Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Visions of International Law: Insight from Normative Theory

Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Visions of International Law: Insight from Normative Theory

Article excerpt

This panel was convened at 2:45 pm, Friday, March 27, by its moderator, Dianne Otto of University of Melbourne School of Law, who introduced the panelists: Brian Lepard of the University of Nebraska College of Law; John Linarelli of the University of La Verne College of Law; Mary Ellen O'Connell of the University of Notre Dame Law School; and Andrew Strauss of Widener University School of Law.

TOWARDS A NORMATIVE THEORY OF CUSTOMARY INTERNATIONAL LAW AS LAW

Our panel has been asked to focus on various visions of international law articulated by normative theories. I would like to address the status of customary international law and sketch out a new normative theory concerning its authority. My views are elaborated in a forthcoming book. (1)

THE DEBATE ON THE LEGAL STATUS OF CUSTOMARY INTERNATIONAL LAW

All international lawyers are acutely conscious that outside the legal academy there are pervasive doubts that international law is really law. These doubts are especially severe in the case of customary international law both because it is often unwritten and because there is no centrally-organized regime of sanctions for violators. Indeed, in light of these lacunae, many political scientists believe that customary international law is merely a series of "regimes"--pragmatic patterns of cooperation that can serve the self-interests of states, but lacking any authority.

Some great legal philosophers have joined the doubters' chorus. In his celebrated book, The Concept of Law, H.L.A. Hart maintained that customary international law does not constitute a full-bodied legal system because it has no general "rule of recognition." (2) Even some international lawyers, such as Jack Goldsmith and Eric Posner, have lodged the skeptical allegation that customary norms do not exercise any "exogenous influence on state behavior" and thereby called into question their legal status)

INSIGHTS FROM THEORIES ABOUT THE NATURE OF AND JUSTIFICATIONS FOR AUTHORITY

How can we evaluate these challenges to the legal character of customary international law? I suggest, first, that we need to probe the very concept of legal authority. What does it mean to claim that a customary norm has authority over states? According to legal philosopher Joseph Raz, actors, including states, typically make decisions to act based on the' 'balance" of "first-order" reasons for performing, or not performing, an action. However, an authoritative norm preempts the independent decision-making of states and affects their "balancing" of these reasons by excluding some of them. This is what it means to accept an "obligation." (4) An authority claim furthermore relates to a particular "domain," such as a legal rather than a moral or political one.

It is also possible to distinguish among three forms of authority. Claimed authority is the authority claimed by an actor, such as a state or the U.N., on behalf of a norm. Empirical authority involves the actual acceptance of the authority of a norm by a state. And normative authority is the authority of a norm that ought to be recognized by a state according to some posited value system. These concepts help us differentiate authority from persuasion. Persuasion does not have preemptive effect. A persuasive argument instead changes a state's perception of the balance of first-order reasons. This is a completely voluntary process. At the other extreme, authority is also distinct from coercion. A coercive threat by itself does not claim to preempt an actor's balancing of reasons, but is rather intended to be an additional reason to take the action demanded. (5)

Despite these differences, persuasion does play a role in acceptance of authority. A state must be persuaded, for certain reasons, to accept the claimed authority of a norm--that is, to obey it. This acceptance is still a voluntary act, which creates what might be called a "paradox" of authority. …

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