Category Archives: Moral Philosophy

The Nexus among Peace, Justice and Human Rights

Colleen Murphy is a Professor in the College of Law and the Departments of Philosophy and Political Science at the University of Illinois at Urbana-Champaign, Director of the Women and Gender in GlobalPerspectives Program in International Programs and Studies, and Affiliate Faculty of the Beckman Institute


In his ambitious book, The Thin Justice of International Law, Steven Ratner offers a reconstruction and justification of the notion of justice underpinning existing international law. Ratner’s interlocutors are both international lawyers and political philosophers, groups whose research provides critical resources for his project and yet whose relationship is characterized by “mutual ignorance and suspicion.”[1] Such ignorance and suspicion are unfortunate in Ratner’s view. By failing to engage with international law, philosophers often provide prescriptions that are based on mistaken understandings of the current state of the law; and propose alternatives that, if implemented, would have detrimental foreseeable consequences. By ignoring normative questions, international lawyers fail to take a sufficiently critical stance to existing legal norms and overlook the fact that all areas of law reflect a conception of justice, a conception that stands in need of justification and can be rightly subject to critique.[2]

Global justice Ratner understands broadly as concerning the “process or outcome that assigns rights and duties to global actors so that it is clear what each such actor is entitled or required to do or have.”[3] The specification of rights and duties occurs via the legal norms and rules constitutive of international law. [4]  To count as just, such norms must be justified according to impartial reasoning, so that the equal standing of all individuals is recognized.[5] The impartial form of reasoning he adopts is ultimately consequentialist reasoning, which judges principles in terms of the state of affairs they produce.[6] Legal norms and rules are just if assignment is such that meets the substantive standard of justice justified on such consequentialist grounds, though there are “deontological concepts superimposed at points on that model” as well.

The two ‘pillars’ against which Ratner ultimately evaluates the justice of particular legal norms and rules are peace and human rights. International law rules are just if they promote peace and do not undermine basic human rights.[7] These pillars provide standards by which we could argue for change in international rules; changes are justified if they would further advance peace or reduce interference with basic rights in a manner that is feasible to implement, given existing institutions, and if such changes would comport with norms of the rule of law and procedural fairness. Ratner goes on to then demonstrate how we see this pillars reflected in norms regarding self-determination, secession, and global trade.

This book is quite extraordinary in the breadth of terrain covered, rich, and rewarding. In my post, I want to focus on the two pillars. It is not clear to me that there are in fact two distinct pillars that underpin the conception of justice Ratner advances and, if there are, the relationship between the pillars is different than what Ratner states.

My uncertainty about the existence of two distinct pillars stems from Ratner’s definition of peace in Chapter 3. There Ratner argues that peace matters because of what violence entails: death, injury, displacement, sexual violence, refugee populations, the collapse of educational and health systems, animosity, distrust and poverty.   As this list makes clear, war and violence undermine the welfare of individuals and communities.   In Ratner’s own words, “War has unparalleled catastrophic consequences for overall human welfare…war undermines the possibility of people to live decent human lives.”[8]

Peace is the absence of violence at both the intrastate or interstate level. The absence of violence is compatible with the presence of conflict; the key is that conflict is resolved in ways that do not involve physical coercion in order to secure agreement. As Ratner writes, “A just world is one where states, peoples, and individuals settle their differences with minimal recourse to physical coercion- although certainly a just world permits coercion, at least by the state, in response to certain violations of the law.”[9]

Not all violence counts as inimical to the peace that is the pillar of international law. Ratner focuses on a particular subset of violence, namely, personal, organized violence. “Personal” violence is contrasted with and used to exclude structural violence. Citing Johan Galtung, Ratner seems to understand structural violence as a product of institutional rules that may harm or disadvantage individuals in terms of their life prospects; institutionalized racism could count as an example of structural violence. The contrast is with individual actions, via physical coercion, leading to harm and the consequences of war listed above.

Such violence, however, is not uncoordinated but “organized”; indeed the violence of war is frequently organized and carried out by state actors or groups fighting the state.

Ratner’s justification for focusing on a sub-set of violence that is personal and organized is puzzling. Peace as a pillar is taken to promote aggregate welfare. It is justified on classic consequentialist grounds. Ratner recognizes, as consequentialists do, that such peace is compatible with particular individuals suffering. He also states that peace is not the same as respect for human rights; were it identical a second pillar would not be needed. So defined, peace should be compatible with state repression aimed at preventing the onset of conflict. The state is authorized to use coercion in the name of enforcing laws, and Ratner does not limit this permission when defining peace to the enforcement of just laws or laws that substantially respect human rights. So repression, even if regrettable from a human rights point of view, should be compatible with peace as he defines it. Yet Ratner states that organized violence includes “’peacetime’ purges of political opponents or manmade famines,” the death toll for which in the twentieth-century is estimated to be 167 to 188 million.[10]

The inclusion of peacetime purges and manmade famines is at odds with Ratner’s general picture. Empirically, purges of political opponents need not necessarily have the devastating consequences on overall welfare that Ratner attributes to war. When organized, targeted and especially when officially denied, there may be dramatic reductions in welfare for individuals but there need not be for communities. There may be no significant displacement, no closing of schools or health infrastructure, and no widespread distrust that results, especially if the group targeted is an unpopular minority.

