International Society

Diverse Ethical Perspectives

David R. Mapel, Terry Nardin, David R. Mapel, Terry Nardin

• Publisher: Princeton University Press
• Year: 2021
• Print ISBN: 9780691049724, 9780691057712
• eBook ISBN: 9780691227627
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

In a time of eroding sovereignty and resurgent nationalism, this collection provides a searching investigation of the moral foundations of the international order. Drawing on diverse philosophical and theological perspectives, the contributors debate the character of international society, the authority of international law and institutions, and the demands of international justice. In a series of philosophical essays, each followed by a critical commentary, the book considers the contributions of legal positivism, natural law, Kantian ethics, contractarian theory, and moral cosmopolitanism to the discussion of law and justice in international society. It also includes commentaries by experts in Jewish, Christian, and Islamic moral theology, and a concluding chapter that compares and contrasts the views presented without seeking to adjudicate their differences.


Because of its comprehensive approach and the diversity of its viewpoints, the volume serves as an introduction to the topic and as a resource for scholars, journalists, policy makers, and anyone else who wants to understand better the range of moral perspectives that underlies discussion of the current international order. In addition to the editors, the contributors are Brian Barry, Chris Brown, John Charvet, Richard Friedman, Robert P. George, Sohail Hashmi, Pierre Laberge, David Miller, David Novak, Max L. Stackhouse, Fernando R. Tesón, and Frederick G. Whelan.

PART ONE

Philosophical Interpretations

CHAPTER 1

Legal Positivism as a Theory of International Society

TERRY NARDIN

IN THIS chapter I discuss how the connected topics we have been asked to consider are understood within the family of ideas called “legal positivism.” Though positivism purports to be a theory of law, some positivist theories do not give an adequate account of the rule of law. That is, they do not explain how a community ordered according to general rules is distinguished from one ordered by the arbitrary exercise of power. I therefore devote particular attention to a version of positivism—I’ll call it “rule of law positivism”—that does provide a coherent account of the rule of law as distinguished from arbitrary rule. But the rule of law must also be distinguished from morality. Rule of law positivism is the form of legal positivism that most adequately distinguishes law from morality as well as from power.

To avoid misunderstanding, I wish to state at the outset that I am not seeking to justify rule of law positivism, nor am I advocating its adoption as a desirable program for reforming international society. Nor, in defending the cogency of rule of law positivism as a definition of law, am I implicitly recommending that definition. My intent in focusing on rule of law positivism is to remove certain arbitrary assumptions and internal inconsistencies from legal positivism, so as to present it as a distinct and coherent perspective on our topic.

WHAT IS LEGAL POSITIVISM?

The expression “legal positivism” has several meanings, of which three are especially relevant to international law. These may be listed in order of decreasing generality.¹

According to the first, law is a distinct, autonomous social practice. The validity of legal rules, and therefore their authority or obligatory character, rests on criteria internal to a legal system and not on external foundations, divine or rational. Law properly so-called (positive law) is a set of rules distinguishable from revealed divine law, from rational morality (natural law), and from the moral conventions of any actual society. The content of actual legal and moral systems may overlap, and some legal systems may explicitly incorporate moral principles, but the validity of legal rules as law does not depend on their correspondence to moral principles unless explicitly provided for by law.² As John Austin puts it, “the existence of law is one thing; its merit or demerit another.”³ Because what counts as law is determined by criteria that differ from those used to distinguish moral rightness and wrongness (even where the legal system incorporates a moral test), there will always be discrepancies between morality and law. In this sense, at least, there is no necessary connection between morality and law.

