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Symposium on international law

Philosophising on international law: Jovanović’s conception of normativity and rationality

Veronica Rodriguez-Blanco

Abstracts

In his book The Philosophy of International Law, Jovanović advances the view that an inquiry into the reasons regarding why states would consider international norms as binding norms would be part of a sociology of law, and we can infer that, for him, it is a part of an inquiry into an empirical order. I advance two criticisms of one aspect of Jovanović’s conclusion on empiricism: a) the idea that there is a plurality of reasons for actions that constitute a wide spectrum, from self-interested reasons to moral reasons and, b) that we can understand the plurality of reasons for actions of either states or citizens through empirical research. I argue that these positions reflect a particular and, in my view, problematic view of agency.

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  • 1 Jovanović 2019.

1Miodrag Jovanović has given us a thought-provoking study on the nature of international law.1 It advances an innovative way of theorizing about an improved concept of international law.

2It would not do justice to comment on all the aspects of Jovanović’s insights and position in a short review. His arguments are rich, subtle, and complex, so I will only focus on Chapter 4 of the book and, more specifically, on the conception of rationality that is used to shed light on his view that normativity should be conceived as a gradation.

  • 2 Raz 1999 [1975], Raz 1979, Raz 1986.

3He starts with a reflection on Raz’s service conception of authority,2 which advances three key tenets that explain the authoritative character of law. First, legal officials and law in general claim legal authority. However, this does not mean that law claims or has any legitimate authority. Second, legal directives and rules provide exclusionary reasons for actions to citizens. Exclusionary reasons for actions are both second-order reasons and content-independent reasons. Third, in normal cases, the law reflects the reasons that citizens have to follow the law. Citizens do not act according to their first order reasons like in moral conduct. On the contrary, citizens follow the directives dictated by legal officials because the law provides the service of delivering the reasons for actions that apply to them.

  • 3 Rodriguez-Blanco 2014.
  • 4 Hurd 1991.

4In Chapter 4, Jovanović discusses the critical positions of Heidi Hurd and my own view on the nature of legal authority.3 Heidi Hurd4 has argued that Raz’s service conception of legal authority generates what she calls the “Paradox of Practical Rationality”. According to the principle of rationality we act on the balance of reasons that are available to us. However, Raz’s conception of authority leaves logical space for the possibility of the law commanding in ways that do not conform to the balance of reasons as we see it. Consequently, in certain circumstances we obey the law and exercise practical authority in a manner that violates the principle of rationality. For example, I am a soldier and have been asked by my commander to steal a van, but this action does not conform to reason as I see it. Nevertheless, I obey the order, and according to Raz it is rational to do since the commander’s orders constitute second-order reasons for actions and therefore, exclusionary reasons that apply to me. However, Hurd would argue that this act of obedience violates the principle of rationality. We can ask ourselves how it can be rational to act contrary to the balance of reasons solely because one has been told to do so?

5In my own work I have pointed out that the puzzle of legal authority arises from the first-person perspective or deliberative point of view. This means that, as a citizen of a state, I ask myself what I should do when confronted with the law. I have argued, however, that the solution offered by Raz is from the third-person perspective and does not answer the core of the puzzle, which arises precisely when we deliberate about the content of the law. My own account is grounded on a conception that establishes a close connection between practical reason and intention. If this account is sound, then the result of Raz’s service conception of authority is paradoxical and at odds with our ordinary notion of complying with the law. In other words, when citizens comply with the law, they comply in a non-intentional way. We need, as Jovanović points out, to assert that a reason for action is a consideration that renders the choice of the citizen intelligible. The citizen ought to be in a position of deliberating and exercising her practical reasoning and this means precisely to make her choice intelligible.

6Jovanović welcomes the indirect conclusion of the analysis and paradoxes offered by both Hurd and myself, namely that law is one normative order among others. He also discusses my alternative position concerning the authority of law, that citizens act under a presumption of the goodness of the law and, consequently, a presumption of the authoritative force of the law. Stephen Perry also introduces the notion of “reweighting reasons” in which in deliberating the citizen defers only partially to the authority of the law, and never allows her own judgment to be pre-empted completely by the authority’s judgement. Jovanović advocates for the view that respect for the law can partially explain the bindingness of the law. However, he asserts that this respect is generated by a plurality of reasons extending from prudential reasons to moral reasons. He concludes:

  • 5 Jovanović 2019: 143.

It seems, thus, that the most that jurisprudence can convey in the form of a concluding message is that the overall authority (and the concomitant higher level of efficiency) of law as a normative order is a result of a complex and combined effect of the interrelated typical features of law –normativity, institutional nature, (coercive) guaranteeing, and justice-aptness– and should not be erroneously translated into the alleged “exclusionary” nature of legal norms as reasons for action.5

  • 6 Jovanović 2019: 150.

