International law is a good thing. Whether considering law to be a legitimising, quasi-moral discourse, a tool for international cooperation and coordination, or an idealistic, albeit ineffective, standard, much of International Relations (IR) and International Law (IL) scholarship agrees with this statement in one way or another.Footnote 1 Although there are important exceptions,Footnote 2 many academic and popular treatments of international law frequently overlook or underestimate law’s negative aspects, adopting what Ian Hurd calls an ‘enchanted view’ of international law.Footnote 3 As Martti Koskenniemi notes, ‘the idea of progressive history … has continued to animate the international legal project up to our days’.Footnote 4 However, given how ubiquitous and powerful international law has become, taking such a view of international law risks clouding efforts to understand law’s role in contemporary world politics, and distorting efforts to develop policy in an increasingly legalised world.
This article aims to counterbalance this sometimes overly-positive conception of international law and establish a more nuanced understanding of law for scholars and policymakers. In doing so, it takes for granted what much existing scholarship on international law seeks to prove or disprove: that law has become a powerful force that shapes state behaviour even in the use of force. By simultaneously recognising international law’s power and questioning the prevalent assumption of law’s goodness, it moves away from vociferous debates over whether international law matters to focus instead on how law matters in ways that are unintended, unhelpful, or even perverse.Footnote 5 Thus, this article explores various negative consequences of legalisation – that is, certain ‘dark sides’ of international lawFootnote 6 – with a focus on the role played by the law of force and the law of armed conflict (LOAC)Footnote 7 in national security policymaking and military operations.
The article proceeds as follows. Section I frames the issue by outlining the concept of international law and briefly discussing a range of critical literature in both IR and, especially, IL that has questioned the assumption that international law is relatively benign. Such critical work both inspires and informs this article. However, thus far it has mostly explored the natural tension between international legal process and liberal democracies,Footnote 8 examined the negative implications of legal rules and process from humanitarian, socialist, or Third World perspectives,Footnote 9 or has been written by and for lawyers. To date there has been relatively little effort to synthesise these critiques or to consider the negative role played by international law in national security and military operations from a non-legal perspective. This article redresses these shortcomings.
Section II illustrates the pernicious effects of international law at both the institutional and personal level within Western foreign and defence policymaking bureaucracies. Institutionally, the hegemony of legal discourse, an excessive focus on legal compliance, the powerful role of lawyers, and the layperson’s ignorance of the law distorts the policy- and decision-making process in a way that erodes personal responsibility and decreases accountability. This would perhaps be forgivable if international law obviously encouraged more virtuous behaviour among individuals, or necessarily led to better consequences. However, there is reason to be less sanguine about law’s (and lawyers’) influence. For international law can stifle traditional virtues of statecraft such as pragmatism, wisdom, risk acceptance, and even common sense. In turn, this has negative institutional effects for policymaking and can lead to suboptimal policy results. Thus, rather than arguing that international law is a bad thing per se, this section argues that there are serious limits to international law from the perspective of both morality and realpolitik. Excessive legalisation threatens to ‘crowd out’Footnote 10 other important goods and shrink our capacity for sophisticated moral and political thought. Looking at issues through a legal filter has a worrying impact on our ability to discharge our moral and prudential responsibilities.
Section III discusses the implications of the article and makes a few recommendations for the practice and study of International Relations, including the need to lower our expectations of international law, to carefully examine the relationship between legal and policymakers, and to more consciously embrace personal responsibility. In this regard, it offers ideas for a research programme on the dark sides of international law from a variety of theoretical perspectives. Ultimately, it argues that explicitly incorporating the dark sides of the law into IR/IL scholarship helps to re-evaluate the collective enterprise in which practitioners and theorists are engaged and provide needed balance to policy and academic debates. In doing so, however, it raises issues of personal responsibility and unintended consequences of its own that should not be taken lightly.
Questioning the goodness of international law
Although this article does not offer a definition of international law, it is necessary to say a few words on the matter to be clear on what is under the microscope. The view of international law adopted in this article is largely a constructivist one,Footnote 11 although it incorporates insights from various traditions. International law is viewed as a widespread phenomenon comprising the following: a series of rules governing state and non-state action; an elite-led international legal process of rule-creation, interpretation, and enforcement among a transnational community of experts; a way of thinking that focuses inordinately on authorities, rules, process, and legal risk; a related language of deliberation, justification, and accusation;Footnote 12 and the elite legal practitioners recognised as the ‘competent performers’ in international legal ‘practice’,Footnote 13 who inculcate legal ‘virtues’ like legal accountability and responsibility, impartiality, integrity, and humanity while developing a sense of legal obligation through their interactions.Footnote 14 Underlying all of the above, international law possesses a sense of moral purpose, or teleology,Footnote 15 which links all aspects of international law inextricably with legitimacy and makes rule-following important (that is, we care about perceptions of legality because law is inherently considered a good thing).
Like any law, international law contains primary rules that prescribe and proscribe appropriate action, and secondary rules that determine how these laws are made, adjudicated, recognised and enforced.Footnote 16 These rules are made, discussed, and applied through a transnational legal process that is dominated by elites who speak an arcane language almost impenetrable to the layperson.Footnote 17 As Terry Nardin notes, the process is paramount in international law: law must be self-sufficient (and separate from consequences) to maintain its power and authority.Footnote 18
In terms of personal qualities, legal experts are competent in applying universal, abstract rules to particular facts, frequently exhibiting considerable intellectual prowess and linguistic acuity as they exercise their ‘interpretive craft’.Footnote 19 In doing so, they tend to focus on rights and duties which stem from formal bodies of rules (as in positivism) but are also adept at finding, or assuming, a moral force existing beneath or outside of the law (as in naturalism). Except in moments of extreme urgency, legal practitioners tend to be risk-averse to actions that may not be legally justified by existing rules or authorities.
In an important sense, legal argument is cautious and fundamentally backward-looking as it employs analogical reasoning and respects precedent, even while trying to adjust to new circumstances. In another sense, however, law is inherently forward-looking because lawyers or judges must consider their current advice or judgments in terms of becoming future precedents.Footnote 20 Again this inspires caution, as lawyers are reticent to establish potentially harmful precedents. Law is also forward-looking in a more philosophical sense, regarding the ends it seeks to achieve. International law has long been linked with efforts to prevent wars or make them less bloody and remains intimately linked with idealism and teleological notions of progress.Footnote 21 All these aspects of international law should be kept in mind in the sections that follow, along with the notion that some of these very same qualities can also carry a significant cost.
