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Pigs, Positivism, and the Jus ad Bellum

Published on April 27, 2018        Author: 
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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.

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9 Responses

  1. Dear Monica,

    This is a compelling account of how the law works in practice, that is how it fares when making the transition from the normative to the physical world. I would be surprised if it did not accurately portray the thought- and decision-making process on the Syria strikes in France, the UK and the US (even if the UK Government decided that arguing humanitarian intervention was the better option).

    I agree with you that the legal analysis is incomplete if it ignores how States engaged with the law in this instance. That engagement is legally relevant and a crucial aspect of the law. Or to be more precise, a crucial dimension of the law: its application in practice. But I wonder whether your thesis actually goes further than this. Is your argument that the doctrinal perspective fails to understand when and why the law matters in the real world? Or do you go further and suggest that the State engagement we see in the real world means that the doctrine is wrong. Put differently: does the absence of robust attempts to establish a violation of the jus ad bellum in the present case mean that the rules have or are changing?

    Aurel

  2. Martin Björklund

    If pigs could fly…

    An interesting dissection of this muddled concept – but I do wonder how far this very entertaining domestic analogy actually carries.

    First, while the careless pig-keepers of yore may not have felt criminal, would they even have known of the case that in this narrative created positive law? And more importantly if they had known, would they have been conscious of somehow altering the force of that law by their own actions? This is one place where the analogy to my mind fails with respect to current members of the P5. These states certainly are not skulking in alleways but rather demanding acceptance and adulation for their actions which could be translated into an active wish to alter the law – at least as it is applied to them.

    And secondly, had they been both knowledgeable of the law and conscious of the import of their pig-flaunting actions should they have cared? A great hog loose in New York is surely an intimidating and perhaps even dangerous creature, but its foremost purpose and the intent of the keeper is another alltogether – more plow than sword – to twist the analogy further. A missile may be a double-edged sword, but certainly never a plow for innocent domestic purposes inadvertedly turned sword. Comparing breaking a law by inadvertedly letting loose a pig to firing missiles in (feigned) anger, thereby consciously eroding an already fragile rule apparently for very little other purpose than showing that you can -well, it just doesn’t quite fly.

  3. Elizabeth Chadwick

    Re. Martin’s’ comment: “And secondly, had they been both knowledgeable of the law and conscious of the import of their pig-flaunting actions should they have cared?”, what most concerns me is that lazy response: “but, everyone else is doing it!”.

  4. This analysis is extremely useful and well articulated. At the same time, however, it is important to recall that this is not a new genre of writing. This type of contextual review which takes into account not just the law-in-the-books but also the law-in-action is part and parcel of the New Haven School of International Law and has been with us for centuries now. It is rooted in an understanding of the various layers of lex simulata and lex imperfecta that are common to all fields of law from the law of nations to the law of pigs.

    Your post echoes what Professor Michael Reisman has written extensively about – that there exists a tension between the myth system (what you call the positivist framework, or in our case Article 2(4)) and the operational code (what you call the sociological framework, or in this case the strikes in Syria). The “law”, Reisman argues, does not exist at either of those two ends but rather at the tension between them. Reisman has also applied this specifically to the Jus Ad Bellum multiple times in the past Including in his 2012 Hague Academy General Lectures which have been summarized into his book “The Quest for World Order and Human Dignity in the Twenty-First Century: Constitutive Process and Individual Commitment”. Those who find this blog post persuasive will probably find interest in the broader claims Reisman makes about the world’s constitutive process throughout that book and in particular in the chapter that deals directly with the law on the use of force.

    When I was an LLM student I attended an International law event where I presented a paper that made an argument through the lenses of the New Haven School. At the end of my presentation one of the faculty commentators, who shall remain nameless, began their comments to me by informing me that the “New Haven School is dead” and that for my own professional sake, certainly if I wanted to reach a broader audience, I should avoid such references in the future. I declined that invitation then, and I continue to decline it today because of my strong conviction that in examining the scriptures of this important body of thought one can still derive quite powerful and meaningful insights today.

