Macklem: Thick Law, Thin Justice

Patrick Macklem (Univ. of Toronto - Law) has posted Thick Law, Thin Justice (Michigan Law Review, forthcoming). Here's the abstract:

Steven Ratner’s The Thin Justice of International Law offers a timely, comprehensive and theoretically rich interdisciplinary theory of international law’s relationship with global justice. Ratner argues that the justice of legal norms that constitute our international legal order should be determined according to two criteria: the degree to which they 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.

This Essay explores three features of The Thin Justice of International Law: its commitment to rule consequentialism; its treatment of the state system as a fixed attribute of our international legal order; and its embrace of a political conception of human rights. Its commitment to rule consequentialism leads to the possibility that its two pillars of global justice might give way to more fundamental moral concerns relating to the attainment of human welfare and human flourishing, in which case another pillar — one directly that tests the justice of legal norms in terms of their proximity to human welfare — comprises another dimension to international law’s relationship to global justice. Its commitment to state system as a fixed attribute of our international legal order results in a thick conception of a just international legal system. Questions relating to international law’s distribution of sovereignty — its origins, the episodic recalibrations to which it is subject, especially during and after times of war, and its distributional consequences remain outside the normative sphere of global justice. One such question concerns the relationship between a system of sovereign states and global economic inequality. Its endorsement of a political conception of human rights does not protect interests from the adverse consequences of the distribution of sovereignty performed by international law in its aspiration to organize global politics into an international legal order. Human rights that speak to mitigate some of these consequences — the right to development in particular — seek to protect interests associated with human welfare and human flourishing in the face of both the distribution and exercise of sovereign power, and thus merit recognition on the list of human rights that a theory should seek to instantiate as a matter of global justice.