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Symposium on international law

Systematicity, normativity, and The Nature of International Law

David Lefkowitz

Abstracts

This essay offers some critical remarks on Miodrag Jovanović’s ambitious attempt to deploy arguments developed within analytic legal philosophy to make sense of core features of the international legal order. First, I argue that Jovanović endorses a common but mistaken reading of H.L.A. Hart’s analysis of international law. Properly understood, Hart’s take on international law is one Jovanović shares. Second, I raise several objections to Jovanović’s depiction of (international) law’s normativity, including both his account of what makes law legitimate and his description of the role legitimate law plays in its subjects’ practical reasoning.

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  • 1 Jovanović 2019: 1.
  • 2 Kelsen excepted, as Jovanović notes.
  • 3 Jovanović 2019: 1.

1The Nature of International Law is an ambitious attempt to deploy arguments developed within analytic legal philosophy to make sense of core features of the international legal order. Ostensibly, the intended audience consists of international legal practitioners, or at least international legal theorists.1 Miodrag Jovanović’s aims to rehabilitate legal philosophy in their eyes, since they find it all too easy to dismiss it, and its practitioners, due to our guild’s apparent ignorance and lack of interest in international law.2 While I would certainly welcome that outcome, I suspect it will be legal philosophers who most closely engage with the arguments presented in this book. They will certainly gain from Jovanović’s broad knowledge of recent work in both legal philosophy and international legal theory. And they will surely accept Jovanović’s admonition that the success or failure of his treatise “should be measured primarily by the yardsticks of legal philosophy.”3 The result may be a discussion that proceeds at some distance from the ins-and-outs of international law, as is true of the one that follows.

2 Though Jovanović makes dozens of arguments or claims that spur questions or warrant a response, considerations of space allow me to discuss only two. The first concerns Jovanović’s presentation and assessment of H.L.A. Hart’s analysis of international law. I argue in section I of this essay that Jovanović endorses a misreading of Hart, and that properly understood, Hart’s take on international law is one Jovanović shares. In section II, I offer some critical remarks on Jovanović’s discussion of law’s normativity; that is, how law, including international law, provides its subjects with reasons for action.

1 Is international law a legal system?

  • 4 Hart 2012: 214.
  • 5 Hart 2012: 236.
  • 6 Waldron 2013: 222.
  • 7 Jovanović 2019: 211.
  • 8 The argument presented in this section is a synopsis of the one I defend in Lefkowitz 2017.

3In the final chapter of The Concept of Law, H.L.A. Hart observes that international law “resemble[s] the simple form of social structure, consisting of primary rules of obligation, which, when we find it among societies of individuals, we are accustomed to contrast with a developed legal system.”4 International law, he maintains, has “no basic rule providing general criteria of validity,” and therefore “the rules which are in fact operative constitute not a system but a set of rules, among which are the rules providing for the binding force of treaties.”5 Recently, these claims have been subject to harsh criticism, with Jeremy Waldron going so far as to label them “simply preposterous.”6 He does so, Jovanović writes, “for a good reason,” namely the ease of identifying secondary rules of recognition, change, and adjudication within international law.7 This criticism rests on a misreading of Hart’s description of international law, however, albeit one for which he bears primary responsibility. Properly understood, Hart’s assertion that international law is not a legal system is actually one with which Jovanović concurs.8

  • 9 Hart 2012: 95, 101.

4To begin, we must be careful not to confuse the idea of a legal system with the idea of a system of laws (or rules) that Hart also invokes. A society possesses a system of rules, as opposed to a mere set, if it possesses a rule of recognition that addresses doubts over the scope of various rules by arranging them in an order of superiority; for example, on the basis of their source.9 Such a rule serves to systematize (some of) the other rules that regulate the affairs of the society in question. When we speak of a rule of recognition in this context, we are referring to a genuine rule, one that actors can use to guide their conduct. Most of the passages in which Hart invokes the concept of a legal system, however, are best read as claims regarding the absence or presence of a division of labor in the task of sustaining the law by adopting the internal point of view to the rules that constitute it. Hart employs the phrase “rule of recognition” in these passages as well, but the phrase is a misnomer. What Hart refers to is not a rule that officials use to identify what the law is, but the social fact constituted by legal officials’ practice of holding themselves and one another accountable for compliance with certain primary and secondary rules. Talk of a rule of recognition here is ontological, not practical, a description of what makes it the case that rules R1, R2… Rn are rules of the society in question.

  • 10 Hart 2012: 116.

5For Hart, general obedience to law on the part of subjects and officials “effective acceptance” of common rules for identifying, changing, and adjudicating the law are individually necessary and jointly sufficient for the existence of a legal system.10 Only when both conditions are satisfied (to some considerable degree) will a society have achieved a division of labor in sustaining the practice of holding accountable that constitutes law that marks the transition from a primitive to an advanced society. As Hart writes,

  • 11 Hart 2012: 117.