  5. Bill Boothby

    Monica,
    Many thanks for your highly thought-provoking observations. I also ask myself how far a positivist analysis might lead one. Approaching the analysis of article 2(4) in accordance with article 31 of VCLT, our focus should clearly be on ordinary meaning, context, object and purpose. So the second objective of the first section of the Charter’s preamble, when referring to “reaffirm faith in fundamental human rights, in the dignity and worth of the human person” and the third objective “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained” are both highly relevant to the circumstances of the chemical attacks and must clearly be taken into account when working out how to view the article 2(4) prohibition and, arguably, in how to interpret the purposes listed in article 1. The idea of “effective collective measures for the prevention and removal of threats to the peace” (article 1(1)) might be among the provisions relevant here.
    Clearly positivism doesn’t take you all the way. Is it possible that a notion of ‘policy’, as opposed to the ‘politics’ that you refer to in your piece, might provide an alternative, otherwise missing link. If so, such policy would need to be collective if not necessarily universal. In seeking to apply such a notion of collective policy, might we take the view that the core purpose of the Charter regime is the maintenance of international peace and security? Would we then, perhaps, consider that the use of chemical weapons and, indeed, their stockpiling are seen as manifest threats to international security and, potentially, to international peace? If so, and when Security Council action is blocked in the political circumstances of which we are all aware, is action by three States that is reflective of such a collective policy, that is aimed at and that is limited to removing the threat that the targeted chemical weapons are believed to represent necessarily inconsistent with the Charter’s purposes? Perhaps it is. Maybe the injection of the policy factor would help at this point. Though one would recognise that a concept of sub-universal collective policy might be too nebulous to be attractive, it would reflect the political reality that States impeding the adoption of Security Council authority to act will self-evidently not be in favour. And, of course, we must appreciate that any interpretation that the West espouses is liable to be used against us at a time of least convenience.
    So, thank you Monica, much to think about, and wouldn’t it be good if pigs could lead us to some kind of solution! I wonder what they think!

  6. Thank you, Professor Hakimi, for your persuasive and interesting post.

    However, I am worried about the double standard behind states’ reactions to the use of armed force that are, from a positivist view, illegal.

    Arguably, powerful States are more free to elaborate exceptions to Article 2(4) UN Charter because they know that they are safe from any SC reaction. Likewise, less powerful States may prefer not to meddle with powerful States’ conduct regarding the use of armed force. Indeed, States that advocate broader interpretations of the rules on the use of armed force are usually US, UK, Russia, France and some of their friends (e.g., Israel).

    Accordingly, I am worried that: 1. the assessment of opinio juris (yeah, I am a positivist) may be awkward since, obviously, there would be no condemnation of the SC and less powerful allies would be reluctant to express their criticisms (especially if powerful States’ diplomats openly threaten less powerful States as happened recently); 2. The scholarly need to contextualise law and politics, which I find important, would be advocated mainly with regard to most powerful States’ conduct.

    Can anyone seriously imagine such a debate and support if the attacks against Syria were launched by a less powerful State?

    Then, I think that there is the risk to encourage powerful States to behave like the pigs of Animal Farm.

    Noteworthy, Professor Paolo Picone, who had suggested for many years fascinating and solid solutions allowing powerful States to use armed force when the SC is blocked by vetoes and there is the need to enforce prominent international law values, openly acknowledges the hegemonic nature of international law, and considers that hegemonic States may act differently than other States (I know my account is reductive, I cannot elaborate here; see, e.g., his chapter in https://brill.com/view/title/11584 and, in Italian, his papers collected in http://www.editorialescientifica.com/materia/diritto/diritto-internazionale/obblighi-erga-omnes-e-uso-della-forza-detail.html).

    All in, I am quite afraid by the risk of double standards and I do not like the idea of hegemonic States.

