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Symposium on international law

On The Nature of International Law: Rejoinder

Miodrag Jovanović

Abstract

This paper is a rejoinder to critical remarks raised in the papers by Veronica Rodriguez-Blanco, Alejandro Chehtman, David Lefkowitz, Mario Krešić, and Carmen Pavel. The paper does not respond to each author individually, but to distinctive arguments common across different contributions. In that respect, the rejoinder is divided into four parts, which largely match the structure of my book. In the first part, I address some of the meta-philosophical issues concerning the prototype theory of concepts. The second part is devoted to some clarifications of my position with respect to the (international) law’s normativity. The third part is dedicated to the claim that (international) law is justice-apt. Finally, the last part deals with some of the issues related to (international) law as an institutionalized and (coercively) guaranteed order.

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1 Introduction

1Famous British poet, historical novelist, and classicist Robert Graves, once uttered, “There is no such thing as good writing. There is only good rewriting.” Anyone in the academic world with a developed sense of self-reflection and self-criticism can easily subscribe to this, allegedly paradoxical, saying. Simply put, irrespective of how scrupulously you work on some manuscript, the very moment you decide to let it be published you will find yourself thinking that some arguments could have been tighter, that some passages could have been written with more clarity, that some sentences could have been easily omitted, while some others included. Yet, we all know that the line has to be drawn somewhere and that one version of our writing has to eventually be marked as ‘final’. Graves himself knew this very well. Otherwise, he would not have produced more than 140 works in his lifetime.

2If you are lucky enough to have your own published work be reviewed and commented on by colleagues and peers, then you get an additional sense of Graves’ saying – well founded critique normally makes the author crave for a second chance to rewrite parts of his/her work. Since only the most successful and influential among us have the opportunity to produce a revised edition of a previously published piece, the most the author can usually hope for is a specially convened book symposium in a scientific journal. The author, on such occasions, gets closest to rewriting his/her own words by addressing the criticisms raised by the symposium’s participants.

  • 1 To be sure, apart from challenges, the reviews contained a number of praising comments. While I am (...)

3I was honored by Revus’ Editorial Board’s initiative to organize one such symposium on my latest book The Nature of International Law (hereinafter NoIL). And I was truly fortunate to have such competent and devoted reviewers as Veronica Rodriguez-Blanco, Alejandro Chehtman, David Lefkowitz, Mario Krešić, and Carmen Pavel. In what follows I will exercise the author’s privilege if not literally to rewrite parts of the book, then at least to try to address the challenges raised,1 by clarifying some of the book’s most important arguments and positions. In doing so, I will not respond separately to each author, but to distinctive arguments common across different contributions. My response will be divided into the following four parts, which largely reflect the structure of my book: 2. meta-philosophical issues; 3. (international) law’s normativity; 4. (international) law’s justice-aptness; and 5. (international) law as an institutionalized and (coercively) guaranteed order.

2 Meta-philosophical issues

  • 2 Krešić 2021: online § 44.

4 After providing a detailed and thought-provoking review of some of my positions, Krešić finishes his contribution with a general remark that criticism of the basic tenets of the book’s proposed approach “can be expected for at least three reasons.” First, my account can be challenged from the methodological point of view of the employed prototype theory. Second, having “the ambition of propounding an umbrella framework for different approaches to law”, the undertaken approach will create “tensions between some of its propositions”. Finally, in striving to “reconstruct the basic concepts widely recognized in legal theory as elements of law in such a way as to cover the IL context”, NoIL will spark the debate regarding “stipulated features of law”.2

  • 3 Banas 2016: 1.
  • 4 Himma (2020: 1), for instance, opens his last book with the remark that it “is an essay in what is (...)

5 In a larger sense, all the mentioned potential criticisms fall under the province of meta-philosophy of law, which generally concerns the problem of the adequate methodological approach to answering the question “‘What is law?’ (or its concept).”3 Curiously enough, none of the participants in the symposium devoted more space to my challenge to what seems to me to be the dominant methodological framework of the current analytical jurisprudence – metaphysically driven conceptual analysis.4 Nevertheless, there are a couple of scattered remarks that can be read as implied criticisms of the alternative approach I proposed – prototype theory of concepts – so I will briefly address them.

  • 5 Krešić 2021: online § 8.
  • 6 Proceeding from Raz’s remark that all normative orders have either norm-creating or norm-applying i (...)

6 In arguing that my account takes “adjudication as the most important typical feature of law”, Krešić at one place notices that “there remains the heretic question of whether Jovanović would count a normative system as a legal order even if that system contained no norm of adjudication?”5 The question is presumably “heretic” insofar as the negative answer would imply that “the most important typical feature” of prototype theory is, in fact, no different than the “necessary” feature of the allegedly defunct metaphysically driven conceptual analysis. Leaving aside the fact that nowhere in the book do I single out any of the enlisted features as “the most important” one,6 it is worth clarifying the relation between “typical” and “necessary” features.

  • 7 Raz 2005: 328.
  • 8 Bix 2003: 545.
  • 9 In Frank Jackson’s words, this would be the task of “immodest” conceptual analysis. Himma 2015: 73 (...)
  • 10 Himma 2015: 72.
  • 11 Raz 1998: 280-281.
  • 12 As Bix (2003: 546) points out, “to say that conceptual analysis is connected with lived experience (...)
  • 13 Raz 1998: 281.
  • 14 There are further problems of whether there is only one concept of law, and whether it is universal (...)

7For the proponent of the metaphysically driven conceptual analysis, to say that something is a “necessary” feature of law implies that this is the kind of property without which the law would be stripped of its identity – it would not be law anymore. Put differently, necessary features are those that capture the essence, i.e. the nature of law.7 Although apparently not being interested in trying to determine “the analytical ‘essence’ of some trans-historical trans-empirical (Platonic) Idea”,8 that is, “the essential nature of law as it really is independent of our linguistic practices and conceptual frameworks”,9 proponents of this methodological approach nonetheless argue that conceptual truths about necessary features are a priori truths.10 At the same time, their claim is that in pursuing its goal, legal philosophy is not in the business of forging the concept of law, but “merely explain[ing] the concept that exists independent of it.”11 All this leads metaphysically driven conceptual analysis into problems of explicating the connection between the analytical and empirical step of inquiry,12 as well as of reconciling the task of determining essential properties of law with the claim that the concept “evolved historically, under the influences of legal practice, and other cultural influences”,13 and that it may continue to evolve and change.14

  • 15 Gardner 2012: 279. This is perfectly in line with Frank Jackson’s (1998: 46) claim that the goal of (...)
  • 16 Ramsey 1992: 62.
  • 17 Ramsey 1992: 63.
  • 18 Ramsey 1992: 64.

8There is a further, until recently largely unacknowledged, problem of metaphysically driven conceptual analysis. To the extent that it is the project “of getting the classification right”,15 it relies on certain psychological assumptions about intuitive categorization judgments. Under this approach, it is assumed that these judgments are “to lead us to tidy sets of necessary and sufficient properties because … these intuitions are generated by underlying representations of necessary and sufficient properties.”16 However, experiments in cognitive psychology have demonstrated that these assumptions are unwarranted. In contrast, experiments have revealed a different, “very robust cognitive phenomenon” – “our categorization intuitions appear to reflect a taxonomic system in which most categories have graded membership.”17 On this view, concepts are represented by prototypes and our categorization judgments are a result of the comparison of individual instances with the prototype representation. Now, if prototypes are abstracted clusters of typical features, the question is “[w]hat determines which properties form the summary prototype?” In short, typical are those features that are salient, more common, and unique for a given category.18 Since under prototype theory features may be sensitive to different socio-historical contexts, their saliency for the nature of studied phenomenon may vary.