7Jovanović uses this theoretical background to advance the thesis that legal normativity is not exhausted by its bindingness. He argues that this therefore opens the possibility of a gradation of key concepts, i.e., normativity and bindingness. There is no binary option between normativity and non-normativity, and between bindingness and non-bindingness. Emerging norms of international law are the paradigmatic example of the gradation of legal normativity as bindingness. The key argument adumbrated by Jovanović is that it is the norm-subjects who ultimately bestow upon different norms different normative weights. Jovanović asserts: Gradation of international legal normativity, thus, has nothing to do either with the source of law from which the installed obligation is derived or with the hierarchical status of the given legal norm”.6

8Consequently, contra Benson and Weil, the normative power of an international order does not depend on the consent of the State. According to Jovanović, an inquiry into the reasons why states would consider international norms as binding norms would be part of a sociology of law, and we can infer that for him it is a part of an inquiry into an empirical order. This is an appealing and interesting thesis and I tend to agree with most of it. I would, however, like to highlight one aspect of Jovanović’s conclusions where I disagree.

  • 7 Williams 1981: 101-113.
  • 8 Anscombe 2000 [1957].

9The idea that a) there is a plurality of reasons for actions that constitute a wide spectrum that goes from self-interested reasons to moral reasons and, b) we can understand the plurality of reasons for actions of either states or citizens through empirical research, reflects a particular and, in my view, problematic view of agency. This conception of agency relies on the view that our reasons for actions and subsequently theoretical truths and practical truths are bifurcated, or worse, that there is no such thing as practical truth. According to this conception, which has its roots in a Humean conception of agency, we have on the one hand logical and empirical truths, which constitute our theoretical truths. On the other hand, we have emotions, passions, and motivations/interests, which exhaust the domain of practicality, namely action. There are, therefore, no practical truths or genuine practical reasons. In the Humean tradition, when we talk about reasons for actions, we are talking about desires/motivations or what Williams7 calls “our subjective motivational set”. Not surprisingly, reasons for action are conceived in a common or garden variety form ranging from pure emotions, to desires for something, to moral motivations connected to our desires for what we express as right, good, or obligatory. According to this picture, however, there is no space for rational desires or desiderative reasons. Rational desires or desiderative reasons are desires and reasons that are shaped by practical reason and our understanding and conceptions of what is valuable or good. This latter view has an ancient pedigree in Aristotle but has also been defended in contemporary philosophy by Elizabeth Anscombe8. According to this view, we desire ‘X’ because ‘X’ has good-making characteristics. Reasons for actions are not just a set of plural motivations but a unifying conception grounded on what is perceived or conceived of as good by the deliberator or agent. Desire is informed by our reasoning about what is good or valuable. If as human creatures we find reasons for actions intelligible, then the latter account is better able to explain the intelligibility of actions and reasons at both the level of the international legal order and the municipal legal order. My worry with Jovanović’s position is that within a garden-variety of reasons for actions, which include mere emotions, passions, and motivations, we cannot provide a palatable conception of intelligibility of reasons for action in a legal order for the agents in that order.

10This criticism should not detract from Jovanović’s thought-provoking and original study. His book is an important turning point in our way of philosophizing about international law.

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Bibliography

Anscombe, E. (2000 [1957]). Intention. Harvard University Press.

Hurd, H. (1991). Challenging Authority. The Yale Law Journal 100(6), 1611–1677.

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

Raz, J. (1999 [1975]). Practical Reason and Norms. Oxford University Press.

Raz, J. (1979). The Authority of Law. Oxford University Press.

Raz, J. (1986). The Morality of Freedom. Oxford University Press.

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

Williams, B. (1981). Internal and External Reasons. In Moral Luck (101–113). Cambridge University Press.

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Notes

1 Jovanović 2019.

2 Raz 1999 [1975], Raz 1979, Raz 1986.

3 Rodriguez-Blanco 2014.

4 Hurd 1991.

5 Jovanović 2019: 143.

6 Jovanović 2019: 150.

7 Williams 1981: 101-113.

8 Anscombe 2000 [1957].

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References

Electronic reference

Veronica Rodriguez-Blanco, “Philosophising on international law: Jovanović’s conception of normativity and rationality”Revus [Online], 43 | 2021, Online since 31 March 2021, connection on 09 December 2021. URL: http://journals.openedition.org/revus/6461; DOI: https://doi.org/10.4000/revus.6461

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About the author

Veronica Rodriguez-Blanco

Professor of Moral and Political Philosophy (Jurisprudence) at the University of Surrey Centre for Law and Philosophy, UK

School of Law
Faculty of Arts & Social Sciences.
The Frank Whittle Building  Main campus
University of Surrey
Guildford, Surrey, GU2 7XH, UK

E-mail: v.rodriguez-blanco@surrey.ac.uk

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