The assertion that a legal system exists is therefore a Janus-faced statement looking both towards obedience by ordinary citizens and to the acceptance by officials of secondary rules as critical common standards of official behaviour. [This]… is merely the reflection of the composite character of a legal system as compared with a simpler decentralized pre-legal form of social structure which consists only of primary rules. In the simpler structure, since there are no officials, the rules must be widely accepted as setting critical standards for the behaviour of the group. If, there, the internal point of view is not widely disseminated there could not logically be any rules. But where there is a union of primary and secondary rules, which is, as we have argued, the most fruitful way of regarding a legal system, the acceptance of the rules as common standards for the group may be split off from the relatively passive matter of the ordinary individual acquiescing in the rules by obeying them for his part alone. In an extreme case the internal point of view with its characteristic normative use of legal language (‘This is a valid rule’) might be confined to the official world. In this more complex system, only officials might accept and use the system’s criteria of legal validity.11

6To grasp the key point Hart makes in this passage, we must ignore certain infelicities in the language he uses to make it. By characterizing a “simpler decentralized” form of social structure as one consisting only of primary rules (of obligation), Hart conflates two distinct senses in which a society can be simple or primitive: either because it has no secondary rules at all, or because it has none of the secondary rules necessary for specialization in the performance of governance tasks (i.e. rules that create legislative, adjudicatory, and enforcement officials). As the remainder of the passage makes clear, it is the second distinction he has in mind here. For Hart, it is not the union of primary and secondary rules per se that provides the most fruitful way of modeling a legal system. Rather, it is the advent of specialization in sustaining a rule-guided social order, in making it the case that law contributes to the production of social order, that Hart thinks is the key to the idea of a legal system.

  • 12 Waldron 2013: 216. See also Payandeh 2011; Capps 2014; and Murphy 2014.
  • 13 Jovanović echoes these claims. See Jovanović 2019: 212.
  • 14 Waldron 2013: 215, 217.
  • 15 Waldron 2013: 215-217.

7Waldron develops his objections to Hart’s views on international law by evaluating “Hart’s claim that the international legal order is a primitive legal system, consisting of nothing but primary rules.”12 He begins by pointing out that international law includes secondary rules of adjudication, such as those set out in the statute creating the International Court of Justice (ICJ), as well as secondary rules of change, such as those constitutive of the treaty-making process.13 Hart is clearly aware of these features of international law; indeed, he explicitly refers to both the ICJ and the United Nations Charter. Why, then, does he characterize international law as a relatively simple social order? Waldron postulates that he does so because the ICJ lacks compulsory jurisdiction, and because treaties only create obligations for those states that choose to become a party to them.14 The former consideration does not warrant the inference that international law contains no rules of adjudication, however, and “it is not clear why the point about ‘binding states that are not parties’ should be jurisprudentially so important.”15

  • 16 Hart 2012: 214, emphasis added.
  • 17 Hart 2012: 92-3.

8Waldron assumes (and Jovanović apparently concurs) that it is the absence of a hierarchy of rules that makes a society primitive, and maintains that Hart has no good reason for denying that international law contains secondary rules. In fact, Hart does not deny the presence of secondary rules in international law; rather, he maintains only that international law “lacks the secondary rules of change and adjudication which provide for legislature and courts.”16 Take the point about legislation first. When Hart introduces the idea of a simple society that lacks rules of change he distinguishes between the absence of even an embryonic form of legislation, meaning rules that make possible deliberate change to general rules and that introduce the germ of the idea of a distinction between ruler and ruled, and rules that make possible changes to “obligations which arise under the rules in particular cases.”17 The secondary rules that constitute treaty-making are examples of this second type of rules of change; they alter obligations that obtain under the general rules of international law only for the particular states that sign (and, if necessary, ratify) them. As Hart notes, were international law to evolve so that multi-lateral treaties were generally recognized as binding states that were not parties to them, then the norms that comprise international law would include secondary rules that provide for legislation. That is, international law would possess a mechanism for making deliberate changes to rules that apply generally and that do so in advance of any actor using them to hold himself or others accountable. It would also include the distinct categories of rulers (or officials) and ruled (or subjects), and so no longer be aptly characterized as a horizontal political-legal order. Thus, we have an answer to Waldron’s question regarding the jurisprudential significance of ‘binding states that are not parties’ to a treaty: such a practice is sufficient for the existence of a division of labor in making changes to the general rules that regulate members of international society, and the development of specialization in this and other governance tasks is a necessary condition for the existence of a legal system.

  • 18 Hart 2012: 97, 93.
  • 19 Hart 2012: 93.
  • 20 Hart 2012: 93.

