The Promise and Limits of Thin Justice: A Response to the Contributors

Steven Ratner is the Bruno Simma Collegiate Professor of Law at Michigan Law School.

It’s a great pleasure for me to comment on the four contributions to this blog regarding my book. I want to express my warmest thanks to James for organizing the symposium and to Karen, David, and Colleen for joining James in writing such thoughtful essays.

Because the essays respond to so many different aspects of the book, it is somewhat difficult for me to organize the critiques and my responses thematically; instead, I will respond to each contributor in turn. Before doing so, I would acknowledge the generosity of each reviewer in accepting what I am trying to do with the book in terms of both fostering an interdisciplinary dialogue on global justice and offering my own moral assessment. In particular, they took note of both my critique of some core norms for not meeting the threshold of thin justice as well as my defense of other core norms for doing so.

James Stewart, who attempts to situate the book in relation to the critical legal studies movement, takes it in a direction somewhat similar to that offered by Jean d’Aspremont, where he regards the book as a sort of return to the natural law tradition. Both James and Jean point out that an ethical defense of some of the core norms offers a response to work within both the legal academy and philosophical circles. When I wrote the book, my main foils were the moral and political philosophers who, in my view, fail to see the justice in many of the norms, and, in particular, the balance between peace and human rights reflected in them. But I was also concerned with the legal mainstream, i.e., the bulk of legal academics who stay away from the moral underpinnings of the norms in favor of a search for doctrinal clarity. (And I too write plenty of doctrinal pieces that stay away from morality). While I criticize CLS in chapter 1 of my book for its preference for deconstruction without much room for reform, I had not appreciated until I read James’ piece how my book is very much a response to their approaches as well. Certainly, if the crits see philosophical as just another project of Western hegemony – going back to Greeks, I guess – then my book suggests otherwise. At the same time, I also took on board one of Koskenniemi’s points that legitimacy was too diffuse a standard by which to judge international law.[1]

Colleen Murphy criticizes my peace pillar for being both too broad (for including a violent governmental campaign against opponents) and too narrow (for excluding structural violence). It’s worth mentioning again that this is a book that seeks to appraise the justice of international law, not of all social arrangements. So for me the essence of the first pillar is about preventing or terminating organized violence. That violence need not be bilateral – the Nazis and the Khmer Rouge killed members of ethnic groups and political opponents without much fighting back on the victims’ part. But international law should still seek to prevent such violence. As for the exclusion of structural violence, I agree with Colleen’s point that at times the line between organized and structural violence can be thin; famines can be caused by design to destroy certain groups (Stalin’s famine) as well as through ineptitude (perhaps some of the North Korean famines). Sometimes it may be hard to tell the difference. But I think we should judge international law norms by the extent to which they end deliberate, organized violence.

As for her larger point that poverty causes more human suffering than such violence, I do not disagree. But as I discuss in rejecting equality as a pillar of thin global justice (TJIL, pp. 94-95) and also in examining the justice of trade norms (pp. 342-44), poverty has many causes, in particular domestic causes, and I believe it demands too much of international law rules to say that they are just only if they reduce poverty. At the same time, the second pillar, insofar as it includes basic economic rights, would regard as unjust a norm that causes a denial of those rights. As for her final point, at note 12 of her piece, about the sorts of peace that the first pillar demands, I agree that the first pillar would, on its own, allow for a rule of international law that promoted an unjust peace. I think the last sentence on p. 66 would be clearer if it said that the first pillar, when combined with the second pillar, does not allow for such rules.

Karen Alter seems to share the thrust of my project in pointing out the ethical ramifications of international law, for she herself does so with the consequences of various political arrangements.   And she agrees with me, citing Tom Tyler’s work, that actors are more likely to follow law directed at them if they see it as corresponding to their moral intuitions. But she then criticizes the book for developing a standard for the appraisal of the law that she sees as not independent of the law. Two responses are in order.

First, my claim that law can tell us something about morality, a point I take from Peter Cane’s work, is quite a specific argument. To quote Cane, who says it so well, “It is a philosophical mistake to think that morality can be properly and fully understood without reference to law. . . . [L]aw has institutional resources that enable it to make a distinctive contribution to answering practical questions about what one ought to do or what sort of person one should aim to be’. (TJIL, p. 6). By this, Cane means that we can understand many moral concepts be seeing the various lines that have been drawn in law, e.g., between different forms of homicide, or the scope of due process allowed under various constitutions, or the dutyholders under human rights law.   Law does not “set the ethical bar,” as she rightly points out, and certainly many laws can be unethical, but some laws, legal doctrines, and legal distinctions do help us figure out rational places where one can set the bar.

