Choice and Evasion in Judicial Recognition of Governments: Lessons from Somalia

VIII. Choice and Responsibility in Judicial Decision-Making

Both the domestic and international legal systems deal in life and death, arrogating to themselves the power to determine the circumstances in which force may be exerted; both, therefore, need to explain why their prescriptions should be followed. Attempts to express or, depending on one's viewpoint, create, a basis for international law are ongoing: Thomas Franck puts forward a version of procedural natural law in order to explain why rules bind, arguing that words are not as elastic and indeterminate as Wittgenstein might have us believe and that government as one element of statehood means democratic government.⁷⁴ In a similar vein, Fernando Tesòn argues that sovereignty means domestic legitimacy and attempts to reaffirm the Kantian view of international law as based on the normative status of the individual.⁷⁵ Support for this view can be found from human rights theorists who have similarly argued for the primacy of the individual over statist conceptions of international law.⁷⁶ Others have looked for the purpose of the international system in a substantive theory of justice, trying to derive universal principles of international law from a hypothetical social contract.⁷⁷

The difficulty with such attempts is that law, domestic and international, has not one but many and diverse purposes; it is not surprising that some conflict, especially when the issue straddles two different systems, neither of which is successful at convincing everybody of its own legitimacy. Both systems rely on the (inevitably subjective) interpretation of values in societies which cannot claim to share a consensus on those values. The only way out of this dilemma is to acknowledge the indeterminacy of legal rules and the absence of a final arbiter for the resolution of conflicts. Rather than looking for totalizing and all-encompassing solutions which impose, rather than reflect, a consensus or a community, one should be eclectic about legitimizing principles and restrict oneself to contextual solutions: rather than looking for universal principles and world law one should look for particular solutions to particular problems.⁷⁸ Such an approach would accompany, in the international sphere, the end of our conviction in modernity's legitimizing meta-narratives that we encountered on the domestic plane. It would mean the abandonment of the search for a single, unitary theory which ignores diversity in culture and aspirations and the acknowledgement of difference and the existence of and search for incompatible goods. Above all, rather than imposing another `reified' concept, such as effectiveness, as if it were universal, it would mean admitting and dealing with diversity and difference.

Legal positivists and Dworkin were not, of course, alone in trying to suppress politics, value and opinion from their investigations and definitions of law; nor were they the only ones to try and iron out irregularities and differences under the rubric of one theory or one idea. Positivism is just one manifestation of the modern project to develop objective science, universal morality and law and autonomous art.⁷⁹ And although sometimes portrayed as radical and nihilistic, legal realists also shared in the modernist project when they assumed that, even though law was indeterminate, science was certain.⁸⁰ These assumptions and these hopes inform the whole of our domestic legal system and approach to judicial decision-making. It is not surprising, therefore, that it is found in our judges' treatment of international law in general and the recognition of foreign governments in particular. Since international law theorists, historians and politicians are themselves undecided about the purposes, principles and policies informing the international system, it is not surprising that judges refrain from dealing with international law directly and resort instead to the safety of domestic law. By treating international law as `fact', capable of evidential proof, they avoid having to deal with the value judgments embedded in that law and, more importantly, of choosing between different values in hard cases such as Somalia. The reluctance to choose is evident not only in their deference to pronouncements by Her Majesty's Government but also in their choice of the test of effectiveness. Even if Hobhouse J purports to go beyond what the Foreign Office says to lay down a separate `legal' test, the latter does not differ greatly from the test adopted in previous decisions: irrespective of who decides, Her Majesty's Government or the Court, the underlying theme and criterion is the same, that is, effectiveness.

The approach adopted in this case conforms therefore to the modernist attempt to suppress opinion and politics and to present law, domestic or international, as value-free, objective and scientific. This approach is not entirely honest: the test of effectiveness cannot help but contain its own criteria of value and therefore its selection over other criteria means that judges always had a choice as to the outcome and always will.⁸¹ Positivism, by operating as if facts and tests can decide the issue, closes those options and hides the value judgments embedded in them. It forgets that neither the facts nor the rules are self-selecting or self-defining and finishes by tying its hands with its own, self-imposed, tests. Moreover, it does so without enquiring into the suitability of those tests to the particular case in issue; the most frequent outcome of this unquestioning approach is to reaffirm the status quo. This is nowhere better exemplified than in the result of this judgment; the court declines to make a value judgment and abdicates responsibility on the issue by leaving things as they are.