  • 19 Schauer (2015: 4) seems to argue that metaphysically driven conceptual analysis is unjustified in m (...)
  • 20 Cf. Priel 2011: 83.
  • 21 This is so despite Green’s (2020: 894) recent remark that the idea that general jurisprudence, the (...)

9One of the methodological starting points in NoIL is the idea that any analytical approach claiming to be empirically informed19 cannot turn a blind eye to experimental findings of categorization studies that point in the direction of the prototype theory of concepts.20 Furthermore, staunch proponents of metaphysically driven conceptual analysis routinely employ the language of “central” and “borderline” cases, which is at odds with the main task of this methodology to provide proper classification.21 On the other hand, such a categorization is perfectly acceptable within the approach that allows for a graded membership of its instances. Finally, the very fact that the legality of international law is commonly challenged simply in virtue of its functioning in an entirely different societal setting, is an additional reason to rely on a theory of concepts that admits that the salience of constitutive features can vary with changing contexts.

  • 22 As succinctly put by MacCormick (1997: 1057), “to think normatively is to think judgmentally”.

10This somewhat protracted detour is hopefully helpful in clarifying why Krešić’s question is not “heretic” for me after all. No normative order, including law, can exist without “judgment”. Put differently, it is in the nature of the practice of norm-regulated behavior to be under some form of “judgment” whether or not the undertaken behavior was in accord with a governing norm.22 But the exact form of “judgment” employed will not be decisive for judging the membership of a given normative order in the category of legal orders. Not only is that “judgment” by no means the sole feature of law as a normative order, but this feature may vary according to different historical and societal contexts. Hence, “judgement” may take the form of tribal chief, king, mediator, arbitral body, municipal court with compulsory jurisdiction, international tribunal without such jurisdiction, or it may be left upon the very subject to judge its own behavior, as in the corporate governance “comply or explain” model. There is, thus, no preclusion to treat more salient conceptual features of law as “necessary”, provided that one is aware, first, that this label, with the accompanying vocabulary of “a priori truths in all possible worlds”, has been effectively hijacked by metaphysically driven conceptual analysis; and second, that such labeling within a prototype theory of concepts would largely be misleading and would deprive it of its obvious advantages over the rival methodology.

  • 23 Pavel 2021: online § 7.
  • 24 In Green’s (2020: 894) words, this is the “evidence base” for a further jurisprudential work.
  • 25 Chiassoni 2016: 65.

11This leads me to Pavel’s question regarding the justification for accenting these four typical characteristics of law, “when there were other features that could have been emphasized.” More specifically, she asks “why leave out features such as systematicity, validity, and widespread compliance when they have been considered central to our understanding of law by other legal scholars.”23 Let me respond by reminding that in the very introduction of NoIL, I underline that despite the definitive article in the title, this book is only one attempt (among many) to provide a new and improved explanatory account of international law. What does this task amount to? As a complex social artifact, law is part of our political and social world. Legal philosophy cannot help but to begin with ordinary views of law.24 However, the end result of a philosophical work is never a mere replica of folk prototypical representations. Thus, the concept of law is partially theoretical and stipulated and as such carries the philosopher’s personal imprint. While not completely departing from linguistic practices and folk representations, the philosopher’s conceptualization of law is, in Chiassoni’s terminology, “weak stipulation”. And partly stipulated concepts are “neither true nor false.” They are to be judged in terms of whether they are “pragmatically justified.” That is, “their value, if any, depends on two factors: (i) on the goal(s) they are meant to serve, and, accordingly, (ii) on whether, and to what extent, they are suitable to those goals.”25

12The main ambition of my analytical account of international law was to show that, contrary to widespread assumptions, it shares the same set of typical features with the municipal concept of law, albeit the ones that carry specificities due to their particular context. Different theoretical inclinations and goals might have yielded a slightly different list of abstract, typical features. To my mind, those mentioned by Pavel are either covered by the ones I enlisted or are discussed in relation to them. Validity, for instance, is treated as a specific existence of norms and, as such, is a crucial part of the concept of normativity. Systematicity, on the other hand, is not explicitly mentioned as a separate feature since it can be attached to more mature instances of legal orders. Nonetheless, in discharging the claim that fragmentation is a specific feature of international law, I provided grounds for the contrary conclusion that the law beyond state displays some significant signs of maturity. Finally, although widespread compliance was also not treated as a distinctive feature, I tackled the issue while criticizing Raz’s conception of authority. My conclusion was that law’s overall authority, reflected in the comparatively higher level of its efficiency (i.e., in norm-subjects’ compliance), should be seen as a combined effect of the interrelated typical features of law and not as the result of the alleged “exclusionary” nature of legal norms as reasons for action. This leads me to criticisms regarding my treatment of legal normativity.

3 (International) law’s normativity

13Before addressing criticisms regarding my position toward law’s normativity, I want to specify what, to my mind, are the most common errors in the philosophical literature on this subject matter:

  1. The nature of law is successfully elucidated once its normativity is clarified;

  2. The normativity of law is exhausted in the discussion about the nature of legal obligation;

  3. There is a direct link between the concepts of ‘normativity’, ‘validity’ and ‘bindingness’;

  4. Normativity qua bindingness of law is taken for granted;

  5. How questions of normativity and the why question, i.e., the problem of source(s) of law’s normativity, are not clearly distinguished.

14The account of law’s normativity that I offered in NoIL was supposed to avoid falling into any of these common traps.

  • 26 Lefkowitz 2021: online § 14.
  • 27 Lefkowitz 2021: online § 16.

15However, Lefkowitz seems to blame me for committing one form of the last enumerated error. In particular, he argues that I confuse the three distinct questions regarding: (1) the nature of legal obligation; (2) law’s legitimacy, or legitimate authority; and (3) the nature of a moral duty to obey the law.26 In the opening sentences of the fourth chapter, concerning international law as a normative order, I wanted to be as clear as possible with the respect to the task of my inquiry. Namely, I emphasized that I want to focus on the two how questions of law’s normativity – the first one having to do with the problem of how to ascertain a legal norm (epistemological perspective), and the second dealing with the question of how legal norms provide us with reasons for action (perspective of practical rationality). Yet, Lefkowitz states that my “interest lies primarily with law’s legitimacy and the nature of a moral duty to obey the law”, and thus his criticism concentrates on those issues.27

16This is an obvious indication that I might not have been clear enough in the subsequent exposition of the promised tasks. My initial hunch is that Lefkowitz’s claim that I ended up switching between how and why questions of legal normativity is provoked by my, somewhat extensive, criticism of Raz’s account of authority, i.e., of legal norms as “exclusionary” reasons for action. I will therefore try to briefly restate my position by explaining how my interest in law’s normativity is broader than Lefkowitz’s point 1, but is essentially not vested in clarifying points 2 and 3, except to the extent needed to sustain my arguments contra Raz.

  • 28 Raz 1977: 210.
  • 29 In Schauer’s (1991: 119) words, validity is “a necessary condition for applicability” of a rule.

17Normativity is one and the same across the entire world of normative statements. This means that the reason-giving nature of norms has the same logical form, namely, ‘x ought to ’ is logically equivalent to ‘there is reason for x to ’.28 To say that a statement is normative is to say that it purports to guide one’s behavior. People tend to respond only to normative statements that they hold to be valid for them.29 Otherwise they treat them as if they were non-existent. This shows why validity is properly understood as a special form of the existence of a normative statement. Different normative statements draw their validity from different sources, whereas legal norms draw their validity from recognizable formal sources of law. Unlike most other normative orders, law has objective and rather reliable sources of its validity. Hence, the validity of a rule does not depend on the norm-addressee’s approval or disapproval.

