Ratner, Steven R. The Thin Justice of International Law: A Moral Reckoning of the Law of Nations.New York: Oxford University Press, 2015. Pp. 496. $85.00 (cloth).

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Previous articleNext article FreeBook ReviewsRatner, Steven R. The Thin Justice of International Law: A Moral Reckoning of the Law of Nations.New York: Oxford University Press, 2015. Pp. 496. $85.00 (cloth).David LefkowitzDavid LefkowitzUniversity of Richmond Search for more articles by this author PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinked InRedditEmailQR Code SectionsMoreTo write a book like this a person must be either brave or stupid. Steven R. Ratner is clearly not stupid; ergo, he must be brave. Why? Well first there is the general danger that accompanies any effort to not only write across but also speak to multiple disciplines. Carrying out such an enterprise is like standing on a plank between two ships at sea; at any moment, one or both ships may turn away to follow their own (disciplinary) pursuits, leaving one (and one’s work) to sink unnoticed beneath the waves. But second, Ratner does not limit his engagement with political philosophy to one topic or his philosophical interlocutors to one or two “big names.” Rather, he makes the courageous choice to dive into the deep end of contemporary political philosophy, to engage with arguments made by more than two dozen theorists on topics including war, self-determination and secession, state borders, sovereign equality, human rights, universal jurisdiction, global trade, and international investment. While philosophers who read this book will no doubt conclude at times that Ratner misrepresents a philosophical argument he deploys or contests, they should do so with full appreciation for the respect that Ratner has paid political philosophers by investing so much time and effort in engaging with our work.Ratner contends that philosophers who write on matters of global justice or ethics and international affairs too often ignore or disparage existing international law. As a result, they offer international actors impractical and frequently dangerous guidance, neglect important insights contained in social norms and practices that have evolved in response to the actual conduct of international affairs, and focus on an overly narrow set of options for promoting justice. At least for those concerned with advancing justice in the near term and not merely with elaborating an account of a perfectly just world, a better approach begins with a detailed understanding of the workings of our current global political order, one constituted by international law. On the basis of that understanding a critical assessment can then be made of the contributions that international law makes, or might soon make, to promoting at least a minimally, or thinly, just world.Thin justice consists of two pillars: peace and basic human rights. Ratner characterizes the former as the absence of armed conflict, while the latter consist of “those [rights] that guarantee a life free of external intrusion on the fundamental freedom of the individual vis-à-vis the state and other powerful actors that threaten him or her, coupled with [access to] the basic material goods and conditions necessary to a minimally flourishing life and thus addressing each individual’s most important vulnerabilities” (76–77). Ratner employs both the “logic of appropriateness” and the “logic of discovery” to defend his pillars of thin justice. For example, he defends his account of basic human rights by appeal to both Henry Shue’s analysis of such rights as “justified demands the denial of which no self-respecting person can reasonably be expected to accept” (75) and features of present-day international law such as jus cogens or peremptory norms (i.e., international laws from which no derogation is permitted) and a hierarchy of rights he maintains we can identify in treaties such as the International Covenant on Civil and Political Rights. When deployed to assess the justice of various core features of contemporary international law, the pillars operate as follows: first, a legal norm such as the prohibition on the use of force except in self-defense or when authorized by the UN Security Council is evaluated in terms of the contribution it makes to advancing peace. If it performs reasonably well at that task, the rule is then assessed in terms of whether it interferes with basic human rights. Ratner makes clear that he does not accord peace lexical priority over noninterference with basic human rights; for instance, he defends the superiority of a legal norm permitting humanitarian intervention without UN authorization in exceptional circumstances to a categorical legal prohibition on such conduct. Nevertheless, given his claim that a legal rule that satisfies the peace pillar of thin justice counts as presumptively just, while a legal rule that does not counts as presumptively unjust, it appears that in general Ratner thinks we ought to give greater weight to promoting and preserving peace than to mitigating international law’s interference with basic human rights.Since his interest is in the contribution that specifically legal international norms and institutions make to the advancement of justice, Ratner identifies two further considerations that must be taken into account when conducting a moral assessment of international law. The first he labels fairness or procedural justice, which he characterizes in terms of the eight criteria that Lon