Criticising international law
Increasingly, work in both IR and IL is turning a critical eye on international law. For example, some theorists question the legitimacy of international law-making on democratic grounds, claiming that law made by unelected foreigners has no moral authority to bind the sovereign will of a free people.Footnote 22 Critical theorists argue from a rather different perspective that the problem is that countries such as the United States have too much power to craft or interpret international law,Footnote 23 and that international law hides injustice and serves powerful interests under a patina of universality and justice.Footnote 24
Others criticise the nature of legal thought and practice itself, noting that codifying morals and talking in terms of universal legal ‘rights’ encourages us to think too abstractlyFootnote 25 and risks blinding individuals to alternative possibilities or wider considerations. For example, Naz Modirzadeh claims that the ongoing debate about technical legal aspects of US drone targeting distracts from the enormous implications of the wisdom of conducting the campaign against terrorism on a global battlefield.Footnote 26 Yuval Shany charges that international law permits one to feel better about injustice as lawyers and the legal process can serve as ‘conscience-clearing outlets in the face of atrocity’.Footnote 27
From another perspective comes warnings that international lawyers may justify almost anything they do in the name of strengthening international law (which is seen as an inherent good that someday will bring about peace and justice). Given law’s teleology, the logic of international law is an unstated consequentialism of the very long-term – a commitment which can only be proven by doing international law, and showing an unwavering commitment to legal tools of rules, processes, and language.Footnote 28 No one has criticised this view more forcefully than David Kennedy, who excoriates the formalist tendency of lawyers to indulge in excessive debate over forms and forums even (or especially) in matters of life and death while ignoring consequentialist analysis.Footnote 29
Such critical treatments of international law dovetail nicely with prior work recognising that perverse institutional outcomes may not arise simply because of the weaknesses of an institution, but because of its strengths. For example, Martha Finnemore and Michael Barnett note that both the power and pathologies of international organisations stem from the same sources, such as the rationalist-legalist authority of bureaucracy which privileges rule-following over flexibility (and thus rules over goals) while allowing bureaucrats a significant level of unchecked authority to exploit their reputation of impartiality to pursue their own policy goals.Footnote 30
Collectively, such scholarship both inspires and informs this article. However, the majority of critiques have focused mostly on the illegitimacy of international rule-making (in terms both of a democratic deficit and structural north-south inequalities), examined law’s troubling consequences from humanitarian, socialist or Third World perspectives, or debated the responsibilities of the lawyer. While these are pressing (and still under-emphasised) subjects of study, there have been few attempts to synthesise existing critiques, examine law’s negative effect on policymaking when it comes to the use of force, or explore non-legal critical perspectives. For example, how does international law hinder state efforts to protect its citizens? What is law’s negative effect on the foreign and defence policymaking and militaries of liberal democratic states?
The next section draws on existing research as well as the author’s experience within government to suggest preliminary answers to the above questions. While illustrative examples are provided, it sacrifices empirical depth in favour of conceptual breadth and policy relevance. Rather than offering definitive empirical proof of its claims – an impossible task given its scope – this article takes on the task of addressing the theoretical and conceptual bias that considers international law an almost unmitigated good. The intent is not to demonise international law or claim that international law has a net negative effect, but rather criticise international law in the interest of providing balance to policy, academic, and moral debates that are often (but not always) skewed by assumptions of law’s goodness. This should fill an important gap in the existing literature on international law and help guide future empirical, theoretical, and policy research and debate.
The dark sides of international law: International law transfers power within liberal democratic states from policymakers to lawyers with negative implications for responsibility and accountability
The ‘weak law’ assumption and the amoral lawyer
The standard conception of the lawyer’s role enshrined in Bar Association guidelines and taught in law schools is that of an amoral ‘advocate’ for his or her client.Footnote 31 In a famous work on legal ethics, ‘The lawyer as friend’, Charles Fried notes that ‘it is not only legally but morally right that a lawyer adopt as his dominant purpose the furthering of his client’s interests … [rather than] some idea, however valid, of the collective interest’.Footnote 32 This eloquently sums up a widespread view that the lawyer is an ‘amoral technician who serves rather than judges the client’.Footnote 33
The problem, of course, is that this view of the law permits or legitimises seemingly gross ethical transgressions, allowing lawyers to sidestep morality in favour of technique.Footnote 34 Indeed, the law may actually encourage such sidestepping given that lawyers are ‘professionalized in a manner that undermines moral reasoning skills’.Footnote 35 For scholars like Hatfield, the blame for the torture debacle lies with American legal education and process, and the ‘professionalization of moral deference’ it encourages. In his words, ‘[w]e do not expect lawyers to say “no”; we expect lawyers to figure out “how”. I cannot pretend to be shocked by the results.’Footnote 36
Here we find the danger of policy-oriented jurisprudence and the idea of amoral lawyering: if law is seen as a flexible resource to be deployed toward a variety of policy ends, then an amoral lawyer’s role can easily descend into being an agent of unsavoury or evil purposes. One can, of course, point to several cases where international lawyers have been trotted out to put forth dubious legal justifications for the policies of the powerful.Footnote 37 Exploring the ways in which international law is silenced, co-opted or manipulated by powerful non-legal actors surely remains an important area of inquiry.Footnote 38 However, such inquiry rests on and reinforces the assumption that lawyers are relatively powerless agents serving, or being exploited by, more powerful non-legal forces. This risks overlooking how ‘international humanitarianism is powerful’ and how lawyers are becoming powerful actors in their own right.Footnote 39 Rather than explore the manipulation of ‘weak law’ by the powerful, then, this article focuses on the dark sides of international law’s strength. In doing so, it will examine how the assumption of international law’s weakness and the idea of the amoral lawyer both empower lawyers within bureaucracies as part of a broader shift that has important implications for institutional and personal responsibility, as well as foreign policy outcomes.
The power of international law and the inflated importance of the lawyer
Today, international law has become so widespread and powerful as to be almost ‘hegemonic’.Footnote 40 With the legalisation of world politics, international law is replacing other legitimating discourses (such as morality or religion) as the primary means of condemnation and justification in global affairs. Indeed, according to Paul Kahn, the ‘deepest criticism that one can make of political behavior is that it is in violation of a legal norm’.Footnote 41 With such a shift, lawyers have become almost priest-like figures in foreign and defence policy circles and the military: hearing confessions, assuaging troubled consciences, communing with a higher inscrutable authority, and ultimately blessing operations and decisions.Footnote 42 Indeed, one military lawyer has confided that he grew ‘tired of being a High Priest in a secular army’.Footnote 43
This elevation of the lawyer is not merely symbolic. As Fernando Nuñez-Mietz convincingly demonstrates, due largely to the importance of compliance lawyers in Western democracies are increasingly ‘structurally empowered’ to play a more visible and vital function within institutions and decision-making bodies.Footnote 44 Such ‘lawyerization of foreign policy’ brings with it a shift from ‘discretionary decision making’, where a leader’s practical judgment is authoritative and determinant of the decisional output’ to ‘[l]awyerized decision’ where ‘the state … grants decisional agency to (some of) its legal advisors’.Footnote 45 In other words, legal advisors are moving from ‘advisors’ to decision-makers. This shift is has troubling implications, especially as non-lawyers are not well positioned to understand, let alone resist it.