  • 30 Hart 2012: 48, 96.
  • 31 Raz 2002: 106.

18The normative function of guiding human behavior can be achieved through the use of two related, yet distinctive mechanisms – that of ordering and prohibiting (through obligations) and that of entitling and empowering (through rights). Law in this respect stands as a rather unique phenomenon of the normative world. Hart robustly emphasized this point.30 Raz follows in his footsteps, arguing that the normative force of power-conferring legal norms “is manifested by the fact that statements of such norms are premises of practical inferences which affect the conclusion of the inference.” Hence, “[w]hat one ought to do depends on whether one desires or has other reasons for or against bringing about the relevant normative change.”31 This aspect of law’s normativity, thus, clearly affirms the practical agency perspective.

  • 32 Needless to say, authors within this camp differ in many important respects.
  • 33 Green 2012.

19However, being far more morally contentious, legal obligation is put at the very center of jurisprudential inquiries, to the extent that several legal philosophers are inclined to think that once the nature of legal obligation is exposed, the puzzle of the nature of law is solved as well. There is a further implication of this tendency reflected in the fact that for most legal philosophers in the positivist and analytical traditions, legal normativity is expressed in the bindingness of valid legal rules.32 That is, “validity” and “bindingness” are taken as synonyms, so that “an obligatory act or omission is something the law renders non-optional.”33 The bindingness of legal norms in such conception is taken for granted.

  • 34 Schauer 1991: 121.
  • 35 A clear illustration of this tendency can be found in Çali’s (2015: 11) thesis that “[t]he binding (...)

20I have tried to expose the weaknesses of these assumptions. I tried to show that while validity is the key quality of a legal norm, bindingness, i.e., non-optionality, is not. For any norm – including a legal one – to be binding, it has to generate a sense of obligation, i.e., authoritativeness. Put differently, the norm-addressee has to internalize the given rule as binding, which is to say that agent has to treat “a rule’s existence as relevant to the question of what to do.”34 Hence, common reference to a valid legal norm as “legally binding” is a conventional way of legal talking, which by no means implies that the given norm necessarily generates the requested sense of obligation within the circle of its primary norm-addressees.35 What is implied by this is that, in case there is a conflict as to whether the undertaken conduct was in breach of the given norm, the sanctioning element of that norm is, in virtue of its validity, applicable by the respective law-applying institution regardless of the will of the norm-subject. Only in this sense one can meaningfully speak of “non-optionality” of legal norms. The upshot is that bindingness can be gradated because normative force can be gradated.

  • 36 Green 2012.
  • 37 Raz 2009: 128–129.

21In framing the aforementioned view, I largely relied on the criticism of the most influential reason-based account of non-optionality of legal obligations, that of Raz. For him, the stringency of obligation-inferring legal norms is “a consequence not of its weight or practice features, but of the fact that it supports the required action by special normative means [exclusionary reason, M. J.], insulating it from the general competition of reasons.”36 Since Raz’s conception is developed within the broader account of practical agency, in which “[a] reason for an action is a consideration that renders its choice intelligible”,37 I argued that this leads his position into paradoxes of intentionality (Rodriguez-Blanco) and practical authority (Hurd).

  • 38 Lefkowitz 2021: online § 18.
  • 39 Lefkowitz 2021: online § 18.
  • 40 Lefkowitz 2021: online § 18.
  • 41 Lefkowitz 2021: online § 19.

22Lefkowitz is not convinced. He says that he sees no reason to accept the claim that the only way for one to act as a rational agent “is to intentionally act on that reason.”38 He provides several alternatives. First, “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.”39 Second, although practical rationality implies acting upon available reasons, Lefkowitz says that it is not clear “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.”40 Finally, a person will act as a rational agent by forming “a judgment regarding the likelihood that the law will track the independent reasons that apply to her” and, then, “draw[ing] 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.”41

23Lefkowitz’s first alternative potentially shares the same problem as Raz’s conception of legal authority. Raz proceeds by formulating the moral puzzle of legal authority from the deliberative, first-person perspective of practical reasoning, but then turns to the solution from some theoretical, third-person perspective. Lefkowitz might fall into the same trap when trying to address the following question: how am I to determine what is “better” for me as the legal norm-addressee, and whether the legal norm enables me to comply “better” with a “right” reason? In case I treat the legal norm as ‘deliberatable,’ that is, such that it can direct me both ways, either to compliance or non-compliance, then that norm essentially no longer enjoys the status of an “exclusionary” reason for action. If, on the other hand, I treat a legal directive as a Razian “exclusionary” reason, then I would need some external evaluative standard for assessing that I would do better at complying with the correct balance of reasons by obeying the directive than by determining on my own what the balance of reasons requires. And this is, then, hardly reconcilable with the practical agency perspective.

  • 42 Raz 2009: 141.

24Lefowitz’s second and third alternatives do not support Raz’s idea of legal norms as “exclusionary reasons” for action. As indicated, such reasons are for all practical purposes ‘non-deliberatable,’ because no matter what, they preclude one from acting on some opposing reason. Raz is clear on this. He says that legal norm “pre-empts” all other background reasons, insofar as “we are bound to obey it, and are not allowed to question its force, even while we are, of course, allowed to question its wisdom and advocate its reform.”42 Hence, it is not the point of “exclusionary reasons” that I may eventually “defer to the judgment of another agent”, as Lefkowitz sugges, because this may clearly be the outcome of the process of my self-reflection and deliberation. As for the calculus of the likelihood of better conforming to the right reason, which Lefkowitz mentions as yet another alternative, it is essentially the correct description of what is regularly happening when one exercises one’s practical agency. In contrast, Raz’s exclusionary reasons are there to direct my action irrespective of likelihoods and calculation.

  • 43 Lefkowitz 2021: online § 20.
  • 44 Lefkowitz 2021: online § 21.

25Even if I am justified in rejecting Raz, Lefkowitz still wonders: “How should a legal obligation not to figure in a legal subject’s practical reasoning?”43 He, then, mentions my references to various alternative proposals, such as Rodriguez-Blanco’s idea of “presumption of the authoritative force of legal rules”, or Perry’s “re-weighting reasons”, noting that they “receive no explanation or development.” He reiterates this comment for my references to Waldron’s ideas of “law as the signaler of last resort” and “respect for law” – the latter phrase being independently employed by Raz as well. Lefkowitz is concerned not only that they do not receive further explanation, but that my invocation of “respect for law” brings my position close to Raz’s already criticized standpoint, which calls for legal subject’s blind obedience to law.44

26Admittedly, this part of NoIL is the one that would benefit most if I were able to thoroughly rewrite it. Let me instead try to clarify myself in regard to the book’s subchapter entitled, Law as “The Signaler of Last Resort”. Since I came to a rather unconventional conclusion that law is only one among many normative systems that we use as signalers that something ought to be done, I felt the need to say something about the apparent authoritativeness of legal obligations in our everyday lives. Nevertheless, the very length of this subchapter – some four pages of the text – was a clear indication that I was not interested in a full-fledged discussion about either law’s legitimacy or the moral duty to obey the law. Simply put, an inquiry into the sources of law’s authoritativeness (i.e., bindingness) would imply entering the province of why questions of legal normativity, which largely fall outside the scope of an analytical account of law. Thus, I merely wanted to pinpoint some more plausible alternatives to Raz’s idea of legal norms as “exclusionary reasons” for action. I was seemingly not careful enough in crafting my own conclusions, while simultaneously relying on some other authors’ conceptual labels.

  • 45 Bix 2013: 18.