Conceptually, famines are more plausibly seen as instances of structural rather than personal violence. During periods of famine no individual may be necessarily physically inflicting harm on another or physically depriving individuals of food; famines, as Amartya Sen’s work shows, are a product of the structure of rules for access or entitlements to food.[11] An empirical point could be made about famines and other forms of structural violence as well: their overall welfare reducing consequences are arguably much greater in many cases than the welfare reducing consequences of warfare. Tens of millions are affected by paradigm cases of warfare intra or interstate, but billions live in poverty that has structural roots.

More needs to be said, then, for the rationale for defining peace in a way that excludes structural violence but yet includes purges and repression. Ratner may reply that this is the best way of understanding the notion of peace underpinning international law, but even so we need to know why that conception is conceptually sound. The conceptual clarification for which I am pressing matters practically as well as theoretically. Insofar as we are to evaluate international legal rules on the basis of which they promote peace overall, it is necessary to be clear on what peace entails. Only then will we be in a position to make the consequentialist calculation as to the comparative welfare advantage of having one system of rules versus another, or the comparative advantage and risks of a proposed modification to the international legal order.

Another puzzling claim in tension with the picture laid out is that Ratner states that the first pillar “does not insist on rules that would tolerate what might be called an unjust peace or forbid a just war.”[12] This raises the question of the relationship between the first and second pillar. Strictly speaking, the first pillar does seem to permit an unjust peace, if injustice is treated as a function of how individuals are treated. Insofar as an unjust peace is impermissible, it is not because foreclosed by the first pillar. Rather, this is part of the reason for the necessity of the second pillar. Human rights matter because of their emphasis on the dignity of individuals, and the claims of individuals that should be respected even when that is not the most efficient way of promoting overall welfare. The inclusion of human rights by Ratner seems to be driven by recognition of the limits on consequentialist theories to sufficiently recognize the distinctness of persons when evaluating states of affairs.

Indeed, Ratner himself implicitly recognizes the above when he writes, “international rules under which some individuals suffer but whose overall consequences are to reduce the prospect of war, so that overall welfare is maximized, are just- up to the point where they run into the second principle discussed later.”[13] But this way of framing the relationship calls into question whether the two pillars of international law are equal. Rather, the first pillar, that of peace, seems to be driving the analysis and enjoys a certain priority. Human rights are more properly seen not as a distinct pillar to be promoted but rather as a constraint, delimiting the appropriate ways of pursuing what is in fact the primary pillar or objective of international law: peace.

 

[1] Steven Ratner, The Thin Justice of International Law: A Moral Reckoning of the Law of Nations (New York: Oxford University Press, 2015), at p. 19.

[2] Ibid., p. 2.

[3] Ibid., p. 45.

[4] Ibid., p. 46.

[5] Ibid., p. 56

[6] Ibid., p. 62.

[7] Ibid., p. 64.

[8] Ibid., p. 67

[9] Ibid., p. 66.

[10] Ibid., p. 67.

[11] Amartya Sen, Poverty and Famine: An Essay on Entitlement and Deprivation (New York: Oxford University Press, 1983).

[12] Ratner, Thin Justice, p. 66.

[13] Ibid., p. 70.

Is Thin Justice Justice?

David Luban is University Professor in Law and Philosophy at Georgetown University.


Steven Ratner’s The Thin Justice of International Law (TJIL) is a great achievement. His project – to bring contemporary analytic political philosophy into conversation with international law – is admirable, and I don’t think anyone has ever done it better. Ratner is clear, comprehensive, and creative. He sets out counter-arguments to his own views fairly and fully, and defends his conclusions against them with careful reasoning, sine ira et studio. I say all this at the outset because the nature of this symposium is to raise questions, and before turning to the criticisms I want to emphasize the many virtues of TJIL.

