Cheng Book Roundtable: Morality and Legalism in Judging (A Response to Professor Howse)

My thanks to Professor Howse for his comments on When International Law Works. We have debated our respective views on state succession in our published scholarship for half a decade. Those exchanges have been intellectually rewarding to me, and so it is a pleasure to broaden our public discussions to international legal theory more generally.

Professor Howse accurately summarizes my view on judging. International judges, like other decisionmakers, should be guided by moral reasoning. The first moral obligation of judges is fidelity to legalism. Interpreting rules of law strictly is crucial as a moral matter because it promotes minimum world order. Further, the decisionmaking authority that states allocate to judges is not unbounded. It is limited to deciding legal disputes according to laws. It would thus be unethical for a judge to decide a dispute without regard to laws, or worse, based on his personal preferences.

But strict legalism, as Professor Howse points out and as I explain in my book, does not exclude moral reasoning about the content of the applicable laws and the practical consequences of applying them to the facts of the dispute.

When judges interpret treaties, applying moral reasoning is consistent with legal rules of interpretation. Although Professor Howse and I agree on this position, we get there by different routes.

In my view, Article 32 of the Vienna Convention on the Law of Treaties requires decisionmakers to turn to travaux when interpretation according to text in light of context produce a result that is obscure or ambiguous in meaning, or “manifestly absurd or unreasonable”. In most cases, in order to know if a result is absurd or unreasonable, in addition to other forms of analysis, a judge must engage in moral deliberation to know if the result would inadequately balance the values at stake or produce an outcome that shocks the conscience. Thus, moral reasoning is triggered in the rules of treaty interpretation throughout the process of interpreting, and not only after a final interpretation is reached.

I am a little unsure about what Professor Howse means when he says that the Vienna Convention’s requirement that treaties be interpreted according to their objects and requires the judge to connect her “own moral intuitions to the underlying morality of the treaty.” If a treaty explicitly provides in its preamble a purpose that does not optimize the competing values at stake, such as if an investment treaty was either one-sidedly in favor of investors or, conversely, host states, I do not think the “object and purpose” test allows the judge to rewrite the treaty.

I also think it remains to be seen to what extent Article 31(3)(c) brings in moral considerations through customary laws. Article 31(3)(c) requires judges to take into account, when interpreting a treaty, “applicable rules of law in relations between the parties.” In specific disputes, there could be a debate about which, if any, customary laws are applicable between the parties and that have not been displaced by the treaty at hand. In any event, moral considerations that are not expressed as customary laws cannot factor in treaty interpretation through Article 31(3)(c).

Returning to the situation where a judge, after applying moral reasoning, discovers that an interpretation of a treaty would lead to an absurd or unreasonable result, the question is what should he do next. If the travaux do not disclose a different interpretation, the judge cannot simply assign a more morally acceptable meaning to the treaty. But he may be able to displace the treaty if it violates jus cogens.

What if there are no applicable jus cogens and the judge must, if he is faithful to legalism, enforce the parties’ morally abhorrent treaty? That is a hard case. Here, the judge could dissent from the majority, append a separate opinion, or recuse himself (and explain why). In theory, there could be an extreme case where a judge’s moral obligations require him not just to recuse, but to reach a majority decision that corrects a gravely immoral treaty. In practice, it is difficult to think of such a paradigmatic extreme treaty that could not be corrected by prempting the treaty with jus cogens, as is required under the Vienna Convention.

The other hard case is where, after applying all the tools of legalism, the meaning of a treaty is still unclear. Here there may be no choice but to resolve that ambiguity through moral reasoning. I suspect judges already turn to exogenous considerations, whether they are aware of it or not. (Perhaps TWAIL and feminist scholars, and Professor Wilde, will agree with me on this point too). So we might as well apply moral reasoning – as opposed to preferences – in such difficult cases to avoid arbitrary decisions. The judge should also explain his reasons so that others can appraise the decision more fully. Other decisionmakers can then either accept or reject the decision. They can also decide whether or not to apply the reasoning to future disputes. Through this process of collective decisionmaking, the international legal system can evolve.

As Professor Howse points out, I tested my thesis against International Court of Justice decisions. I hope other scholars will test this framework in relation to other important courts, such as the International Criminal Court and the WTO Appellate Body.

In summary, legalist reasoning and moral reasoning should both factor in judging, but not in a haphazard or idiosyncratic way. Each constrains the other precisely to help judges avoid deciding cases based on their personal preferences or in an arbitrary manner. On this foundational point, I suspect Professor Howse and I are in hearty agreement.