Book Roundtable: Ruti Teitel’s Humanity’s Law

I’m delighted to have been asked to participate in this discussion of Ruti Teitel’s Humanity’s Law. Let me start by simply saying what a great read this book is. Congratulations to Ruti on a book that really does shift our thinking about the base lines of international law, challenge conventional notions of a state-centric international legal system, and help make sense of the changes across a range of sub-fields in international law that all do more to privilege the individual.

Ruti’s central claim is that there has been a move “away from the single-minded conceptualization of interstate relations premised on state interests and toward, instead, the legalist discourse of humanity rights pertaining to persons and peoples…” (63). Ruti pulls together these diverse changes in fiends including human rights, humanitarian law, and international criminal law and suggests that collectively they give rise to what she terms “humanity’s law.” The argument is compelling and convincing. It is based on careful analysis of both global changes in politics and rhetoric as well as the jurisprudence of international and domestic tribunals.

Ruti titles the book Humanity’s Law and goes far to show that these changes amount to a new legal framework – that humanity’s law is law. To positivist international lawyers who look to acts of state consent as a prerequisite for legal shifts, Ruti’s claim may go too far. The role of the individual in international law has clearly shifted both in times of war and in times of peace, in rights and responsibilities, in privileges and accountability.  Should those shifts in fact be seen as a new body of law –humanity’s law? Perhaps. But far more significant than whether humanity’s law is law and should be seen as such, is the collective impact that these myriad changes to the role of the individual have on state behavior and rhetoric, even outside formal legal structures.

Ruti makes a variant of this point clearly in the conclusion: “Law has become central and foundational to the normative discourse of international affairs… The pivotal role of law in the discourse of diplomacy has become clear since the end of the Cold War; humanity-centered claims permeate much of foreign affairs discourse” (217). True enough, humanity-based claims are today at the forefront of foreign policy-making and diplomacy. It is not, however, clear to me that it is the status of such claims as law that matters as much as that such claims are grounded in a humanity-based morality that has come, through the processes (both legal and political) that Ruti documents, to serve as trumps in both legal argument and policy debate.

To me, the central claim is as much a normative one of human protection as a legal one of civilian inviolability. What Ruti has shown is a fundamental shift in the mortal rhetoric that can (and usually will) prevail in both courts and diplomatic negotiations. It is a shift from sovereignty to humanity.

My suggestion that this normative shift is in fact more powerful than the underlying legal changes complicates the matter, however, because the very same legal norms that are now used to advance human protection are often subject to multiple interpretations many of which can be bathed in the moral rhetoric of humanity’s law. As Ian Hurd has recently argued in a piece in Ethics and International Affairs, the law of humanitarian intervention is largely indeterminate, and both action and inaction can be seen as legal and both can, in fact, be argued to be in humanity’s interests. The nature of legal and political argument has certainly changed. So too has the moral rhetoric most likely to prevail. Less certain however is the clarity of the legal rule that emerges or the ultimate outcome of diplomatic process informed by a rhetoric of human interest.  In short, humanity’s law itself may still have to catch up to what might be called humanity-discourse.

Ruti has shown conclusively and compellingly that there exists a new legal and political space governed by “humanity’s law.” And her book itself is a critical step in the broader process through which these changes to the status of the individual will become a legal regime that guides both judicial reasoning and political debate.