Applied to international relations, this first, inclusive meaning of “legal positivism” yields the view that international law is rooted in the practices of international society—in the customs and agreements acknowledged by states as governing their relations with one another—and that its rules can be determined by examining evidence of actual diplomatic practice and not by deduction from basic principles of natural law. This view of international law emerged as orthodoxy toward the end of the eighteenth century among legal scholars who argued that, because it had its source not in reason but in state practice, the law of nations should be distinguished from natural law.⁴

The second meaning of “legal positivism” is that authentic law is law declared or “posited” (Latin positum, decreed) by a superior but this-worldly authority, a sovereign lawmaker. Since reason, which is the method of natural law, can generate many different and competing “laws,” a choice among them must be made by some one person or body (the “sovereign”) who is authorized to make this choice. Authentic law is the result of decisions by a sovereign to declare certain rules to be law, and only law issuing from the will of a sovereign is binding as law. Law is generated by an authoritative act of will and is embodied in statutes. This view of law is central to the meaning of legal positivism in eighteenth- and nineteenth-century European jurisprudence, and it fits comfortably with utilitarianism, a theory intended (as Bentham’s name for it, “the theory of legislation,” suggests) to guide legal reform.

Unlike the first definition, the second creates obvious problems for international law. For as soon as law is identified with rules originating in the exercise of sovereign authority, international law, which does not have such a source, becomes an anomaly requiring explanation.⁵ The definition of law as declared by a superior power invites a dismissal of international law of the kind made famous by John Austin: that because a law is the command of a sovereign, and sovereigns are not subject to the commands of any earthly superior, international law is not law properly so-called but one species of “positive morality.”

Notice that Austin uses the term “positive” here not only for rules set by superior authority, but also for those derived from a social practice. This is not the definition of positivism that is implicit in the expression “Austinian positivism,” which identifies the view that law is the command of a sovereign. Those eighteenth-century positivists who argued that the task of international legal theory is to formulate the general norms implicit in state practice were not positivists in this latter, narrower, sense.⁶

The third meaning of “legal positivism” we need to be aware of is a by-product of efforts to defend international law against the view that law is an expression of sovereign will. According to the aptly named “consent theory,” authentic international law is composed of rules to which states have given their explicit or tacit consent. Because no sovereign can be legally bound by the commands of another, international law can bind only by consent. If civil law is sovereign will expressed internally through legislation, international law is this will expressed externally through explicit agreement with other sovereigns (treaties) or by tacit agreement (custom). Related to this view of international law as resting on consent is the claim that international law is binding only on states: if states are the only subjects of international law (“international legal persons”), it follows that individuals, corporations, and other nonstate entities are not subjects of international law and have no rights or duties under it.

The expression “legal positivism” is most cogent when used in the first and most inclusive of these three senses. The others express subsidiary views within legal positivism inclusively defined. Whether authentic law must be declared by a lawmaker or also includes customary or common law is really a matter of intramural debate within legal positivism. Thus H.L.A. Hart, a positivist, can insist that law is not always the outcome of deliberate legislation, and that “legal positivism” means only that legal rules arise from social practices.⁷ And what is sometimes identified as a debate between positivism and common law can be seen as a debate within positivism in this more inclusive sense.⁸ Similarly, the proposition that international law is binding on a state only by its consent, or that only states have rights under international law, are matters about which positivists disagree and not views that define legal positivism as such.

Legal positivism in general understands as “law” any body of practices and rules creating not merely expectations but binding obligations for the members of a community. But because this understanding does not sharply distinguish law from the customs or moral practices of a community, many positivists argue that law proper is distinguished from morality by the existence of authoritative procedures or offices for recognizing and applying rules (as in Austin’s command theory or Hart’s theory of law as a “union of primary and secondary rules”⁹). The interpretation that I am calling “rule of law positivism” reaches the further conclusion that an authentic legal order must be distinguished from the diversity of social orders lumped together under the name “law.” For example, the commands of a despot are sometimes regarded as law, but such commands are contrary to, not an expression of, the rule of law. Rule of law positivism holds that law is best understood as a system of noninstrumental or moral practices that have hardened into rules, and in which institutions for declaring and applying rules have evolved or been instituted. It therefore offers an alternative, within positivism, to the view that any expression of sovereign will whatever counts as law.

