Law and Philosophy (2017) 36: 101–108 DOI 10.1007/s10982-016-9268-y

Ó Springer Science+Business Media Dordrecht 2016

BOOK REVIEW Steven R. Ratner, The Thin Justice of International Law: A Moral Reckoning of the Law of Nations (Oxford: Oxford University Press, 2015), pp. 496. $85.00

Steven Ratner’s excellent new book has a feature which might at first appear as a bug but which actually is an unusual strength: to fully appreciate its point one has to read it twice. This owes neither to an opaqueness of argument or peculiarity in style but rather to a structural feature of the set up of the argument. Rather than engaging directly with the philosophical, i.e. rather than producing truths by thinking terribly hard about profound issues and afterwards holding the laboriously bred nuggets of wisdom against the dire state of actual legal arrangements, Ratner chooses to go down a route more akin to what in the orbit of German thought has been called immanent critique: he presents the standard of justice not as a fruit of his own intellectual enterprise but rather as something discovered within the legal material itself and then applies this standard to the legal material. This is certainly a well-tried and also promising method. However, there are at least two spanners that can be thrown into the gears of any such argument: firstly, even if we accept that there is some standard inherent in the law, why should we label this standard one of justice, and not, say, one of effectiveness; secondly, even if we manage to establish that the standard inherent in the law is indeed one of justice, the question remains whether it is a good standard, i.e. whether it is a standard of justice well understood and not one of justice misunderstood, whether it is a standard of true justice and not merely one of positive justice. In order to find that out, it seems, we need a criterion of justice beforehand. It thus seems that however immanent a critique claims to be, it always has to bring some conception of justice to the table, some criterion to identify the relevant features of the object of consideration.

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To solve this quandary, Ratner choses a way that no German schooled in Hegelian dialectics would have chosen: he picks and defends a specific conception of justice in advance. In a prolegomenal and magisterial survey of the literature on global justice he singles out one specific conception of justice as his choice. Now, apart from sitting somewhat uncomfortably with his own – entirely warranted – misgivings about the conceit and hubris of ideal-theory, this way to go about things also opens up his setup to a charge, which Ratner is keen to avoid, namely, that he is trying to learn to swim without getting wet, that he is speaking about global justice without at the same time speaking about international law. Yet this seems to be the only way to avoid circularity and Ratner is explicit in his confidence that he is able to do just that: ‘We can, without being circular, find justice in international law by applying a philosophical conception to legal norms, but also see the corpus of international law as saying something about what is just in the first place’ (p. 6). The crucial term here is also. The two tasks at hand, the one starting from a philosophic conception of justice which is then applied to international law, and the other starting from international law which then tells us something about what is just in the first place, can avoid forming a circle only if they are disconnected. This disconnect, however, is possible only if the ‘justice’ in the first task is a different justice than the ‘justice’ in the second task. We thus cannot avoid circularity or, put differently, we can only avoid circularity if we accept a hidden equivocation of the central term ‘justice’, which seems worse than, or at least as bad as, circularity. In the end, the problem might simply be that I am much more hostile than Ratner is to ideal theory, to its disdain of the actual and contempt for the past, to its inflated appreciation of the role of the philosopher, to its thirst for symbolic revenge on the more powerful, and that I thus may be way too harsh on the concessions Ratner is prepared to make to ideal theory. And for most purposes Ratner is certainly an ally in his critical stance towards ideal theory, even if his line of argument is inspired less by principle and more by pragmatism: he is convinced that ideal theory’s failure to take seriously the existing institutional set up results in prescriptions that underestimate the moral costs of changing these institutions (p. 5). The non-

