Hathaway and Shapiro Respond Part II

by Oona Hathaway and Scott Shapiro

We want to thank the participants in the symposium once again for their fantastic comments on our article. We have really enjoyed watching the discussion unfold. Here we offer a few words in response.

In his post, Peter Spiro suggests that we are operating from a “sovereigntist premise.” If what Peter means by this is that we accept that states are sovereign entities, then he’s clearly right. But we want to be clear that we do not accept the implications that are often taken to follow from that premise—particularly those described in Peter’s influential work on the “new sovereigntists.” Peter has written, “This group of academics . . . has developed a coherent blueprint for defending American institutions against the alleged encroachment of international ones. . . . At the center of their thinking stands the edifice of sovereignty. Sovereignty, in this conception, calls for America to resist the incorporation of international norms and drapes the power to do so in the mantle of constitutional legitimacy.”

We draw precisely the opposite conclusion of that which Peter ascribes to the “new sovereigntists.” The paragraph in our article that follows directly on the one quoted by Peter reads:

The recognition that international law most often relies on outcasting rather than physical force turns the sovereigntist critique on its head. If international legal regimes are best understood as arrangements that generate community benefits for member states and impose discipline through outcasting (excluding lawbreakers from the benefits of membership), then international law does not have the power to rob states of their sovereignty. Instead, it only has the power to take away the very benefits that it has itself generated. If that is true, then states that refuse to join international agreements out of a fear that doing so will undermine their sovereignty are simply voluntary outcasts.

In his post, James Gathi offers a thought-provoking set of observations on inclusion and exclusion. We find especially interesting and telling his points about the problematic aspects of outcasting, particularly with regard to treatment of non-western countries in the post-colonial era—and there is much food for thought in what he writes. To be clear, however, we do not mean to argue that all exclusion is outcasting. Outcasting as we use the term is something very specific: it is denying the disobedient the benefits of social cooperation and membership. To put it slightly differently, not all exclusion is outcasting, only exclusion of those who have violated the rules. Can states be excluded for other reasons, including reasons of prejudice, western-centrism, or parochialism? Certainly. But that’s not law enforcement through outcasting.

We also enjoyed Michael Helfand’s observations about the use of outcasting in religious law. We find this a nice exploration and extension of some of the points we made in the piece, particularly our discussion of canon law. We appreciate the effort to think about how outcasting can operate both at the international level and within states. As the title of our article suggests, outcasting can be used to enforce domestic as well as international law—law enforcement through outcasting is found wherever the legal regime generates benefits of social cooperation and membership which then may be withdrawn from those who disobey the rules of that regime.

http://opiniojuris.org/2011/11/16/hathaway-and-shapiro-respond-part-ii/

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