(Unadvertised) legal indeterminacy and its effects
There exists a widespread illusion, especially among non-lawyers, that international law exists in some determinable form, a set of rules that exist ‘out there’ for ‘the lawyer to find (or know) and communicate’.Footnote 46 This ‘rulebook’ image of the law has been colourfully termed, ‘law as answer machine’.Footnote 47 It stems from the enduring popularity of legal positivism, an approach characterised by a strict division between the law and other extralegal concerns and the view that every legal rule has a significantly large agreed-upon core.Footnote 48 While widely recognised as an over-simplification, this positivist vision is supported by lawyers and non-lawyers alike.
Lawyers clearly have a professional tendency and motivation to suggest that legal answers are ‘knowable’ and demarcate the ‘law’ as separate from mere politics or morality – as being their area of expertise and authority. For their part, non-lawyers, who are often unschooled in legal debates and baffled by the complexities of international law, tend to quickly cede the terrain to the lawyer. ‘What does the law say?’ they ask, while thinking: ‘Who am I to question the answer?’ Indeed, it is difficult to explain to lawyers, who take even highly technical knowledge of the law for granted, how powerless a non-legal policymaker can feel when confronted by legal advice he does not understand. For instance, policymakers rarely understand even the basic sources of international law, or how it differs from domestic law, to say nothing of more esoteric debates about consent and obligation. Despite their ignorance of legal particulars, however, they do understand (if only vaguely) the importance of law. As a result of this mixture of ignorance and respect, the temptation to cede the terrain of decision to the legal expert is significant.Footnote 49
Yet as any lawyer or follower of legal debates knows, invoking a rule is the start rather than end of a debate.Footnote 50 There is rarely any way to reach an authoritative solution to a legal controversy. Thus, contrary to the belief of most non-lawyers, the indeterminacy of international law and the lack of an ultimate interpretive authority (like a domestic Supreme Court) ensure that interpretations in international law usually boil down to a political or moral judgment – frequently by the lawyer.Footnote 51 This results in rather befuddling situations (for the non-lawyer), such as the heated debates regarding (non-)compliance with the law of armed conflict where competing legal arguments both invoke the authority of the same rules or use the same language to reach polar opposite conclusions.Footnote 52 In other words, international law is not an enclosed, self-sufficient system. Law frequently must turn to extra-legal concerns like morality and politics to make legal decisions.
From the lawyer’s perspective, this highlights the need to be especially attuned to the political context as they give their advice. As Koskenniemi states, every legal choice is a ‘politics of law’.Footnote 53 While this intermingling of law and politics may concern some, for Koskenniemi international law possesses the internal resources – namely a language and culture of debate – to fruitfully discuss these choices because ‘… [l]aw invites its appliers to exercise the kind of practical judgment of which “politics” at its best consists. Lawyers defer to “sovereignty or the needs of peace” not irrespective of but by reference to legal rules’.Footnote 54 It is important to note that, in this formulation, a political decision is still being made, but it is being made through law and is thus largely dependent on the individual abilities and virtues of the lawyer. And because law itself does not offer the necessary resources for lawyers to make decisions, lawyers must eschew positivist methods of legal interpretation and a deferential outlook to include broader normative or policy concerns.Footnote 55 The cost of moving away from being an ‘amoral’ advisor is that lawyers must embrace personal responsibility for the advice they give.Footnote 56
While it is admirable to alert international lawyers to broader issues and call them to greater account, this approach raises a significant problem of its own when one examines the broader institutional context of policymaking. The problem stems from the fact that the amoral conception of the subservient legal technician is not actually as ‘amoral’ as it first sounds. For the alternative is to paternally substitute the lawyer’s moral view for the client’s, making lawyers’ ‘moral’ conceptions paramount in modern life and creating an ‘oligarchy of lawyers’.Footnote 57 In light of the institutional weight given to legal advice in contemporary policymaking this is a real concern. In Bradley Wendel’s words, ‘there are many ends and means, reasonable people will disagree. Why should lawyers get to choose?’Footnote 58
As we consider the possibility of such an ‘oligarchy’, it is worth noting that lawyers do not often advertise the fact that international law is indeterminate and that legal advice necessarily includes non-legal factors. In fact, the very status of lawyers rests on the ‘rulebook’ image of international law. In Adriana Sinclair’s words, ‘for legal professionals, the prospect of indeterminacy is so worrying that it is deliberately minimised’ out of concern than ‘the power and legitimacy of law would be called into serious doubt’.Footnote 59
A compounding problem is that legal decision-making within foreign policy institutions can occur in the absence of the adversarial challenge function that opposing lawyers play in domestic legal practice, especially when important decisions are made in secret. Yet as David Luban argues, ‘lawyers commonly act as though’ the adversarial system ‘characterized their relationships with clients even when the representations do not involve a courtroom’.Footnote 60 Whereas courtroom lawyers have adversarial lawyers publicly challenging their legal interpretations, this frequently does not occur within government. Legal disputes often take place among lawyers; but such disagreements are frequently papered over when legal advice is presented. This is significant because it contributes to the mystification of international law and reinforces the idea that the legal advisor’s advice represents ‘the law’ as it objectively exists ‘out there’.
It must be stressed that one cannot easily generalise about a diverse legal community.Footnote 61 Lawyers differ in their approach to international law and their clients. Many lawyers earnestly apply just the positive law as they know it (or think they know it). Some self-consciously exercise their personal responsibility in making moral or policy choices through law, as Koskenniemi recommends. Others may have flashes of discomfort in recognising that they are moving beyond the legal realm. In all cases, however, the important point is that extra-legal reasons for a decision or argument are smuggled in, knowingly or unknowingly, and described in legal terms. In fact, both the ‘smuggling’ and the legal terms are equally important for the lawyer because legal craft is perennially poised between ‘politics’ and ‘technique’.Footnote 62 It cannot afford to be one or the other without sacrificing either effectiveness or distinctiveness. As Wouter Werner points out, legal advisors simultaneously play the part of transnational advocates while presenting themselves as repositories of objective knowledge – members of an ‘epistemic community’.Footnote 63 Thus legal advisors roll policy or moral preferences into their legal advice, but it always must be presented as legal advice. In short, it seems that in the contemporary climate, everything non-law must go, or be repackaged as law-friendly.
