Normative Judgment, Realism, and International Law

A strand of thought within international relations realism claims that international law, understood as the dense network of multilateral and bilateral treaties, customary law, and institutions tasked with interpreting and applying them, cannot have meaningfully legal authority. This chapter traces the genealogy of the realist take on international law to a problematic use of the rational choice model for state behavior. Namely, realists derive skeptical positions about the authority and value of international law by using the rational choice model applied to states prescriptively rather than merely descriptively. With parsimonious assumptions about instrumental rationality, preferences, and choice situations, realists have put the model to good use to explain state action in the context of international politics. But they go much further, by taking the rational actor model to articulate an implicit moral ideal for states.

Constitutionalism and Pluralism

The final chapter defends the idea of constitutionalizing international law against views that require the preservation or scaling back of the current institutionalization of international law, most notably legal pluralism. Legal pluralists argue that conflict among the claims of various overlapping legal orders is unavoidable, but it is also desirable insofar as it preserves the values inherent in various legal systems and refrains from stifling moral, social, and legal diversity through the imposition of narrow hierarchies. The chapter shows why pluralism fails as a normative ideal of international law, due to its facilitation of legal uncertainty and indeterminacy, the lack of commitment from states to a rule-based order at the international level, and the proliferation of deeply oppressive and unjust state legal orders. Finally, the chapter explains why, contra existing claims to the contrary, the UN Charter does not meet the standards of an adequate constitutional treaty for international law.

The International Rule of Law

This chapter argues that one of the main goals of an international rule of law is the protection of state autonomy from arbitrary interference by international institutions and that the best way to codify this protection is through constitutional rules restraining the reach of international law into the internal affairs of a state. State autonomy does not have any intrinsic value or moral status of its own. Its value is derivative, resulting from the role it plays as the most efficient means of protecting autonomy for individuals and groups. Therefore, the goal of protecting state autonomy from the encroachment of international law will have to be constrained by, and balanced against, the more fundamental goal of an international rule of law: the protection of the autonomy of individual persons, best realized through the entrenchment of basic human rights.

Conclusion

The conclusion shows that while the book draws on international legal scholarship, legal philosophy, and empirical and qualitative political science, its mode of analysis distinguishes it as a work of political philosophy. It identifies some of the central moral ideals of the rule of law and places them at the core of a revised international legal system. The ultimate beneficiaries of a revised international law are the individuals living in various states. Their interests are better protected when states respect human rights, cooperate peacefully, refrain from producing negative externalities, and protect natural resources. The political philosophy this project draws on is one which takes individuals as the ultimate units of moral concern. This book demonstrates that normative analyses of international law can be substantially enriched by taking this perspective.

The Compatibility of Constitutional Democracy and International Law

The principle of national constitutional supremacy sits uneasily with the authority claimed by international law to constrain state action, even action arising in conformity with constitutional rules. The authority of various institutions in a constitutional democracy is democratically sanctioned, which comes with a special moral force and normative legitimacy. Therefore, one of the unappreciated features of constitutional supremacy is its democratically sanctioned potential to undermine international law and ultimately undermine the protection it affords to states and to the rights and interests of their citizens. This chapter argues that this incompatibility can be reduced or resolved by changes in rules at both the domestic and the international levels and suggests a certain way of resolving it that does the least possible damage to domestic constitutional supremacy while reconciling it with central demands of international law.

Hume’s Dynamic Coordination and International Law

At the heart of the tension between state autonomy and international law is the question of whether states should willingly restrict their freedom of action for the sake of international security, human rights, trade, communication, and the environment. David Hume offers surprising insights to answer this question. He argued that the same interests in cooperation arise among individuals and states, and that their interactions should be regulated by the same principles. Drawing on his model of dynamic coordination, the chapter reconstructs the Humean case for developing international law into a more robust legal system, and also highlights the limitation of Hume’s account of justice for such a reconstructive project. Hume’s lessons are enduring: the community of states must strengthen the essential features of international law, such as nonoptional rules that articulate a moral minimum, courts with compulsory jurisdiction, and stronger mechanisms of enforcement.

Introduction

The paradox of commitment obtains both among individuals and states. Individuals are reluctant to reduce their freedom in order to submit themselves to rules that augment the freedom of all. Similarly, states have difficulty relinquishing their autonomy for the sake of their protection and the protection of other states. However, the fundamental rules of mutual tolerance among states are not self-enforcing. States require institutionalized, impartial mechanisms for interpreting, applying, and enforcing those rules and for solving the inevitable conflicts and disagreements that arise in the process of deciphering and complying with them. The introduction sets out the theoretical and practical context for the argument presented in this book and provides a chapter summary.