Second, while I agree with Karen that one goal of ethics is to set a “realistically high[] bar” for the evaluation of human institutions, I don’t think that precludes the sort of “reconciliation” that she criticizes. Recall that my choice of two pillars is defended in terms of both the logic of discovery and the logic of appropriateness, two moves that I believe Rawls also makes in his theory of justice. (TJIL, pp. 64-65). If her concern is with the logic of discovery – of searching within the international order for the two pillars of justice by which to appraise international law – then my response is that that different institutions should be subject to different conceptions of justice. A just college admissions system may be different from a just public assistance system, which may be different from a just set of international law rules.   We can call that reconciliation, but it’s really judging any construct in terms of standards appropriate to that construct. If the concern is with the logic of appropriateness, I think I’ve explained why the two pillars are indeed pillars of justice in the sense, again, of Rawls’ “first virtue of social institutions.” I agree with her that the two pillars, acting in concert, do not set a “sufficient ethical bar for international politics.” That is why they differ from the thicker justice that I offer later in the book. And that is also why I insist that international law cannot be the only locus of normative activity for improving the world. But my project is not to come up with that “sufficient ethical bar.” It is rather to examine the existing norms we have against a standard that takes into account what international law can do and is supposed to do.

Finally, David Luban offers probably the strongest critique of the book. I will only focus on a few key points of his very rich essay. First, I do not agree that thin justice requires reforms to the status quo only at the margins. True, it does not advocate radical reform like eliminating states or sovereign equality, but I think that changing the structure of the veto, eliminating some sovereign immunity, ensuring that trade and investment treaties and tribunals do not violate human rights, allowing for limited humanitarian intervention without Security Council approval, and other points I make are not marginal reforms. Moreover, the thicker justice that I advocate in Chapter 13 would clearly go much further – though even then, it’s not radical.

Second, David criticizes the compliance corollary as being both inappropriate for a book about (even non-ideal) justice and inconsistently applied.   I agree that feasibility is not a ground for justice, which is why it is not one of the two pillars. But it is relevant in thinking about which of the various alternatives to a just or unjust set of existing norms we might advocate. I think some of the reasons philosophers of global justice make proposals that continue to assume the existence of states are based on feasibility. Thus, I agree that the mere opposition of powerful states is not enough to take a just alternative off the table, and I (at least hope I) do not deploy it so crudely. Yet proposing a new norm in the face of well grounded predictions that it will meet with immediate and widespread noncompliance would mean that we would have a just alternative, but not a just rule.

I do not see how the compliance corollary stands in the way of various progressive moves of international law. Certainly thin justice itself does not ban progressive change. Indeed, if states adopt rules that overtly discriminate against people on invidious grounds, those rules are unjust according to the second pillar. And the opposition of some states to them does not mean we should tolerate a unjust status quo.

On the question of inconsistency of the constraint as applied, David struck fear in me with his comment that my arguments about Articles 2(4) and 51 are “philosophically unsound.” I agree that my rule consequentialism is based on judging consequences based on compliance with the rules, though I do not argue (nor need to argue) that international law rules are the primary determinants of state behavior. David says I find that Article 2(4) passes the first pillar because compliance with it would reduce war, but I find that Article 51 passes the first pillar only because it serves as a deterrent to violations of Article 2(4), which violations I have assumed will not occur. He says I have fallen into the abyss known as “hav[ing] it both ways.”

But I do not ever assume “full compliance” with rules, though obviously the entire inquiry does not work if we assume general non-compliance with them (like the realists do). International law contains rules, like Article 51 and indeed all of Chapter VII of the Charter, that are based on the likelihood of some violations of other rules and the need to prevent or respond to them. Indeed, the whole dispute settlement system of the WTO is based on the possibility of non-compliance. Article 2(4) advances peace compared to the absence of such a rule or to the pre-Charter (or pre-Kellogg-Briand Pact) rule that allowed for war for a variety of reasons. Article 51, as currently interpreted, advances peace compared to the absence of such a rule or to a rule that constricted self-defense to attacks by states only.

The possibility or even likelihood that states might respond in self-defense in the absence of a rule permitting them to do so does not mean the rule itself does not advance peace. For the deterrent value seems greater in the presence of the rule than in the absence of it. Article 51 is a remedial rule (and a permission, rather than obligation, at that). Remedial rules are only operative in the event of violations of another rule, so we have to evaluate their justice in terms of their ability to promote compliance with that other rule (assuming that rule is just).

Finally, I share David’s views that we should not elide state attitudes with those of their elites. My quote of Jessup about states having feelings is based on my own observation of state interactions in various settings, e.g., in fearing the loss of (criminal) immunity of their soldiers more than the loss of state (civil) immunity. But certainly civil society, including victims of human rights abuses, deserves respect as well. That is what the second pillar aims to do. Yet I think we have to accept that elites may have a great role to play in whether states go to war. International law rules should aim to prevent war while at the same time respecting the basic rights of individuals. I’m glad David ended with Kofi Annan’s insight about sovereignty and human rights (though, like Louis Henkin, I hate the “s” word for all sorts of reasons). My book advances a similar point – that if we can ensure the thin, and eventually thick justice, of international law, we will have struck the right balance between preservation of peace and the enjoyment of human rights.

[1]   ‘Legitimacy, Rights, and Ideology: Notes towards a Critique of the New Moral Internationalism’, Associations: Journal for Legal and Social Theory 7 (2003): 349, 371.