Here we see how the myths of weakness and amoral advice are sources of power for the lawyer. Subjective positions are frequently presented as objective statements of legal fact that non-lawyers are ill placed to dispute. As extra-legal concerns are ‘smuggled in’ by the lawyer and refracted through a legal lens, extra-legal voices are ‘crowded out’ from the discussion.
The dangers of legal hegemony
There is a significant danger in transferring power from the policymaker or military commander to the lawyer in this way. Most notably, it expects far too much of a legal discipline whose self-conception is built at least in part around training amoral advisors rather than decision-makers. As discussed in the next section, there is reason to doubt that international law is the best frame for addressing political questions or that lawyers are best placed to make decisions. After all, as Kennedy argues, international lawyers as a whole show a tendency to shrink essential questions of peace and violence into questions of legal process in what he calls the ‘fetishization’ of judges and institutions, and the ‘enchanting’ of one’s tools.Footnote 64 This gives credence to Jan Klabber’s warning that experts, including lawyers, may only possess specialised, rather than holistic, knowledge.Footnote 65
Further, because non-lawyers can miscomprehend the nature of the law and legal process – especially its fundamental indeterminacy and reliance on moral and political calculations – the special aura surrounding lawyers gives them veto-like powers within the foreign policy apparatus that go beyond their formal role. They are rarely seen as ‘just another input’ into the policy decision and even the most powerful policymakers seem to hesitate before questioning their advice. For example, in the first days of the war in Afghanistan, Secretary of Defense Donald Rumsfeld refused to authorise an attack against the Taliban leader, Mullah Omar, due to legal warnings of excessive collateral damage.Footnote 66 To take a different view of the issue, one of the most notable aspects of outrage surrounding the regression of the torture norm after 9/11Footnote 67 is the implicit understanding behind it: lawyers were needed to make it happen, and lawyers could have stopped it. If this is even partially true, it bestows an inordinate, and dangerous, amount of responsibility upon lawyers who enjoy no privileged access to transcendental truths.
International law erodes personal responsibility and accountability
To recap this section’s argument thus far: law is essential to legitimacy but is frequently perceived by non-lawyers as offering a set of answers only ascertainable to the lawyer. Thus, lawyers occupy key nodes in foreign policy establishments, essential to granting legitimacy. However, non-lawyers misunderstand the nature of the law and overlook the fact that assigning this status to lawyers requires them to make political and moral decisions due to the indeterminacy of international law. Many lawyers continue to see themselves as strictly ‘legal advisers, not political or moral consultants’,Footnote 68 even as they are increasingly brought into policymaking with views regarded as authoritative. Other lawyers who follow their conscience rather than the direction of their client commit the sin of wielding power inappropriately and, perhaps inadvertently, bringing about an oligarchy of lawyers.
What this confusing state of affairs makes clear is that the dynamic between lawyers and non-lawyers in the creation of Western foreign policy threatens important principles of personal accountability and responsibility. With lawyers seen as mere amoral advisors, they are free either to surreptitiously include their own preferences in legal advice or to pass the moral ‘buck’ to policy, military and political decision-makers, saying, for instance: ‘I can make this (interrogation, attack, whatever) legal, do with this advice what you will.’ Yet when it comes time to justify or legitimise a policy or military or political decision, these decision-makers are likely to justify their actions or inactions in legal terms, based on the advice of lawyers who ceded responsibility to them.
There are several dangers to such a dynamic. First, it allows decision-makers an inappropriate institutional shortcut around fully engaging with the complexities of a situation. As Michael Ignatieff notes, during the Kosovo conflict, law provided ‘harried decision-makers with a critical guarantee of legal coverage, turning complex issues of morality into technical issues of legality’.Footnote 69 This danger has recently been corroborated by Janina Dill’s illuminating study of the impact of law in US targeting. Dill’s interviews with US military personnel are particularly fascinating. In talking about decisions to bomb, one commander states that ‘it is no question of personal morality; this is why you have the lawyer’.Footnote 70 A pilot closer to the action declares: ‘I am tasked with a mission and a weapon, someone else has taken legal and moral responsibility for it.’Footnote 71 While different military personnel clearly relate to the law in different ways – and it is worth noting that some service members insist on taking personal moral responsibility – Dill’s takeaway is alarming: ‘it is IHL (International Humanitarian Law) that allows conscientious actors at all levels to assume that being part of a bureaucratised [legal] process is enough for doing the right thing’.Footnote 72
Second, empowering the lawyer obscures who is truly responsible for a decision: the decision-maker, whose decision is practically constrained by the legal advice he receives, or the legal advisor who provided the advice? Such confusion makes democratic accountability more difficult and raises the danger of both legal advisors and decision-makers pointing to the other as being somehow responsible for the decision. Klabbers warns that such a dynamic between decision-makers and expert advisors in a bureaucracy can lead both sides to absolve themselves of responsibility.Footnote 73 Expert oversight (by the lawyer in this case) can ‘render responsibility or accountability opaque’ and be ‘subject to the problem that where many hands cooperate, it is difficult to tell who did what’.Footnote 74 Similarly, Dill warns that international law’s role in US Air Force targeting resulting in ‘diffused responsibility’.Footnote 75 From an institutional perspective, this raises the troubling possibility that no explicit choice is even being made or, if it is, it will be nearly impossible to determine who made it and why. This diffusion of political and moral accountability and responsibility at the domestic level is ironic given that international legal responsibility and accountability is supposedly a key virtue of international law.Footnote 76
Institutionally, then, the risk is not just the amorality of legal advice or the hegemonic morality of the lawyer. It is the negative feedback loop resulting from the overlapping abrogation of responsibility by the legal advisor (when s/he does not reveal or accept the power s/he exercises) and the decision-maker (when s/he does not make an effort to understand international law or when s/he hides behind legal advice). Both, perhaps unwittingly, conspire to cede moral judgment and responsibility to the other leading to ‘abdicated responsibility’ all around.Footnote 77 This has the ability to corrode the personal ethics and obscure the responsibility of both the lawyer and the policymaker. Meanwhile, international law enters decision-making almost by stealth. This would be less worrying if there were reason to believe that privileging law resulted in more rigorous thinking or more just or effective decisions. However, as the section below indicates there are reasons to be less sanguine about the influence of international law.