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ideality of his non-ideal theory is thus less rooted in a comprehensive or even dialectical engagement with the rationality of the actual and more in a pragmatic commitment to having fewer moving parts and keeping at least some variables fixed. For Ratner these constants are the existing institutions, and, most centrally, the state. What is at stake in Ratner’s reflections on ideal theory is certainly also the troubled relation between law and philosophy, or, more precisely, between lawyers and philosophers. With some notable exceptions, each tends to look down on the other. Philosophers like to think that whilst philosophy produces principled and deeply founded argument, the law presents us with an ad hoc mess of arbitrary solutions determined mainly by the whims and interests of the powerful. Lawyers, conversely, like to think that whilst the law represents a concrete wealth of arrangements derived from the considered interests of actual stakeholders, whilst the law gives rich tapestry of solutions of actual controversies, philosophy regurgitates mere abstractions of formal thought, presents a glass bead game of fictions, at best a unified narrative of these concrete solutions mistaking its own abstraction for depth and its pedagogical simplicity for profundity. Both, philosophers and lawyers, certainly find it hard to understand how the other could ever believe to have the upper hand on them. What Ratner wants to do is to mediate within this mutual blindness for the other’s sense of superiority. Being both a lawyer and a philosopher he is confident to be able to align the strengths of both disciplines. His wealth of knowledge of international law certainly allows him to see that international law, apart from merely specifying and enforcing moral principles, also ‘tells us something about what morality and justice at the international level mean in the first place’ (p. 1). Accordingly, philosophers pronouncing on global justice who do not fully engage with international law are fundamentally misguided. There is a tyrannical arrogance about some philosophers who think that they can do away with history and its arduously produced institutional setups with a blink of their eye. Philosophy has to practice self-restraint with respect to its own powers. After all, the medium of philosophy is the absolute and no actual arrangement can withstand its scrutiny. One of the examples Ratner gives here is Brian Barry’s declaration that the principle of

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national sovereignty over natural resources, a core norm of international law, ‘is without any rational foundation’.1 Only a philosopher could come up with a claim as sweeping as this one. But Ratner is also, if not equally, critical of lawyers who think that they can do without philosophy. He argues that international law doctrine is headless and blind without making explicit its philosophical foundations. As concerns the concrete conception of justice on which he relies for his assessment of international law, Ratner choses Brian Barry’s justice as impartiality, and as concerns the necessary choice between different impartialist perspectives, he chooses to present his model in ‘primarily consequentialist terms’, however, with ‘deontological concepts superimposed at points’ (p. 62). The resulting standard of global justice has two pillars: ‘international law rules will be deemed just if and only if they (a) advance international and intrastate peace, and (b) respect, in the sense of not interfering with, basic human rights’ (p. 64). Ratner’s ideal-theoretical standard of his non-ideal theory of global justice is thus conveniently formed as doubly hybrid: on the one hand it is a combination of two pillars or principles of justice (peace and basic human rights), and on the other hand there are two justifications for these pillars (consequentialist and deontological). On the face of it this seems overly syncretistic and so broad that it could easily accommodate any given institutional arrangement. Yet, and this is where the requirement to read the book twice comes in, it is warranted not primarily by abstract philosophical reasons but by the fact that it can be presented as the standard actually inherent in international law. Ratner’s task is fundamentally a fitting-exercise. He is looking for a theory that fits both the inherent morality of international law and also some accepted theory in political or moral philosophy. The concededly inelegant2 syncretism of such a theory thus does not necessarily militate against its appropriateness as any such weakness does not follow from Ratner’s lack of philosophical nous but rather from the imperfect state of development of our 1

Brian Barry, ‘Do Countries Have Moral Obligations? The Case of World Poverty’, in The Tanner Lectures on Human Values, Vol. 2 (Salt Lake City, UT: University of Utah Press, 1981), pp. 25, 36, quoted in Ratner on page 36. 2 Steven R. Ratner, The Thin Justice of International Law: A Moral Reckoning of the Law of Nations (Oxford: Oxford University Press, 2015), p. 414.

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present international law. This can also alleviate a concern one might have against the disturbing fact that Ratner keeps referring to himself as ‘choosing’ between different standards of justice. Philosophers usually do not conceive of their work as one of choosing but rather one of discovering or demonstrating. But for Ratner’s purposes choice is just the right term: amongst the various theories of justice on offer, he picks the one that best fits the actual state of international law. Whenever there is proposed a plurality of principles, such as we find here in the duality of peace and human rights, one question that comes up naturally is what the actual relation between the principles is. What happens if they conflict? How much promotion of peace makes up for a certain interference with human rights? How much peace are we allowed to sacrifice to make sure basic human rights are respected? Put more generally, is there a common currency both principles trade in? If there is not, then how can this theory answer any interesting questions? If there is one such currency, why do we not phrase the principle of justice directly in the language of this common currency? These questions are well known from discussions of value pluralism.3 Ratner tries to answer them by providing a kind of heuristic. This method, which is not supposed to represent a flow-chart or decisionalgorithm, starts with assessing the peace pillar: a norm promoting peace is presumed to be thinly just. If on top of that it does not interfere with basic human rights it is actually thinly just. If it does interfere with basic human rights then it is presumed to be unjust, in the case of which ‘it will be necessary to explore alternatives that satisfy the second pillar but do so in a way that causes minimal disruption to the first pillar’ (p. 84). If, on the other hand, a norm undermines peace, it is presumed unjust. In this case it can only be defensible ‘if the norm is needed to create a state of affairs characterised by respect for human rights and even in that case must do so with minimal disruption to peace’ (p. 84). The ‘thinness’ of this standard rests on the fact that whilst in order to be thinly just norms have to promote peace, they need only to respect basic human rights. A thicker standard of justice, might, for 3 See only Chris Heathwood, ‘Monism and Pluralism About Value’, in I. Hirose and J. Olson (eds.), The Oxford Handbook of Value Theory (Oxford: Oxford University Press, 2015), pp. 136–157.