Of course, the central virtue of a theory is its truth. In most of the book, Ratner’s procedure is quite straightforward: he considers various central legal norms in different subject-areas of international law and tests them by asking whether they maintain peace and respect basic human rights, the “two pillars” of his system. If they do, they are, in his sense, thinly just. In what follows, I will express some doubts about the claim of thin justice to the label “justice.” But this may not be a central issue, because asking whether legal norms keep the peace and respect rights are important questions in their own right, regardless of whether these two pillars amount to “justice,” thin or thick. The heart of the book lies in his answers to the questions about which norms do the best job of keeping peace and respecting rights; whether the two pillars add up to justice is a separate theoretical meta-issue. Some existing norms pass the two tests, some don’t; some alternative possibilities score better on these tests, others don’t. (He summarizes his findings on pp. 410-13.) It would go beyond the scope of this blog post to evaluate even a fraction of these conclusions about which, Ratner himself acknowledges, he has varying degrees of confidence (409). Those conclusions are, by and large, progressive reforms, where “progressive” is measured by promotion of human rights. Thus, for example, Ratner would strip away state immunities for jus cogens crimes (and thus he rejects the ICJ’s regressive Germany v. Italy decision); he favors universal jurisdiction for core international crimes (notwithstanding distaste for it by political elites in both the powerful states and the developing world); he is on the side of R2P and against any absolute ban on humanitarian military intervention; he places both economic and political rights among the basic human rights. His views largely align with liberal internationalism. Because I largely agree with these conclusions, I rate the book high on the virtue of truth.

  1. The status quo?

Several of Ratner’s critics have complained that the book is largely a defense of the status quo, an accusation that he rejects – pointing to several important legal reforms that he advocates. But it seems to me that the complaint is fundamentally right, because non-deviation from the status quo belongs to the DNA of his project. Consider, first, that “the goal of this project is to appraise the norms we have” (84-85) – a point Ratner repeats in an EJIL:Talk! Symposium – so his starting point is the state system and the current lex lata. Even his list of basic human rights is “derived from examining the practice of states” (75-76, 98), although it would not be difficult to derive nearly the same list through direct argument. Next, he argues that respecting stable expectations is a “fairness corollary” of the rule of law (87-88). This corollary seems to imply that large-scale deviations from lex lata are unjust (unfair), because they would violate state expectations. Furthermore, Ratner adheres to a “compliance corollary” (89), which views reform proposals skeptically if they are “unrealistic.” What makes them unrealistic is that “global actors,” and in particular “powerful states do not accept certain proposed rules” (89). So current global power distributions also influence the thin theory of justice. Even though the compliance corollary is only an “alarm bell” against utopian proposals (89) rather than a theoretical requirement, Ratner likens it to Sidgwick’s “ought implies can” precept in moral theory – and that is a theoretical requirement.

Taken together, Ratner’s two corollaries imply that his inquiry could never yield results that radically change the lex lata. At best, thin justice will yield only reforms at the margin, and only those that would not seriously upset states, especially powerful states. Built into the nature of his project and his two corollaries is what Koskenniemi calls “the pull of the mainstream.” I am not sure Ratner would disagree; my sense is that he regards responsiveness to the pull of the mainstream as a virtue, not a vice, of his approach. It is what distinguishes his legally informed discussion from straight-up analytic philosophy. The pull of the mainstream explains the sense in which his theory is decidedly non-ideal; but, as I next argue, it puts pressure on the claim that it is a theory of justice.

  1. The compliance corollary

I believe the compliance corollary is a serious mistake. The analogy to Sidgwick’s “ought implies can” is misleading. Sidgwick means that morality can’t require you to do the impossible in a causal sense. It does not mean justice can’t require you to do something you don’t wish to do, for example because it is against your interests. If that were what “ought implies can” meant, it would spell the end of justice and morality. (This was Kant’s point in his 1793 essay On the common saying: That may be correct in theory, but it is of no use in practice.)

The fact that for self-interested reasons powerful states do not like some rule, and would not comply with it, has no bearing on whether, as a matter of justice, they ought to promote that rule or comply with it if it comes into being. State hostility and anticipated non-compliance is a good reason for a politician or NGO to avoid politically impossible lex ferenda proposals. But the actors governed by norms of international justice are not the reformist politicians or the NGOs. The actors are the states whose behavior the law would regulate. Under existing principles of IL formation, it is their treaty-making and opinio juris-backed practices that creates rules of IL. For a state to say “We won’t comply with this proposed rule, and therefore it cannot be a requirement of justice” would be absurd. There is no “therefore.”

It follows that the compliance corollary is not a requirement of justice, not even a methodological requirement for deriving rules of non-ideal justice. Now, it may be that Ratner agrees. At one point he concedes that the compliance corollary could actually “rule out certain proposed rules … demanded … by the two pillars of justice” that constitute his own theory (89). In other words, the compliance corollary may violate justice on Ratner’s own “thin” terms. In that case, it does not really belong in an inquiry about justice. I would say it is closer to a principle of political expedience for analysts who want their proposals to get taken seriously by politicians and policy-makers. Nothing wrong with that: but it is decidedly not the job of a theory of justice – even a non-ideal theory – to tailor its requirements to what current politicians and policy-makers will take seriously.

