21 Nov What Makes (International) Law Law? Liam Murphy
Today at NYU law we are having a panel discussion, and celebration, of my colleague Liam Murphy’s recent book, What Makes Law Law? (I’ll be racing down from Fordham University, where I’m talking about my own book, Leo Strauss Man of Peace). Liam’s work is important for international legal scholars, because-despite many good answers-the field has been haunted by crude positivist doubts as to whether international law is really law at all, or, if it is, its character as legality really matters to real world outcomes (as opposed to its sometimes asserted nature as political rhetoric or moralizing). Usually, the doubts related to enforcement-can international law really make a state, or indeed anyone, do something that they don’t want, or need, to do for other reasons?
It is revealing, and perhaps provocative statement in relation to those crude positivist views, that the chapter of Liam’s book that bears the title of the book is in fact a discussion of “law beyond the state”. Liam begins from the much neglected short chapter on international law in Hart’s The Concept of Law, where Hart actually uses international law as an example for the proposition that centralized enforcement and interpretation are not essential elements of a legal system. What is essential is a certain level of systemic integration and coherence, and here Liam faces head on the so-called “fragmentation” of international law. He writes: “At the normative level, the question is whether there remains a coherent overall normative structure to international law that can accommodate “the diversification and expansion” of international law and provide legal grounds to resolve conflicts.” At the risk of some oversimplification, and skipping the rich texture of the analysis, in short, Liam’s answer is: maybe. He points, for instance, to the systemic integration function of the rules in the Vienna Convention on the Law of Treaties. I would add that both the activity of the ILC as well, at a more basic level, the articulation of the sources of international law in Article 38 of ICJ Statute, perform such a function. Liam cites some of my work with Ruti Teitel on these issues (“Beyond Compliance”). In another piece, “Cross-Judging“, Ruti and I try to show how different tribunals in different fields of international law increasingly speak to each other, directly or indirectly, disagreeing sometimes, but presupposing common ground about what is an international legal argument or what counts as international legal discourse. Indeed, even if one goes back to Thucydides, it is fairly clear there to the relevant actors, ambassadors, generals etc. where an international legal argument is being made vs a general moral argument or a power-political claim, or appeal to interests.
As for enforcement, Liam rightly notes that the issue is not the actual level of enforcement, but whether the norms of international law are the kind of norms that one thinks can justifycoercion, or are appropriate for coercive sanctions. This is Kant’s point in distinguishing the realm of “right” from that of “virtue”. This is an important distinction, and it is crucial to be clear on it, as the skeptical scholarship of theorists like Posner and Goldsmith tends to obscure it. Since we can never know whether an individual, much less a collective such as a state, is acting purely from considerations of legality alone (again Kant), it is absurd to test whether international law is law, by asking for proof that international legality has caused a state to behave in a manner that it would not have behaved in, from other considerations or motives. This is the kind of test that international law skeptics like, because international legality is bound to fail it. But that’s the case for all legal norms.
Not just the chapter on law beyond the state but the book as a whole is a commendable read for international jurists.