprudential thought. Oliver Wendell Holmes famously said in 1897 that law is what the courts say it is.  Formalism, which prevailed prior to the advent of realism, was derided.  By the time Holmes was on the U.S. Supreme Court, however, more thoughtful legal minds were searching for ways to modify the extreme subjectivity of realist judging.  Harvard’s Roscoe Pound looked to sociology and inspired Julius Stone to do the same for international law.  They argued that a science-based assessment of what society needs should replace the judge’s personal views.  Their critique of realism was likely more helpful than their remedy.  The work of Julius Stone, for example, is replete with what are plainly his personal views respecting what society needs, rather than the results of any science.  Stone thought international society needed, among other things, more flexible rules on the use of force than those found in the United Nations Charter.  (Gleider cites Stone several times for support, see, e.g., p. 280.)

By the 1950s, Harvard’s Hart and Sacks joined the effort to restrain realism. They urged that a judge seeking to fill gaps or change the law should do so by looking to indications provided by legislation.  Hart and Sacks’ “legal process” method requires fidelity to formal law.  One of its principal methods of restricting judicial subjectivity is the reasoned opinion, which should reveal the evidence—generally, the basis in statutory law—and reasoning from that evidence for the judge’s decision.  The legal process school remains the dominant approach to judging in the United States. In the 1990s, in a symposium on international legal method I advocated its use by the new international criminal courts.  (New International Legal Process, 93 AJIL 334 (1999).)

Fifteen years later, I see the need to go further, in part persuaded by the deep look at the ICJ provided by Gleider Hernández.  As an American scholar, the example of the United States Supreme Court is very much on my mind, and as a use of force scholar, so are the ICJ’s curious decisions in Nuclear Weapons, the Use of Force, and Kosovo.  The moment seems ripe for another step away from subjectivity and political calculus in judging.  That step could well incorporate greater formalism and more rigorous adherence to process theory.  (On formalism, see, Jean d’Aspremont Formalism and the Sources of International Law (2011).)  The formal explanation of the common law is that its rules  are found by courts looking to relevant practice. This is how I explain the common law to my contracts law students.

My explanation is similar respecting customary international law, and, beyond customary law, we also task judges with applying peremptory norms—rules of jus cogens and general principles that are inherent in the law, such as good faith.  Do any of us teach that judges “make” peremptory norms or general principles? The consistent view of ICJ judges, as Gleider concedes, is that they do not make law. They need to find evidence of the law according to the doctrine of sources and discuss that evidence in reasoned opinions.

Of course, Gleider is right that there is some commonality between lawmaking and the judicial tasks that all accept are central to the judicial function: interpreting the law, applying it, and even developing it.  Nevertheless, there is a solid core to lawmaking and to adjudication, which is separable.  Indeed, governance systems with separation of powers are based on this very fact.  When judges provide reasons for a decision, they can strive to explain why the decision is based on found law, not law created for the case.

In the 1960s, activist U.S. judges delivered progressive rulings loved by the left.  Today, an activist conservative judiciary makes new law loved by the right. As Judge Tomka points out, there is an evident risk to the integrity of the legal system in this.  At the international level, the ICJ undermines its effectiveness when decisions are perceived as political.  Scholars who see the value of a new rule for the international community can advocate for its creation in the many forums available in this era of communication.   Fidelity to the rule of law by courts requires founding a decision on the most objective reading of legal authority, not a wished-for outcome based on a political agenda, let alone on judicial concerns about whether the court will lose the support of friendly states.

Law in domestic and international society is ideational: it is what human beings construct.  In that construction, the international community can determine whether judges will look to certain evidence to find the law or have the discretion to make it. Neither position is more “realistic” than the other.  In expecting the ICJ to judge the law and refrain from making it, international law has the better chance, in my view, to fulfill Lauterpacht’s concluding comment on the essential function of law in the international community: “The reign of law … is not the only means for securing and preserving peace among nations.  Nevertheless it is an essential condition of peace.” (Lauterpacht, p. 437)