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instance, demand ‘the promotion of [more than basic] human rights without interfering with interstate or internal peace’ (p. 417). One impressive quality of this book certainly is its erudition and command of the material, both in political philosophy and international law. Ratner is able to convey the crux of complex debates in a couple of sentences and he takes many controversial issues head on. The combination of detailed knowledge of international law and its connexion to philosophical conceptions also makes this book a perfect introduction to international law. In presenting international law as not merely a haphazard collection of arrangements but as inherently aiming at a distinct standard of justice, it allows us to see more clearly the moral claims that are at stake both in upholding and in demanding a change to the current arrangement. The results of applying the standards of peace and human rights to the norms of international law are of course pre-determined by the contours of Ratner’s project: it can come as no surprise that the rules of international law are found to by and large conform to the thin standard of justice. It has to be that way, or otherwise this standard would not have been the one inherent in the law in the first place. At the same time, however, the rules of international law do not perfectly conform to this standard – or otherwise the project would be less an immanent critique and more an apology or a theodicy. In concrete terms this means that Ratner necessarily ends up defending most of the structural features of international law, including some positions which might be considered conservative: the principle of territorial sovereignty and non-intervention, the existence and defence of state-borders, the principle of uti possidetis, the strong presumption against the right to secession from existing states in cases other than post-colonial ones, the principled appropriateness of the admission policies of the UN, the EU, the WTO, and the IMF, the norm of permanent sovereignty over natural resources and also the contours of the present trade and investment regimes. These arrangements might not be enough to promote human rights, but at least they promote peace whilst not interfering with basic human rights. On the other hand, Ratner’s theory is not without critical bite: the total ban of humanitarian intervention without approval from the

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Security Council, for instance, is deemed unjust, measured even against the thin standard, as it interferes with the protection of basic human rights, as do rules granting excessive immunities to heads of state. Equally, whilst the general arrangement of the Security Council allowing a special role for permanent members passes muster, the current arrangement does not, since ‘to the extent that the veto can prevent, and has prevented, the Council from responding strongly to human rights atrocities, it does not meet the test of the second pillar; it needs certain procedural reforms’ (p. 411). Similarly, international law’s presumption of a territorially limited scope of human rights protection might be flawed, as whilst this norm might promote peace it does so at the cost of prohibiting the full protection of basic human rights. Furthermore, ‘economic law’s foundational norm of permanent sovereignty over natural resources generally survives scrutiny under the two pillars; but it needs to be supplemented by other norms of international law to prevent corrupt governments from making deals with foreigners that violate the basic human rights of the population’ (p. 412). I think that in terms of substantive outcome Ratner is right on many if not most cases, and in an academic climate where one can forge a career by putting forward what are fundamentally outrageous demands on the world, his more conservative defences of the rationality of the actual have to be welcome. However, whether he is right for the right reason is another question. The problem with many of his arguments is that his consequentialist commitment means that the results of his assessments depend primarily on the assessment of empirical facts. Ratner himself is happy to accept that the ‘justice of international law’s core norms is contingent on facts and predictions about the effect of the norms’ (p. 413). If this is the case, however, then many of his arguments beg the question whether different or opposite results may not be reached via arguments looking quite similar to his own. What is more, many of the assessments depend on definitions of what counts as peace, what constitutes harm, and what counts as basic human rights. Ratner does not delve too deeply into these questions, leaving one sometimes to wonder whether his theory of thin justice might at passages be more a thin theory of justice.

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All of these criticisms, however, are petty. The faults of this book, if they really constitute any such, are not faults of omission but features of engagement. They are the aspects of a thoroughly courageous enterprise that steps out into the world and deals with the actual on its own terms. As such it needs to be wholeheartedly applauded. The Dickson Poon School of Law, King’s College London, London, WC2R 2LS, UK E-mail: [email protected]

C. Kletzer