The Moral Stages of Why Nations Obey International Law

by Roger Alford


In Europe, a woman was near death from a very bad disease, a special kind of cancer. There was one drug that the doctors thought might save her. It was a form of radium that a druggist in the same town had recently discovered. The drug was expensive to make, but the druggist was charging ten times what the drug cost him to make. He paid $200 for the radium and charged $2000 for a small dose of the drug. The sick woman’s husband Heinz went to everyone he knew to borrow the money, but he could only get together about $1000 which was half of what it cost. He told the druggist that his wife was dying, and asked him to sell it cheaper or let him pay later. But the druggist said, “No, I discovered the drug and I’m going to make money from it.” Heinz got desperate and broke into the man’s store to steal the drug for his wife. Should the husband have done that? Was it right or wrong?


That famous question was the basis for a theory Lawrence Kohlberg developed to test the stages of moral development. These stages are outlined in his book, Essays on Moral Development: The Philosophy of Moral Development (1981), and I summarize them briefly below. (You can also find Kohlberg’s theory of moral development numerous places on the Internet). Depending on how a person responded to this so-called “Heinz dilemma,” you could map his or her stage of moral development.

At the lowest level of moral development, a person is motivated to (1) obey rules to avoid punishment, or (2) conform to obtain rewards or have favors returned. Power and reciprocity define the parameters of right action.

At the middle level of moral development, a person is motivated to (3) conform to avoid disapproval and dislike by others, and (4) conform to avoid censure by legitimate authorities. Good behavior is that which pleases or helps others and is approved by them. Persons seek to conform to stereotypical images of what is majority or “natural” behavior.

At the highest level of moral development, a person (5) conforms to maintain the respect of the impartial spectator judging in terms of community welfare, and (6) to avoid self-condemnation. In the fifth category, right action is a social contract, and persons define their behavior in terms of standards that have been critically examined and agreed upon by the whole society. In the sixth category, right action is defined by self-chosen principles that appeal to logical comprehensiveness, universality, and consistency.

That, in a nutshell, is Kohlberg’s theory. So what does this have to do with international law? I am not aware of any scholarly attempts to apply these stages of moral development to the question of why nations obey international law. But I think it would be quite interesting to examine Kohlberg’s theory as it might to apply to the question of conformity to international law.

In the recent book symposium with Andrew Guzman, his rational choice theory focused on the three R’s of compliance with international law: retaliation, reciprocity, and reputation. (Notice the similarities with the early stages of Kohlberg’s theory of moral development.) Guzman also conceded during the book discussion that from a rational choice perspective, human rights treaties are puzzling because “it is devilishly hard to figure out just what it is signatories think they are getting.” That comment has really stuck in my mind and I have been thinking about it ever since.

I don’t pretend to have an answer, but perhaps focusing on Kohlberg’s stages of moral development might begin to help address the question of what nations think they are getting when they comply with human rights obligations. If we just focus on punishment, reciprocity, and reputation, then we may be missing a significant part of the picture of why nations obey certain international laws. To be continued.

http://opiniojuris.org/2008/02/28/the-moral-stages-of-why-nations-obey-international-law/

3 Responses

  1. Roger,

    The interactions that come to mind is that Kohlberg’s stages are applied to individuals. Individuals are the entities through which states act either at the levers of power or otherwise. Similarly situated persons on the stage can coalesce to influence their governments in response to their own experience or otherwise to take a certain position. Persons at different stages may also coalesce to seek their government to take a certain position. Persons in the government (like responses to NGO’s) may share those concerns at the different levels of moral development. Depending on the access and ability to manipulate the levers of power, a state can allow itself to be bound by such obligations for a mix of reasons that may be associated with one some or all of the moral stages as articulated through the interactions of humans in that state. Just some thoughts.

    Best,

    Ben

  2. Roger,

    I think I’ve been thinking along similar lines to you about Andrew Guzman’s theory. I too have been concerned that his rational choice theory may not tell the full story of why international law is either committed to or complied with. One concern, as you suggested is that it may not explain human-rights treaties very well. A second concern I have is that it doesn’t explain the particular valence of different rules – why some rules affect reputation more than others.

    Marrying something like Kohlberg’s stages of moral development (which could be seen as stages of internalization) to Guzman’s rational choice theory may help. I suggested something along those lines in a recent article, Finding International Law: Rethinking the Doctrine of Souces, 93 Iowa L. Rev. 65 (2007). My suggestion is that rules come to be treated as international law in one of two ways: either (1) the rule itself can be internalized, a process that may be analogized to the Kohlberg’s last few stages, or (2) the rule can be legitimated by agreed-upon, internalized, law-making or process rules. Thus with regard to human rights, some human rights may be treated as international law because those rights have simply been internalized, while others may be treated as international law because they’re embodied in a document that bears certain indicia of legitimacy (perhaps including the determinacy of the rule, the amount and depth of negotiation that took place). These wouldn’t be one-or-the other choices: we might see some states treat a rule (e.g., prohibiting certain acts in war) as law because the rule has been deeply internalized and other states (where that same rule has not yet been internalized) treat the rule as law because it’s embodied in a treaty adopted through legitimate process (the Geneva Conventions). Breaking the rule can be expected to bring reputational sanctions so long as enough states treat the rule as law for either one of the two reasons. As Kohlberg’s categories suggest, the two categories should also be seen as fluid: a rule not yet fully internalized might be given extra legitimacy by process, and a rule initially treated as law because it was created through legitimate process, may over time be internalized. This may help explain the relative reputational valence of different rules: those rules most deeply and widely internalized, along with those backed by the strongest notions of legitimate process, will have the deepest impact on reputation. The stronger the combination of those two factors the more likely they will be to have an effect on a state’s reputation.

  3. Roger,

    I agree with the idea that the way we define international law is somewhat similar to the way we personally set out the moral obligation for ourselves.

    Though international courts are out there and ready to make the judgments, States still remain intact unless it messes up with the United States or some other big powers.

    In a specific society, the theory of social contract constitutes the foundation of law. Then, let’s move the core question, do we have a theory of international social contract?

    My personal perspective suggests that we are on the way to build it, and currently not having such theory.

    The world of States has once been divided into two. Then, the Soviet Union has gone, and the division into two disappears. Now, we have an even more fragmented world of States. It’s not an rhetoric description. The true thing behind that fragmentation is our divergence of philosophy. Or, in other words, people from different words value different things. We have no idea whether this landscape is a matter of fact or just a momentary circumstance. But within next 10 years, it’s unlikely that the world will create a better landscape.

    But the world of people is really evolving fast. Individuals are making up the world for their own crossing their country borderline. The new entrepreneurship is arising in many countries, and different from most of individuals and States, they enjoy an unified world-market. Indeed, the enterprises will be our first adventurers in a unified world. A school of Muslims will never teach Christian songs and vice versa. But Microsoft may endeavor to have company holidays in Christmas, Lunar New Year and Ramadan all together.

    Indeed, the term “international law” in its broad sense will cover all these worlds – the world of States, the world of individuals, and the world of enterprises.

    Should our international law deal with different worlds separately? Should each world find its own common philosophy? Should these words maintain its law?

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