Doubts on Doubts: Part One

31 August 2014, 1702 EDT


Dear Readers, apologies for the radio silence. The last few months have been eventful. But I am back in the saddle and getting ready for my graduate seminar on the politics of international law. Skepticism about international law is old but it seems to me Syria, Ukraine, Gaza, and other events deepened the cynicism. “International law isn’t even law in the proper sense. It doesn’t really matter.” I heard statements like this from my students already in our first class last week, at APSA, at the airport bar, and on the flight back home. It is encouraging to see people become more interested in international law regardless of where they stand. Let me contribute to the dialogue by trying to cast doubts on some of the recurring doubts.

‘International law isn’t law because it isn’t centrally enforced.’ This is the John Austin logic. Because international law lacks centralized enforcement, it isn’t law but “positive morality.” What is wrong with this view? A lot, actually. And here is the main problem potently explained by H.L.A. Hart and Michael Barkun. Equating law with sanctions reduces the law to a “gunman” (Hart) and relegates a legal order to system of punishing “social pathologies” (Barkun). Legal systems are not gunmen. International law is no exception.

‘But even H.L.A. Hart called international law as “immature”.’ True but perhaps it is time to revisit his conclusion. Hart defines law as the “union of primary and secondary rules.” Primary rules are those that impose duties either by prescribing or proscribing certain actions. Secondary rules are those that specify the rules and procedures through which primary rules can be created, changed, adjudicated, and enforced. The rule of recognition is the crucial one for Hart (see e.g. Scott Shapiro’s article)  It is the secondary rule that specifies the criteria for the legal validity of primary rules. It is similar to Hans Kelsen’s Grundnorm. Hart did not see international law as the proper union of primary and secondary rules. For him, international law is a system of primary rules but lacks the necessary secondary rules. He rejects pacta sunt servanda as a substitute rule of recognition because treaties are contractual. He is concerned that there is no supranational legislature and/or judiciary in the international system. International law is surely different from domestic law in many ways but a lot has changed since Hart’s Concept of Law. I agree with Mehrdad Payandeh that the contemporary international legal system includes “legislative, executive, and judicative structures which are able to perform the same functions as the legal order of a nation state.”

In my view, Hart’s commitment to a rigid form of positivism also contributes to his doubts about international law. Hart looks for a formal and self-referential “essence” that defines and delineates the concept of law. He neglects that law is not just institutional but also social. Adopting a socio-legal perspective helps us move away from reified accounts of law and see international law in a different light. Brian Tamanaha defines law as “whatever people in the social group conventionally recognize as legal norms through their social practices.” If so, the absence of conventional secondary rules and an orthodox rule of recognition such as a constitution in the international legal system does’t constitute a paradox of authority. International law is what states collectively identify and recognize as law in their practices.
‘If international law is “what states make of” then it is not distinct from non-legal rules.’ Both legal and non-legal rules are normative. Violations of both forms of rules could be subject to punishment. And non-legal ones can sometimes inspire in a stronger sense of obligation than legal ones. So, what is the value added of calling something law? A great group of IR and IL scholars wrestled with this question a couple of years ago at ISA, using Martha Finnemore’s Are Legal Norms Distinctive? as a backdrop. I am very happy I had the opportunity to participate and would be remiss if I didn’t thank Ian Hurd and Alex Wendt for facilitating my last-minute admission to the working group and the participants, especially Charli, for welcoming me.  I think we aren’t likely to find the magic bullet that differentiates legal rules from non-legal ones if we look at the form and behavioral functions of international law alone. The distinctiveness is in the effect of international law on state practice. When a norm is legalized, it is no longer a good idea but the law (see Kenneth Anderson‘s gravity joke on this point). States need to justify their behavior in terms of the law. State discourse need to be anchored in the law, and legal procedures need to be followed. Bargaining, arguing, excuse-making, finger-pointing, and sanctioning all operate differently in the shadow of law.
‘International law doesn’t really matter.’ International law does a lot of hard work. Stay tuned for part two on this point.
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