9Consider, now, Hart’s remarks on international adjudication and enforcement. With respect to the latter, international law includes “secondary rules specifying or at least limiting the penalties for violation,” which might make some contribution to reducing “the smouldering vendettas which may result from self-help.”18 But to the extent these vendettas occur primarily because of the “absence of an official monopoly on sanctions,” with an emphasis on both monopoly and official(s), the fact that international law relies almost exclusively on self-help makes it much more like a simple social order than a complex legal system.19 Similarly, while international law does contain secondary rules that provide for courts, their lack of compulsory jurisdiction greatly compromises their capacity to mitigate the threat to social order posed by disagreement regarding the legality of an actor’s conduct. As Hart observes: “disputes as to whether an admitted rule has or has not been violated will… continue interminably, if there is no agency specially empowered to ascertain finally, and authoritatively, the fact of violation.”20

  • 21 Hart 2012: 236.
  • 22 Jovanović 2019: 212; Waldron 2013: 219. See also Payandeh 2011: 989-90; Pavel 2018: 317-19.

10What should we make of Hart’s assertion that international law lacks a rule of recognition and therefore does not qualify as a legal system?21 Jovanović follows Waldron in rejecting this claim, pointing out that Article 38(1) of the ICJ Statute and the Vienna Convention on the Law of Treaties provide authoritative means for identifying international law.22 This response misses the mark, however, because in making this assertion Hart invokes the ontological function that reference to the rule of recognition plays in his analysis of law, not the epistemic one.

  • 23 Note that subjects may also use the law as a critical common standard of behavior, and Hart implies (...)
  • 24 Particular individuals may be members of both sets, of course.

11Recall that for Hart a legal system exists when citizens or subjects generally obey the law and officials use it as a critical common standard of behavior.23 That is, what accounts for the existence of law in a society that possesses a legal system is the practice of secondary rules of change, adjudication, and enforcement by one set of actors (officials) who rule over another set of actors (subjects).24 Given this characterization of what it is for a society to possess a legal system, Hart’s assertion that the rules that comprise international law constitute not a system but only a set seems quite plausible.

  • 25 Hart 2012: 98.
  • 26 Hart 2012: 236.
  • 27 On this point, see also Collins 2016: 83.

12Of course, we can still formulate the following ontological “rule” of recognition for a primitive society: rule R1, R2, etc. are rules of primitive society P if and only if its members “use the rules as standards for the appraisal of their own and others’ behaviour.”25 Hart does not deny that we can formulate such a rule, only the utility of doing so. Speaking of the “strange basic norm which has been suggested for international law: ‘States should behave as they have customarily behaved,’” Hart writes: “we may be persuaded to treat as a basic rule, something which is an empty repetition of the mere fact that the society concerned (whether of individuals or states) observes certain standards of conduct as obligatory rules”26 In contrast, where a society is characterized by a division of labor in the performance of governance tasks, the formulation of a “rule” of recognition shines new light on how law contributes to the production of social order by calling our attention to the fact that it is the conduct of officials - actors occupying offices constituted by rules that empower them to make, apply, and enforce the law – that accounts for law’s existence. In a primitive society the claim ‘This is a valid law’ amounts to nothing more than the empty claim ‘this is a law of our society because we treat it as such,’ whereas once a division of labor in governance occurs the claim ‘This is a valid law’ can be theoretically informative; e.g. ‘This is a valid law because it was enacted by Parliament.’ Thus, with some minor rephrasing we can better convey the idea Hart meant to express: there is no theoretically useful basic rule in the international legal order of the sort that could provide informative general criteria of validity. This reflects the fact that there is relatively little division of labor in the performance of the governance tasks that constitute international law. It is, in this respect, not a legal system, and therefore bears a closer resemblance to a simple or primitive social order than to an advanced social order like the one realized in a well-functioning modern state.27

  • 28 Properly understood, Hart does not deny that international law is really law. See Lefkowitz 2017: 2 (...)
  • 29 Jovanović 2019: 208.

13In sum, Hart denies that international law qualifies as a legal system because it exhibits little specialization in the performance of governance tasks.28 On this substantive point, Jovanović agrees. International law is a horizontal social order, he writes, one “in which states, as principal actors, assume the role of both lawmakers and norm subjects…. [which] has resulted in [the] peculiar institutional structure of the international legal order, without a centralized legislature, courts with compulsory jurisdiction, and special enforcement agencies.”29

2 Theorizing (international) law’s normativity

14 In addition to investigating the relationship between law and particular types of institutions, legal philosophy aspires to explain how legal norms provide those they address with reasons for action. In particular, how can the fact that the law prohibits Φ-ing provide those it addresses with a reason, indeed an obligation, not to Φ? Alas, Jovanović’s treatment of this topic is confusing and, in several places, confused. His discussion frequently runs together answers to three distinct questions. First, what does it mean to describe an agent as legally bound to Φ? In what sense does the existence of this legal obligation make Φ-ing non-optional? These questions concern the nature of legal obligation. Second, under what conditions does the existence of a legal obligation to Φ provide subjects with a moral obligation to do so? Why does the satisfaction of those conditions entail that subjects have a moral duty to obey the law? These questions concern law’s legitimacy, or legitimate authority. Third, how should we model the reason for action legitimate law provides? If we suppose that subjects of legitimate law have a moral duty to obey it, how should that duty function in a legal subject’s practical reasoning? This is a question about the nature of a moral duty to obey the law.

