Playing Without the Rules: How and Why International Law Is Not Like Chess

Abstract

Contemporary legal theory, at least legal positivism, has made significant contributions to the clarification of many issues concerning decision-making and the normativity of law. The title of my paper acknowledges the contributions of two prominent authors, Frederick Schauer and Andrei Marmor, and plays with the titles of two works that have greatly influenced my thinking about the law. Schauer's book, Playing by the Rules, provides in my opinion one of the best explanations of the nature of rules — in particular legal rules. Rules work as entrenched generalizations singularized by semantic autonomy.The main contribution of Marmor’s article, How Law is Like Chess, is in my view the distinction between deep and surface conventions. Surface conventions constitute the validity of legal norms. The deep convention of law is the social rule that constitutes the very existence of law as a social response to deep needs, something that eventually grounds the authority of law. There is a clear relation between the rule-based decision-making model and the rule of law as the deep convention of any legal system. The deep need that generates the deep convention of legal game is probably legal security, understood as a necessary condition for planning.My paper will argue that the deep convention of international law does not match the deep convention of domestic law. Instead of satisfying a need for legal certainty through a system of rules that work as planning tools, international law tends to be a response to the needs of the moment, an ad hoc response to emergency situations. Rules, instead of being fundamental tools, are obstacles.Authors that insist on the values of the rule of law, legality, etc, when approaching the study of international law inevitably fall into a prescriptive discourse that, not being wrong in itself, nonetheless prevents — by concealing it under ideology — the correct understanding of the game called international law and its deep convention: the arbitrariness of the exception justified by emergencies (political and moral), and not the authority of the rules justified by planning needs.