Fuller identified as constitutive of the internal morality of the law. Whether satisfying (to some degree) these eight criteria is a distinctive feature of a legal order is a matter of debate, of course, but not one Ratner explores. The second consideration Ratner refers to as the compliance corollary, and he seems to have in mind H. L. A. Hart’s claim that a necessary condition for the existence of a legal order is that those it purports to rule generally comply with its directives. Thus, Ratner maintains that we ought to reject proposals for international legal norms to which states, especially powerful states, are unlikely to conform not only because they will be ineffective at advancing peace and basic human rights but also because they will fail to exist as law at all. Applied to individual legal norms, as Ratner occasionally does, this argument is too strong (and not what Hart maintained). Yet it may get some traction against certain institutional cosmopolitans who advocate for radical, comprehensive reform to the global legal order without paying sufficient attention to how we are to affect the transition to their envisioned new world order.As the above description of Ratner’s method for conducting a moral reckoning of international law implies, the thin justice of specific international legal rules and institutions is a function of their outcomes or consequences. Indeed, Ratner repeatedly refers to his argument as a consequentialist one and groups himself with theorists such as Robert Goodin and Brad Hooker, while treating nonconsequentialist philosophers such as David Miller, Simon Caney, Andrew Altman, and Christopher Wellman as his opponents. This classification is misleading, however. Ratner maintains that international legal rules and institutions ought to be assessed in terms of their consequences or, perhaps better, in terms of the worlds they produce. Yet this is a claim that the aforementioned nonconsequentialist interlocutors would likely also endorse, at least for purposes of nonideal theorizing. Moreover, Ratner explicitly rejects the use of consequentialist (or at least utilitarian) moral reasoning to rank the different states of affairs that would result from adopting alternative legal norms (81). The true differences between Ratner and his philosophical opponents largely either concern the kind of conclusions they defend, namely, prima facie or defeasible claims versus all-things-considered claims, or involve empirical disputes regarding the likely consequences of pursuing a particular reform to the existing international legal order.Ratner divides his assessment of the extent to which the core norms of international law satisfy thin justice into three sections. The first, composed of four chapters on the norms of statehood, includes illuminating discussions of both topics familiar to philosophers, such as secession, and ones to which philosophers have given relatively little attention. These include the permissibility of providing aid to rebel movements, the justifiability of extending the principle of uti possidetis (roughly, that the borders of new states be drawn according to preindependence administrative boundaries) beyond the context of decolonization, and the morally optimal design of the UN body charged with authorizing the use of force. The second section focuses largely on exceptions to international law’s territorially based approach to the protection of human rights and includes discussions of the applicability of human rights law to states when acting abroad, universal jurisdiction for certain violations of human rights, and armed humanitarian interventions not authorized by the United Nations. The thin justice of norms governing the global economy is the subject of the third section, which includes an assessment of various arguments challenging existing trade law on the grounds that it often interferes with individuals’ secure enjoyment of their basic human rights. While Ratner often comes down in defense of existing international legal rules, this is not always the case. For example, he calls for a reduction in the scope of sovereign immunity and for changes to the makeup of the states that enjoy permanent membership on the UN Security Council, as well as the rules governing the exercise of a veto by such states.Interestingly, Ratner maintains that thin justice does not provide a particularly useful tool for conducting a moral assessment of international humanitarian law (IHL), international criminal law (ICL), or international environmental law. With respect to IHL, for example, we lack the data we need to determine whether more or less permissive norms governing the killing of civilians in time of war would better serve to promote peace and basic human rights than does the current norm. Likewise, Ratner argues that the content of contemporary ICL is too haphazard, and its distinctive contribution to advancing peace and basic human rights too slight or speculative, to draw any meaningful conclusions regarding the impact it has on the realization of thin justice.In light of the approach Ratner takes to assessing international law and proposals for its reform, it is surprising how little space he devotes to an analysis of how international law contributes to the production of outcomes or worlds. Social scientific accounts of international law’s efficacy merit only a brief mention in the first chapter, and so for much of the book we are left with the “honestly held ‘seat-of-the-pants’ view [of] an international lawyer about the