Legal Theory Blog

Robin Bradley Kar (University of Illinois College of Law) has posted Outcasting, Globalization, and the Emergence of International Law (Yale Law Journal On-Line, Forthcoming) on SSRN. Here is the abstract:

We all know that something big — and seemingly unprecedented — is happening on the world scene, which relates to the recent emergence of international law. But we have failed to understand critical aspects of this transformation, and this is due in large part to three more basic failures: first, our failure to appreciate certain critical dimensions to the philosophical question whether international law is law; second, our failure to appreciate how our natural sense of obligation functions, and the sociocultural conditions under which a new and distinctive sense of international legal obligation can arise and function in our lives; and, third, our failure to recognize the distinctive and pervasive role that outcasting (as that phenomenon has been introduced and described by Oona Hathaway and Scott Shapiro in their recent article of the same name) plays in international law as a functional substitute for physical sanctioning in domestic law.

My purpose in this Essay is to argue for these claims, in part to urge a broader focus for contemporary international legal scholarship and in part to draw attention to the type of transformation that I believe we may be going through.

For reasons that I explain in this Essay, I believe that we may be undergoing a transformation that is every bit as fundamental as those that we once went through when first transitioning from hunter-gatherer forms of life (which did not yet have legal systems or engage a distinctive sense of legal obligation) to more sedentary forms of agricultural living with larger population densities, incipient domestic legal institutions, and — ultimately — an emergent distinction between morality and law. We are so used to where we are today, however, that we sometimes forget what it took to get us here, and it can be especially difficult to see what is happening when we are right in the midst of such a process. I have nevertheless made some recent efforts to reconstruct that earlier process, and my examinations suggest that the transformation was not likely based in reasoning alone, but rather emerged as part of a larger set of sociocultural and linguistic developments among a small handful of cultural traditions at first, which pioneered this transition in the ancient world and then caused it to spread thereafter to many other regions. The relevant processes appear to have involved the slow coevolution of a specific and reciprocally-reinforcing set of institutions and practical attitudes within these pioneering cultural traditions, which were sufficient to maintain distinctively new legal orders — along with a distinctive and emergent sense of domestic legal obligation to animate them — in equilibrium.

Over the last several centuries, an analogous transformation has — in my view — been taking place with respect to the emergence of international law. More specifically, I believe that the phenomena that Hathaway and Shapiro have recently called “outcasting” have been coevolving with, and helping to produce the emergence and stability of, a distinctive set of practical attitudes in us. These practical attitudes have, in turn, begun to infuse us with a special sense of international legal obligation, which is capable of animating both those same outcasting practices and an emergent international legal order. Although this process is not yet complete, it would appear to be picking up steam, and—given its importance to increasingly vital forms of social relations in our contemporary world—we need to understand this transformation better. To do so, we will need to expand the focus of current international legal scholarship in several critical ways.

This Essay is spit into three Parts. Part I employs contemporary devices in metaethics to isolate a critical dimension of the question whether international law is law, which is inherently normative insofar as it relates to the perceived obligatoriness of law. Once we understand this normative dimension to the question, along with the specific type of practical authority that is at issue between its sincere disputants, we will see that we are committed to a particular justificatory strategy for evaluating the content of international law. I call this strategy a “practical authority-based” strategy, because it begins with a characterization of the specific type of practical authority that is at issue and then proceeds to inquire into the circumstances in which a claim to that special kind of authority might be warranted or true. A close examination of these issues will show why it may be appropriate to import certain familiar forms of evaluation from one domain where law has uncontroversially emerged (namely, the domestic arena) to another where it appears to be emerging (namely, the international arena). The examination will also place important restrictions on the precise forms of evaluation that should be deemed appropriate in both cases, and will caution against the uncritical application of consequentialist standards to evaluate international law.

Part II then turns from the normative to the purely descriptive dimension of the question whether international law is law. With regard to this second issue, I argue that Outcasting should be understood as giving us the critical resources needed to assess — as a matter of purely descriptive fact — how and why international law has recently been emerging as a genuine system of de facto legal obligations, which therefore invites the particular form of evaluation outlined in Part I. To support these claims, I recast some of Hathaway and Shapiro’s recent work and embed some of their main findings within a more general (but purely naturalistic) account of the origins and evolutionary stability conditions for an emergent sense of obligation in us–as developed in my prior work on the Deep Structure of Law and Morality. This account places some of Hathaway and Shapiro's central claims on a much firmer empirical foundation, and improves our understanding of outcasting and its relation to the emergence of international law in a number of other critical ways.

Part III then ends by combining these two sets of contributions to suggest that there is an important relationship between these two distinct questions — one irreducibly normative and the other purely descriptive — even though they are logically separable. When law exists in a group (as matter of purely descriptive fact), that group should be understood as having emerged from a distinctive type of sociocultural process with a changed set of practical attitudes and perceptions, which not only animate a distinctive and characteristically legal form of life (along with the specific social institutions needed to maintain that new legal order in equilibrium) but also do so by inclining most of the relevant group members to perceive their legal system as obligatory. Whether enough people share the right kind of perceptions and practical attitudes to stabilize a de facto legal order will therefore be one question — the answer to which will depend on where these people are in the relevant processes of transformation, as a matter of purely descriptive fact. But once these people have emerged from such a process, the question whether they are right about their normative perceptions will be a separate question — the answer to which will depend on whether the content of their emergent law can be justified in the special manners outlined in Part I.

The upshot will be that we need to understand the question whether international law is law as having several distinct layers, which can nevertheless interact with one another in ways that are complex and potentially scaffolding. In the final analysis, whether international law is law — in the fullest sense of the word — will therefore depend largely on us, and on whether we are able to develop and maintain the right kinds of reciprocally reinforcing institutions and practical attitudes. These are questions that should draw the attention of international legal scholarship
, but they have not yet done so in the precise form in which I will be presenting them.

Highly recommended!