  7. Alican Abut

    Hi Monica,
    I believe you are definitely right about the insufficiency of the positivist approach to jus ad bellum. Its formalism neglects both the social content of law and its relation to the legal form. Thus the question of ‘how law actually operates’ is usually omitted. Jus ad bellum is not just some rigid rules;it is also how subjects behave in the legal structure, and apply and interpret it. However I think your arguments regarding the nature of jus ad bellum and strikes against Syria also miss two points -a legal and a factual one-.

    1. Social context within which the legal subjects operate is not homogeneous. It is hierarchical, exploitative and inequal. Dynamics and inclinations of jus ad bellum or US led interpretation of it then is a struggle based process and ideological. For instance, the deterrence of the so called use of chemical weapons is a red line for our civilization yet death of thousands by conventional weapons is not.

    2. Factual point is that the use of chemical weapons is just an allegation. It is highly controversial and uncorroborated. We have seen this before in many times, e.g. 1998 bombing of Khartoum, occupation of Iraq in 2003, and lastly the collective intervention to Libya in 2011.

    In sum, yes, the law is a process and ever evolving, yet, it is a part of a wider social process which is based on struggles -surely including ideoogical ones-, and ignoring this feature is almost as corrosive as positivism itself.

  8. Artem Churliaev

    Dear Monica,
    In my opinion, your analogy between the Syrian strikes and Harriett, however interesting it may be, is, nevertheless, not completely correct, and here I’ll try to explain my point of view.
    In Harriett and in NYC of the early 19th century more or less all citizens seemed to be engaged in the same practices, and all of them had more or less the same type of “engagement” with the law on keeping pigs. So, anyone who would consult a lawyer on this issue would have an answer that, technically, keeping loose pigs is prohibited, but if you do decide to keep them, the odds are that you won’t get any sanctions.
    Now, let me give another analogy. In some countries whose legal order is not that perfect as in the US, if one is rich and/or powerful, he/she can easily get out of a speeding ticket (or even a prison sentence, depending on the level of “imperfection” of the national legal order). So, if one comes to consult a lawyer, the lawyer who shares the Hartog’s approach should say: if you’re rich and powerful (or belong to a certain group, or have good powerful friends – you get the point), you can speed (bribe/steal/kill), and the odds are that you won’t get any sanctions. And if you’re not rich and powerful, you’d rather not.
    So, I’d like to ask 2 questions.
    1. Which analogy better describes the situation with the Syrian strikes (and with the Ius ad bellum in general)?
    2. What can we say about the legal order of the country from the second analogy and about the state of conscience of the second lawyer (actually, the same as the first one) who doesn’t see problems with his/her approach?

  9. Monica Hakimi

    Thanks to all of you for your questions and comments. I’ll just make a few clarifying points in response:

    (1) The crux of my argument is that the positivist paradigm is insufficient to describe or analyze the jus ad bellum. For example, although that paradigm tells us that the Syria operation was illegal, it does not tell us what this means. To understand what it means, we have to examine how the doctrine actually plays out — how key participants use and engage with it. In the Syria case, the operation’s doctrinal illegality seemed to mean that states that wanted to conduct or support it had to try to legitimize it through the Security Council and by purporting to advance a norm that is uniquely important not just to themselves but to the entire international community.

    (2) I am not claiming that the formal legal doctrine is wrong. I am claiming that it is incomplete. It does not fully capture what the law is or means.

    (3) I am also not claiming that states are trying to change the doctrine. Most of them evidently are not. They condoned this particular operation while taking steps to keep the doctrine in place. The fact that they could have tried to change the doctrine if they wanted to — by using techniques that are available to them in customary international law — does not alter my assessment. They chose not to use those techniques but to engage with the law in other ways.

    (4) My argument here is mostly descriptive and analytic, not normative. In other words, I am not arguing that the jus ad bellum’s operation is equitable, just, or desirable. But I feel quite strongly that anyone who wants to fix or preserve this body of law must first understand how it operates and why it displays the characteristics that it does.

    (5) Like Asaf, I have learned a great deal from Michael Reisman and regularly draw on his work. I encourage more folks to read it.

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