Ultimately, the crucial issue is not whether our decisions are based on facts as opposed to values, principles, or policies but on which facts, and which values; no `fact' can be normative without an anterior criterion as to what is relevant and what is irrelevant and neither the facts nor the rules can determine an outcome by themselves. It is no good, therefore, to pretend that facts are going to determine the issue: we will have to find the answer, make the choice, and, ideally, be able to defend it. No doubt law is political, no doubt it is difficult to separate legal from political criteria, whether in domestic or international law. The real issue is what is the policy and is it a good one? Effectiveness by itself, however, is uninformed, unquestioning and ultimately meaningless, policy. To ask for greater attention to context, on the other hand, means enquiring into whether the government, recognized or not, would be effective in attending to that society's most pressing problem, that is, of feeding its starving population.

In the final analysis, one cannot escape the task of choosing; to do so would be to behave like Ts'ui Pen in The Garden of Forking Paths,⁸² who, when writing his novel, follows every option open to him; the result is to write a story that is incomprehensible to anyone but himself. The writing of, and living within, the law presents the same dilemma: the human craving for order, stability and predictability means that we will submit to rules, often of our own making, and often unquestioningly, rather than face anew the task of choosing. What is important, however, is to preserve our capacity to choose and to be prepared to explain and defend that choice. To do otherwise would be to fail in our responsibility as academics and as judges. We must remember, above all, that things only become legal when we recognize them as legal, for legality, like other ideals, is a circular notion, an illusion which exists only when we ourselves acquiesce in it. The reification of `effectiveness' into a legal test is another addition to this fiction and only exists for those ready to embrace it. This view is not exclusive to critical lawyers: Kelsen himself admitted that facts cannot decide the issue and that it is the investment of those facts with legal authority that is the crucial stage in the legal process. That investment can only follow from a political decision: `in the realm of law there is no fact in itself, no immediately evident fact; there are only facts ascertained by the competent authorities in a procedure determined by law.'⁸³ Or, as Joseph K. put it, `it is only a trial if I recognize it as such'.⁸⁴

74 The Power of Legitimacy Among Nations (1990).

75 Tesòn, `The Kantian Theory of International Law', 92 Colum. L. Rev. (1992) 53.

76 See, e.g., Reisman, `Sovereignty and Human Rights in Contemporary International Law', 84 AJIL (1990) 866.

77 Skubik, `Two Models for a Rawlsian Theory of International Law and Justice', 14 Denv.J.Int.L.& Pol. (1986) 231.

78 For support of this view in general legal theory see R.M. Unger, Law in Modern Society, Toward a Criticism of Social Theory (1976); and in international legal theory see M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (1992). The latter proposes a foundationless hermeneutic or `perspectivism' where conflicting ideals of social organization are equally respected and where each arrangement remains revisable (at 500).

79 See Habermas, `Modernity - An Incomplete Project', in H. Foster (ed.), Postmodern Culture (1985): `The project of modernity formulated in the 18th century by the philosophers of the Enlightenment consisted in their efforts to develop objective science, universal morality and law and autonomous art according to their inner logic' (at 9). See also T. Adorno and M. Horkheimer: `the program of the Enlightenment was the disenchantment of the world: the dissolution of myth and the substitution of knowledge for fancy': Dialectic of Enlightenment (1979) at 3.

80 See Duxbury, `The Reinvention of American Legal Realism', 12 Legal Studies (1992) 137 .

81 See Lord Wilberforce in Carl Zeiss Stiftung v. Rayner & Keeler, and Lord Denning in Hesperides Hotels v. Aegean Turkish Holidays, supra note 10 and accompanying text.

82 J.L. Borges, Labyrinths (Penguin; 1970): `in all fictional works, each time a man is confronted with several alternatives, he chooses one and eliminates the others; in the fiction of Ts'ui Pen, he chooses - simultaneously - all of them' (at 51).

83 Supra note 5, at 388.

84 F. Kafka, The Trial (Penguin; 1986) at 49.

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