The Role of Ideal Theory in Developing an Applied Ethics of International Law

| June 2, 2015
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This essay is part of an online book symposium on Steven Ratner’s The Thin Justice of International Law. To read the other EIA contributions, click here. For the contributions on EJIL: Talk!, click here.

9780198704041To date, scholarship on the morality of international law and global justice has been largely the province of philosophers. In his book, The Thin Justice of International Law, Steven Ratner convincingly argues (and demonstrates) that lawyers should contribute more to this literature, and that philosophers have a lot to learn from them. In arguing that lawyers and philosophers actually need each other more than they might think, Ratner seems to have in mind the idea that, working together, the two fields can better develop an interdisciplinary applied ethics of international law, informed by sophisticated moral analysis and grounded in a professional appreciation of the tasks and challenges facing international lawyers and other agents or subjects of international law.

Ratner’s project in this book is a distinctively lawyerly step in this direction. It is particularly sensitive to the professional situation of international lawyers in making sense of, applying, and further developing norms of international law. It is also grounded in detailed descriptions of core norms from a wide area of international law, including norms of statehood and sovereignty, human rights law, and global trade. At the same time, Ratner engages extensively with a broad range of philosophical literature to explain and defend the normative framework he develops for his analysis. He therefore impressively integrates the concerns and perspectives of international lawyers with a philosophically compelling normative analysis, demonstrating by example the importance of such an integrated assessment.

Briefly summarized, Ratner’s project is to assess the morality of the core norms of international law according to two “pillars” of justice: “international law rules will be deemed just if and only if they (a) advance international and intrastate peace, and (b) respect, in the sense of not interfering with, basic human rights” (64). His assessment is broadly consequentialist, though it leaves room for human rights to play a more deontological role, for example in allowing norms prohibiting torture to resist all but the most compelling consequentialist calculations against them. Accordingly, after setting out his normative framework in Part I, Ratner proceeds in the remaining sections of the book to first describe the core norms of particular branches of international law, and then to assess these norms in terms of these two pillars.

To illustrate the limitations of his analysis, Ratner argues that some norms of international law cannot profitably be assessed using his normative framework (Chapter 12, “The Limits of Thin Justice”). For example, he suggests that his standard of justice does not neatly apply to international humanitarian law, which aims to constrain states’ conduct of war to limit the harm to individuals. Regarding the first pillar, he argues compellingly that it is difficult to assess whether enforcing these constraints on state conduct in war promotes peace. We might think that the second pillar of human rights delivers a more determinate answer—surely the protection of individual rights during war constitutes a protection of basic human rights? However, Ratner points out that the “meta-norm” of IHL holds that the more stringent standards of international human rights law do not apply during the conduct of war, substituting instead the more minimalist core norms of IHL. As such, IHL essentially permits the waiver of more extensive human rights law during wartime. Therefore, as Ratner argues, deciding whether IHL interferes with human rights “requires that we tackle a distinct set of questions about what it means to enjoy human rights in peacetime versus wartime.” And this, he says, “is a huge issue on which there is a vast range of disagreement, and where I am not prepared to stake a position”(413).

It is perhaps unsurprising that Ratner’s pillar of human rights is not, as he says, a full theory of human rights, and as such, will leave some important questions unanswered. However, Ratner also seems to eschew the strategy of finding determinacy on this issue in the relevant non-ideal institutional constraints. This becomes clear in his criticism of Jeff McMahan’s view that civilians supporting their state in a war of aggression are legitimate targets of attack, while soldiers fighting for a just cause are not. Ratner argues in response that there is no authoritative way to reliably determine the just side in armed conflict, so McMahan’s account is therefore inapplicable in practice. While McMahan realizes this, and as a result settles instead for supporting IHL’s meta-norm, Ratner criticizes even this move on grounds that “the moral reasoning itself should take account of the institutional realities rather than just use them to justify a second-best position” (391). But, oddly, Ratner doesn’t follow this advice himself. It would seem that one clear path forward in a non-ideal assessment of this problem would be to clarify the institutionally salient alternatives to applying IHL in wartime. Since, as Ratner notes, it is unrealistic to expect states to agree to either applying full human rights law in wartime, or to giving up recourse to war altogether, shouldn’t we go on to consider whether IHL in wartime is better than the most salient alternative: war fought with even fewer or no restraints at all?