In any case, the compliance corollary would pose grave difficulties for one of Ratner’s pillars of thin justice, basic human rights. Taking the compliance corollary seriously would threaten the basic right of gender equality, and LGBTQ rights would stand no chance in international law. China, which never ratified the ICCPR, regularly denounces universal human rights as an affront to its sovereignty, and the current Philippine president recently said, succinctly, “Forget the laws on human rights.” The Philippines is the twelfth-largest country in the world. Russia, too, has expressed suspicion of human rights as an infringement on sovereignty; and although Russia belongs to the European Convention on Human Rights, its flagrant violations have generated a paralyzing backlog of complaints in the Strasbourg court that in their effect resemble an internet denial-of-service attack on the court’s capacity to function. It seems to me that if Ratner wishes to maintain human rights as a pillar of thin justice – as of course he does – then the compliance corollary has got to go.

One response to this objection is that what we are after is not a theory of justice (full stop) but a theory of justice within international law. A norm that those it governs won’t comply with can hardly count as law. For example, at one point Ratner considers the question of whether basic human rights should be the same in wartime as they are in peacetime. There might be theoretical reasons to think the answer is yes, but Ratner objects that states won’t comply with any such rules – and then what is the point of insisting on them as a matter of justice? (See 390-91.)

Actually, Ratner answers his own question: he argues that IHL is one area of law where thin justice “seems to bounce off” the important questions (387) rather than answering them. So one answer is that we should settle for rules that war fighters might actually comply with, but not pretend they are just. Alternatively, we could build just rules into IHL, even though war fighters won’t comply with them. (Arguably, this is precisely what happened with the law concerning human shields. The in bello rules in Additional Protocol I forbid the use of human shields, but they also forbid attacks that would inflict disproportionate civilian damage. In asymmetric or guerrilla conflicts, complying with the former might spell annihilation for the weaker party, while complying with the latter would tie the hands of the stronger party. It seems obvious that one or the other, if not both, will violate the rules – but both rules have a claim to being just.)

  1. Consequentialism

Ratner describes his approach to moral evaluation as rule consequentialist. “I am asking whether various rules or alternatives to them, if followed by the actors to whom they are directed, would be reasonably expected to lead to certain states of affairs defined in terms of peace and human rights” (83). This is rule consequentialism of a special sort: it asks about the consequences of rules if actors comply with them. It is, in other words, rule consequentialism under the assumption of full compliance. This already deviates from a more usual version of consequentialism, which asks about consequences given whatever level of compliance we would expect to find in the actual world. (It also seems in tension with the compliance corollary, but I don’t regard that as a problem because I don’t accept the compliance corollary.)

The assumption of full compliance assumes (at least implicitly) the efficacy of international law. It assumes, for example, that the reason states refrain from aggression against other states is the efficacy of the non-aggression norm in IL, rather than military deterrence and balance-of-power politics. Ratner seems uncertain about this. At one point, he concedes that IL has played little role in preventing major wars (70); elsewhere, he says that the UN’s prohibition on the use of force “had a huge effect on state attitudes regarding the legitimacy of war” (416).

My sense is that in places he assumes efficacy and in places not. Here is an example where the inconsistency is apparent on the surface. Discussing the view of some near-pacifists that the Article 51 right of self-defense actually harms rather than helps peace, Ratner reiterates his full-compliance version of rule consequentialism: “We have to evaluate, based on our intuitions and experiences, the expected real-world consequences of following one rule or another rule” (121; emphasis added). So we must ask ourselves what would likely happen if the right of self-defense were narrowed or even eliminated. The answer is “that depriving states of a right of self-defense would invite aggression” (121). That seems like mere common sense. But it is tantamount to saying that without article 51, other states would not comply with the international prohibition of aggression. Here, he drops the assumption of full compliance. The inconsistency is that Ratner assumes full compliance to test the consequence of article 51, without assuming full compliance with rules banning aggression.

But he can’t have it both ways. Either we must drop the full-compliance assumption, or apply it to both sides of the article 2(4)-article 51 dyad. If we drop the full-compliance assumption for both sides of the dyad, the argument would be that even without article 51, states experiencing aggression will fight back if they can; and, knowing this, would-be aggressors will be deterred to roughly the same extent they are now. If we apply the full-compliance assumption throughout the argument, then even without article 51, there would be no aggressors. Ratner’s conclusion that dropping article 51 would invite aggression illicitly equivocates. The argument is unsound. (I don’t mean to imply from this critique that I agree with the near-pacifist argument he is criticizing. Its proponents not only criticize article 51, but also believe that states should not defend themselves against aggression unless it threatens basic human rights, a view I find hard to swallow.)