International law crowds out other goods and can lead to suboptimal foreign policy outcomes
In a penetrating critique of the modern ‘market society’, Michael Sandel explores what is lost when market norms and economic rationality intrude where they do not belong.Footnote 78 Most notably, he argues that market norms ‘corrupt’ and then ‘crowd out’ other valuable goods. This corruption explains what otherwise would be inexplicable from an economic perspective. For example, once an Israeli daycare imposed a fine on parents who were late picking up their children, late pickups actually increased. Or, to take another example, after the citizens of a Swiss town were offered compensation to host nuclear waste, their willingness to do so actually decreased. Sandel’s compelling reason for these phenomena is that other pre-existing norms – such as decency towards, and consideration for, daycare providers, or a sense of national duty – were crowded out by market norms. Once it simply became a matter of monetary cost-benefit analysis, parents decided that they ‘could afford’ being late. Once made a financial offer, townspeople felt the compensation for storing nuclear waste was insufficient, or even an offensive bribe. Sandel does not say that the market is ‘bad’. In many cases, market solutions are more efficient. But money changes things, and not always for the better. No matter the outcome, excessive commercialisation comes at a high cost when it replaces other valued norms. The pressing moral imperative is keeping the market in its place, in being a ‘market economy’ and not a ‘market society’.
This article argues that international law also changes things, and not strictly for the better. While the previous section suggested that the hegemony of international law brings with it an institutional and personal cost in terms of decreased accountability and responsibility, this section channels Sandel’s discussion of ‘what money can’t buy’ to explore what international law can’t do. What is the cost of moving from legal advice to legal decision-making? What else is ‘crowded out’ when decision-making processes are excessively legalised?
Legal virtues crowd out political virtues
As discussed above, lawyers possess a unique skillset focused on language, rules, precedent and process, and supported by legal virtues such as impartiality, integrity, fairness, coherence, universality, and legal accountability. All this is necessary to legal technique, applying facts to universal rules and making acceptable legal arguments. In short, it is essential to being a legal professional. However, privileging legal skills and virtues within the foreign policy process can come at the expense of other skills, such as historical and regional knowledge, and political virtues such as prudence, pragmatism, and compromise,Footnote 79 even political or moral imagination.
Indeed, as a rule, different professions stress different virtues. International law, which is purportedly universal, requires a universal outlook and privileges virtues like fairness, impartiality, coherence, and justice. Overall, a fair process tends to trump a good outcome.Footnote 80 On the other hand, policymaking aims to act on the behalf of a particular group in an anarchic and competitive world, and can require a parochial outlook. To protect the polity, it necessarily privileges (sometimes conflicting) virtues like prudence, pragmatism, compromise, initiative, and risk-taking. Outcomes are what matters. Thus, as Jamie Gaskarth notes, international law ‘implies the need for individuals to exercise a different set of virtues than those previously fostered in international society’.Footnote 81
Of course, there is considerable overlap between legal and political virtues; judgment, courage, humility, intuition, and wisdom are just as laudable in the lawyer as they are in the statesman. However, as Touko Piiparinen argues regarding clashing normative orders, ‘the conception of social and political responsibility – what counts as “responsible” behaviour differs … depending on the particular functional sector in which bureaucracies operate … and its underlying normative order’.Footnote 82 Thus, even when lawyers and policymakers demonstrate similar virtues, these can mean radically different things in their respective contexts. For instance, in legal terms, prudence, or caution may mean that particular course of action is not pursued because one lacks the requisite authorities. In contrast, prudence in political terms may mean taking that very same course of action without requisite authorities to forestall a potentially negative political outcome.
It is also essential here to remember that international lawyers are committed to the integrity of law in a way that their policy counterparts are not. They must balance loyalties to their political cause and to international law. For example, as China Mieville notes in discussing the strategic use of international legal language by legal scholars to oppose the Iraq War, ‘even where the legal nature of such a position does seem to strengthen its power, it does so by undermining the structures and even legitimacy of international law itself’.Footnote 83 This highlights in the most dramatic fashion the type of tension felt by many international lawyers. Their two loyalties can conflict, unless a lawyer seeks to dodge this tension – and the resulting cognitive dissonance – by stating that ‘what is good for international law is good for the country’ (or vice versa). Cosmopolitan policymakers within governments have a similar dilemma, but it is less acute because there is no cosmopolitan profession (complete with training and standards) holding their feet to the fire. The above discussion suggest that privileging legal skills, virtues and outlooks can have several negative effects on policymaking: first, it can lead to excessively risk-averse behaviour; second, it can blind policymakers to non-legal issues; and third, it can lead to overestimation of the benefits of ‘legal’ foreign policy.
Legal risk aversion gets in the way of good policy
At the relatively harmless end of the spectrum of legal pathologies, a powerful role for lawyers can delay or interfere with cooperation between friendly countries on important national security issues due to unarticulated notions of legal risk. For instance, say Countries A and B share similar values and have a history of amity and cooperation. They wish to negotiate a Memorandum of Understanding (MOU) to cooperate on national security issue-area X. The MOU is drafted and both states are keen to begin cooperation immediately given their respective security requirements. However, Country A considers MOUs to be legally-binding commitments while Country B does not.
Unaffected by legal arguments, the policy response is likely to be: ‘agree-to-disagree; we’ll handle problems on a case-by-case basis’. Lawyers on both sides, however, tend to prefer an exhaustive process of negotiation, consultation, and further deliberation – a legal process to mitigate a country’s ‘legal risk’. Thus, out of legal caution diplomatic notes will be sent, and negotiations conducted at length. Confused over whether they can proceed without the lawyers’ agreement, policymakers hesitate. The end result is that momentum may wane, cooperation may be delayed or diminished, and costs may increase.Footnote 84
And yet, when pushed, most lawyers cannot provide a compelling account of what ‘risk’ this entails in the real world. Will a friendly country really take us to court over a difference so trivial? Many policymakers do not think to ask. They just have a niggling sense that the lawyers are being unreasonable, and a frustration that their plans are being stymied. Depending on the experience, education, legal knowledge, and character of the policymaker, they may insist on an answer or seek to press ahead without one. Regardless, the lawyer’s institutional veto role may prevent timely action. Over time, frustration can give way to resignation. Legal risk aversion, combined with law’s high status, can corrode the ability and willingness to balance and accept risk that must be cultivated in any responsible public official.Footnote 85
Of course, it is important not to over state the case here. When cooperation is of overriding importance, decision-makers usually will not allow under-articulated notions of legal risk to delay or prevent it. However, there are a host of cooperative ventures that are important enough to pursue, but not important enough to warrant immediate elevation to senior decision-makers. It is on these issues especially that the idea of legal ‘risk’, hovering in the background, can interfere with common sense and have deleterious effects disproportionate to the minimal legal risks involved.