In this case, Ratner’s analysis seems to get stuck between a perceived need for normative guidance of the kind traditionally provided by more abstract philosophical work, and the kinds of institutional considerations that he wants to guide his assessments. This is not necessarily a criticism of Ratner’s project—after all, it would be unreasonable to expect any theory to yield determinate answers to every problem. However, this tension in his analysis does raise questions about the contributions that different forms of philosophical analysis, including ideal theory, can make toward an applied ethics of international law.

At certain points in his discussions of ideal theory Ratner seems to assume the worst of it. For example, he describes his own project as having a “starting point [in] non-ideal theory . . . for I believe that that approach, one reflecting and not wishing away certain realities of the international system, provides the better path toward actually improving the world we live in” (408). In the same chapter, he explains his project of “aspirational theory”—namely, that of identifying a “thicker” standard of justice for international law—by saying that “[i]t seeks to move the law in a direction that is not attainable in the near term, but that I think is possible for the medium to long term without crossing the line to the fantasy of ideal theory”(417).

In these statements (though not necessarily throughout the book) Ratner seems to have in mind a strikingly unpromising model of ideal theory, in which philosophers conduct an abstract normative analysis, untethered to essential information about the relevant practice, which they then take to yield concrete answers to practical problems in the field. Beyond being unhelpful, such an approach may even hinder the goal of providing moral guidance to practitioners, either by suggesting wildly impractical “solutions” or by obscuring or misunderstanding the practical problems themselves. A kind of mirror-image caricature of poorly-done non-ideal theory (whether done by philosophers or others) would be that it tends to be insufficiently informed about what moral or political values are relevant to which practices, institutions, or problems, or that some important or even foundational questions simply never come up, because the terms of the inquiry are too fixed by current realities.

But, of course, neither of these caricatures are fair, though they do point toward potential pitfalls of each sort of theorizing. While ideal theorizing is characterized by idealizing assumptions (such as Rawls’s assumption of full compliance and favorable conditions), the burden of proof is on the theorist to justify these assumptions and point to ways in which they help us derive actual moral guidance from the resulting theory. For example, a traditional question of ideal theories of justice (as distinct from other branches of morality) is under what conditions, if any, the creation of political institutions and systems of law is morally permissible in the first place. So, for example, given the important differences between international law and domestic law, it seems helpful to come to some understanding about whether international law is or could be legitimate, in the (normative) sense that it deserves the authority to make and enforce norms on the international stage. In practical terms, it behooves us to know (or at least have a theory about) what moral considerations might legitimate international law, and under what circumstances it might overstep or forfeit its legitimacy; if it is not legitimate, but instead something like an unavoidable evil, we would want to understand in what ways might we contain its pernicious tendencies.

This sort of analysis can help us understand not only the moral nuances of our current situation, but, as Rawls argued, help us distinguish appropriate from inappropriate directions for reform. Notice that asking these questions does not constitute “wishing away” international law or institutions. Rather, it simply focuses our attention on some relevant normative grounds for assessing them. And this in turn can help address practical problems. For example, some critiques of the legitimacy of various aspects of international law come not from philosophers but from powerful actors on the international stage, including the agents of powerful states and the representatives of international organizations. It is very much of practical interest to have cogent replies to such real-world critiques.

Clearly, moving beyond caricatures requires a more nuanced understanding of what is at stake in the distinction between ideal and non-ideal theorizing. One role for an applied ethics of international law, then, is to assess when certain idealizing assumptions are appropriate, and which theoretical projects might require that we refrain from idealizing almost altogether—as, for example, when a problem is of urgent practical significance that requires working within current institutions or power structures as they are. It seems important at this stage of the development of an interdisciplinary project of assessing the morality of international law to avoid too quickly narrowing down the range of theoretical projects that we are willing to consider valuable to the field.

Given that there are many risks of cross-disciplinary misunderstandings inherent in any interdisciplinary project, Ratner is to be commended for so powerfully furthering mutual comprehension and even synergy between philosophers and lawyers on questions of international law and global justice. His bringing these kinds of methodological questions to our explicit attention, as this interdisciplinary field continues to grow, is itself a service to the field.

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Category: Book Symposium: The Thin Justice of International Law, Online Exclusive

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