Internationalizing Domestic Law and Domesticizing International Law
I’ve been thinking a lot about international law lately, and the relationship between leaders’ and societies’ moral judgments on the one hand, and on the other, the types of policies they put into place. Noah Feldman’s piece from this past Sunday’s Times magazine takes a step back from this but still touches on this problem in explaining the fundamentally different attitudes that conservatives and liberals hold toward international law.
Even the idea of international law sounds, on the tip of the tongue, to be amorphous and even naively idealistic. If domestic law is roughly a vertical relationship between the sovereign and the subject, international law is horizontal and lacks a central enforcement mechanism. I won’t run through the myriad standard objections to the idea of international law, but suffice to say that they are plentiful and powerful. Does this mean that international law is really just a paper tiger—moral judgments imposed undemocratically by the strong, labeled ‘law’, yet all the same structurally not the same as domestic law? Does it even matter? Even granting for the sake of argument that international law is not law per se, and instead some body of somewhat-more-normative-than-usual prescriptions and proscriptions, the moral content is ultimately where the juicy core of international law lies.
Arguments based on moral content, and not just economic factors, helped end colonialism (see Neta Crawford, Argument and Change in World Politics) and have been instrumental in promoting human rights, conservation, etc. Fundamentally these moral arguments appeal to something greater than self-interest, or facile judgments based on egoistic cost-benefit analysis. Instead, they appeal to the ideas of a common fate (shared identity and shared life course) or a shared conception of justice. (Note how this parallels with Lawrence Kohlberg’s conception of stages of moral development. On this, substantially more to come.) The key point is that these normative claims are the fundamental unit that underlies international law, so when we talk about the effect of domestic law on international law and vice versa, perhaps we should really think about how our domestic legal discourse affects these normative claims and vice versa.
This is where Feldman comes back in. Under his reading of conservatives’ and liberals’ conceptions of international law, conservatives have an inward orientation, in which law—or, in other words, the discourse arm of government coercion—must be legitimized through democratic means. This is a powerful objection to the encroachment or influence of international law on domestic affairs: why should we let foreigners, who do not live here, who may not share our interests (or who may have interests who run opposite to ours), and who may come from political cultures that do not share our procedural or substantive values of freedom and democracy, tell us what to do? Why should we let international courts, over which we exert no oversight (ability to fire or stack), create obligations for us, when divided republican government and federalism have made us what we are today? Though these are powerful reasons against letting the “opinions of mankind” (per the Declaration of Independence) get too much sway over us, the biggest drawback is the limited scope of who is to be a subject of rights. The subtext to this attitude is basically that of common fate—or if you prefer, American exceptionalism. But if we value family-centric morality over egoistic morality, and group-centric morality (or nation-centric morality), why shouldn’t we jump to the next level and say that the entirety of humanity should be the subjects of rights, not just Americans? Politicians talk big game about democracy promotion and spreading our ideals abroad, but discount the worth of a reciprocal exchange of values or beliefs. If we aim to bring the panoply of liberal rights to the world, that also seems to imply that we share common political values or commitments, or a common culture. It’s an underlying Us-feeling that encompasses humanity, rather than just the patriotic Us of the U.S. in which foreigners are necessarily Others. The progressive agenda toward international law recognizes that as much as we can teach lessons about values, pluralism, and American ideals, other world citizens share a humanity with us that might uncover valuable lessons for us, as well, no matter how hidden by layers of strange culture they may appear to be. Beyond these substantive values, a greater “respect for the opinions of mankind” would, per Feldman, enhance legitimacy—beyond our garden-variety foreign policy to include our democracy promotion efforts—by showing the U.S. not to be a hypocrite.
Catholics and evangelicals, as well as Burkeans, should find something to like in such a progressive agenda even if they might look askance otherwise, at least at a superficial level. Prioritizing humanity as the subject of justice seems to fit squarely within the Bible’s teachings, while focusing on the accumulated experiences of other cultures in dealing with social problems similar to our own intractible problems should attract those who instead turn to Hayek and Burke. Like so many things in life, it comes down to framing.
What Makes Us Look Outside?
That’s a fascinating conception of international law, James. The more I think about it, the more it seems apt. My admittedly meager exposure to international legal theory and practice has left me with the impression that there is very little force to it—abide if you will, but feel free to go your own way. Especially with the bizarrely top-heavy power structure of the United Nations, it’s hard to conceive of international diplomacy as much more than the civilized application of implied military and realized economic might.
....and, perhaps, of moral legitimacy. There’s the rub. After all, anyone can build moral might. Law holds sway only insofar as it jives with our instinctive moral understandings of the way the world should work. In the absence of law—relevantly and especially, in situations where making law is neither practical nor desired—a shared morality may serve many of the same functions. It may even deliver some of the outcomes one would normally not expect except where there exists a legal system. It is, as you allude, James, the reason that the Bible and its scriptural family could hold society together for so long. It is also an excellent reason for us to better understand how one builds, sustains, reinforces and propagates a compelling, consistent and instrumental morality—one that takes us outside of ourselves and acknowledges what Bill Clinton perspicaciously calls the century of interdependence.
Last but not least, it’s also the reason that I want an MDiv along with an MPP. Statesmen must be ministers for their nations in the same way, and for much the same reasons, that preachers are ministers for their Gods.
