Pigs, Positivism, and the Jus ad Bellum

Now that the dust from the U.S.–U.K.–French operation against Syria has settled, I want to follow up on something I said when news of it first broke. Like most commentators, I argued that the operation did not satisfy the formal legal doctrine on the use of force. By this I meant that it was inconsistent with the longstanding interpretation of Article 2(4) of the UN Charter and not justifiable under any of the recognized exceptions. Yet I also contended that the doctrine was not the end of the legal inquiry. Given how the jus ad bellum actually operates, I argued, “the best answer to the question of whether the Syria strikes were lawful is not a simple ‘yes’ or ‘no.’”

Many international lawyers took issue with that claim, so I want to defend it—and use it to expose what I consider to be a fairly fundamental flaw in how the jus ad bellum is usually analyzed. To do this, I’ll take a detour through one of my all-time favorite law review articles: Hendrik Hartog’s Pigs and Positivism.

Pigs and Positivism

Hartog’s article is not about international law. It uses the 19th century practice of keeping pigs in New York City as a case study for thinking about law and legal analysis. Here is the background: pigs were once an ordinary and integral part of life in New York City. People ate the pigs, and the pigs ate the waste that lined city streets. But pigs were “mean, dangerous, and uncontrollable beasts” (p. 902). In 1819, after various efforts to legislate against them had failed, a court determined, in a case called People v. Harriett, that loose pigs in public streets were a public nuisance and, for that reason, prohibited. The decision established that “[t]o keep pigs on municipal streets was to commit a crime” (p. 920).

Yet for decades afterwards, keeping pigs in the streets of New York City was routine and, in important ways, tolerated. Consider three data points:

1. Shortly after Harriett was decided, a city council tried to pass an ordinance to regulate pig keeping. The effort failed.
2. In the only published prosecution for pig keeping, the defendant was fined just one dollar and costs. In today’s terms, that’s about US$20.
3. Beginning in 1831, a city ordinance authorized certain officials to snatch pigs off the street. But on several occasions, the city’s common council reimbursed pig keepers who lost property under the ordinance.

Hartog characterizes the situation like this: the Harriett rule on pig keeping was still good law and supported by some New Yorkers, including the mayor himself. City officials could rightfully enforce that rule. But keeping pigs in the streets was “close to an inevitable fact of municipal life,” and done “openly and unashamedly in many parts of New York City” (p. 922). “[F]or many, and perhaps even the majority, of the active citizens of the city, Harriett meant little, if anything” (p. 924).

Hartog runs this narrative through two analytic frameworks. One, a positivist framework, asks, “what is the single best articulation of the law, as derived from official texts and doctrines?” The Harriett rule is the obvious answer; pig keeping was illegal. For a positivist, the social practice on pig keeping shows that the law was often ignored and unenforced, but it does not change what the law was.

The second framework is more sociological. The question here is not “what is the law?” but “how do various people engage with the law?” Part of the answer can still be found in official texts and doctrines. That is how some New Yorkers engaged with the law. But the full answer requires digging deeper — assessing the political economy in which the law played out. As a matter of fact, the Harriett rule did not capture all of the law on pig keeping in 19th century New York City. The law was actually more pluralistic and varied. It depended on who was using it, in what setting, and for what purpose. For example, in the daily life of most pig keepers, the law was decidedly not the Harriett rule.

Hartog’s core insight is that, although both of those frameworks are defensible in theory, the second is much better suited to describing and analyzing how law operates. When lawyers tell their clients what the law is, they usually do more than simply state the formal legal rule. They consider the arguments for and against the rule’s application in discrete settings. They assess how different actors within the system might approach the case. They anticipate the risks of losing and the material benefits of prevailing. And so forth. The point is that, to the people who actually practice and engage with the law, it consists of more than just texts and doctrines. This is especially so where, as with pig keeping, key participants in the system do not consistently advance a single coherent policy on the law — where they instead advance multiple, conflicting policies over time. A formal legal rule is unlikely to capture that variance.

The Political Economy of the Jus ad Bellum

You see where I’m going with this. When academic international lawyers assess the jus ad bellum, they almost always use a positivist framework. They typically ask what the single best understanding of the law is, either generally or as applied to a specific operation, and they end the inquiry there. That approach is not wrong, but because it’s disconnected from the social practice of law, it’s deeply incomplete. It is insufficient to describe, explain, or anticipate how the law plays out in the “real” world.