  1. Immunity of high officials

So far I have been discussing general theoretical questions. I haven’t discussed any of his individual normative conclusions. I will single out just one, Ratner’s defense of personal immunity of incumbent high government officials against prosecution in another state’s courts for core international crimes. This is an issue of some current moment: it is increasingly obvious that the ICC has only slight capacity to bring murderous leaders to justice, and if they are immune from state prosecutions as well, they have practical impunity. Ratner favors universal jurisdiction and supports accountability. He also supports the current rule, which denies personal immunity to former officials; why, then, incumbent immunity? Not only does that immunity harm accountability, the differential treatment of incumbent and former officials obviously provides a perverse incentive for them to cling to their offices. (I note that Ratner’s differential treatment is the current law as reflected in the ICJ’s Arrest Warrant decision. So this is one issue on which he defends the status quo.)

His answer is that incumbent immunity is essential to diplomatic intercourse, and therefore to peace (204). The importance of immunity to diplomatic intercourse is what commentators usually call the “functional” theory of immunity, and it is the official rationale given in Arrest Warrant (¶¶53-55); Lord Millett also alludes to it in his thoughtful Pinochet speech. Ratner ties the functional theory to the peace pillar of thin justice. But that connection is less obvious than it appears at first glance. The fact that a particular leader or other high official is a possible target of prosecution plausibly means that the target official won’t personally participate in diplomatic negotiations with – and especially in the territory of – states that target him or her. But the evidence that that will undermine peace is sparse and even divided. Observers have said that the ICTY’s indictment of Radovan Karadžić, which prevented him from participating in the Dayton peace negotiations, was crucial for achieving an agreement. This is a case where immunity, had it been available, might have harmed peace. One can certainly imagine similar scenarios where keeping a toxic leader or genocidal foreign minister away from the negotiating table helps rather than hinders peace.

The jurisprudence on immunity sets out an alternative ground of official immunity, usually known as the “representational” theory. The latter theory holds that the head of state personifies the state itself, so that indicting a head of state insults the state’s dignity. As Lord Millett put it in his Pinochet opinion, indictment “would be an affront to the dignity and sovereignty of the state which he personifies.” Equals have no dominion over equals. Although the theories are very different, they are sometimes entwined in the jurisprudence. Notably, in Arrest Warrant the ICJ relied on the functional theory to find that the foreign minister of the Democratic Republic of the Congo enjoyed criminal immunity; but it also agreed with the DRC that Belgium had committed a “moral injury” against the DRC by issuing an arrest warrant for him (¶75) – so the representational theory is also there.

Ratner does not rest his case for incumbent immunity on the representational theory, only on the functional theory. But he does accept the representational theory’s theoretical underpinning when he argues that without sovereign equality, “unprivileged states violating human rights would be so insulted” that dialogue would become impossible (215). Elsewhere, he quotes with approval Philip Jessup’s remarks that “States have ‘feelings’” (200). So his view would at least be open to grounding incumbent immunity in the representational theory, which personifies states and their sense of dignity.

In my view, however, thinking this way illicitly anthropomorphizes states (something that Ratner himself objects to – see 197), and obfuscates matters. To be sure, state elites have feelings, and they may be insulted (or pretend to be) if they or their cronies are called to account for their crimes. But it is vital not to identify the state with its elites; doing so is one of the abiding temptations that international lawyers face, one it is crucial to resist. In addition, of course, populations often have nationalist sentiments that can be whipped up by demagogues, and perhaps that is what Ratner fears when he cautions against insulting states. This is a particularly fraught issue if the state aiming to prosecute a toxic, murderous leader of another state happens to be that other state’s former colonial master (Belgium in the DRC, Spain in Mexico, Guatemala, and Argentina). But the rage of nationalist masses should also not be packaged as the “feelings” of the state. Nationalists have no more claim to personify the state than other citizens who may not share their rages and grudges – such as the victims who have been tortured or raped or had their loved ones murdered by the toxic leader. They also have feelings, and they are also part of the nation. They are probably not the only ones in the state who shed no tears for the murderous leader who faces criminal indictment under universal jurisdiction; many others may be cheering the prosecution. The lack of evidence to substantiate a categorical link between immunity, diplomatic intercourse and peace, plus the dangers of attributing feelings of insult to states that are actually made up of a great diversity of incongruous feelings, leave a critical reader less satisfied that Ratner’s grounds for maintaining immunity are just.

I am especially concerned about this issue because in my view aggressive claims of immunity, even for jus cogens crimes, amounts to a Counter-Reformation in international law. (I have remarked on this here and here.) In addition to the Germany v. Italy case, where Ratner too argues against immunity, Arrest Warrant and the European Court of Human Rights decisions in Al-Adsani and Jones v. United Kingdom have in my view seriously damaged the avenue of accountability opened up by Pinochet. All of them place the state interest in immunity above the human interest in enforcing the jus cogens.

