Category Archives: Moral Philosophy

Human Rights, International Criminal Justice, International Humanitarian Law, Moral Philosophy

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.

BLOG, International Criminal Justice, Moral Philosophy, Theory of Criminal 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.