The Legitimacy of International Law

Samantha Besson and John Tasioulas (eds.), The Philosophy of International Law (Oxford, 2010).

On November 2, 2010 the people of Oklahoma will vote on a “Save Our State Amendment” to their constitution, which would forbid Oklahoma courts from even “considering” international law in their judgments. This proposal (already approved by the Oklahoma legislature) reflects a widely shared belief that international law should be disregarded or actively opposed because it is not as “legitimate” as the ordinary legislation of constitutional democracies. Samantha Besson and John Tasioulas have done lawyers, scholars and the public an enormous service in their volume on The Philosophy of International Law by raising the level of debate about the moral and political standards that should govern the assessment (and development) of international institutions. This book raises fundamental questions about the legitimacy and justice of the international legal order and opens the door to international law as a serious subject of philosophical inquiry.

Modern international law began with Hugo Grotius as an exercise in practical philosophy, and the resulting doctrines continue to make the line between law as it is and law as it ought to be much fuzzier at the international level than it is in most states. This gives philosophers and philosophically minded lawyers real authority in determining the future and actual success of international law. Besson and Tasioulas have collected twenty-nine essays by thirty-three leading philosophers and international lawyers addressing the sources and nature of international law, including the role of human rights, economic realities and democracy in determining the contours of international responsibility. These essays clarify why and whether we should care about or obey the dictates of international law.

The structure of the volume is “dialogical” in that there are two essays on each topic, with the second author responding (more-or-less) to the arguments of the first. This fits with the volume’s purpose of provoking discussion, but also reflects the extraordinary incoherence of contemporary theories of international law. What the contributors to this volume have in common is that they all take the possibility of philosophical reflection about legal values seriously. International relations theory and various forms of post-modernism have tended to sideline the discussion of philosophical questions about law, particularly those of a normative character. The authors in this volume address foundational values of the international legal order without fear, directly facing the necessary implications of human dignity, human rights and global justice, as actually embodied in the doctrines of contemporary international law.

The legitimacy of international law is a recurring theme in every chapter. John Tasioulas and Allen Buchanan introduce the question at the beginning, and subsequent discussions of international democracy, sources theory, adjudication, sovereignty, responsibility, human rights, self-determination, economic law, environmental law, the law of war, criminal law, and humanitarian intervention all come back to the question of what makes law “legitimate”, whether the law as it stands is legitimate, and when certain actions may be legitimate even though they are illegal. “Legitimacy”, in this sense, concerns the moral standards that should guide the formation and evaluation of international law. Tasioulas sets the tone at the outset with a clear and convincing refutation of moral scepticism, as applied to law. This follows an interesting and useful historical chapter by Benedict Kingsbury and Benjamin Straumann, which grounds modern international law on Cicero’s response to Carneades (the Hans Morgenthau of an earlier era.)

Besson and Tasioulas, the guiding lights behind this project, represent a brilliant new generation of philosophers speaking directly to a new generation of lawyers about international law–and they have managed to gather many of the most perceptive and serious scholars on the subject together in one volume. To capture even the essence of their arguments in this short space would be impossible, but in addition to those already mentioned, Amanda Perreau-Saussine, Thomas Christiano, Philip Pettit, David Lefkowitz, Andreas Paulus, Donald H. Regan, Timothy Endicott, James Crawford, Jeremy Watkins, Liam Murphy, Joseph Raz, James Griffin, John Skorupski, Will Kymlicka, Jeremy Waldron, Thomas Pogge, Robert Howse, Ruti Teitel, James Nickel, Daniel Magraw, Roger Crisp, Jeff McMahan, Henry Shue, Thomas M. Franck, Danilo Zolo, David Luban, and Anthony Duff all contributed chapters. To have been present at their conversation would have been wonderful. Reading this book approximates that pleasure.

Most of these scholars are philosophers, or philosopher-lawyers, as is appropriate in a book on philosophy, but this leads to my one criticism, which is that as philosophers they defer to lawyers too much. Contemporary international lawyers are almost totally adrift in understanding the moral, historical and other foundations of their own subject. Besson, Tasioulas and their colleagues offer international lawyers materials that may justify, strengthen or even rescue their discipline from the growing hostility of ordinary people in many nations. Too much deference (for example) to the confused jurisprudence of the International Court of Justice or to the prosperous lawyers who practice before it only weakens the ultimate credibility of universal international law.

I use the word “universal” advisedly in this context, because the great fear about international law, in Oklahoma and elsewhere, is as an alien imposition on the established values of traditional communities. Cosmopolitan lawyers assert broad requirements against local justice on the bald authority of their superior education. This fails to convince, and rightly so, without a coherent explanation of what international law is, where it comes from, and why it ought to be obeyed. International lawyers need a theory to explain when the international legal order should have jurisdiction, and when jurisdiction belongs to the state or other regional authority. There may be some areas where international standards bring us closer to the virtues that we value than local institutions, but not always. Besson and Tasioulas raise questions for philosophers and lawyers that should have been their first concern, but were often overlooked. This is an exciting and very important volume.

Cite as: Mortimer Sellers, The Legitimacy of International Law, JOTWELL (September 9, 2010) (reviewing Samantha Besson and John Tasioulas (eds.), The Philosophy of International Law (Oxford, 2010)),