Law’s blinding effect
International law can also blind policymakers from conducting rigorous analysis of non-legal considerations. Take the perhaps apocryphal case of Defense Secretary Rumsfeld mentioned earlier. While such incidents are invariably heralded as ‘wins’ for international law (and indeed they are laudable in an important sense), they also speak to the danger of separating important decisions from assessments of non-legal consequences. How many civilian casualties would be worth killing one of the nation’s most dangerous enemies? What if the human cost – in terms of friendly, adversary, and innocent lives – would be greater if the enemy is allowed to escape and continue its activities? When are the practical – or even moral – gains of such a legal violation worth it? Were these other questions even asked?
David Kennedy powerfully criticises such oversights, urging international lawyers to move beyond taking comfort in legal technique or a shared narrative of legal progress to examine the consequences of any action or inaction.Footnote 86 Yet as Kennedy recognises in his discussion on targeting decisions, it is difficult to conduct such consequential analysis as long as one views things in legal terms. For law can only go so far, even at its most pragmatic. When asked how many civilian casualties are permitted, legal professionals tend to ‘pull back just when the decision point arrives’, retreating to statements such as ‘you just cannot target civilians’ or ‘these are “judgment calls”’.Footnote 87 Making such calls requires incorporating a wide range of extra-legal factors and taking into consideration the broader history and context of any situation. International law is more a language of argument than decision.
This accusation of law’s limits applies just as much to decisions on jus ad bellum questions as it does to jus in bello. As Richard Rosen notes, it is possible that, in terms of defending a state against persistent or recurrent threats, it might be strategically wiser to act disproportionally (that is, illegally) in the face of provocation to send a deterrence message that could prevent future wars and suffering.Footnote 88 Such ‘illegal’ force could in certain instances be even more humanitarian over the long term and better serve state and humanitarian interests, yet the current nature of international law blinds us to such arguments. To recall Barnett and Finnemore’s critique of international bureaucracies, rules have eclipsed goals.Footnote 89
Relatedly, let us examine the controversial issue of reprisals. Traditionally, in responding to uses of force that violate international law, states conducted forceful countermeasures or ‘defensive armed reprisals’ aimed at bringing their adversary back within the ambit of international law.Footnote 90 Such actions could be considered a form of legal sanction. However, a variety of legal experts, most influentially the International Law Commission (2001) in its Draft Articles of State Responsibility, have cast doubt on this traditional right, arguing that the use of forceful countermeasures is patently illegal. As a result, states seem reticent to call a spade a spade when using reprisals. Instead, they favour the more legally palatable notion of self-defence to justify responses to terrorist attacks such as the US bombing of Sudan and Afghanistan in 1998, which followed al-Qaeda’s bombing of US embassies.Footnote 91 While such legal contortions may help reinforce the salience of important legal norms or widespread legal interpretations, it is worth asking: what do states lose if they cease talking about deterrence or reprisals in favour of more acceptable legal arguments?
First, examining issues through a legal lens may interfere with a state’s ability to clearly identify its own self-interest. While some critics of international law suggest that states cannot have an independent interest in following international law,Footnote 92 state action increasingly suggests otherwise. For example, a recent study by Adam Bower has shown convincing proof that the Convention to Ban Landmines has now shifted state behaviour even among non-signatories. Footnote 93 It seems that as international law becomes the language of international legitimacy, states have an interest in being perceived as compliant. This is not without its problems, for as states privilege their international legal reputations, it is more difficult to clearly identify the national interest separate from international law. The ‘national’ is being crowded out. This is unsurprising for, as Nico Krisch notes, global constitutionalism necessarily ‘downplays the normative importance of national allegiances’.Footnote 94 Therefore, as well as being harmful to diversity, international law atrophies the muscles of realpolitik; leaders may feel a diminished sense of moral obligation to their national community (to whom they are responsible), and even a diminished ability to define national interests apart from international legal compliance.
Second, and relatedly, seeking legal cover can interfere with strategic messaging. Given that one of the requirements for an effective deterrence posture is the clear threat that retaliation will follow an infraction, justifying state action by convoluted legal argument could lead to miscalculation or embolden irresponsible actors. Attempts to dress strategic actions in legal clothing send confusing messages that could diminish deterrence vis-à-vis potential enemies. Third, and relatedly, if the foreign policy apparatus is too focused on widespread notions of legality, it can interfere with the essential task of wisely calibrating the level of force to be used in a way that takes into account both the immediate and longer-term context and consequences. For example, those who criticised Israel’s response to Hezbollah’s attack as ‘disproportionate’ in the Second Lebanon War must face the uncomfortable fact that the vigour of the response has seemingly re-established deterrence on Israel’s northern border, and has thus made future war between Israel and Hezbollah less likely.Footnote 95 How can a legal mindset make sense of that?
Indeed, focusing too much on international law can cloud such calculations. Just as human rights can ‘occupy the field by implicit or explicit de-legitimation of other emancipatory strategies’,Footnote 96 there is good reason to believe that international law has a similar effect on our moral or strategic considerations in other areas. Legal processes may ‘operate as blinding mechanisms’Footnote 97 leading to mistaken policies that could place a state at risk and make future war more likely.
As well as interfering with consequentialist assessments, law’s blinding mechanisms may prevent us from recognising or engaging with wider spheres of moral experience, obligation, or possibility. For example, Dale Stephens reminds us of LOAC’s blind spots when it comes to killing. LOAC operates according to clear rules and distinctions, which tend to be applied in ‘a very binary manner’. As a result, ‘any introduction of additional frames of reference that might inform and potentially restrain the application of force, or at least render it subject to moral or social inquiry (“should we target” rather than “can we target”) need to be derived from alternative theoretical perspectives’.Footnote 98 This is not to say that international law does not incorporate any significant moral content, only that it does not incorporate all moral content. International law has little to say about human virtue or deontological moral duty existing separately from international legal duty. More worryingly, to the extent that law is recognised as the sole marker of legitimacy, law can also suppress moral qualms and basic humanity. International law has little to say about the proverbial sniper’s reticence to shoot a bathing man. Indeed, ‘the ability of the law to anesthetize the sense of responsibility of personal experience, even in the most intimate action of killing another person, is striking’.Footnote 99
To take a different example, consider the legal debates over lethal autonomous weapons systems. In the past few years, we have heard heated and esoteric arguments from lawyers over things like whether international law would preclude the use of weapons as being against the ‘principles of humanity and the dictates of the public conscience’, whether international humanitarian law or human rights law has an implicit assumption that actions will only be undertaken by humans, whether such weapons would be inherently indiscriminate or whether the existing law of armed conflict is sufficient.Footnote 100 While these debates are certainly of interest they also sidestep more important questions. Is it inherently wrong to cede decisions over life and death to a machine? What type of nation do we want to be? How ought we to kill? As states move to make policy in this area, they would do well to remember that international law is not well equipped to help us address these vital questions.
