Haque: The Inner Logic of International Law

Adil Ahmad Haque (Rutgers Univ. - Law) has posted The Inner Logic of International Law. Here's the abstract:

How does international law change? Must international law await change by external political intervention from outside the legal system? Or does international law provide reasons for its own development to those empowered to develop it? To address these questions, I will draw on an unlikely source. Joseph Raz was one of the greatest legal philosophers of all time. But he wrote relatively little about international law until the last decade of his life. Nevertheless, I will draw on Raz’s ideas to illuminate three pathways of international legal change: in the law of treaties, in customary international law, and in international adjudication.

Part I shows how the law of treaties distributes the task of developing law by way of interpreting texts. In national legal systems, this task primarily falls to courts exercising directed powers. Domestic courts have the legal power to clarify and develop the law, and are directed to do so through legal interpretation. In the international legal system, this task primarily falls to states themselves. States are directed to apply the general rule of treaty interpretation. This rule requires interpreting a treaty in light of its object and purpose, which may include promoting moral aims or respecting moral principles. As states converge on a sound purposive or teleological interpretation, that interpretation becomes legally conclusive through subsequent agreement and subsequent practice. Since international law, by design, gives States the ability to develop the law in this way, States enjoy a directed legal power to do so.

Part II shows how customary international law invites moral considerations into its formation and evolution. It does so not by actively incorporating morality, but simply by failing to exclude morality. Since moral considerations apply to states independently of the law, States are directed to develop customary law in light of moral considerations. This is by design. It is only by reflecting the group’s shared view of how its members should act that customary law can credibly claim the legitimate authority that all law necessarily claims. Once states arrive at a social rule reflecting a shared moral view, states enjoy a legal power to accept that social rule as law, conditional on the acceptance of a representative majority of states. As law, the rule is integrated into the international legal order and interlocked with its secondary rules.

Part III shows how legal reasoning by international courts can establish legal truth or legal justification. Valid reasoning from true legal and factual premises establishes legal truth—what the law is. Valid reasoning from true legal and moral premises establishes legal justification—what the law should be given the moral commitments already endorsed by the law. International courts reason to legal truth to apply existing law to existing facts in contentious cases or advisory proceedings. International courts reason to legal justification for two reasons. When one existing legal rule justifies another, the former illuminates the point or purpose of the latter, guides its interpretation, and assigns its normative weight in the event of conflict with other rules. When an existing legal rule justifies a rule that does not yet exist as law, the former provides a legal reason to create and apply the rule as law. International courts seldom openly engage in this last form of legal reasoning, and occasionally disavow it. But it is plausible that international courts in fact engage in this form of legal reasoning to avoid a non liquet in contentious cases, and that parties consent to have their disputes decided in this way. States are rationally committed to the moral implications of their legal positions, and this explains why states so often adopt the conclusions of a court’s legal reasoning and make them law.