Thick law, thin justice.

AuthorMacklem, Patrick
PositionBook review

THE THIN JUSTICE OF INTERNATIONAL LAW: A MORAL RECKONING OF THE LAW OF NATIONS. By Steven R. Ratner. Oxford: Oxford University Press. 2015. P. 434. $85.

INTRODUCTION

In his masterful book, The Thin Justice of International Law: A Moral Reckoning of the Law of Nations, Steven Ratner (1) argues that the justice of legal norms that constitute our international legal order should be determined according to two criteria: the degree to which these norms causally bring about international and intrastate peace, and the degree to which they causally bring about a state of affairs in which basic human rights are respected. These two criteria are not merely what abstract moral theory demands of international law as a matter of global justice. They are drawn from foundational pillars of our existing international legal order: international law's commitments to international and interstate peace, and respect for human rights.

These two criteria of global justice operate as a screen that filters international legal norms according to the degree to which they merit the mantle of justice, in the following way. A legal norm, say, a prohibition of humanitarian intervention in the absence of authorization by the UN Security Council, is just if it contributes to a state of affairs in which peace is advanced and respects human rights. If the norm does not advance peace, it will only be just if it is needed to create a state of affairs characterized by respect for human rights. Ratner defends this screen in terms of rule consequentialism by positioning himself as "asking whether various rules or alternatives to them, if followed by the actors to whom they are directed, would be reasonably expected to lead to certain states of affairs defined in terms of peace and human rights" (p. 83).

The Thin Justice of International Law thus offers a thin, and nonideal, theory of global justice. It is thin because, drawing from Michael Walzer, the criteria on which its theory is constructed constitute "a 'moral minimum'--universal in scope, reflecting values shared across cultures that are a baseline from which thicker, community-based morality may be developed." (2) And it is nonideal, because the criteria are drawn from key features of existing international law to form a blueprint for determining the justice of the thick legal norms that structure global politics into an international legal order.

The publication of The Thin Justice of International Law comes in the midst of an explosion of scholarly interest in global justice. Much of this scholarship is located in debates within moral and political philosophy. With notable exceptions, (3) these debates have had little time for questions relating to the justice of the detailed international legal norms that comprise our international legal order. For their part, international legal scholars, again with notable exceptions, (4) tend to view abstract questions about a just global order as peripheral matters of moral and political theory that do not engage with issues that arise in international legal theory and practice. The Thin Justice of International Law is a timely and significant intervention in such a context, linking concrete international legal rules to abstract theoretical debates about global justice by means of a metric--a metric grounded in nonideal theory that also aspires to determine the contours of a globally just international legal order.

This Review advances three claims about The Thin Justice of International Law. First, the theory of global justice it presents is more rule consequentialist than it appears. This is because Ratner does not restrict rule consequentialism to the screening of legal norms. Consequentialism also leaks into the justification he offers for the criteria he provides for determining the global justice of legal norms. According to Ratner, "consequentialist reasoning places the preservation of interstate and internal peace as the first principle of global justice precisely because peace is the linchpin to advancing the welfare and overall flourishing of individuals" (p. 96). The second pillar of global justice--respect for human rights--"is based upon putting the individual's basic rights first in situations where the advancement of peace may conflict with those rights" (p. 96). As a result, the criteria become rules consequentially derived from--and instrumentally serve--the fundamental values of human welfare and human flourishing. This raises the possibility of either a third pillar that directly promotes these values or a list of human rights that includes rights that more directly protect interests associated with these values.

Second, The Thin Justice of International Law produces a thick, just international legal order. Its thin global justice criteria result in consistency between much of the existing international legal system and a just international legal order. This is due, in no small measure, to the fact that the legal norms that constitute the international legal entitlement of sovereignty are held constant in the calculus. Sovereignty itself, as a legal entitlement that the international legal order distributes to some geographically concentrated collectivities in the world and not others, is not interrogated in terms of its relationship to peace and human rights. This distribution--its origins, the episodic recalibrations to which it is subject, and its distributional consequences--forms the heart of our international legal order; it is the primary way by which international law provides legal order to global politics. Treating it as "a fixed attribute of the international order," as The Thin Justice of International Law does, means that fundamental questions relating to the justice of this distribution remain outside the normative sphere of global justice (p. 86). But a third pillar consequentially derived from the values of human welfare and flourishing would enable scrutiny of some of the adverse consequences of the distribution of sovereign power in international law.

Third, The Thin Justice of International Law explicitly rests in part on a political conception of human rights, where human rights are defined in terms of their practical function in global political discourse. On this conception, global human rights discourse is a social practice whose participants invoke or rely on human rights as reasons for certain kinds of actions in certain circumstances. What this practice reveals is that human rights protect urgent individual interests against certain predictable dangers associated with the exercise of sovereign power. Such a political conception of human rights rests on a species of originalism that attributes significance to the intentions of political actors producing and reproducing the practice at hand. Relying on practice to identify the normative dimensions of human rights--that is, the role they should play in the international arena--also risks conflating fact and norm, and potentially drains human rights of their capacity to act as instruments of critique of existing practices. And relying on a political account risks relegating some human rights to the sidelines, such as the right to development, because they do not act as reasons that justify the exercise of sovereign power, even though they serve as reasons to mitigate the distribution of sovereign power that international law performs to structure global politics into an international legal order. But if the pillar of respect for human rights is expanded to include rights that protect interests associated with human welfare and human flourishing--specifically the human right to development--then this pillar can assess the justice of the role that international law's foundational commitment to sovereignty plays in the production and reproduction of global economic inequality.

  1. THIN JUSTICE AND RULE CONSEQUENTIALISM

    Ratner's standard of global justice comprises two principles or pillars, both of which provide international legal actors with prescriptions and prohibitions for and against certain kinds of action: peace, whereby international actors advance international and intrastate peace; and basic human rights, whereby international actors should respect basic human rights (p. 65). Ratner defines both pillars as referencing particular states of affairs. Accordingly, the first pillar has as its objective a state of affairs in which peace is advanced, whereas the second pillar prescribes a state of affairs in which basic human rights are respected (pp. 66, 80).

    Ratner describes this part of his project in terms of rule consequentialism, by indicating that he is asking whether extant legal norms, if followed, will lead to certain states of affairs defined in terms of peace and human rights (p. 83). But he does not clearly define what he means by consequentialism. On occasion, he seems to use the terms "consequentialism" and "utilitarianism" interchangeably, even though utilitarianism is but one species of consequentialism. (5) Elsewhere, he appears to apply the label of "consequentialist" to any moral view that happens to take consequences into account. For instance, he writes that "[u]nder [the first] pillar, the relationship of international law to justice is seen in consequentialist terms; we judge the justice of international law norms by their consequences in terms of their contribution to international and interstate peace" (p. 66). Ratner's approach differs from classical utilitarianism; it does not require actual consequentialism, where the morality of an act depends upon its actual consequences. And although Ratner ostensibly endorses a version of evaluative consequentialism, where the moral Tightness of an act depends only on the value of its consequences, he nonetheless seems to reject a simply additive approach to value. (6)

    Since his view is a nonideal theory, neither does it require maximizing consequentialism, where moral Tightness...

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