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.