  • 30 Jovanović 2019: 131, 138.
  • 31 My sense is that these two responses to the question of law’s legitimacy are in tension, but perhap (...)

15 As I read him, Jovanović defends the following answers to the above questions. Following Kelsen and Hart, he maintains that the concept of a legal obligation should be understood in terms of the applicability of a legal norm to a particular case that falls under it, rather than in terms of a physical incapacity to do otherwise or a liability to sanction in the event of a failure to act as the law directs.30 Jovanović’s analysis of law’s legitimacy is rather unclear, as I document below, but he appears to be attracted to two accounts of law’s capacity to provide reasons for action. The first invokes a variety of normative considerations that warrant an attitude of respect for law, or at least for particular laws or legal regimes. The second calls into question the need for an account of law’s legitimacy and its subjects’ correlative moral duty to obey the law. The (alleged) belief in law’s authority and subjects’ moral duty to obey the law may be a fit subject for social scientific investigation. But the normative enterprise of justifying to an agent why she ought to perform a legally obligatory act need never appeal to the fact that the law requires it of her. Rather, such a justification can always, indeed must always, look through or beyond the law to some other consideration that generates an obligation to perform the act in question.31 Finally, Jovanović rejects Raz’s claim that a legitimate legal obligation provides a preemptive reason for action: a first-order reason to perform or not to perform some act, and a second-order reason that excludes from a legal subject’s deliberation certain first-order reasons that bear on the rationality of performing or not performing the act in question. Instead, we ought to construe legal obligations as first-order reasons to perform or not to perform some act coupled with a second-order reason that adds to the “weight” of the first-order reason. The latter account provides a presumption in favor of compliance with the law while still according the legal subject the right and responsibility to determine what she ought to do in each and every case. This contrasts with Raz’s preemption thesis, which Jovanović believes requires subjects to blindly obey the law.

  • 32 Rodriguez-Blanco 2014: 153, quoted in Jovanović 2019: 134.
  • 33 Rodriguez-Blanco 2014: 159, quoted in Jovanović 2019: 134.
  • 34 Rodriguez-Blanco 2015: 122, quoted in Jovanović 2019: 134. Presumably “grounding reasons” are the i (...)
  • 35 Rodriguez-Blanco 2014: 157, quoted in Jovanović 2019: 134-135.

16 Jovanović’s interest lies primarily with law’s legitimacy and the nature of a moral duty to obey the law, and so his treatment of these two issues will be the focus of my critical remarks here. Consider, first, his rejection of Raz’s thesis that legitimate law provides its subjects with preemptive reasons for action. Jovanović contends that Veronica Rodriguez-Blanco and Heidi Hurd each offer a compelling objection to construing legitimate legal obligations this way. Rodrigues-Blanco maintains that practical agency requires acting for a reason, which requires in turn that an agent intend to act for that reason.32 While Raz’s account of law’s legitimate authority shows how legal subjects might better conform to the reasons that apply to them by deferring to the law rather than acting on their own judgment, it precludes their acting for those reasons. As Rodriguez-Blanco writes, “to merely follow the authority’s order unintentionally, though conforming to reason, is not to exercise our practical reasoning.”33 The only way to avoid blind obedience to law is “to ‘tap into’ the grounding reasons of legal rules.”34 Raz’s account of how law provides its subjects with reasons for action precludes doing so; after all, legal subjects are meant to substitute the law’s judgment regarding what they may or must do for their own. “Consequently, “either legal rules cannot be exclusionary reasons or legal rules do not have a reason-giving character.”35

  • 36 Hurd 1999: 69, quoted in Jovanović 2019: 135.
  • 37 Hurd 1999: 69, quoted in Jovanović 2019: 135.

17Hurd contends that there is a canon of practical rationality that dictates that we act on the balance of reasons available to us. Yet Raz holds that the law can require us to act in ways that “do not comport with the balance of reasons as we see it.”36 It follows that on Raz’s account of law’s legitimate authority, we are sometimes required to act irrationally. Following Hurd, Jovanović asks “how could it ever be rational to act contrary to the balance of reasons as one sees it solely because one has been told to do so?”37

  • 38 Or at least I am not convinced by Jovanović’s brief discussion of them. Perhaps a fuller presentati (...)

18I find these arguments unconvincing.38 First, as a rational agent, my goal is to act as I have most or undefeated reason to act, e.g. to Φ, and I see no reason to accept the claim that the only way to do so is to intentionally act on that reason. True, I must exercise my own practical agency to determine how I will attempt to identify and respond appropriately to the reasons for action that apply to me. But if I will do better at acting as I should by deferring to another’s judgment rather than acting on my own, then that is what I should do. Similarly, while I agree that practical rationality requires acting on the reasons available to me, it is not clear to me why “availability” should not encompass reasons to which I can be responsive by deferring to the judgment of another agent, at least if that agent is making a good faith effort to determine what I have most or undefeated reason to do.

