The Politics of International Law

II. The Content of the Rule of Law: Concreteness and Normativity

Organizing society through legal rules is premised on the assumption that these rules are objective in some sense that political ideas, views, or preferences are not. To show that international law is objective - that is, independent from international politics - the legal mind fights a battle on two fronts. On the one hand, it aims to ensure the concreteness of the law by distancing it from theories of natural justice. On the other hand, it aims to guarantee the normativity of the law by creating distance between it and actual state behaviour, will, or interest. Law enjoys independence from politics only if both of these conditions are simultaneously present.

The requirement of concreteness results from the liberal principle of the subjectivity of value. To avoid political subjectivism and illegitimate constraint,¹⁴ we must base law on something concrete - on the actual (verifiable) behaviour, will and interest of the members of society-states. The modern view is a social conception of law.¹⁵ For it, law is not a natural but an artificial creation, a reflexion of social circumstances.

According to the requirement of normativity, law should be applied regardless of the political preferences of legal subjects. In particular, it should be applicable even against a state which opposes its application to itself. As international lawyers have had the occasion to point out, legal rules whose content or application depends on the will of the legal subject for whom they are valid are not proper legal rules at all but apologies for the legal subject's political interest.¹⁶

Stated in such a fashion, I believe that the requirements of legal objectivity vis-à-vis political subjectivity are met. For if the law could be verified or justified only by reference to somebody's views on what the law should be like (i.e. theories of justice), it would coincide with their political opinions. Similarly, if we could apply the law against those states which accept it, then it would coincide with those states' political views.

This argumentative structure, however, which forces jurists to prove that their law is valid because concrete and normative in the above sense, both creates and destroys itself. For it is impossible to prove that a rule, principle or doctrine (in short, an argument) is both concrete and normative simultaneously. The two requirements cancel each other. An argument about concreteness is an argument about the closeness of a particular rule, principle or doctrine to state practice. But the closer to state practice an argument is, the less normative and the more political it seems. The more it seems just another apology for existing power. An argument about normativity, on the other hand, is an argument which intends to demonstrate the rule's distance from state will and practice. The more normative a rule, the more political it seems because the less it is possible to argue it by reference to social context. It seems utopian and - like theories of natural justice - manipulable at will.

The dynamics of international legal argument are provided by the constant effort of lawyers to show that their law is either concrete or normative and their becoming thus vulnerable to the charge that such law is in fact political because apologist or utopian. Different doctrinal and practical controversies turn on transformations of this dilemma. It lies behind such dichotomies as "positivism"/"naturalism", "consent"/"justice", "autonomy"/"community", "process"/"rule", etc., and explains why these and other oppositions keep recurring and do not seem soluble in a permanent way. They recur because it seems possible to defend one's legal argument only by showing either its closeness to, or its distance from, state practice. They seem insoluble because both argumentative strategies are vulnerable to what appear like valid criticisms, compelled by the system itself.¹⁷

This provides an argumentative structure which is capable of providing a valid criticism of each substantive position but which itself cannot justify any. The fact that positions are constantly taken and solutions justified by lawyers, demonstrates that the structure does not possess the kind of distance from politics for which the Rule of Law once seemed necessary. It seems possible to adopt a position only by a political choice: a choice which must ultimately defend itself in terms of a conception of justice.

14 For a typical argument stressing the political character of natural law, see, e.g., S. Sur, L'interprétation en droit international public (1974) 25-32 or J.H.W. Verzijl, International Law in Historical Perspective (Vol. I) (1968) 391-3.

15 `C'est à une conception fonctionnelle de pouvoir, à une conception sociale du droit que s'attache notre enseignement', De Visscher, `Cours général de principes de droit international public', 86 RCDI (1954) 451.

16 See, e.g., H. Lauterpacht, The Function of Law in the International Community (1933) 189 and passim.

17 For an alternative but similar type of exposition, see D. Kennedy, International Legal Structure (1987)

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