It is a great pleasure to round out an excellent set of reactions to Steven Ratner’s important book The Thin Justice of International Law: A Moral Reckoning of the Law of Nations (OUP, 2015) (hereafter TJIL). As I mentioned in the introduction to this online symposium, one of the quite staggering features of this book is the quite enormous terrain it traverses in offering both a normative critique and justification of aspects of extant public international law using moral philosophy as a foil. Ratner not only brings ethics and international law together in far greater depth than ever before, he extrapolates insights derived from the encounter across a truly impressive variety of fields, from the use of force to self-determination, regulation of global trade and investment, and international criminal, humanitarian and environmental law. Several of my guests have taken issue with aspects of Ratner’s treatment of the encounter, others have debated it elsewhere too (see here), and I suspect that many will explore the topic-areas he assesses over the years to come too.
My ambition here is to situate the book in the recent intellectual history of international law, asking whether it offers a sharp departure from a dominant critical ethos most singly embodied in the figure of Martti Koskenniemi. I should confess at the outset, that the thoughts that follow are the product of a very rudimentary set of ideas on my part that I have pondered for some time as a result of my own modest engagement with moral philosophy and theories of global justice in international criminal justice. I raise them here to invite Ratner’s thoughts about them, and perhaps more importantly, to ask him to react to a slightly bold claim that he would not make himself: Is TJIL a major step away from the critical tradition of international law by seeking out an external intellectual frame that will act as both shield and sword for international law, instead of just a sword? Put differently, might moral philosophy act as an intellectual basis for concrete prescriptions in the field of international law, instead of just operating as a tool for diagnosing our morose predicament?
Koskenniemi’s influence is evident in the various expert reactions to TJIL already, so there are good reasons to ask these questions explicitly. Several excellent authors have appealed to the apology/utopia dialectic in reacting to TJIL, and the idea of a pull of the mainstream that warned against a kind of naïve field-specific positivism in, say, International Humanitarian Law has also resurfaced in these commentaries. Significantly, however, we are yet to explore how this critical tradition also had a great deal to say against the ethics Ratner employs as a substitute for international normativity, and presumably also, as an external point of inspection for international law. For instance, Koskenniemi’s structuralism reduced what I call ethical emotivism from one of the world’s leading international lawyers, Thomas Franck, to “messianic argument” as part of “the private fantasy of a wishful thinker” that ultimately amounted to an hubristic assumption to speak for the “juridical conscience of the world.” In fact, Koskenniemi elsewhere rejects the turn to ethics in international law that TJIL takes so seriously as the evisceration of formal rules in favor of standards discerned “through our souls,” “in the personal, subjective, even emotional,” that are “decided with conclusive authority by the sensibilities of the Western Prince.”
TJIL emerges against this normative backdrop in international law; one where deconstruction has proved most persuasive. One cannot discount the significance of social, political or cultural chance in explaining the ascendance of one intellectual discourse over another, but these are surely minor causal explanations next to the undeniable genius of much of the writing in this tradition—Koskenniemi’s scholarship in particular has come to represent the intellectual high-water mark in international scholarship over the past two decades. Perhaps the only plausible sociological factor that might explain part of its significance is a cheap play on Samuel Moyn’s argument that human rights only succeeded as a global political agenda because they were the last concept standing as alternative utopias fell away; perhaps deep criticism without an alternative normative program gained such intellectual sway in international law precisely because appetite for grand theory waned at precisely the same time? If this explanation is causally significant, and that is speculative in the extreme, it in no way denigrates Koskenniemi’s remarkable contribution and his major impact on intellectualism within the field.
I also agree that the critical mode is essential for international law (see my own contribution in this spirit with Asad Kiyani here) and that no one who ran with this ball is to be criticized for the ways it crowded out rival intellectual agendas in the field, including that TJIL adopts. In my view, the power and influence of the critical movement is very much a product of its exemplary scholarly rigor, its engaging figurative prose, and above all, its quite spectacular intellectual range. But apart from the sense of awe all these factors inspired and the ways they set standards by which all other scholarly work in international law would be judged over the past decades, there was always a nagging sense that the critical discourse they embodied depended on an intellectual division of labor that was never fully realized without a constructive normative field to rail against. Without equally or more robust rival intellectual movements, the apparent far leftist origins of the critical legal discourse in international law became obscured in intimidating learning, deft rhetorical flourish and positional ambiguity, meaning that the project could also turn out to be the perfect friend to the right.