  1. Immunity and the romance of the nation-state

Decades ago, I warned against the theoretical error of assuming an identity between nations and states – a “romance of the nation-state” that underlies the representational theory of immunity, but also the more absolutist claims of state sovereignty. Anthropomorphizing states by speaking of their feelings, and insults to those feelings, is a version of the romance of the nation-state. It gives aid and power to demagogic elites seeking to shore up their power while committing human rights violations. Although Ratner suspects that I am hostile to the state system (123-24), that is not true; I agree with him that the state system helps keep the peace, and peace matters. My own view is closer to that of Kofi Annan in his famous 1999 address to the General Assembly, arguing that state sovereignty must be limited by human rights. This is an optimistic but unromantic view of the state. As a historical matter, Charles Tilly probably got it right that the state originated as a large-scale protection racket; Tilly’s view is not much different from David Hume’s. But we should never sneer at protection, if the opposite is no protection. Annan, as I read him, was implicitly suggesting that it is time for states to distance themselves from their Tillyan origins, and I take that to be Ratner’s project as well. All the more reason to reject the romance of the nation-state and with it the claim of murderous elites to personify their nations.

Is International Law’s Thin Line of Justice Too Thin?

Karen J. Alter is Professor of Political Science and Law at Northwestern University


In this contribution I question Ratner’s goal of seeking a thin ethical basis for international law. My undergraduate teaching separates into two courses the subjects of International Law and Ethics in International Affairs.  In The Politics of International Law we explore how international law provides a framework for finding workable solutions that can be backed by political agreement. But I also explain that international law is generated through a political process, and it reflects the reality that states are the principle decision-makers in this process.  For this reason, and because international politics is not about justice, we cannot presume that international law is or will be just. In my ethics course I argue that people care about ethics and thus ethics matters in international affairs. What is ethical and just, however, can only be determined by philosophy, meaning by philosophical debates about ethics and justice in international society. I bring international law into the ethics course, yet we repeatedly find that international law either contributes to or is unable to helpfully resolve today’s many ethically questionable political realities (If you are interested, the syllabi are available here under teaching).

Steven Ratner’s book The Thin Justice of International Law seeks to bring international law and ethics together. Ratner makes three arguments to support this unification (p. 1-2).  First, international law can transform moral prescriptions into legally binding rules that have institutions and mechanisms for implementation. This is no doubt true. Second, “international law tells us something about what international morality and justice at the international level mean in the first place.”  It is hard to dispute a ‘tells us something’ claim, but his argument would only be true if we accept that morality is defined by what people agree to do and/or actually do.  I emphasize philosophy because I believe that an important role for moral discourse is to encourage humans to aim higher, to strive for what is actually just rather than what we might collectively do or name as just.  Ratner’s third argument is that there is a version of morality inherent in international law. His book is primarily about uncovering international law’s inherent morality, which he admits is a thin version of justice.

Ratner is not suggesting that we accept flawed international law, or that we presume that international law is just.  Rather, the “thin justice of international law” is a moral floor that must be met for Ratner’s reconciliation of international law and justice to hold. Much of Ratner’s book is about investigating whether existing international law as it is implemented and practiced meets this low bar of thin justice.

The book is a brave and thoughtful engagement by an excellent, very informed and very smart scholar.  Ratner approaches the topic as an international lawyer because he wants his life’s work to serve the larger goal of justice. He is not seeking platitudes or easy truths, and I admire that he openly and in a clear-eyed way seeks this reconciliation.  His learned book is deeply embedded in existing debates about international law and international ethics, and Ratner is forthright about the choices that he makes.  While I share Ratner’s goal of creating a non-utopian understanding of international law and international justice, one that is practicable and that works to improve how international law and international politics works, I still prefer to keep morality separate.

Ratner’s thin justice sometimes feels like an argument that international law is better than the alternative.  International law surely is better than no rules at all, or rules that are created ad hoc to meet the exigencies of the moment. But ‘better than the alternative’ is not the same as moral or just. Ratner’s thin reconciliation sets international law’s justice bar very low. Even if the bar is practicably low, it is in my view too low for any moral claim to justice.

For Ratner, international law that minimizes violent conflict (e.g. that promotes the peaceful resolution of disputes) and that respects and also “produc[es] a state of affairs  characterized by the respect of the basic rights of individuals as a whole” (p. 80) provides thin justice. Ratner, of course, explicates these ideas with much greater nuance, and he is not an apologist claiming that international law delivers this low bar.  Rather, he often he finds that international law can and should do more to meet his thin justice standard.  His discussions of how international law works, and his considerations of whether key features of international governance and international law can be morally justified are excellent.  These discussions make the book magisterial– here is an international lawyer explicating and making a case that sometimes justifies the international governance status quo and other times asks for more.