A few years ago, Jacob Katz Cogan and I wrote an article that described the political economy of the jus ad bellum—the dynamics that give this body of law the shape that it has. Whatever readers think of our particular account of the jus ad bellum, one point that we highlighted seems unassailable: different norms on the use of force display varying characteristics. For example, the norm that prohibits the forcible annexation of foreign territory is fairly settled and robust. Although states occasionally deviate from this norm, their deviations are widely understood to be and are treated as violations. No state openly claims the right to engage in such conduct. By contrast, the norm on anticipatory self-defense is highly contentious. States and other actors openly and heatedly disagree about whether this norm is or should be law, and if so, what it might entail. As Cogan and I explained, different use of force norms display the distinct attributes that they do because of how actors within the system engage with them. The variation is legally significant because it tells us whether, where, by whom, and in what ways particular positions on the law are salient. Whether we like it or not, certain use of force norms are, like the Harriett rule, treated as law in some ways but not in others.

Syria Strikes

This brings us to the Syria strikes. Let me describe, in broad strokes, what happened: the Assad regime has repeatedly used chemical weapons against its people, in violation of the absolute prohibition of them. When the Security Council met on April 9 to discuss the regime’s chemical attack in Douma, most states vociferously condemned it, but the Council did not take meaningful action. The United States, the United Kingdom, and France then used force unilaterally for the stated purpose of stopping the chemical attacks. After they did, the Council met again in an emergency session. There, a draft resolution that would have condemned the operation failed. Only three states — Russia, China, and Bolivia — supported the resolution. Eight voted against it, and four abstained.

Many states have commented on the operation, but very few have expressly placed it within the four corners of the formal doctrine. For an excellent record of these comments, see the post by Alonso Gurmendi Dunkelberg, Rebecca Ingber, Priya Pillai, and Elvina Pothelet at Just Security. We can disagree about how to characterize particular statements, but the vast majority of states that spoke about the operation either openly supported or expressed some ambivalence about it. To be clear, many states made noises about the jus ad bellum and the importance of complying with it. But this is not the same as trying to make the Article 2(4) prohibition materially or normatively relevant in this case. Indeed, a few states that referenced the jus ad bellum chose not to put their money where their mouth was. They voted against or abstained from the draft Council resolution.

Most commentators interpret all of this to mean: (1) that the law is as the doctrine says, and (2) that the operation was, for that reason, unlawful — end of story. Their analysis is not necessarily wrong. But it is incomplete and even corrosive. A lay observer would be reasonable in saying that, if that’s all the law is, it’s plainly irrelevant.

A fuller description of the law would account for how states engaged with it in this case. And it would reveal that, although most of them declined to apply or reference the formal legal doctrine, most still participated in a legal practice. After all, many of them expressly invoked the legal ban on the use of chemical weapons and claimed that it was uniquely important. They, as a group, repeatedly took the case to the Security Council, which has a legal mandate to regulate situations like this one. Most also chose not to invoke the law to condemn the operation. And, with the important exception of the U.K., they declined to articulate a generalizable legal standard that would extend to future, analogous cases. All of this practice is legally relevant because it informs what the law means — if not as a theoretical matter, in actual fact. The practice also reveals why it’s too simplistic to assert that the operation was plainly unlawful and to end the analysis there. The law is actually more complicated and contingent than that assertion admits.

Concluding Notes

Let me conclude with two brief notes. The first is a point of clarification: I am not claiming that, in this case, the states that conducted or condoned the use of force understood themselves to be acting legally. I am claiming that it does not matter whether they did or they did not. Hartog is again instructive:

“even if one assumes that they knew that what they were doing was in some way illegal, what difference does that assumption necessarily make? We have all engaged in practices — say walking a dog without a leash—which we know to violate some law yet which are also legal within our own better understanding of the legal order. Knowing that what they did subjected them theoretically to prosecution did not transform pig keepers into a criminal subculture (whatever that is), skulking in alleyways” (pp. 933–34).

The logic extends to the Syria strikes. The United States, the United Kingdom, and France almost certainly knew that their operation was inconsistent with how many people define the law. Even so, they acted “within [their] own better understanding of the legal order.” They did not try to hide their conduct. They publicly justified it. They did so before the institution that is legally charged with governing this conduct. They invoked the law in various ways. And the response was as if, or almost as if, they acted lawfully.

Finally, I want to anticipate a likely objection to my analysis. Skeptics might claim that I am improperly collapsing law into politics. This objection misses the point. The questions that I am asking are quintessentially legal questions — or at least, they are the kinds of questions that practicing lawyers, including in national legal systems, ask and answer all the time. I recognize that some people define the law and the role of lawyers (or of academic lawyers) more narrowly. One has to wonder why. The usual answer — that law must be separate from and not infected by politics — does not work for the jus ad bellum. In this area, law and politics have always been, are now, and will for the foreseeable future be interconnected. Pretending that they are separate, even when they are not, and ignoring so many of the ways in which law manifests does not, in my view, help preserve the law or shield it from politics. It helps relegate the law to oblivion.