  • 39 For discussion of these points and their relevance to identifying international legal norms that sa (...)

19Second, obedience to law need not be blind even if an agent does not judge for herself, in each and every case, whether the law has correctly identified what she has most or undefeated reason to do. Rather, a person can attend to the process whereby the law was made (and, perhaps, applied) to form a judgment regarding the likelihood that the law will track the independent reasons that apply to her. At the same time, a person can also form beliefs about the likelihood that her own judgment will track the truth; for example, the extent to which her judgment is likely to reflect ignorance or bias. On the basis of such judgments, this person can then draw a conclusion regarding the likelihood that she will better conform to right reason if she defers to the law or if she acts on her own judgment instead. Crucially, she can do so without having to make the judgment the law purports to make on her behalf, namely what she has most or undefeated reason to do in this case.39

  • 40 Rodriguez-Blanco 2014: 169, quoted in Jovanović 2019: 139.
  • 41 Perry 1989: 932, quoted in Jovanović 2019: 139.
  • 42 Perry 1989: 932, quoted in Jovanović 2019: 140.
  • 43 Jovanović 2019: 135.

20 Still, suppose Jovanović rightly rejects Raz’s claim that legal obligations provide preemptive reasons for action. How, then, should we model the reason for action law provides? How should a legal obligation not to Φ figure in a legal subject’s practical reasoning? Jovanović references Rodriguez-Blanco once again, who maintains that “we can act according to a presumption of the goodness of the rules and therefore a presumption of the authoritative force of legal rules.”40 Alas, this suggestion receives no explanation or development. Moreover, it is not clear how a claim regarding the justifiability of presuming that legal rules are authoritative speaks to the nature of the reason that authoritative legal rules provide legal subjects. Perhaps we should follow Stephen Perry and conceive of a legitimate legal obligation as a “re-weighting reason,” a consideration that warrants treating “a reason as having a greater or lesser weight than the agent would otherwise judge it to possess in his or her subjective determination of what the objective balance of reasons requires.”41 But it is not clear to me how to reconcile this conception of the reason provided by a legal obligation with Hurd’s claim that rationality requires agents to act on the balance of reasons available to us. After all, Perry maintains that if a subject of a legitimate legal order has a legal obligation to Φ, she ought to “treat the case for the conclusion which is favored by the authority as being stronger to some specified degree than it actually appears to [her] to be.”42 If so, then we still confront the challenge Hurd poses, and Jovanović apparently endorses, namely explaining how it could “ever be rational to act contrary to the balance of reasons as one sees it solely because one has been told to do so.”43

  • 44 Waldron 2003: 54, quoted in Jovanović 2019: 140.
  • 45 Jovanović 2019: 140, 142.
  • 46 Raz 2006: 1028.
  • 47 Raz 2006: 1028.
  • 48 Raz 2006: 1028-1029.
  • 49 Raz 2006: 1029.

21Turning to the question of law’s legitimacy, Jovanović asserts that law serves as a signaler of last resort, an intriguing claim but unfortunately one that receives no explication. He then writes that in order for law to serve as a signaler of last resort people must adopt an attitude of “respect for law as a source of salience.”44 What is respect for law, and why should people adopt such an attitude? To answer the first of these questions Jovanović turns to Raz, who characterizes respect for law as a manifestation of loyalty to a political community.45 Where legal institutions are closely associated with the political community, respect for law may provide a particularly attractive means for members of that community to express their identification with it.46 Yet as Raz explains, respect for law “takes the form (among others) of trusting these institutions, taking it on trust that they have the authority to do what they do, not questioning their conduct too closely to see whether they exceed their authority, etc.”47 Where respect for law is warranted, it may involve “a certain slackening of vigilance regarding the two conditions of legitimacy [the Normal Justification Condition and the Independence Condition]” so that “while the conditions themselves are unaffected, people would be justified in maintaining that the government has authority on evidence that would not be sufficient to reach such conclusions but for the trust they have in the government.”48 In short, Raz’s notion of respect for law combines his account of legitimate authority, including the claim that legitimate legal obligations provide preemptive reasons for action, with a justification for taking the law’s claim to legitimacy largely on faith. This makes Jovanović’s invocation of of Raz’s notion of respect for law rather puzzling. Having just criticized him for requiring legal subjects to exhibit blind obedience to law, Jovanović borrows from Raz the very element of his account of legitimate authority that comes closest to justifying exactly that. Furthermore, Raz states explicitly that individuals are under no obligation to cultivate an attitude of respect for law.49 If so, then it is hard to see how Raz’s account of respect for law can be the key to the treatment of law as the “signaler of last resort.”

  • 50 Jovanović 2019: 142.
  • 51 On the possibility of employing the principle of fair-play to justify a moral duty to obey internat (...)

