Response to Ratner: “An international lawyer has got to dream…it comes with the territory”

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The premise of Steven Ratner’s book is that political philosophers have paid scant attention, in their reflections on justice, to international law. Ratner seeks to correct this, by offering an account of international law in terms of philosophical conceptions of justice. The premise would only be true if one understood political philosophy as beginning with John Rawls. In fact, as the great jurist Hersch Lauterpacht wrote in his seminal 1927 essay “Spinoza and International Law”, “the relation between political theory & international law is of a more pervading character than is commonly assumed.” From Thucydides (see his intricate account of claims of treaty violation in relation to the start of the Peloponnesian Wars), through de Vittoria, Gentili, Grotius, Pufendorf, Montesquieu, Rousseau (a great innovator in humanitarian law), Kant, through the 20th century debates about global order between Carl Schmitt, Leo Strauss and Alexandre Kojeve, political thinkers – sometimes also jurists –have engaged with conceptions of legal order beyond the state.

What Ratner understands as “political philosophy” is what is conventionally accepted as such by the mainstream in philosophy departments in American universities. While political philosophers in the past have questioned the “state”, its meaning, its place in human order, Ratner simply accepts the “state,” and that international law is and will remain the law of a state system. Even the contemporary philosophers of global justice to whom he refers have imagined federative or democratic conceptions of world order, or have attempted to theorise forms of transnational political organization, above all the European Union. Mainstream international legal professionals may well be comforted by Ratner’s book in being confirmed that the status quo that they represent and reproduced can be defended as “thin” justice, or perhaps more properly, rough justice. Others will question whether there is any real philosophical grounding to Ratner’s efforts to control or cabin their dreams of a better world or their critiques of the actual one.

The conception of Ratner’s book inevitably raises a number of fundamental questions:

1) The project seems more of an attempt to guide international legal actors, than a purely theoretical one of philosophical justification. Why, in general, should these actors be persuaded by an approach to justice largely derived from academic Anglo-American legal and moral philosophy? Why are alternative accounts of justice or basic critiques of mainstream liberal Anglo-American legal and moral philosophy not equally or more persuasive? Chapter 2 presents some basic elements of Rawls’ account of justice. Yet this account has been subject to important critiques, including recently by Amartya Sen in his magisterial The Idea of Justice.

2) Are peace and basic human rights really principles of justice as opposed to worthy goals that may be pursued through international law? Does their pursuit or the fact that legal norms claim to advance them really solve any real-world controversy about justice in the global order? A key aspect of justice is a fair allocation of burdens and advantages. Before we knew that a norm that is supposedly in the aid of peace, for example, is not just instrumentally desirable but just, wouldn’t we need to know that it doesn’t impose unfair or disproportionate burdens on some peoples or confer undeserved advantages on others?

3) The idea of basic human rights doesn’t seem to be either a foundational moral concept or a valid category of positive law. Human rights could have any number of moral foundations. Why, if we are to talk of justice, do we not need to go to those foundations, which could be non-oppression, human security (Shklar’s liberalism from fear), or intrinsic humanity (Grotius, Lauterpacht, Ruti Teitel)? Perhaps this is what Ratner intends as “thin” but I find the treatment of the basic human normativity at which he seems to be grasping rather arid and declaratory, lacking the richness and texture of moral argument one finds in a Michael Walzer, or the subtle, intricate interpretation of unifying or integrating norms and discourse that one sees in Ruti Teitel, Humanity’s Law.

4) Is peace a normative ground or the basis for a principle of justice other than to the extent it serves some more basic good, such as human life or human security? But how then is “peace” to be viewed as separate from “human rights” as a matter of justice? Of course there could be all kinds of instrumental reasons to favour peace, but we are talking here about peace as justice. Is there any reason not to add the reduction of the most extreme forms of poverty and deprivation to peace and basic human rights as foundational principles? Entire spheres of normativity are simply excluded ab initio by Ratner from the “thin” theory of justice. Calling a theory “thin” is fine, but “thin” is not persuasive when the slimming effect is achieved by arbitrarily ignoring areas of international law such as biodiversity, or the protection of non-human species. Ratner claims to operate reflexively, finding moral concerns within the law itself. This makes it seem even more puzzling what ground he would have for excluding those moral concerns with the environment or other species that are embedded in important fields of international legal order.