Although structuralism has a long history in sociology, anthropology and linguistics, its overlap with Critical Legal Studies is also instructive of the former’s hitherto unexplored limitations. If one of the starting premises of Critical Legal Studies was that law creates “a sense of stasis and paralysis about the possibilities of social change,” the intellectual dominance of structuralism in international law risks enacting the very type of imaginative paralysis in reverse. I doubt, for instance, that the bulk of Koskenniemi’s readership interpreted his work as implying that “anything goes,” as he has recently suggested. On the contrary, my sense is that most read it as implying that nothing does. To make a slightly crude analogy with psychoanalysis, exposing the shadow can be a very helpful exercise, but allowing the dark side to become all-pervasive risks a kind of atrophy where values no longer guide action. So, if the dominant intellectual method in a field is diagnostic of our predicament but hostile towards prescription of any sort, scholars are likely to leave the inevitability of innovation to others. In my view, Ratner’s TJIL is especially important because it promises to use moral philosophy to free us, at least in part, from these restraints.
In this regard, Ratner’s TJIL is particularly significant in that it is the first to knit together threads from various philosophical traditions to advance a more prescriptive agenda. The Just War Tradition has employed moral philosophy to critique basic precepts in the law of armed conflict, authors like Peter Singer and Thomas Pogge have taken up the issue of moral responsibility for global poverty; Jeremy Waldron, Joseph Raz and many others have sought out firm philosophical foundations for human rights; Martha Nussbaum has authored a set of texts addressing the relationship between the emotions international critics dismiss and their significance for wider concepts of justice; and a substantial new philosophical discourse engages with questions of global justice, even if this discourse divides between those who see the state as enjoying a privileged ontological position in calculations of justice as compared to those who are prepared to extrapolate basic moral principles across the globe without ceding terribly much ground to states. Ratner’s TJIL weaves these threads together into a major new international law quilt that stands to have such a marked impact on the field because it steps away from much of what came before it in terms of method.
Like any important text, the book also raises significant questions it does not itself address and many of these will arise out of conversation with the critical tradition. Will TJIL sound the emergence of a parallel international law intellectualism that acts as a bulwark against the purely critical style in international law? Does TJIL provide structuralism with a viable intellectual counterpoint through which it might play a significant dialectic role in relationship with ethical theory, or are these two competing sensibilities factions that will pass each other in the corridors without ever speaking? More fundamentally, is moral philosophy really able to provide a normative grounding that is more solid than that already on offer in international law, such that we can use it as a dependable lens from which to critically review such a wide array of international law doctrine? Or, alternatively, is ethics just as precarious as international law? Maybe ethical principles do not provide a stable platform because they are themselves impermissibly subjective, emotive, elitist and Western? To my mind, these are critically important questions that should animate the field over the coming years. It is still too early to tell whether Ratner’s TJIL will be an historical intellectual pivot in this regard, but it is a pleasure to host these expert reflections on his important work.
 Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2006).
 Martti Koskenniemi, The Pull of the Mainstream, 88 Mich. Law Rev. 1946–1962 (1990).
 Martti Koskenniemi, Legal Cosmopolitanism: Tom Franck’s Messianic World, 35 N. Y. Univ. J. Int. Law Polit. 471–486 (2002).
 M. Koskenniemi, “The Lady Doth Protest Too Much”: Kosovo, and the Turn to Ethics in International Law, 65 Mod. Law Rev. 159–175 (2002).
 Samuel Moyn, The Last Utopia: Human Rights in History (2010).
 Robert W. Gordon, Law and Ideology, 3 Tikkun 14–87, 16.
 Martti Koskenniemi, What is Critical Research in International Law? Celebrating Structuralism, 29 Leiden J. Int. Law 727–735, 732 (2016).
 See in particular Jeff McMahan, Killing in War (Reprint edition ed. 2011); Adil Ahmad Haque, Law and Morality at War (1 edition ed. 2017).
 Thomas W. Pogge, World Poverty and Human Rights (2008); Peter Singer, The Life you Can Save: Acting Now to End World Poverty (2009).
 See most recently Martha C. Nussbaum, Anger and Forgiveness: Resentment, Generosity, Justice (1 edition ed. 2016).
 Mathias Risse, On Global Justice (2012); Thomas Nagel, The Problem of Global Justice, 33 Philos. Public Aff. 113–147 (2005).