22 Jovanović concludes his reflection on law’s normativity by noting a number of ways in which law might provide its subjects with reasons for action other than by having a legitimate claim to authority over them.50 This includes providing then with prudential reasons, as in cases where non-compliance may result in some type of sanction, and triggering general moral reasons for action by causally contributing to the advent of facts in virtue of which of those reasons apply to particular actors and particular cases. Interestingly, Jovanović also suggests that participants in a legal order may have a duty to obey the law grounded in reciprocity, and cites to Hart’s well-known discussion of the principle of fair-play. Alas, rather than explore this alternative to Raz’s instrumental justification for law’s legitimate authority, Jovanović instead concludes his reflections by questioning whether there is any need to provide a justification for a duty to obey the law.51 Perhaps the (allegedly) widespread belief in such a duty is unfounded, and so is one we might try to explain but need not (and cannot?) justify.

  • 52 Jovanović 2019: 144.
  • 53 In fact, none of the observations just noted undermine the claim that states are bound by those tre (...)

23 The investigation of law’s normativity described above sets the stage for Jovanović to address several questions specific to the nature of international law. The first, on which I will focus here, is whether it really qualifies as law. Suppose a necessary condition for the existence of a legal order is that it be capable of creating genuine obligations for (some of) those it identifies as subjects. If so, then international law’s status as law depends on its capacity to truly bind its subjects. The centrality of consent, or will, to the generation of international legal obligations might be thought to call into question whether international law possesses this capacity.52 After all, states are not required to become party to any treaty, they can make reservations to (almost) any multi-party treaty they choose to join, they typically retain the right to withdraw from a treaty, and they may persistently object to (almost) any customary norm to which they do not wish to be subject. These features of the international legal order certainly appear to run counter to the idea that where there is law, some conduct is made non-optional.53

  • 54 Jovanović 2019: 145-147.
  • 55 Besson 2009.
  • 56 Jovanović 2019: 146. This claim seems to me to at odds with Jovanović’s earlier endorsement of Perr (...)
  • 57 Jovanović 2019: 147.
  • 58 Jovanović 2019: 147.

24 Jovanović offers three possible rejoinders to this particular skeptical challenge to international law’s status as law.54 First, he briefly describes Samantha Besson’s extension of (her development of) Raz’s analysis of legitimate authority to international law.55 If successful, this line of argument provides an alternative to consent as the basis for states’ (as well as international organizations’ and individuals’) moral duty to obey international law. Given Jovanović’s previous criticisms of the Razian account of legitimate authority, should we accept Besson’s application of it to international law? Or is such a strategy doomed to fail because it depends on a mistaken model of practical reasoning? Jovanović does not say. Second, Jovanović notes Jean D’Aspremont’s suggestion that we treat talk of law’s “bindingness” as synonymous with law’s validity. But as he notes, this is no response to the issue at hand, which does not concern the existence of a legal obligation (i.e. claims of legal validity) but the capacity of international legal obligations to provide subjects with reasons for action; specifically, with a moral duty to act as the law directs. Finally, Jovanović suggests that the skeptical challenge rests on a mistake because “the nature of law cannot be elucidated by trying to show that there is something special about the normativity of legal rules.”56 Raz draws the opposite conclusion, Jovanović maintains, because of the empirical observations on which he builds this theory of law’s legitimate authority: first, that law necessarily claims authority over its subjects; second, that law’s authority cannot be grounded in consent; and third, that law necessarily involves a hierarchy composed of rulers and ruled. Perhaps these features characterize the municipal legal order of a modern state. But suppose we begin our investigation of law’s normativity by examining a social order in which “hierarchy and subordination are not regular states of affairs” and “conflict-resolution institutions normally operate [only] upon prior consent, even the consent of an actor being charged of breaking a rule?”57 The “easy way out,” Jovanović writes, would be to conclude that this social order lacks both authorities and authoritative norms, and therefore does not qualify as a legal order. But he maintains that we should reject this conclusion because “in the presence of the aforementioned empirical conditions at the international level, all relevant actors refer to some rules of conduct as rules of international law, most of them obey those rules most of the time, making international law an effective normative order… [and] decisions of conflict-resolution institutions are commonly treated as binding and are executed accordingly.”58

  • 59 See Trachtman 2008; Posner & Sykes 2013.
  • 60 Kumm 2004: 914; Lefkowitz 2016: 108.
  • 61 Jovanović 2019: 156, 175.