I understand the lawyer’s project to seek to render the law more just in its application, and Ratner’s book serves this purpose. In my ethics course I stress that every citizen, and especially citizens of the most powerful countries in the world, should consider the ethical implications of their individual and collective choices. Because political leaders depend on public acquiesce, there is no individual choice that does not have an ethical implication.  In other words, to “do nothing” is itself an agentic choice to endorse the status quo. If one does not like the status quo, then every citizen must do something to contribute to a different outcome.  What we can do at any moment may by necessity vary over time. Students may first choose to invest in developing skills, and as a mother of teenagers I still spend a great deal of my time and energy helping my children. But we always have an obligation to do something, and this obligation grows along with our personal power and our own circumstances. Ratner’s book is example of a lawyer using his vocation to do something to make the world a better place.

I too try to do something to make international politics more ethical.   Normative agendas are seen as somewhat antithetical to the social science endeavor, but this does not mean that there is an ethics free pass for social science. For me, a political scientist fails to make an ethical contribution if he focuses only on the winners, or if she rests at the moment of finding a causal relation. A minimal ethical occupational obligation, I believe, requires that political scientists expose the distributional consequences of political decisions, naming and explaining both who wins and who loses from political processes. By exposing the winners and losers the scholar helps to frame a discussion about whether we can or should live with the status quo.  Indeed the point of understanding how interests aggregate and political decision-making occurs is to learn where and how to exert pressure for change. I go further by writing for the public, through op-eds and blogs, by including ethics in my courses, and by explicitly engaging the normative implications of my research findings. So I too seek to reconcile my profession and the goal of justice.

Unlike Ratner, however, I keep ethics separate rather than seek a reconciliation because I believe that the goal of ethics is to set a realistically higher bar. I agree that codifying ethical goals into law can harness law’s implementation tools to help reach a higher ethical bar. Indeed the overlap between morality and law is the sweet spot that makes respect for the law easier to generate (Tyler, 2006). But because law is merely the result of a political process, I don’t expect extant law to demarcate or set the ethical bar, nor do I think we should look within the law to find the ethical bar. More fundamentally, given the extent of global inequality, the poor environmental practices that contribute to global warming, and the extent of human suffering–hunger, illness and fear– in the world, I don’t think that helping to peacefully resolve disputes and promote individual human rights is a sufficient ethical bar for international politics.

Ratner performs a lawyer’s service of explicating the good and the bad of international law, while working to improve the ethics of international law.  He and I probably agree that international law can only do so much, that law will never be enough to reach the higher goal of thick justice.  Mine is thus a respectful disagreement over tactics rather than any fundamental challenge to Ratner’s admirable project of improving the ethics of international law.

New Symposium: Steven Ratner’s The Thin Justice of International Law

Steven Ratner has written an important book entitled The Thin Justice of International Law: A Moral Reckoning of the Law of Nations (OUP, 2015). The book is especially significant because it uses ethics and moral philosophy to assess and criticize a series of sub-branches of international law. These sub-branches include statehood, territorial-based protections of Human Rights, regulation of global trade and investment, and international criminal, humanitarian and environmental law. In addition to this remarkable breadth, the book is one of the first attempts to marry international law and moral philosophy in a systemic way, which is especially interesting to those of us who have explored both of those areas as vehicles for assessing the responsibility of individuals (and corporations) for international crimes. Ratner has, in other words, considered an interesting normative coupling in far greater depth than others before him, and advanced this analytical scheme far further afield.

I will not say terribly much more introducing the book, except to add that Ratner employs human rights and peace as dual normative pillars derived from the interface of ethics and international law as lens through which to critically review the various sub-fields in the discipline I mention. Thus, his masterful treatment of these issues will also be particularly interesting to scholars of both human rights and peace studies, in addition to the other subject-areas of international law he takes up in the book. My reluctance to say terribly much more introducing the book is partly because Ratner has penned his own detailed introduction for an earlier blog discussion and I am confident that my own attempts would be less true to his origin message and less representative of the numerous significant points the book makes. I therefore leave my own reactions to the substantive section of our symposium, which will appear on this blog over the coming two weeks.

There are several reasons I thought to stage this symposium. Although others have hosted excellent symposia already (see here), I wanted to continue the conversation between philosophers and international lawyers in order to help an important interdisciplinary dialogue grow. I also wanted to host a discussion of this book because Ratner’s text is exemplary of all of the elements in this blog’s manifesto: Thin Justice of International Law is very normatively creative, aesthetically excellent, deliberately caters to a plural intellectual community and explicitly adopts symbiosis between theory and practice as a method. For all these reasons, I am excited to play host to a fantastic set of scholars whose work I have admired for some time. In particular, Karen Alter, David Luban and Colleen Murphy will join me (see table of contents here) in offering respectfully critical reflections on Ratner’s book.