For positivists of all persuasions, the master question of international relations is whether authentic law can exist where institutions for declaring and applying law are absent or rudimentary. Austinians, as we have seen, arrive quickly at a negative answer to this question, but for others the answer is more complicated. Can the rule of law be realized in international society in the absence of civil institutions? Or is international relations inherently a domain of unreliable rules and therefore of power politics rather than the rule of law? Whether the rule of law is possible among states is an unresolved question on the agenda of international relations theory.

INTERNATIONAL SOCIETY

If law is a product of sovereign will, as some positivists argue, we must doubt not only the existence of international law but the reality of international society. In the absence of law, the international system is no more than a series of ad hoc transactions, not a real society of states. But if we adopt the more inclusive definition of positivism according to which law is a distinctive kind of social practice, we make room for international law and society. Because there are rights, rules, lawyers, lawsuits, judges, and judgments in the international sphere, international law must exist—however intermittent or ineffective this activity may be. And the definition links law and society conceptually: international society is not merely regulated by international law but constituted by it.

According to this argument, international society exists to the extent that states understand themselves to be related to one another as subjects of common rules—a common law—defining the terms of their coexistence. These rules prescribe obligations binding not only on states engaged in alliances, trade, and other forms of cooperation, but also on states whose relations with one another are hostile. Even states at war can be understood as belonging to a community of states, so long as the belligerents understand themselves to be constrained by international law.¹⁰

There are several connected ideas composing this conception of law as a social practice that need to be explicated. One is the idea of a body of law concerned specifically with relations between sovereign states—a common “law of nations” understood not merely as ius gentium but as ius inter gentes.¹¹ This idea of international law can be contrasted with, and understood to be the product of, two others: the idea of independent powers interacting with one another in a lawless state of nature, and that of a universal community of individuals united by a common law. According to the first, the world is an anarchy of separate states, each pursuing its interests and augmenting its powers without regard to the claims of other states. According to the second, the world is a single community—if not actually organized under one church or empire, at least potentially a civitas maxima or “world society.” The fusion of these two ideas generates the idea of a society of states: a universal community whose members are not persons but communities of persons, an inclusive community of communities. For some, this idea of international society rests on a contradiction, one aptly summed up in the expression “the anarchical society.”¹² A society of states is anarchic in the sense that it lacks a ruling authority, yet social because its members are united, despite this anarchic structure, by common rules.

Another important element of the social practice conception of law is the idea that international society is constituted by international law. On this point, positivists differ. While some see international law as rules made and observed by preexisting states, others argue that international law is constitutive of both states and the society of states. “Statehood” is a role defined by the rules that constitute international society.

Positivists who hold that international law arises only by consent think of international society as a kind of pact defined by mutual recognition and agreement. International society is created by treaties and other agreements voluntarily entered into for the sake of realizing common interests and shared goals. And international law is the limited and temporary product of these various transactions, not their continuous and permanent premise. Custom is law only to the extent that it expresses tacit consent.

One consequence of the widespread acceptance of this consent theory in eighteenth- and nineteenth-century international legal thought was the view that international law is binding only among states recognized as belonging to the society of states and participating in its practices. The result was a nearly exclusive preoccupation with European state practice and the consequent identification of international law as “the public law of Europe.”¹³ Because this law applied only in the European “family of nations,” it did not govern the relations of Europeans with oriental sovereigns or uncivilized peoples.

In contrast to the voluntaristic positivism of consent theory, rule of law positivism makes general rules the basis of international society. What distinguishes a society of states from a jumble of ad hoc transactions is that its members acknowledge, as authoritative and binding, common laws that are antecedent to their particular transactions and agreements. Because these laws must be common to all, they are found only in customs binding on states generally, not in treaties, which bind only states that are party to them. Treaties are contracts within the law and as such cannot be fundamental to international law.¹⁴ International law proper—general law applying to all (present and future) members of international society—is therefore always customary law. Customary international law regulates the relations of states in the absence of explicit agreement, prescribes procedures for reaching agreements and determining th...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Preface
• Contributors
• Introduction: David R. Mapel and Terry Nardin
• Part One: Philosophical Interpretations
• Part Two: Theological Commentaries
• Part Three: Comparative Overview
• Index