Academic journal article Michigan Law Review

Thick Law, Thin Justice

Academic journal article Michigan Law Review

Thick Law, Thin Justice

Article excerpt

THICK LAW, THIN JUSTICE THE THIN JUSTICE OF INTERNATIONAL LAW: A MORAL RECKONING OF THE LAW OF NATIONS. By Steven R. Ratner. Oxford: Oxford University Press. 2015. P. 434. $85.

INTRODUCTION

In his masterful book, The Thin Justice of International Law: A Moral Reckoning of the Law of Nations, Steven Ratner1 argues that the justice of legal norms that constitute our international legal order should be determined according to two criteria: the degree to which these norms causally bring about international and intrastate peace, and the degree to which they causally bring about a state of affairs in which basic human rights are respected. These two criteria are not merely what abstract moral theory demands of international law as a matter of global justice. They are drawn from foundational pillars of our existing international legal order: international law's commitments to international and interstate peace, and respect for human rights.

These two criteria of global justice operate as a screen that filters international legal norms according to the degree to which they merit the mantle of justice, in the following way. A legal norm, say, a prohibition of humanitarian intervention in the absence of authorization by the UN Security Council, is just if it contributes to a state of affairs in which peace is advanced and respects human rights. If the norm does not advance peace, it will only be just if it is needed to create a state of affairs characterized by respect for human rights. Ratner defends this screen in terms of rule consequentialism by positioning himself as "asking whether various rules or alternatives to them, if followed by the actors to whom they are directed, would be reasonably expected to lead to certain states of affairs defined in terms of peace and human rights" (p. 83).

The Thin Justice of International Law thus offers a thin, and nonideal, theory of global justice. It is thin because, drawing from Michael Walzer, the criteria on which its theory is constructed constitute "a 'moral minimum'- universal in scope, reflecting values shared across cultures that are a baseline from which thicker, community-based morality may be developed."2 And it is nonideal, because the criteria are drawn from key features of existing international law to form a blueprint for determining the justice of the thick legal norms that structure global politics into an international legal order.

The publication of The Thin Justice of International Law comes in the midst of an explosion of scholarly interest in global justice. Much of this scholarship is located in debates within moral and political philosophy. With notable exceptions,3 these debates have had little time for questions relating to the justice of the detailed international legal norms that comprise our international legal order. For their part, international legal scholars, again with notable exceptions,4 tend to view abstract questions about a just global order as peripheral matters of moral and political theory that do not engage with issues that arise in international legal theory and practice. The Thin Justice of International Law is a timely and significant intervention in such a context, linking concrete international legal rules to abstract theoretical debates about global justice by means of a metric-a metric grounded in nonideal theory that also aspires to determine the contours of a globally just international legal order.

This Review advances three claims about The Thin Justice of International Law. First, the theory of global justice it presents is more rule consequentialist than it appears. This is because Ratner does not restrict rule consequentialism to the screening of legal norms. Consequentialism also leaks into the justification he offers for the criteria he provides for determining the global justice of legal norms. According to Ratner, "consequentialist reasoning places the preservation of interstate and internal peace as the first principle of global justice precisely because peace is the linchpin to advancing the welfare and overall flourishing of individuals" (p. …

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