27In short, that law, apart from some exceptional circumstances, is by and large “the signaler of last resort” in guiding our everyday behavior is a well-established empirical fact. When norm-addressees treat law in such a way, one can adequately speak of the developed “respect for law”. The purpose of the larger part of the chapter on legal normativity was to show that this fact cannot be explained by sole reference to some special normative force of legal rules. As already stated, the overall authority, and the accompanying higher level of efficiency of law as a normative order, is a result of a combined effect of all typical features of law. Now, is legal philosophy called upon to tell us more about the factors that trigger development of this particular “respect for law”? I am inclined to follow Bix on this one. He says that “even if a significant number of people believe that law qua law gives them reasons for action, this may be a matter calling more for a psychological or sociological explanation rather than a philosophical one.”45

  • 46 Schauer 1991: 128.
  • 47 Rodriguez-Blanco (2014: 160-61) argues that we can act on the presumption of authorities’ legitimac (...)
  • 48 “If we look … at prudential reasons for action, and at the connection between sanctions and such re (...)
  • 49 “When the moral and religious ideas of an individual run parallel to the legal order to which he is (...)
  • 50 Schauer 1991: 125.
  • 51 “Benefits which are in no way determined by the legal order but in fact connected with lawful behav (...)
  • 52 This clarification, hopefully, largely responds to Chehtman’s remark that, in fostering the “idea o (...)
  • 53 Schauer 1991: 128.

28The most that legal philosophy can tell us is that “something about a rule and not the rule itself determines … what weight the rule will have.”46 These things about legal rules may vary – most people most of the time believe that law-making institutions are legitimate enough in creating legal rules, not least because these institutions make such claims;47 some legal norms are prudentially considered authoritative in light of the fact that they are backed up by some coercive guarantees;48 a number of legal rules are treated as binding by the norm-addressees simply because the underlying reasons parallel a moral or religious order;49 we commonly have prudential epistemic reasons to doubt our own decision-making capacities in comparison to that of the law-making institution;50 finally, on many occasions, treating legal norms as binding may be socially rewarding and in the long run beneficial for the norm-addressee.51 In the deliberative process of how to act, the agent thus employs various patterns of internationalizing legal norms as reasons for action.52 As Schauer points out, these patterns across numerous decision-makers may develop by processes of education, political socialization, or stronger pressure by the society, “[b]ut the way in which and the extent to which, if at all, rules become a part of a decisional process is ultimately determined by the decision-maker alone.”53

  • 54 Rodriguez-Blanco 2021: online § 9.

29This leads me to Rodriguez-Blanco’s worry that the view of agency, which relies on a subjective motivational set ranging from self-interested to moral reasons, is “problematic” because it knows of no “practical truth”. For her, within the view I proposed “there is no space for rational desires or desiderative reasons … that are shaped by practical reason and our understanding and conceptions of what is valuable or good.” Contra this view, Rodriguez-Blanco argues that reasons for actions are “a unifying conception grounded on what is perceived or conceived of as good by the deliberator or agent.”54

  • 55 Aristotle 2004: 1139a.
  • 56 I leave Rodriguez-Blanco the ultimate judgment of how different her view is from Olfert’s. Since Ol (...)

30Aristotle’s concept of practical truth is by no means a philosophically uncontentious subject. The controversy stems from Aristotle’s introductory passage concerning the discussion of practical reason and wisdom, where he states that “truth is the characteristic activity of everything concerned with thought. But in the case of what is practical and concerned with thought, its being good consists in truth in agreement with correct desire.”55 While most commentators agree with respect to the thesis that the distinctness of practical truth has to do with the said “agreement” between practical truth and correctness of desires, there are nuanced differences when it comes to the interpretation of that connection. Due to the constraints of space, I will confine myself to demonstrating that the view of practical agency I relied on is in line with at least one contemporary philosophical interpretation of this concept, that of Christiana Olfert.56

  • 57 Olfert 2014: 229.
  • 58 Olfert 2014: 225.
  • 59 Olfert 2014: 224.
  • 60 “[F]or Aristotle, the unqualified human good – happiness – is manifested in a life lived by specifi (...)
  • 61 Olfert 2014: 224. (emphasis in the original)

31Proceeding from the Guise of the Good account of human motivation, which “is the view that human agents are moved to pursue something just in case they find it good”, i.e., “as an end to be achieved”,57 Olfert argues that practical truths and correct specific desires are double-linked: first, they are subjected to the same normative standard of correctness; and second, the practical truth “of particular appearances of goodness is part of what makes our specific desires correct”.58 This normative standard, however, is dependent upon “variable and context-sensitive facts about what is unqualifiedly good for a particular person.”59 Simply put, what counts as unqualifiedly good (“happiness”) for an agent at a certain point looks different for different people in different circumstances.60 In that sense, practical truths are “personalized truths about someone’s happiness, about what happiness is relative to her”.61

32The starting point of the practical agency perspective in jurisprudence is to figure out the role that legal norms, as reasons for action, play in our reasoning about what to do in particular circumstances. If we are practically rational agents, we will act upon the prior deliberation of what the proper balance of reasons requires us to do. If we, on the other hand, approach the problem of legal normativity from the point of view of law’s primary efficiency, then what matters is that norm-addressees’ actions conform to legal norms. However, our actions may clearly not be the result of employing the faculties of practical agency, but the upshot of, say, sheer compulsion to which we were subjected. Hence, if any role is assignable to legal norms in our reasoning of what to do, it has to be in the deliberative phase in which we calculate what would be the best course of action in the given situation. This clearly indicates that deliberation and action are supposed to be connected.

  • 62 Olfert 2014: 216.
  • 63 There are two parts of the soul, one with reason and the other without. One sub-part of the part wi (...)
  • 64 Olfert 2014: 216.

33Olfert warns that the central point of practical reason is not to discover what I am doing or what I am about to do, “but rather, broadly speaking, to discover what it would be good to do, and to do it.” However, “thoughts about what it would be good to do, like ‘It is good to do X for the sake of Y,’ are not made true by performing action X. Instead, the thought is made true and the action is made correct by facts about the nature of the human good, the particular agent, and her particular circumstances.”62 Practical truth for a particular agent requires the faculty of deliberative, i.e. “calculative” reasoning, whose cognitive objects are things that can be otherwise.63 As a consequence, “the actual performance of actions has no decisive role to play in explaining why thoughts like ‘It is good to do X for the sake of Y’ are true.”64

  • 65 Raz 1999: 93.

34In contrast, Raz’s invocation of practical agency puts conforming to legal norms as reasons for action at the forefront. For him, “conformity with reason requires doing the action [M. J.], or having the belief, intention, emotion, or desire that the reason is a reason for, and that is all.”65 Now, if legal norms are indeed “exclusionary reasons”, that is, if their role in the deliberative phase is to “pre-empt” all other reasons pointing in a different direction, then this implies two interrelated conclusions: a) that legal norms cancel our faculties of practical, i.e. “calculative” reasoning; and b) that the practical agency perspective is irrelevant in elucidating the nature of legal normativity, in particular, the normativity of legal obligations.

  • 66 Chehtman 2021: online § 14. Lefkowitz (2021: online § 25) subscribes to this criticism by noting th (...)

35I tried to show that neither of these two theses are acceptable. According to Chehtman, all that came with a considerable cost, especially for international law. He says that with the acceptance of this “significantly more modest understanding” of legal normativity “[s]omething important is arguably lost.” In Chehtman’s opinion, the price to be paid consists in depriving international law “of part of its distinct force in practical reasoning.”66

  • 67 See, e.g., Goldsmith & Posner 2005.