I am confident that the resulting dialogue will prove stimulating to all those interested in moral philosophy, global justice and their intersection with international law.

The Role and Weight of Desert

Sasha Greenawalt, Professor of Law, Pace Law School. He is the author of the excellent new article International Criminal Law for Retributivists.


I am grateful to Adil for his insightful comments.  Adil was quite generous to serve as a discussant when I presented an early draft of my article at the 2013 Law and Society Association Annual Meeting and so am I especially thankful that he has taken the time to participate in yet another exchange.

Adil agrees that retributivism is an incomplete theory of punishment and that non-retributive considerations can outweigh retributive reasons to punish.  Adil’s takes issue, however, with the particular role and weight that I assign to retributive considerations.  In so doing, Adil raises several important points, some of which involve nuances that my article does not expressly address. Nevertheless, I believe that his points are consistent with my argument, and that my analysis can, or already does, incorporate them.

At the outset, it’s important to emphasize an important difference in focus between Adil’s comments and my article.  Unlike Adil, I am not interested in defending the best view of retributivism.  Instead, I am primarily focused on exploring how different understandings of retributivism could approach international criminal law. In particular, what I describe as a “good reason retributivism,” is my attempt to identify how retributivism can operate in the real world as a plausible, affirmative rationale for punishment.  As I explain in my response to Mark Drumbl, the label reflects my attempt to distill something that is already present in retributive theory rather than to propose a novel approach to punishment.   In other words, retributivists might disagree about whether there is a moral obligation to punish the deserving, or about whether deserved punishment is a good, while nevertheless agreeing that, practically speaking, retributive reasons operate along the lines that I have described.

Adil’s principal critique is that “I view moral responsibility for past wrongdoing [as] merely one good reason to punish among others, a reason that competes on equal terms with good reasons not to punish.”   On Adil’s account, by contrast, desert is the only reason to punish.  Utilitarian considerations favoring punishment play a more limited role:  they can defeat utilitarian considerations disfavoring punishment (thereby defeating the defeaters), but they cannot provide an affirmative reason to punish.

This is an elegant and interesting way to put it, but am I having trouble identifying the difference between Adil’s “only reason retributivism” and what he describes as my “one good reason retributivism.”  On my account, desert is both necessary to punishment and provides an affirmative, prima facie reason to punish.  (Hence, I am not sure why Adil believes that I embrace a purely “negative retributivism” that lacks this affirmative function.)  My good reason retributivism does not contemplate that utilitarian considerations could justify punishment all by themselves without support from retributive considerations.  As with Adil’s approach, “retributive reasons . . . serve a unique and indispensible function in the justification of punishment.”

How then does Adil’s account differ from my own?  Perhaps the difference lies in the fact that I, unlike Adil, do not specify that utilitarian considerations favoring punishment can only act as “defeaters of defeaters,” rather than as affirmative reasons to punish.  I’m not sure how much this distinction matters, however.  If desert provides a necessary, prima facie reason to punish, then what role could these other considerations play except to help defeat arguments opposing punishment?  If there is a conceptual difference, I’m not sure it has any practical impact.

Another question concerns the relative weight of retributive reasons.  Adil contrasts his “strong retributivism” with my “weak retributivism.”  My own view is there is room for disagreement regarding how much weight retributive arguments should carry in the face of countervailing non-retributive reasons.  I’m not sure how Adil’s framework provides any greater clarity on this point.  Take, for example, Douglas Husak’s observation that the value of punishing the deserving is arguably, from the start, outweighed by the “inevitab[ility] that the practice of punishment will suffer from (at least) each of the following three deficiencies: It will be tremendously expensive, subject to grave error, and susceptible to enormous abuse.”  This argument would seem to be entirely compatible with Adil’s approach:  In Adil’s terms, it could well be that retributive reasons are never enough to overcome these three defeaters, and that the practice of punishment will always require additional non-retributive defeaters of defeaters to support the retributive reason to punish.

My idea that desert might merely play a tie-breaking role in justifying punishment was inspired by Husak’s example.  My point is that even if one thinks that retributive arguments are, by themselves, readily defeated by the negative consequences of punishment, they can play still a powerful role in situations where the balance of non-retributive considerations both favoring and disfavoring punishment yields no clear answer.  It strikes me that international criminal law often involves uncertainties of this nature.  Of course, Adil is correct that if the retributive reasons to punish are too weak, then they cannot play even this tie-breaking role.

Otherwise, I very much appreciate Adil’s reflections on both consequential retributivism and the distributive component of retributive justice.  These will require further reflection, but I do find them compelling.