We Can ‘Recover Better’ Through The Art of Law in the International Community

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Editor’s Note:  This week, EJIL:Talk! runs its first Book Discussion for the year 2020.  As a timely thematic reflection for all international lawyers and international law academics contemplating the role, function, and purposes of the international legal system at this time of a shared global emergency, we are featuring Professor Mary Ellen O’Connell‘s Hersch Lauterpacht Memoral Lectures published in book form, The Art of Law in the International Community (Cambridge University Press, 2019). Reviewers include Professors Neha Jain, Karel Wellens, Enzo Cannizzaro, and EJIL:Talk! Editor Professor Diane Desierto.  We begin today with Professor O’Connell’s introduction.

‘This is a chance for nations to recover better, to include the most vulnerable in those plans, and a chance to shape the 21st century economy in ways that are clean, green, healthy, just, safe and more resilient.’ These are the words of United Nations Climate Change Executive Secretary Patricia Espinosa on responding to the COVID-19 pandemic, found here.

Using the art of law, we can all be part of realizing her vision. It will not be easy. For every Secretary Espinosa, there are other world leaders using the crisis to grip tighter to power and to seek advantage over perceived enemies. The pandemic has exposed the dominant intellectual paradigm as one mired in competition, materialism, and militarism. Little wonder that so many current metaphors invoke war, despite the warnings of how such terms dangerously ‘narrow our vision of the illness’ and the concepts we need for healing and recovery. 

The crisis has truly laid bare a choice for us in international law. We can retain the law we have, together with the way we think about it. This may be the prudent course in a time of emergency. Yet, the pandemic has also revealed the high cost of the status quo as no endless armed conflict, human rights atrocity, or natural disaster has managed to do to date. The Art of Law in the International Community, the subject of this discussion, offers an alternative. 

The book lays out a way to transcend the current limits in international legal theory, practice, and terminology. The book’s central themes draw inspiration from the work of Hersch Lauterpacht and Philip Allott. Both explain in their work the need for a generous, humane theory of law for the international community. They also emphasize that peace is the purpose of law. The Art of Law looks to the arts and aesthetic philosophy to support both themes. It incorporates the literary and performance arts to renew the substantive and procedural law prohibiting force and create new interest in the means of peaceful dispute resolution.

Law is truly more art than science and viewed from this perspective can provide the support the healing arts require in creating a better recovery.  

The Inspiration for the Art of Law

The Art of Law began as the 2014 Hersch Lauterpacht Memorial Lectures. The lectures took as their starting point Lauterpacht’s 1946 article, The Grotian Tradition. (see p. 2) Lauterpacht wrote to counter the growing influence of Realism, which emphasizes that it is the moral duty of national leaders to amass military assets, project power, and suppress opponents. Realism teaches disregard for law that constrains resort to force. The seven decades between the publication of The Grotian Tradition and The Art of Law is a catalogue of legal argument reflecting Realist influence. The book underscores Allott’s observation that ‘the sordid justifications of war persist and, in the 21st century, are being strengthened by the emerging of new forms of old atavisms.’ (see p. 16)

The belief in military force helps account for the violence, privation, and environmental decline of this century, the precursors of pandemic. Extraordinary investment of capital and human ingenuity has poured into the invention and stockpiling of weapons.  Nations had trillions for their militaries, but only a trickle for solving climate change. NATO’s annual budget is bigger than the WHO’s. Lauterpacht saw this coming and reminded his readers of the natural law principles available to preserve the law in the face of Realist ideology, principles envisioning peace as law’s purpose and the preference for legal dispute resolution. The Art of Law returns to all three in support of what Allott refers to as the ‘ancient idea of the essential unity of humanity.’ (see p. 5)

Revitalizing Theory and Practice

In 2014, it was not possible to simply re-visit the arguments underlying Lauterpacht’s three points. In 1946, people still had lingering knowledge of natural law; Realism was a little-known theory, and the international peace movement favoring a world court had only recently receded. Since then, natural law has continued to decline in the face of realist and materialist theories. Virtually no one speaks of expanding ICJ compulsory jurisdiction. 

Reviving natural law and preferences for peaceful dispute resolution had to start with a mostly blank canvas. Chapter 1 of The Art of Law provides an assessment of international law in the absence of natural law. It is left with positive law alone, which is made through positive action expressing consent. Yet, why consent has this legal effect requires an explanation beyond consent. Even then, consent can be withdrawn and is not a sufficient basis for the most important legal principles. Colleagues arguing for greater rights to resort to military force advance the position that state practice and opinio juris, the building blocks of customary international law, are dissolving the rules restricting resort to force. This positivist perspectives turns out to be consistent with realist political theory holding that the only actual fetter on state action is not law, but coercive power, especially in the form of an opponent’s superior military strength.

Natural law does not rely on consent. Consent and norms of jus cogens that permit of no derogation– such as the prohibition on force—need to be explained through extra-positive theory. Law used to rely on theology for a method of discerning extra-positive norms Yet, ours is a fabulously plural, multicultural world. We have international law in common today, not theology. We also have our humanity in common and our capacity for transcendent experience in the contemplation of beauty. Nature, art, and music all take us out of ourselves and prove our capacity to discern the moral and the good, which is selflessness. Aesthetic philosophy, like theology, leads us to understand that law is possible wholly in the interest of others even when there is nothing to be gained personally. Law for the environment, health, prosperity, and peace are all possible.

In Chapters 2-5, The Art of Law re-considers law on the use of force when the starting place is the jus cogens prohibition to uses of force. Each chapter begins with a case study involving the five Permanent Members of the Security Council, given their privileged position to ‘enforce the peace.’  The chapters reveal both extensive law violations by the P5 and so many others and their extraordinary cost. The Realist belief in military force has failed to create the national security it promised. That security can only be found through law, law prohibiting force and providing alternatives for resolving disputes. Chapter 6 turns to the performance arts to re-generate passion and commitment for peaceful settlement. Courts are a dramatic alternative to violence. Their role can be enhanced through insights from theater and empirical studies. Teaching and scholarship can move preferences from war stories to legal drama.  

The Art of Law for the Future

I wrote The Art of Law in the awareness of where militarism and materialism were leading. They have led to pandemic and impacts ‘beyond World War II,’ according to anthropologist Carolyn Nordstrom

It is the right moment for this book discussion on how and why to renew international law theory, practice, and language. Let’s begin. I am confident that together, we, the community of international law, will help recover better.

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