36In response, I must first note that the charge that international law is somehow less “true law” due to its alleged defective normative force has been there for quite some time, advanced typically by international realists.67 In that respect, my account of law’s normativity, which debunks the direct link between the concepts of “normativity,” “validity,” and “bindingness”, in fact effectively dismisses the aforementioned charge as completely unsubstantiated. It advances the view that, when understood primarily as the capacity to give rise to obligations, legal normativity can clearly be endowed with relative weight. Consequently, not only does my account show that the normativity of legal rules is the same at both the municipal and international levels, but it also successfully elucidates the oft-puzzling issues of “soft law” and relative normativity, which from the international legal vocabulary has gradually entered domestic legal talk.

4 (International) law’s justice-aptness

  • 68 Pavel 2021: online § 17. Krešić 2021: online § 4.
  • 69 Krešić 2021: online § 4.
  • 70 Similarly, “[t]he procedures of a city council decisions can be justice apt even while deciding the (...)
  • 71 Pavel 2021: online § 13. Krešić 2021: online § 3.
  • 72 Pavel 2021: online § 15.

37Keeping the recurrent topics in the contemporary works of both general and special jurisprudence in mind, it came as no surprise that NoIL was criticized for fostering the claim that one of law’s typical features is justice-aptness. I singled out four criticisms and comments in Pavel’s and Krešić’s contributions. First, it is suspected that the thesis about justice-delivery as the function of law is correct as an empirical claim.68 Second, it is claimed that the connection between law and justice is “contingent”, insofar as “it depends on the characteristics of humans as we know them today”. If they change, this may affect the current “substantive criteria” of justice to the extent it is no longer considered a function of international law. Moreover, taking into account the historical role of “the principle of might” in international relations, we may well end up with “hegemony-delivery” as a more properly defined function of international law.69 Third, it is indicated that normative orders can be justice-apt without being justice-driven. For instance, “[t]he hiring practices of a company could be justice apt even while aiming at hiring the best professionals for the available vacancies.”70 What is finally challenged is the role of justice as a “sole key value” to be served by law. It is submitted that there are other credible candidates, out of which peace is the most plausible, especially if we focus on international law.71 Singling out justice-aptness as a feature of law has a further unwelcome implication – it “is less helpful in describing the nature of law.”72

  • 73 Gardner 2000: 1.

38I do not intend to spend much time refuting the first claim. There is no need for a large-scale empirical survey regarding perceptions of the value that legal order is designed to deliver (although some such surveys would be highly welcome!) to conclude that the value in question is, first and foremost, justice. For one, this connection is attested to in most languages – in their proverbial sayings, in common etymological roots of these words, and/or in the names of certain legal institutions (e.g., a word “justice” denoting judicial office, or “Ministry of Justice” denoting office charged with oversight of the working of the legal system). A further sign of this connection is available in the maxims of the legal profession, which were initially created by Roman lawyers and scholars (e.g., Celsus’ “Ius est ars boni et aequi”). As succinctly put by Gardner, “Wherever there is mention of laws and legal systems … invocations of justice are unlikely to be far behind.”73

39The connection between law and justice is, thus, well rooted in our linguistic and institutional practices. And yet, pointing it out is meant to convey more than the message that justice-aptness is a typical feature of law as we, humans know it. Since typical features are not “metaphysically necessary” they may change, thereby altering the nature of the social artifact called law. Hence, the “contingency” charge is not relevant. One thing must be added. The justice-aptness of law cannot cease to be a typical feature of law in virtue of a mere change of “substantive criteria” of justice. The justice-aptness of law means only that law can be inspected in light of two of Aristotle’s forms of justice – distributive and rectificatory – irrespective of the prevailing material principles of justice. Now, the achieved level of moral transformation of international order is surely not irreversible, but if the world happens to regress to the state of affairs in which international disputes are solved according to “the principle of might”, this then may mean not only that international law became “hegemony-driven”, as Krešić suggests, but also that we ran out of international law altogether. For, such a world would be devoid of any sense of predictability which we normally associate with law-governed relations.

  • 74 Green 2010: 12.
  • 75 Gardner 2000: 6.
  • 76 As for Pavel’s (2021: online §14) other example, the decision regarding where to put the bridge doe (...)

40But is the reverse possible? Can it be that a normative order is not driven by justice and yet is apt to be inspected in light of justice? To begin with, justice as a moral value is intersubjective. Hence, only relations between at least two subjects can be subjected to this normative standard. This means that, potentially, many unregulated relations can be assessed as (un)just (e.g., relations between parents and children, between friends). There must, however, be something in the structure of these relations for them to be justice-apt. More precisely, they have to be allocative in nature, that is, they have to be about allocation of burdens and/or benefits. Hence, “the domain of justice is the domain of a certain kind of allocative principles.”74 As Aristotle teaches us, allocation comes in two guises, as distribution and correction (rectification), and thus we speak of two forms of justice.75 Pavel, thus, uses the wrong example to prove the right point. Hiring practice, as a normative practice, is primarily about the allocation of the benefit of getting a job. The fact that this practice is intended to see the best candidate get the job confirms that it is driven by one standard of distributive justice – meritocracy.76 Be that as it may, the fact that certain relations and practices can indeed be justice-apt even if not primarily justice-oriented does not change much in the fact that those that are justice-driven are by default also justice-apt.

  • 77 Green 2008: 1050.

41Law is a justice-driven social practice. As emphasized by Green, “[t]his does not entail that every individual law is justice-apt.” However, “even laws that have some other aim can give rise to disputes, all of which the law claims authority to settle in its courts, by judges who are oriented to the question of who deserves the benefit of winning and who the burden of losing.”77 Put differently, while some important social relations that are to be legally regulated do not possess the requested allocative structure and thus cannot be inspected in light of distributive justice (e.g. legal rule specifying on which side of the street to drive), all conflicts that are to be decided by law-applying institutions can be subjected to the standard of corrective (rectificatory) justice. In that obvious sense, there is primacy of justice as a value to be delivered by the proper functioning of a legal order.

  • 78 Kelsen 1944.
  • 79 Kelsen 2009: 14.
  • 80 Kelsen 2009: 22. Cf. Kelsen 1944: 1.

42As I explicitly stated in the book, justice is by no means the only value that law is supposed to serve. Both Pavel and Krešić mention keeping the peace as a plausible alternative for the status of a typical feature of law. This value has always figured high among international scholars, and at the end of the World War II Kelsen offered a detailed account in favor of the realization of peace through international law.78 As a moral relativist, he believed justice to be an “irrational ideal” and thus saw peace as a preferable substitute.79 Although defining peace as “a condition in which there is no use of force”, Kelsen underlined that “the peace of the law” is not the state of an “absolute absence of force”, but the of “force monopoly of the community”.80 If one stops at this point, one may easily conclude that the peace-keeping function of law is today equally well served in both, say, Canada and North Korea. Simply put, taking peace as thus defined, the key value to be delivered by the proper functioning of law would lead one to unabashedly praise both legal systems in virtue of this successfully achieved goal. However, we all know better than that, and so did Kelsen. Thus, he specified what sort of peace he had in mind:

  • 81 Kelsen 2009: 13-14.

One statement a theory can make, however, on the basis of experience: only a legal order which does not satisfy the interests of one at the expense of another, but which brings about such a compromise between the opposing interests as to minimize the possible frictions [M. J.], has expectation of relatively enduring existence. Only such an order will be in a position to secure social peace to its subjects on a relatively permanent basis.81

  • 82 King 2010: 27.
  • 83 That this applies to international law even more so becomes obvious even from a cursory inspection (...)