reactions of global actors to the rules or alternatives to them” (84). The judgment of an experienced international lawyer is a valuable source of knowledge. Nevertheless, in light of how often Ratner’s rebuttals to philosophers on specific issues of international law turn entirely on the effects of adopting one rule rather than another, we should ask for more. Indeed, there may be a general point here about how we should engage in the moral critique or construction of a legal order or regime. We should begin by asking why we need law and not just morality (or principles of justice). What is the work law does that morality does not; what is law’s distinctive contribution to realizing justice? To answer that question we must also consider how law performs the function or functions that we need it, or at least want it, to perform. A moral theory of a particular legal regime or system should be constructed on the basis of answers to these questions. In the case of international law, at least, these answers will likely include the facts of reasonable moral disagreement or pluralism, the inevitability and endogeneity of partial compliance, economic (or instrumental) and constructivist (or sociolegal) accounts of the ways in which law shapes actors’ deliberations, the importance of law’s de facto legitimacy, and much else besides.Any attempt to compare alternative legal norms on the basis of their consequences will also need to grapple with the paucity of data needed to draw a conclusion, or in cases when we have some data, our relatively low levels of confidence in its veracity or in our ability to generalize from it. Altman and Wellman, for example, repeatedly take these facts about the current state of our knowledge regarding international law’s impact on human conduct to block any inference from the existence of a moral right to a claim regarding the moral justifiability of an international legal norm that advances or interferes with the advancement of that moral right. While I think they often draw this conclusion too quickly, Ratner is likewise too quick to dismiss it. He does rightly press a related empirical objection against Altman and Wellman, however. Like many other political philosophers, they often call for an international legal institution to perform certain functions without any sensitivity to the larger context in which it operates or to its capacities. International law governs an anarchic society, a political order in which power and authority are largely distributed and exercised horizontally. Proposals that an international court exercise jurisdiction over groups’ claims to a plebiscitary right to secede, or determine in advance whether a state has a just cause for war, are not only impractical at present, but they presume that humanity has somehow transcended the environment that both structures and is structured by international law. They are not proposals for international law’s reform but its supersession.Ratner maintains that a legal norm that responds to institutional constraints, or better, to power and interest as well as to demands for moral treatment “is just, not a second-best alternative” (302). Many philosophers will demur; such a legal norm may be justifiable all things considered, but it is not just. One reason to adopt this second description is that conceding that a legal norm fails to accord some people the treatment they are due, but that this is necessary to prevent even more or worse immoral conduct, will generate greater acceptance and so make the norm more effective at advancing thin justice than will denying that the norm treats anyone unjustly at all. Some will also argue that an acknowledgment of wrongful treatment is called for even when that treatment is justified all things considered. An apology or expression of remorse is owed, if not compensation. Considering whether this is so or whether partial compliance is a fact that ought to figure in the very specification of our moral rights may be of little interest to international lawyers, but it strikes me as essential to a comprehensive moral reckoning of the law of nations.Ratner’s attempt to encourage political philosophers to engage in a deeper and more sustained dialogue with international law and international legal theorists will likely be only partially successful. Upon concluding the book, some philosophers will likely be convinced that its thick injustice, a product of the degree to which its content reflects power and interest, gives them little reason to engage with international law or those who practice it. Others, more practical in their orientation, more disposed to the development of truly interdisciplinary arguments, and perhaps more inclined to focus on mitigating the worst injustices than on elaborating a complete account of full or perfect justice, will likely find reading The Thin Justice of International Law very rewarding. If there are enough such philosophers, then Ratner’s book may mark an important step forward in the development of a semiautonomous subfield of philosophy of international law, one that may come to bear a relationship to the study of global justice analogous to the one that the philosophy of criminal law bears to the study of moral responsibility. Previous articleNext article DetailsFiguresReferencesCited by Ethics Volume 127, Number 1October 2016 Article DOIhttps://doi.org/10.1086/687348 Views: 453Total views on this site For permission to reuse, please contact [email protected]PDF download Crossref reports no articles citing this article.