25 These observations do not suffice to justify a rejection of the “easy way out.” Realists offer plausible arguments to support the claim that international law simply reflects states’ calculations of what will advance their perceived national interest given their relative power.59 If so, then it should come as no surprise that states generally conform to international legal norms, and that when they opt to submit to a court’s adjudication of their dispute they calculate that the expected utility of doing so, even if they lose, exceeds the expected utility of letting the dispute fester or resolving it some other way. Furthermore, Jovanović’s observations provide no response to the state official who acknowledges that international law prohibits him from performing some act (in his official capacity), but who asks why he ought to treat that fact as a reason not to perform the act in question. We cannot derive an ought (a reason to obey the law) from an is (the fact that most states comply with the law most of the time). Finally, the claim that Raz’s account of law’s legitimate authority depends in some objectionable way on his equating the concept of law with the law (or legal order) of a modern state requires further defense. While the view that law necessarily claims authority is contestable, there is no reason to think it is any more (or less) contestable in the international legal order than a municipal one. Raz’s argument against the use of consent to reconcile autonomy with authority seems increasingly applicable to an international legal order in which states consent to general frameworks that are then filled in by treaty-based but partly autonomous bodies that exercise quasi-legislative and/or quasi-judicial powers.60 As for hierarchy, Jovanović himself maintains that law requires at least the presence of courts, and so like Raz he is committed to a legal order comprising both rulers and ruled.61

26 In sum, while I applaud Jovanović for his attempt to theorize (international) law’s normativity, I have serious concerns with the arguments he advances regarding the considerations that render law legitimate and the proper way to model the reason legitimate law provides its subjects.

27 In closing, I want to reiterate how ambitious Jovanović’s book is. If nothing else, it will demonstrate to legal philosophers and international legal theorists alike how many intriguing questions arise when we think long and hard about the nature of international law.

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Bibliography

Besson, S. (2009). The Authority of International Law – Lifting the State Veil. Sydney Law Review, 31(3), 343-380.

Besson, S. (2016). State Consent and Disagreement in International Law-Making: Dissolving the Paradox. Leiden Journal of International Law, 29(2), 289-316.

Buchanan, A.E. (2010). The Legitimacy of International Law. In S. Besson & J. Tasioulas (Eds.), The Philosophy of International Law. Oxford University Press.

Capps. P. (2014) International Legal Positivism and Modern Natural Law. In J. Kammerhofer & J. d’Aspremont (Eds.), International Legal Positivism in a Post-Modern World (pp. 213-240). Cambridge University Press.

Collins, R. (2016). The Institutional Problem in Modern International Law. Hart Publishing.

Goodin, R. (2005). Toward an International Rule of Law: Distinguishing International Law Breakers from Would-Be Law-Makers. Journal of Ethics, 9(1/2), 225-246.

Hart, H.L.A. (2012). The Concept of Law (3rd Edition). Clarendon Press.

Hurd, H. (1999). Moral Combat. Cambridge University Press.

Jovanović, M.A. (2019). The Nature of International Law. Cambridge University Press.

Kumm, M. (2004). The Legitimacy of International Law: A Constitutionalist Framework of Analysis. European Journal of International Law, 15(5), 907-931.

Lefkowitz, D. (2011). The Principle of Fairness and States’ Duty to Obey International Law. Canadian Journal of Law and Jurisprudence, 24(2), 327-346.

Lefkowitz, D. (2016). The Legitimacy of International Law. In D. Held & P. Maffettone (Eds.), Global Political Theory (pp. 98-116). Polity Press.

Lefkowitz, D. (2017). What Makes A Social Order Primitive? In Defense of Hart’s Take on International Law. Legal Theory, 23(4), 258-282.

Lefkowitz, D. (2020). Philosophy and International Law: A Critical Introduction. Cambridge University Press.

Murphy, L. (2014). What Makes Law. Cambridge University Press.

Pavel, C.E. (2018). Is international law a Hartian Legal System? Ratio Juris, 31(3), 307-325.

Pavel, C.E. & Lefkowitz, D. (2018). Skeptical Challenges to International Law. Philosophy Compass, 13(8), 1-14.

Payandeh, M. (2010). The Concept of International Law in the Jurisprudence of H.L.A. Hart. European Journal of International Law, 21(4), 967-995.

Perry, Stephen. (1989). Second Order Reasons, Uncertainty, and Legal Theory. Southern California Law Review, 62, 913-994.

Posner, E., & Sykes, A.O. (2013). The Economic Foundations of International Law. Harvard University Press.

Raz, J. (2006). The Problem of Authority: Revisiting the Service Conception. Minnesota Law Review, 90, 1003-1044.

Rodriguez-Blanco, V. (2014). Law and Authority Under the Guise of the Good. Hart Publishing.

Rodriguez-Blanco, V. (2015). Legal Authority and the Paradox of Intention in Action. In G. Pavlakos & V. Rodriguez-Blanco (Eds.), Reasons and Intentions in Law and Practical Agency (pp. 121-139). Cambridge University Press.

Trachtman, J. (2008). The Economic Structure of International Law. Harvard University Press.

Waldron, J. (2003). Authority for Officials. In L. Meyer, S.L. Paulson, & T.W. Pogge (Eds.), Rights, Culture, and Law – Themes from the Legal and Political Philosophy of Joseph Raz (pp. 45-69). Oxford University Press.

Waldron, J. (2013). International Law: ‘A Relatively Small and Unimportant’ Part of Jurisprudence? In L.D. d’Almeida, J. Edwards, & A. Dolcetti (Eds.), Reading H.L.A. Hart’s Concept of Law (pp. 209-227). Oxford University Press.