43What Kelsen put into one too many words, Martin Luther King turned into an articulate saying: “True peace is not merely the absence of tension; it is the presence of justice.”82 Kelsen essentially tells us the same when arguing that only legal order that allocates benefits and burdens in a way that pays equal attention to interests of different social strata can secure long-lasting peace. Consequently, true peace can be achieved only through the legal order’s proper performance of its justice-delivery function.83

  • 84 Pavel (2021: online § 19) challenges my view by speaking of “more specific justice enhancing featur (...)

44The point I wanted to stress with respect to the connection between law and justice is thus rather simple: law coordinates behavior and settles disputes. Since most of the social relations that it regulates have an allocative structure, law can be assessed in light of two forms of justice. In that sense, one may speak of justice-aptness as a typical feature of a normative order called law. NoIL wanted to test to what extent rules governing behavior and solving conflicts at the international level can be subjected to standards of distributive and corrective (rectificatory) justice.84 By showing that they can be increasingly inspected in such a way, NoIL providedfurther evidence that international law shares all the typical features of the central case of law.

  • 85 Pavel 2021: online § 15.

45Pavel, nonetheless, thinks that justice-aptness as a typical feature is not quite helpful in describing the nature of international law. She says that “[i]t does not provide the same descriptive role for justice as flying does for birds.” To employ justice-aptness is to “evaluate birds on whether they are healthy or not.” However, “health is neither a specific feature of birds nor a feature that helps us distinguish birds from other living things.” According to her, the same applies to justice-aptness – it is neither “specific to law, nor does it help us in distinguishing law from other normative orders.”85

  • 86 Millikan (1984: 17) devised the concept of “proper function”, which is applicable both to natural a (...)
  • 87 Ehrenberg 2016: 25.
  • 88 Ehrenberg 2016.

46The problem with the health analogy is that it confuses natural (birds) and artifact (law) kinds. Even if we can in both cases speak uncontroversially about “proper functions”,86 only functions of the artifact kind are “value-laden, in that they refer to a benefit that the explanandum brings about through the performance of its function.”87 Hence, even if we are allowed to say that the “proper function” of wings for birds is flying, i. e., having wings is an adaptation for birds for doing the task of flying, we cannot reasonably say that “health” is the value that is supposed to be delivered by bird’s flying. Strictly speaking, values in an objective sense are not part of nature as such. To employ the value of “health” in describing the nature of birds is thus to make a category error. Not so with respect to artifact kinds. Their functions can be unproblematically associated with values insofar as “designers, creators, and users can all be understood to be interacting with the artifact for the reason that they believe it brings some benefit or value into the world.”88 Law is a social artifact designed primarily to bring justice into the human world. And justice-aptness, in conjunction with the other prototypical features, helps us in distinguishing law from other normative orders.

5 (International) law as an institutionalized and (coercively) guaranteed order

47In the final round of responses, I will tackle several different observations regarding NoIL’s treatment of the international law’s institutional structure and sanctioning mechanisms. Some of the objections stem from the commentators’ own theoretical understanding of the discussed problems, such as Lefkowitz’s reading of Hart’s idea of systematicity, Chehtman’s stance regarding central aspects of international law’s enforceability, or Krešić’s own accounts of adjudication and coerciveness. My primary aim is not to challenge their views as such, but only to respond to those aspects of their comments that affect my own account of international law as an institutionalized and (coercively) guaranteed order.

  • 89 Lefkowitz 2021: online § 4.
  • 90 Lefkowitz 2021: online § 8.
  • 91 Lefkowitz 2021: online § 13.

48Lefkowitz warns us “not to confuse the idea of a legal system with the idea of a system of laws (or rules) that Hart also invokes”.89 Whereas, according to Lefkowitz, “Hart does not deny the presence of secondary rules in international law”,90 he does deny “that international law qualifies as a legal system because it exhibits little specialization in the performance of governance tasks.” Lefkowitz adds that “on this substantive point” I agree with Hart. To justify this claim, Lefkowitz quotes my words about the “peculiar institutional structure of the international legal order.”91

  • 92 Hart 2012: 232.
  • 93 Payandeh 2010: 980.
  • 94 Payandeh 2010: 981.

49I do indeed speak of specificities of the institutional structure of international law, reflected in the lack of a centralized legislature, courts with compulsory jurisdiction, and special enforcement agencies, but nowhere do I take this as a sign of defective legality of international law. Quite the contrary, I argue that due to different empirical setting at the international level, the corresponding institutional architecture of international law cannot match that of municipal law. More importantly, it need not match in order to be treated as the central case of law. In that respect, Hart’s reservations towards international law stem exactly from its “formal structure”,92 that is, from its lack of all those institutions that we find in a modern constitutional state.93 However, as rightly pointed out by Payandeh, there is “no compelling reason” to treat the form as decisive when there are “rules and mechanisms which perform the three functions” that address and remedy defects of uncertainty, of the static character of the rules, and of inefficiency.94 NoIL tried to provide evidence that this is so. In refuting the claim that fragmentation is a specific feature of international law, the book in particular demonstrated that international adjudicative bodies, even those of special international legal regimes, do depict themselves as officials of a unified international legal order.

  • 95 Krešić 2021: online § 8.
  • 96 Krešić 2021: online § 8.
  • 97 Krešić 2021: online § 8.

50One part of Krešić’s contribution concerns exactly the discussion about the role of adjudication at the international level. While not entirely challenging any of my points, he advances the view that “if there is no institutional possibility to make a final decision on what law is in cases regulated by law, it is hard to distinguish law from morality or conventions.”95 This leads him in the next step to argue that “compulsory adjudication is a necessary element of law”,96 and that acceding to the claim that the omnis judex rule is an alleged specificity of international law “undermines the very legal nature of IL.”97

  • 98 I explicitly acknowledged that in the concluding part of the book.

51I suspect that this is the adequate way to defend the legality of international law. While I did repeat at several places in NoIL that decisions of adjudicative bodies, particularly of those acting in the capacity of the final authority, place an additional stamp of validity on any norm, the authoritative criteria of validity are, nonetheless, provided in the recognized sources of law. True, one may justifiably stress the uncertainty of formal sources of international law,98 and in such a situation the role of adjudicative bodies is even more important. However, this fact should not be turned on its head, by claiming that no reliable criteria of legal validity exist without the finality of adjudicative decision. Moreover, in situations in which the international legal order is still gradually moving towards the model of compulsory jurisdiction, claiming that this is a “necessary element” of law potentially fuels skepticism towards the legality of international law.

  • 99 Chehtman 2021: online § 20.
  • 100 Chehtman 2021: online § 3.
  • 101 Chehtman 2021: online § 20.

52A different sort of criticism comes from Chehtman. He emphasizes the importance of domestic officials and courts that “apply international and transnational norms on a regular basis, even without the need of formal domestication.”99 The practice of enforcing of international law by domestic courts significantly contributes to the authority of international law, and my “neglect” of this topic “both fails to capture an important aspect of international law's practice, and ultimately undermines its capacity to grasp some of its normative pull.”100 If I were to devote more space to this aspect, then this would have led me to conclude that “a picture of international law [is] more robust, albeit also messier”, to the extent of requiring a more serious treatment of legal pluralism.101

53This is a credible and important point that could have been more clearly underlined in the book. What I did reiterate though, in more unspecified terms, was that one of the peculiarities of the institutional structure of international law is that states largely act in both law-making and law-applying capacities. When acting in the latter sense, they assume the role of officials, i.e., agents of the general or a particular international legal order. I fully agree with Chehtman’s observation that when the enforcement task is taken on by domestic courts this has an additional importance for the strengthening of international law’s authority. And admittedly, this makes the entire perspective at the international level even messier. I do not think that I sugar-coated it when trying to show that a far-reaching charge of fragmentation as a typical feature of international law is not corroborated. In doing so, I did pay tribute to attempts of international legal pluralists to offer a different heuristic framework. It transpired, nonetheless, that even radical pluralist views, such as those from Fischer-Lescano and Teubner, cannot resist dealing with this messy picture as if it represents a unified whole. This, typically legal, als ob methodology of treating the untidy subject of legal norms as a logically coherent, integrated, and unified whole was then turned into a starting point for my modest argument in favor of the growing maturity of the international legal order.