Law as sufficient: Over-exaggerating the benefits of law
The power of international law can also lull states into thinking that legal compliance is sufficient to secure their interests. For example, in asymmetric conflicts like Iraq or Afghanistan, Western states have made considerable efforts to comply with LOAC even as their illiberal opponents have adopted ‘lawfare’ strategies to exploit ‘legal asymmetries’ for battlefield advantage.Footnote 101 Yet, as Dill demonstrates, the US has been unable to translate respect for the law into legitimacy because many observers bring a host of normative preconceptions, including a belief that all killing is wrong, to their ‘legal’ interpretations of American bombing. For such observers, no amount of legal compliance can make bombing legitimate.Footnote 102 As a result, while international law is unquestionably ‘behaviourally relevant’ for Western states, it is frequently ‘normative ineffective’.Footnote 103
This raises difficult questions as states seek to address the true costs or benefits of ‘legal’ action. To understand the divergence between the legality of actions and the legitimacy of outcomes is to understand the limits of the law, and the folly of putting too much faith in legal compliance to deliver on foreign policy goals. While states tend to be of the view that following the law will win legitimacy, legal debates can be cyphers for a wide mixture of grievances, and legal judgments can be coloured by broader political and moral concerns.Footnote 104 In law, there are limits to what one can do independently. As a social phenomenon, legal compliance must be conferred by others.
The danger here is that the power of law can furnish states with false confidence that if they follow the law and discharge their strictly legal responsibilities, legitimacy will accrue and they can meet foreign policy goals. But legal compliance is no magic bullet, and no substitute for imaginatively addressing underlying causes. In fact, it may interfere with doing so.
Thus, no matter how scrupulous a state’s legal analysis, no matter how compliant it is with the letter or spirit of the law, it does not necessarily mean that others will agree with the wisdom or morality of one’s actions – or even recognise them as legal. As Ignatieff eloquently states, ‘moral exposure is not eliminated when legal exposure is’.Footnote 105 Believing otherwise can distract states from fully addressing the implications and consequences of their actions, or seeking more creative or permanent solutions to enduring challenges. In short, states should not take false comfort in the sufficiency of the law. Responsible statecraft is about more than the technical knowledge of a lawyer.Footnote 106
Conclusion and recommendations
The preceding sections make clear that international law is not an unmitigated good. There are myriad dark sides in terms of how international law skews the process of policymaking, and negatively affects the nature and consequences of policies. Thus, despite the seeming authority of lawyers, international law offers an incomplete process. Despite the legitimacy that law confers, legal compliance is sometimes the wrong goal.Footnote 107 The point is that, overall, emphasising international law leads to de-emphasising other things. International law can blind us to non-legal factors and risk substituting legal analysis for political wisdom, even while it clouds the lines of accountability within democratic foreign policy establishments. This can lead to policy decisions that are too attentive to the perceived concerns of the law, and too dismissive of political context and broader consequences. In light of these troubling dark sides of the law, below I offer a few suggestions for both theorists and practitioners of international law and international relations.
Lowered expectations
First, we need to collectively lower our expectations of what the law should and can do. Currently, international law is expected to do too much. Considerations like morality, prudence, wisdom, and means-ends analysis are being elbowed out. Yet if international law has overstepped it is only because we continue to make such demands on it. In both the use of power and its critique, it would be preferable to expect less from the law, and to create more space for the non-legal. Illuminating in this regard is Payam Akhavan’s powerful argument that rationalist international legal language is insufficient when faced with the scale and human suffering of genocide.Footnote 108 Similarly, in appraising the ICJ decision to avoid passing definitive legal judgment on the use of nuclear weapons in national self-defence, Koskenniemi recognises ‘law’s inability to grapple with the massive killing of the innocent’.Footnote 109 These scholars both argue for cultivating a ‘deliberate silence’Footnote 110 of international law that could ‘could leave room for the workings of the moral impulse’.Footnote 111
This intuition that law is insufficient for what is being asked of it is present in much of the scholarship discussed in this article. It reveals itself in recent work exploring how international law clashes with other normative orders such as morality, religion, or bureaucratic codes.Footnote 112 It is also behind Mieville’s assertion that ‘legitimation or de-legitimation of a particular action might as well or better have been carried out by a non-international-legal argument – based on principles of justice, for example’.Footnote 113 Such an intuition is present among some legal professionals. And it notably shows itself in legal education, specifically the proliferating ‘Law and … movements’ (for example, law and economics, law and sociology, etc.), which recognise that law requires additional insights to effectively address human problems.Footnote 114 To suggest a more appropriate scope of influence for the law and develop a better relationship with extra-legal concerns like morals and policy, it is essential to plumb the depths of law’s insufficiencies. To do this, we require further insight into what law lacks and how it is misleading and harmful.
Greater awareness of the negative consequences of law
Ignoring the dark sides of the law made sense when lawyers were simply speaking truth to power. However, ‘the situation today is more the reverse. A global flood of law, here and there the weakest flicker of politics …’.Footnote 115 In light of its significant power in contemporary world politics, it is essential to determine when and how international law is contrary to other valued goods. In doing so, it will be imperative to move beyond general discussion about law’s goodness or dark sides to explore the particular effects of different bodies of international law (for example, LOAC/IHL, human rights law, international criminal law, and environmental law) in various circumstances.
In both scholarship and practice, facing up to the negative aspects of international law requires significant philosophical leaps for both idealists and realists. For the former, it requires abandoning a utopian mindset for a tragic one: recognising that all things have a cost, sometimes there is little choice but to act wrongly, and even the most cherished commitments can have negative consequences.Footnote 116 For the latter it requires a different sort of leap, moving beyond trying to prove law’s powerlessness towards examining the effects of law’s power.Footnote 117 In both cases, doing so would help determine when international law should be traded off against other important goods. As well as adding much-needed balance to policy debates that are skewed by overly-positive views of international law, an awareness of law’s negative consequences would encourage greater personal responsibility in legal and non-legal practitioners.
Towards overlapping responsibilities
The overlapping abrogation of responsibility discussed above is one of the most worrying aspects of the current role of international law within institutions. A new balance between law and non-law needs to be struck, better recognising the particular strengths of different backgrounds. Both lawyers and non-lawyers have important roles to play.