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Notes

1 Jovanović 2019: 1.

2 Kelsen excepted, as Jovanović notes.

3 Jovanović 2019: 1.

4 Hart 2012: 214.

5 Hart 2012: 236.

6 Waldron 2013: 222.

7 Jovanović 2019: 211.

8 The argument presented in this section is a synopsis of the one I defend in Lefkowitz 2017.

9 Hart 2012: 95, 101.

10 Hart 2012: 116.

11 Hart 2012: 117.

12 Waldron 2013: 216. See also Payandeh 2011; Capps 2014; and Murphy 2014.

13 Jovanović echoes these claims. See Jovanović 2019: 212.

14 Waldron 2013: 215, 217.

15 Waldron 2013: 215-217.

16 Hart 2012: 214, emphasis added.

17 Hart 2012: 92-3.

18 Hart 2012: 97, 93.

19 Hart 2012: 93.

20 Hart 2012: 93.

21 Hart 2012: 236.

22 Jovanović 2019: 212; Waldron 2013: 219. See also Payandeh 2011: 989-90; Pavel 2018: 317-19.

23 Note that subjects may also use the law as a critical common standard of behavior, and Hart implies that one in which they do so will be morally superior to one in which they do not. He only denies that the adoption of the internal point of view to the law by the citizenry at large is a necessary condition for the existence of a legal system.

24 Particular individuals may be members of both sets, of course.

25 Hart 2012: 98.

26 Hart 2012: 236.

27 On this point, see also Collins 2016: 83.

28 Properly understood, Hart does not deny that international law is really law. See Lefkowitz 2017: 279-280.

29 Jovanović 2019: 208.

30 Jovanović 2019: 131, 138.

31 My sense is that these two responses to the question of law’s legitimacy are in tension, but perhaps I have not properly understood them.

32 Rodriguez-Blanco 2014: 153, quoted in Jovanović 2019: 134.

33 Rodriguez-Blanco 2014: 159, quoted in Jovanović 2019: 134.

34 Rodriguez-Blanco 2015: 122, quoted in Jovanović 2019: 134. Presumably “grounding reasons” are the independent reasons that apply to the legal subject; that is, those reasons an agent has apart from the law.

35 Rodriguez-Blanco 2014: 157, quoted in Jovanović 2019: 134-135.

36 Hurd 1999: 69, quoted in Jovanović 2019: 135.

37 Hurd 1999: 69, quoted in Jovanović 2019: 135.

38 Or at least I am not convinced by Jovanović’s brief discussion of them. Perhaps a fuller presentation of Rodriguez-Blanco’s and Hurd’s criticisms would address the challenges I present in the main text.

39 For discussion of these points and their relevance to identifying international legal norms that satisfy the Normal Justification Thesis, see Lefkowitz 2016; Lefkowitz 2020.

40 Rodriguez-Blanco 2014: 169, quoted in Jovanović 2019: 139.

41 Perry 1989: 932, quoted in Jovanović 2019: 139.

42 Perry 1989: 932, quoted in Jovanović 2019: 140.

43 Jovanović 2019: 135.

44 Waldron 2003: 54, quoted in Jovanović 2019: 140.

45 Jovanović 2019: 140, 142.

46 Raz 2006: 1028.

47 Raz 2006: 1028.

48 Raz 2006: 1028-1029.

49 Raz 2006: 1029.

50 Jovanović 2019: 142.

51 On the possibility of employing the principle of fair-play to justify a moral duty to obey international law, see Goodin 2005; Lefkowitz 2011.

52 Jovanović 2019: 144.

53 In fact, none of the observations just noted undermine the claim that states are bound by those treaty-based legal norms to which they have consented, at least until such time as they have completed the process of withdrawing from the relevant treaty. Moreover, there are compelling objections to treating consent as the basis of international legal subjects’ duty to obey international law, even if consent should play an important role in the creation of international legal norms. See Buchanan 2010; Besson 2016; Pavel & Lefkowitz 2018.

54 Jovanović 2019: 145-147.

55 Besson 2009.

56 Jovanović 2019: 146. This claim seems to me to at odds with Jovanović’s earlier endorsement of Perry’s claim that legitimate legal obligations provide “re-weighting reasons,” which Perry offers as an account of the special normativity of legal rules.

57 Jovanović 2019: 147.

58 Jovanović 2019: 147.

59 See Trachtman 2008; Posner & Sykes 2013.

60 Kumm 2004: 914; Lefkowitz 2016: 108.

61 Jovanović 2019: 156, 175.

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References

Electronic reference

David Lefkowitz, Systematicity, normativity, and The Nature of International Law Revus [Online], 43 | 2021, Online since 31 March 2021, connection on 17 April 2021. URL: http://journals.openedition.org/revus/6268; DOI: https://doi.org/10.4000/revus.6268

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About the author

David Lefkowitz

Professor of Philosophy and Philosophy, Politics, Economics and Law, University of Richmond (VI), USA

E-mail: dlefkowi@richmond.edu

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