  • 102 Krešić 2021: online § 12.
  • 103 Krešić 2021: online § 16.
  • 104 Krešić 2021: online § 18.
  • 105 Krešić 2021: online § 28.

54This maturity is gradually taking hold despite the seemingly weak enforcement tools of international law. A significant portion of Krešić’s contribution is dedicated to a critical elaboration of my treatment of coercive guarantees, in general, and outcasting, in particular. In dealing with some of the points in NoIL, Krešić largely develops his own account of (international) law’s “enforcement function” of “ensuring norm-compliance through the reaction of disapproval to undesirable behaviour.”102 As I said, I am primarily interested in responding to those theses that may challenge views advanced in NoIL. In that respect, there are three such interconnected Krešić’s theses that I briefly want to tackle. First, “physical force (violence) is a necessary type of legal coerciveness”.103 Second, all sorts “of guaranteeing could be important for enforcing law but, unless they are coercive guarantees, they remain in the realm of morality or convention.”104 Finally, the disadvantage of treating “outcasting” as the primary model of international coercive guaranteeing is that “the clear demarcation line between international legal sanctions and other forms of guaranteeing disappears.”105

55Although much about the first claim would hinge upon the prior understanding of what constitutes “physical force”, Krešić leaves us with no doubt when using the word “violence”. However, if inflicting violence were indeed the necessary form of legal coerciveness, a number of sanctioning measures that exist even in municipal legal orders, such as revocation of prior benefits, cautions, public admonitions, would have been stripped of their legality. Employing such a criterion in the international legal realm would be even more detrimental, since not much would be left to count as an international legal sanction. What defines something as a legal sanctioning measure is not the type of coerciveness, but the fact that it is as such prescribed by legal provision. And this equally applies to both municipal and international law. Thus, to claim that “outcasting” is a predominant form of sanctioning measure in international law is not to blur the line between law and morality/convention, but merely to indicate that this exact type of measure is prescribed by a number of international legal norms and regimes.

6 A concluding note

  • 106 Lefkowitz 2021: online § 1.

56This book symposium was held under the title “Symposium on international law”. If one were not to know the place of its publication, one would have been justified in expecting to read more about international legal matters proper. Luckily, the name of the publication – that it is the journal for constitutional theory and philosophy of law – serves as a useful disclaimer since the crux of the argumentative exchange between the commentators and the author was from the domain of jurisprudence. This vindicates Lefkowitz’s worry that it will be mostly legal philosophers, rather than international legal practitioners, who would “closely engage with the arguments presented in this book.” The upshot of this fact might be that both NoIL’s and the symposium’s “discussion … proceeds at some distance from the ins-and-outs of international law.”106

57This, however, need not be taken at face value in pessimistic terms. First, the extent to which legal philosophy will be of service to legal practice, including the international one, largely depends on the willingness of the latter to open itself to the findings of the former. Put differently, while existing legal practice is an unavoidable “evidence base” for jurisprudential work, the findings of legal philosophy are by no means mandatory for the everyday functioning of legal practice. Our task is to keep trying. Second, and probably more importantly, discussions like the one in this symposium strongly affirm the reinvigorated interest in philosophy of international law and testify to the fact that general jurisprudence can benefit much from the debates undertaken at, what was until recently considered, disciplinary outskirts.

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Notes

1 To be sure, apart from challenges, the reviews contained a number of praising comments. While I am deeply flattered by them, it is critique that we use as a fuel for the further advancement of us, as scholars, and the discipline we are dealing with.

2 Krešić 2021: online § 44.

3 Banas 2016: 1.

4 Himma (2020: 1), for instance, opens his last book with the remark that it “is an essay in what is sometimes called … metaphysically driven conceptual analysis.” In the footnote to this sentence, he adds: “Sigh. As if there is some other kind.” [emphasis in the original]). In my forthcoming review of this book in Jurisprudence, I will try to show that prototype theory is a viable alternative approach in the tradition of analytical philosophy.

5 Krešić 2021: online § 8.

6 Proceeding from Raz’s remark that all normative orders have either norm-creating or norm-applying institutions, or both, I merely emphasized the conceptual primacy of the latter, insofar as the very existence of a normative order requires “judgment” on the question of whether the undertaken behavior was in breach of the relevant norm. Judgment implies norm-application. Even if one is left to one’s own judgment (as in cases of moral or some religious norms), one is assuming the role of a norm-applying actor, i.e., institution in a broader, sociological sense of the word.

7 Raz 2005: 328.

8 Bix 2003: 545.

9 In Frank Jackson’s words, this would be the task of “immodest” conceptual analysis. Himma 2015: 73 (emphasis in the original).

10 Himma 2015: 72.

11 Raz 1998: 280-281.

12 As Bix (2003: 546) points out, “to say that conceptual analysis is connected with lived experience in some ways leads reasonably to the question – a surprisingly difficult one – of what that connection is”.

13 Raz 1998: 281.

14 There are further problems of whether there is only one concept of law, and whether it is universal or parochial. See Bix 2003: 550ff.

15 Gardner 2012: 279. This is perfectly in line with Frank Jackson’s (1998: 46) claim that the goal of conceptual analysis of, say, K-hood can be qualified “as the business of saying when something counts as a K”.

16 Ramsey 1992: 62.

17 Ramsey 1992: 63.

18 Ramsey 1992: 64.

19 Schauer (2015: 4) seems to argue that metaphysically driven conceptual analysis is unjustified in making such a claim. In the opening methodological remarks of his last study, he notes that “the various analytic and argumentative tools of philosophy might well be deployed with profit to forms of understanding other than the largely nonempirical search for necessary (or, occasionally, necessary and sufficient) conditions that characterizes contemporary conceptual analysis”.

20 Cf. Priel 2011: 83.

21 This is so despite Green’s (2020: 894) recent remark that the idea that general jurisprudence, the one relying on methodologically driven conceptual analysis, “harbours a secret ambition to police the boundaries around ‘law’ is simply false.” Having his previous work in mind, this remark is as sudden and as unsubstantiated as his other statement, that “general jurisprudence is a department of political theory”.

22 As succinctly put by MacCormick (1997: 1057), “to think normatively is to think judgmentally”.

23 Pavel 2021: online § 7.

24 In Green’s (2020: 894) words, this is the “evidence base” for a further jurisprudential work.

25 Chiassoni 2016: 65.

26 Lefkowitz 2021: online § 14.

27 Lefkowitz 2021: online § 16.

28 Raz 1977: 210.

29 In Schauer’s (1991: 119) words, validity is “a necessary condition for applicability” of a rule.

30 Hart 2012: 48, 96.

31 Raz 2002: 106.

32 Needless to say, authors within this camp differ in many important respects.

33 Green 2012.

34 Schauer 1991: 121.

35 A clear illustration of this tendency can be found in Çali’s (2015: 11) thesis that “[t]he binding nature of international law … is a necessary, but insufficient condition for the authority of international law”.

