Cheng Book Roundtable: Are There Universal Values? (A Response to Professor Wilde)
Professor Wilde’s comments are, as always, most thoughtful. If I understand the thrust of his post correctly, Professor Wilde is concerned that if I am to present a theory built on universal values, then I should examine carefully if the values I identify are indeed universal and if other important values are left out. In particular, Professor Wilde suggests that that I marginalized the TWAIL and feminist prespectives.
Professor Wilde correctly points out that I do not spend as much of Chapter Two discussing TWAIL and feminist theories as I do other theories. That is because the purpose of Chapter Two was to identify different conceptions of international law, not the values that are favored in each theory. TWAIL and feminist theories do not claim to present conceptions of international law that are different than positivism, international legal process, international relations approaches, or policy oriented jurisprudence. They instead emphasize different values. Thus while TWAIL and feminist theories are hugely important for their normative insights, they were not highly relevant to the research goals of Chapter Two.
This explanation of what I aimed to achieve in Chapter Two does not fully address Professor Wilde’s critique that the values I favor are not necessarily universal. He claims that “many in the world” would not find “global banking standards and agreements that enable capital to move across borders” to be “universally desirable.”
I find this supposition puzzling. Aside from irrational actors, I suspect that everyone would agree that the ability to move capital and banking standards are a good for minimum world order. Where people disagree is on what those standards should be, and whether capital is properly deployed.
But that is not a disagreement about the existence of banking standards or the ability to move capital per se. In policy-oriented terms, that is a disagreement about maximum world order, not minimum world order. I freely acknowledge that what maximum world order should look like remains indeterminate. That may be a question more appropriate for political discourse rather than legal process.
In Professor Wilde’s view:
We have to put issues of economic, social and political inequality and power imbalances at the very centre of thought about international law.
I do not disagree with this statement of some of the goals of international law. I urge Professor Wilde and readers to consider whether I have adequately accounted for these goals in my studies of incidents, ranging from ICJ’s resolution of a territorial dispute between Singapore and Malaysia to NATO’s bombing of Serbia to prevent genocide in Kosovo.
I also agree with Professor Wilde that there are scholars who believe that “building on the existing international legal and political system fails to account for the way in which the system is constructed so as to create impediments to [global justice].”
My response to this view is stated in the penultimate paragraph of my book:
This book begins where it begins, with the politics of theorizing. The account of the international legal system offered here has political consequences if decisionmakers adopt it. It rejects a blanket disapproval of international law and so will not resonate with trenchant exceptionalists or other scholars who radically challenge existing international power structures reflected in the international legal system. It also distances itself from an extreme liberal view that international law ought to constrain executive power even where acute national interests are at stake. Hopefully, most readers will agree with this book’s rejection of those extreme views.