The responsibility of the lawyer is a complicated one that has been addressed elsewhere. Debates will no doubt continue over whether lawyers should cultivate their understanding of moral and political concerns, and include these in legal advice, or whether they should clearly cede this terrain to the policymaker. Yet, it is essential to move past discussions that focus only on the responsibility of the lawyer. For while there is a growing literature on legal ethics, there is very little debate about how to ethically take or discard legal advice, and therefore little guidance to the policymaker on how to meet his or her responsibilities in an increasingly legalised world.
This does everyone a disservice. Not only must the recipients of legal advice consider their role in taking or avoiding responsibility for legal decisions, but the givers of legal advice cannot fully make sense of their responsibilities without understanding how their role is perceived and how their advice is received by their clients. As Timothy Floyd wisely notes, ‘the ethic of responsibility affirms that we are always morally responsible for our actions; the client and the lawyer are always morally responsible to each other and with each other’.Footnote 118
Thus both legal and policy practitioners must become more aware of the nature of the interaction between them and the relationship between morals, interests, and ‘legal’ advice, as well as their respective and collective responsibility for decisions. This requires an ongoing conversation. A good place to start is increasing legal training and knowledge in policymakers and military members. How the law works should be stressed just as much as what the rules say. This should be a prerequisite for engaging lawyers in meaningful conversation and determining the appropriate contribution and limits of the law in any given case.
A research programme for the dark sides of international law
To address the issues above, further research is clearly needed to develop a better understanding of the negative effects and consequences of international law. This article suggests that examining the negative impact of law in foreign policy makes an interesting entry point for such research. IR, IL, and International Political Theory scholars of all paradigms and approaches are well placed to offer different insights.
Perhaps the most obvious opportunity is for critical scholars in both IR and IL to continue to cast their critical gaze on international law while expanding their critique in new directions. As well as viewing the dark side of law as occurring primarily when power pollutes the law – which, for example, leads one to explore how law is used as an imperial instrument or identify the negative humanitarian outcomes of international law – one could also critique the pollution of power by the law; that is, the negative outcomes for state interests created by the law. Of course, the two are not mutually exclusive and international law could simultaneously have perverse effects on issues such as national security and human rights.
Relatedly, it is only a small leap from classic realism – which remained ever conscious of the dangers which excessive faith in (powerless) international law posed to statecraft – to a contemporary, more ‘legalised’ realism that explores how modern law’s power distorts prudent decision-making and leads to perverse foreign policy outcomes. Such an approach could take inspiration from ‘legal realist’ scholars who have long focused on law’s effects in the domestic sphere, as well as broader empirical approaches to international law that stress examining law’s consequences.Footnote 119 Exploring how legal factors got in the way and ‘crowded out’ prudential concerns on national security issues offers a fascinating line of inquiry for realists. Similarly, rationalists could explore how international law leads to suboptimal outcomes.
For their part, constructivists could adopt a focus more on the ‘moral limits’ of the law.Footnote 120 For example, they could explore how legal rules, ‘practices’,Footnote 121 and interactions have problematic effects on both broader normative structures and agents, whether at the level of individuals, states, non-state actors, or International Organisations. They could also examine how international law clouds or alters the definition of national interest in non-beneficial ways.
Of course, theorists working in political theory or philosophy also have key roles to play in elucidating the philosophical positions or moral stakes behind various legal arguments and charting out the consequences of legal hegemony on modes of moral reasoning. In discussing consequentialist claims, it could be helpful to establish a division of labour between more empirical and normative scholars, although scholars should also continue the admirable trend of linking normative and positive analysis within the same work.Footnote 122 Scholars could also build on Koskenniemi’s and Akhaven’s recognition of the importance of international law remaining silent on certain matters to explore the moral appropriateness and significance of that silence.
This proposed research programme is by no means exclusive, and it need not be strictly an academic exercise. Policy communities of lawyers and non-lawyers, both inside and outside government, can bring more practical perspectives to bear on how international law interferes with their efforts, or leads to unseen and perverse consequences. This can be complemented by those taking a ‘bureaucratic politics’ approach to examining how foreign policy is created.
The result of all this critical analysis does not have to lead to a Shakespearean injunction to: ‘kill all the lawyers’. Rather, a good understanding of the dark sides of international law from numerous perspectives is critical to providing balance to policy and academic debates and working towards a more appropriate relationship between law and other aspects of international life.
The dangers and responsibilities of critique
The research programme above also requires practitioners and theorists to examine and take responsibility for the results of their scholarship, arguments, and actions. After all, critique always has a cost. If international law has a dark side, then efforts to expose it do as well.
We see this in the domestic realm, where a century after the birth of American legal realism, its long-term effects are still being felt. The view that law can be used to serve a variety of interests delegitimises the image of the law as impartial, fair, and just. It amounts to a wholesale ‘disenchantment’ of the law.Footnote 123 This must also be true in the international realm. Examining the costs and benefits of international law, and demanding that they be weighed against others, makes a clear statement that law is expendable just like other values. It cuts to the heart of the notion of specialness that imbues international law with its independent power.
Given the role that international law has played in contributing to limiting the use of force between and among states, providing redress for victims, offering a common language of hope and justice that is spoken both by states and civil society, this disenchantment could have significant negative implications. It is reasonable to ask whether this is wise. After all, isn’t it precisely the view that we should not make a fetish of the law that leads to state sanctioned torture and other heinous violations?Footnote 124
These are valid warnings. In response, I would only note that there appear to be costs for both deifying law and disenchanting it. Scholars must be mindful of the consequences of their work and their personal responsibilities, no matter what their focus. Beyond that, this article is driven by the belief that international law – like all of our most cherished commitments – should stand up to scrutiny. And law is no longer so vulnerable as to need constant protection and the overlooking of faults. With this in mind, the intent of this article is not to demonise international law but to encourage debate on its darker sides in order to bring balance to current academic and policy debates. While the costs of legal disenchantment may be more than the costs of the existing legal hegemony, we cannot know until the costs and benefits are tallied and discussed. This article seeks to encourage that fledgling but critical process.
Acknowledgements
My thanks to Adam Bower, Alejandro Chehtman, Rebecca Hall, Tom McKeown, and the anonymous referees for helpful comments on earlier drafts. Thanks also to Dale Stephens, Duncan Blake, and Suneeta Millington, as well as participants at the Legal Hegemony Workshop at the University of Adelaide Law School, for lively discussions on this topic. Finally, a special note of thanks and appreciation to my amazing wife, Rebecca, as well as Michael and Nadia Hall, for their incredible support during the research and writing process.