5) On “non-ideal” theory, what is the theoretical or practical value of simply assuming certain constraints on international legal normativity or ideal justice as immovable? Does one approach a just order more closely by not challenging the constraints? If so, why and how? How sure can we be that the constraints are immovable, for example, with regard to one of them, inequality of power between states, when we see very considerable changes in that regard in the international system today? Ratner attempts to explain and/or justify recourse to non-ideal theory by an analogy or metaphor that I simply fail to understand. He refers to a patient with a broken arm; should not the doctor put the arm in a cast rather than chopping it off? Ideal theory is associated with amputation, and non-ideal theory with the proper treatment. But there is nothing non-ideal about the cast; once healing has occurred the cast is removed and the arm would normally be restored to full functionality. On the other hand, amputation has nothing to do with any cure at all, on the contrary it renders a temporary dysfunctionality permanent. I don’t see how orienting theory toward an ideal vision of international legal order is the equivalent of endorsing “amputation” for a broken arm. Ratner somehow seems to think that the existing order is so far from an ideal vision that pursuing that vision would be tantamount to destroying all order. This is an almost pathological fear of destabilizing the status quo.

6) Is there a single example where cabining off rich, full, thick debate about justice of international norms through the device of “thin” justice actually works in practice to limit moral disagreement in a principled way? Is “thin” justice not precisely too vague to settle important debates about the normativity of international law in a useful way, for example, humanitarian intervention (where the result of applying “thin justice” is in Ratner’s book, just to re-iterate the controversies and complexities all-too-familiar from the Kosovo episode, without any new purchase on them). One may like his solution or not, but one is hardly compelled to it by “thin justice”. In the area in which I write most extensively, international economic law, Ratner scratches the surface of a wide variety of norms and normative controversies, and has the honesty to admit that the result of applying his “thin theory” is uncertainty. In other words, the contribution of the thin theory to resolving any significant real world moral disagreement concerning international economic order is, essentially, zero.

To conclude, it is possible to have a truly conservative or pessimistic view of international law as limited in its moral function to creating a line in the sand with respect to the greatest forms of brutality or barbarism, as stabilizing interstate relations through treaties between periods of war, etc. but capable of little more, and certainly not of sustaining global political community. This conservative view of international law, premised upon historical pessimism, comes through in the writing of Leo Strauss for example, as I elaborate in my recent book Leo Strauss Man of Peace. Strauss, however, is open about the premises concerning human history and human nature that underpin the conservative or minimalist view, and knows that they need to be defended philosophically rather than merely asserted. The problem with Ratner’s account is that so much of the international law that he seeks to defend is in fact only comprehensible in terms of progressive ideals that the reality of international law, or of the historical actuality that it confronts, seems to sell short. The tension between historical actuality and the ideals in question could be understood philosophically and addressed in various ways. Ratner’s “thin theory” is a technique of making the tension go away, rather than facing it squarely. International legal professionals make brilliant careers trading on or in norms premised upon the hope for an ideal world in which they can’t really believe. Ratner tries to help them relax about it – of course, a reform here and there, but nothing that would rock the boat of the profession’s status quo. But, instead, the tension could be a source of intellectual and indeed transformative energy. I would say contra Ratner, and paraphrasing Willy Loman in Death of a Salesman, “An international lawyer has got to dream…it comes with the territory.”

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Jordan says

June 4, 2015

The pretense that international law is merely state-to-state has never mirrored reality. There have always been actors other than the state that have had formal participatory roles. e.g.,
Too bad the book rests upon a false assumption.