36 Green 2012.

37 Raz 2009: 128–129.

38 Lefkowitz 2021: online § 18.

39 Lefkowitz 2021: online § 18.

40 Lefkowitz 2021: online § 18.

41 Lefkowitz 2021: online § 19.

42 Raz 2009: 141.

43 Lefkowitz 2021: online § 20.

44 Lefkowitz 2021: online § 21.

45 Bix 2013: 18.

46 Schauer 1991: 128.

47 Rodriguez-Blanco (2014: 160-61) argues that we can act on the presumption of authorities’ legitimacy. When acting in such a way, we “act as if something were correct or as if we have a justified belief. Reasons or pieces of insufficient evidence can create a presumption.” In her view, we create a presumption that legal authorities are legitimate for the two following reasons: authorities make claims about their legitimacy and moral correctness, and they make claims on complying with Fuller’s eight desiderata of the Rule of Law.

48 “If we look … at prudential reasons for action, and at the connection between sanctions and such reasons, we can see that the role of sanctions is likely to be particularly large with respect to rules.” Schauer 1991: 123.

49 “When the moral and religious ideas of an individual run parallel to the legal order to which he is subject, his lawful behavior is often due to those moral or religious ideas”. Kelsen 2009: 24.

50 Schauer 1991: 125.

51 “Benefits which are in no way determined by the legal order but in fact connected with lawful behavior may also be a motive for conduct conforming to the law”. Kelsen 2009: 24.

52 This clarification, hopefully, largely responds to Chehtman’s remark that, in fostering the “idea of respect for law [which is] grounded on prudential reasons to avoid sanctions and other reciprocal benefits”, my account “fails descriptively” in explaining the “main reasons people actually comply with the law”. As I mentioned, there are other forms of norm-addressees’ internationalization of legal rules as binding. Some of those mentioned clearly correspond to Chehtman’s idea that international law’s operation increasingly relies on “incentives, nudges, and other mechanisms of governance”. One thing NoIL was not interested in, and hence is unaffected by Chehtman’s characterization of its failure, is “why [norm-addressees] ought to comply” with the law, either municipal or international. Simply put, this question falls outside of the domain of an analytical account. Chehtman 2021: online § 14.

53 Schauer 1991: 128.

54 Rodriguez-Blanco 2021: online § 9.

55 Aristotle 2004: 1139a.

56 I leave Rodriguez-Blanco the ultimate judgment of how different her view is from Olfert’s. Since Olfert is in some respects departing from Anscombe, and Rodriguez-Blanco largely follows in the footsteps of that author, there are presumably some nuanced differences in their accounts of practical rationality. See in detail in Olfert 2017.

57 Olfert 2014: 229.

58 Olfert 2014: 225.

59 Olfert 2014: 224.

60 “[F]or Aristotle, the unqualified human good – happiness – is manifested in a life lived by specific agents at specific times and in specific circumstances. Consequently, the happy life looks different for different agents in different situations and at different times of life.” Olfert 2014: 222.

61 Olfert 2014: 224. (emphasis in the original)

62 Olfert 2014: 216.

63 There are two parts of the soul, one with reason and the other without. One sub-part of the part with reason is “calculative” while the other is “scientific”. Cognitive objects of scientific reasoning are things that cannot be otherwise. Aristotle 2004: 1139a.

64 Olfert 2014: 216.

65 Raz 1999: 93.

66 Chehtman 2021: online § 14. Lefkowitz (2021: online § 25) subscribes to this criticism by noting that my account provides “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”.

67 See, e.g., Goldsmith & Posner 2005.

68 Pavel 2021: online § 17. Krešić 2021: online § 4.

69 Krešić 2021: online § 4.

70 Similarly, “[t]he procedures of a city council decisions can be justice apt even while deciding the location to place a bridge over a river”. Pavel 2021: online § 14.

71 Pavel 2021: online § 13. Krešić 2021: online § 3.

72 Pavel 2021: online § 15.

73 Gardner 2000: 1.

74 Green 2010: 12.

75 Gardner 2000: 6.

76 As for Pavel’s (2021: online §14) other example, the decision regarding where to put the bridge does not involve any allocative principle and hence cannot be justice-apt. On the other hand, the procedure leading to the decision may be subjected to some allocative principles, such as, for example, that different interested parties had roughly same time and resources to present their cases.

77 Green 2008: 1050.

78 Kelsen 1944.

79 Kelsen 2009: 14.

80 Kelsen 2009: 22. Cf. Kelsen 1944: 1.

81 Kelsen 2009: 13-14.

82 King 2010: 27.

83 That this applies to international law even more so becomes obvious even from a cursory inspection of the content of Kelsen’s Peace Through Law. One title chapter, for instance, indicates that “basis of an international organization for the maintenance of peace” is “sovereign equality of the States”. This legal status cannot but be the creation of the allocative function of the international legal order and a sign that distributive justice is being done. Similarly, the entire second part of Kelsen’s book is dedicated to the problem of “peace guaranteed by individual responsibility for violations of international law”. Again, what Kelsen expected was the development of rules specifying delicts and forms of legal liability, which were prerequisite conditions for the effective operation of corrective (rectificatory) justice. Kelsen 1944: xi-xii.

84 Pavel (2021: online § 19) challenges my view by speaking of “more specific justice enhancing features of the law”, but they largely reflect a particular substantive conception of justice. I have nothing to say against international law that protects various human rights, enables access to independent courts, safeguards equality before the law and proportional punishment. To the contrary. It is just that, first, the in-depth treatment of this topic falls within the ambit of normative jurisprudence or political philosophy and NoIL was interested in an explanatory elucidation of international law; and second, most of the mentioned existent or would-be content of international law can be assessed in terms of international law’s (non)realization of distributive and/or rectificatory justice, and this just proves my point that international law is justice-apt.

85 Pavel 2021: online § 15.

86 Millikan (1984: 17) devised the concept of “proper function”, which is applicable both to natural and artificial kinds. In her words, “having a proper function is a matter of having been ‘designed to’ or of being ‘supposed to’ (impersonal) perform a certain function”. Whether an entity “has a proper function depends on whether it has the right sort of history”. Millikan 1989: 292. Hence, although “function” may sound too teleological for evolutionary-based biology, Sober argues that it can be employed if it essentially denotes “adaptation”, which can be defined as follows: “Characteristic c is an adaptation for doing task t in a population if and only if members of the population now have c because, ancestrally, there was selection for having c and c conferred a fitness advantage because it performed task t”. Sober 2000: 85.

87 Ehrenberg 2016: 25.

88 Ehrenberg 2016.

89 Lefkowitz 2021: online § 4.

90 Lefkowitz 2021: online § 8.

91 Lefkowitz 2021: online § 13.

92 Hart 2012: 232.

93 Payandeh 2010: 980.

94 Payandeh 2010: 981.

95 Krešić 2021: online § 8.

96 Krešić 2021: online § 8.

97 Krešić 2021: online § 8.

98 I explicitly acknowledged that in the concluding part of the book.

99 Chehtman 2021: online § 20.

100 Chehtman 2021: online § 3.

101 Chehtman 2021: online § 20.

102 Krešić 2021: online § 12.

103 Krešić 2021: online § 16.

104 Krešić 2021: online § 18.

105 Krešić 2021: online § 28.

106 Lefkowitz 2021: online § 1.

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References

Electronic reference

Miodrag Jovanović, “On The Nature of International Law: Rejoinder”Revus [Online], 43 | 2021, Online since 03 May 2021, connection on 17 May 2021. URL: http://journals.openedition.org/revus/7283; DOI: https://doi.org/10.4000/revus.7283

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About the author

Miodrag Jovanović

Full Professor, Faculty of Law, University of Belgrade (Serbia)

Address: University of Belgrade – Faculty of Law – Bulevar kralja Aleksandra 67 – 11000 Beograd – Serbia

E-mail: miodrag@ius.bg.ac.rs

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