Legal Authority Beyond the State – Towards New Insights into International Law

By Prof Patrick Capps, Professor of International Law (University of Bristol Law School) and Prof Henrik Palmer Olsen (University of Copenhagen Faculty of Law)

Two new edited volumes, which add new perspectives on international law, have recently been published by OUP and CUP. The first is International Court Authority (published by OUP during the summer of 2018 and edited by Karen Alter, Laurence Helfer and Mikael Rask Madsen), and the second is Legal Authority Beyond the State (published by CUP early in the spring of 2018 and is edited by Patrick Capps and Henrik Palmer Olsen (the writers of this blog)). The books are similar insofar as they present interdisciplinary scholarship on the authority of international law. Both are, at root, an exploration of how legal authority is established and evolves in international organizations, such as international courts. An important difference between the two books is how each sees the plausible limits of theoretical inquiry into the nature of authority. International Court Authority is more empirical, while Legal Authority Beyond the State is situated in the rationalist philosophical tradition. We argue that the empirical inquiry found in International Court Authority is limited to measure factual, observable behavior which appears to be engaging with international organizations and their laws, but it cannot account for authority per se, which is commonly accepted (in both books) to be the self-conscious orientation of actor’s behavior towards international law, so that it is consistent with the practical reasons offered by international organizations.

As just mentioned, International Court Authority is mostly empirical in method. It is a rare and welcome study of the various kinds of exchanges that take place between international courts and the various agents that engage with them. These exchanges are understood by the editors and contributors as the raw material which allows them to articulate how bare legal texts evolve into complex patterns of practice and compliance: in their words, their book tracks the evolution of de facto authority from formal legal authority. Formal legal authority concerns the legal competence which has been conferred by states to international courts through, for example, the treaty-making process. This sometimes develops into de facto authority, which emerges when the courts’ rulings are explicitly recognized by, for example, national agencies and potential litigants, who then appear to act in accordance with those rulings. The description and analysis of how this development takes place is this book’s aim. The result is a fascinating and unique insight into the varied authority claims of international courts and the extent of compliance or not (which seem to resemble or rely upon a one-dimensional view of ‘power’ (in Steven Lukes’s language)). They also provide a new and nuanced way of distinguishing between various degrees of authority (indeed they introduce a form of authority metric) and identifying the specific contextual factors that determine this variability.

Although not a purely theoretical work, the chapters of our book Legal Authority Beyond the State are more conceptual, and less empirical, explorations of the subject. We agree with Alter, Helfer and Madsen in their claim that formal legal text is merely the starting point for inquiry into the authority of international legal institutions. But here we part company from our colleagues. The focus of Legal Authority Beyond the State is the normative dynamics of international forms of legal authority. This is a slightly less tangible idea than the relatively straightforward empiricism of Alter, Hefler and Madsen. It is easiest to explain our view by considering it against the view of authority employed in International Court Authority.

To study de facto authority is to explore the connections between at least two empirical facts: the words of a treaty or a judgment of the court, on the one hand, and the intuitively related observable behaviour of agents which are addressed by that treaty or court judgment, on the other. The empirical studies which make up International Court Authority, then, zero in on the actions, words, strategies, etc., of these agents in order to show the existence and extent of de facto authority within international courts. The issue we wish to raise here is that authority, when defined like this, is conceptually limited to the issuance of a text or a judgment, and the related observable behavior of addressees, which may or may not be consistent with the requirements of the text or judgment. What is interpolated is a connection between the former and the latter. This is not to say that they assert an overly simplistic causal relationship between text and behavior. On the contrary, they are careful to emphasize the crucial role of socio-political context. It is this context within which the legal text exists that must, in some way, influence the development of de facto authority. But it remains the case that there is some sort of causal relationship between issuance of the text and the behavior of those agents that interact with international courts: to assume otherwise is to deny that the issuance of the international directive can lead, in some way, to a change in behaviour of those who which it is addressed (as Steven Lukes puts it: ‘within a system characterized by total structural determinism, there would be no place for power’). But we cannot assume such a causal relationship (whatever the context) because it is perfectly possible that the congruity between the agreed upon text or pronounced judgment, and the observable act could be the result of, on the one hand, habits, self-interested calculation or an international equivalent of ‘keeping up with the Joneses’, or, on the other, a genuine and self-conscious commitment to alter one’s behaviour so that it corresponds with what the treaty text or judgment happens to say, because the agent believes it to be the right thing to do. An empirical investigation in and of itself does not allow one to isolate these possible reasons for the behaviour just described no matter how meticulously the ostensive reasons are charted (because those relevant reasons could easily be the sort of ex post justifications most of us use to explain away our behaviour, rather than the real reasons or motivations). Perhaps this is the best that can be done: Max Weber explained that we can have no genuine access to the internal world of the agents whose behaviour we study.

The contributors to Legal Authority Beyond the State seek to explain what might characterize an authentic authority claim both in international law and in general. We then show how this plays out in the dynamics and evolution of the international legal order, and hence helps explain how international legal authority may become created, sustained and institutionalized. Our point is that if it is possible to explain what the conditions would be by which international legal authority would rationally arise, then it is plausible to interpret behaviour which converges with its words, judgments, rules etc., as a prima facie example of where an agent has self-consciously altered their behaviour for sound reasons, or not. Although this goes some way beyond his examples, it is close to Max Weber’s view that the interpretation of observable behaviour is only possible by imputing models of rational action. Helfer, Alter and Madsen do not attempt to make this step – we expect because they fear it would begin to mix hard-nosed empirical study with judgments of value, legitimacy, justice etc. This is a commonplace fear. But our view is that without such judgments, their approach denudes authority: instead they measure apparent compliance and effectiveness.

In our role as editors of Legal Authority Beyond the State we refused to be prescriptive to our contributors about when international legal authority would authentically arise. That said, three of the chapters use Alan Brudner’s ‘career of authority’ as an organising concept, and a brief discussion of his work will illustrate our approach. Brudner distinguishes various logically interconnected forms of authority beginning with purely arbitrary power, through despotic governance by rules and forms of participatory governance, and ending with an idealised form of republican governance. For each stage, he argues that there are sound reasons for compliance with the words of the body or person claiming authority, except where disobedience is justified as an attempt to move authority to a more legitimate stage. That is, Brudner provides an explanation of why it is rational to submit to the will of those claiming authority, and why it is sometimes rational to do otherwise. If we have no genuine access to why the actual reasons for an apparent congruence between legal texts and the agent’s behaviour, interpretation through the imputation of rational categories is the only possibility open to us. Our claim, then, is that when congruence is observed, the model of authority just outlined allows explain where that congruence is plausibly interpreted as the product of rational, purposive submission to authority, and where we need another explanation (perhaps through various contextual factors, such as socio-economic domination, corruption, inequality in legal knowledge and resources etc.). Brudner’s scheme also provides an explanation of how international authority emerges, evolves and possibly fails, thereby providing a conceptually richer scheme through which empirical findings can be rendered meaningful (once again, in a Weberian sense). This is important not only for understanding international law as it is today, but also for considering how we might achieve a sustainable rule of international law for tomorrow. At its heart, our book is about what genuinely prompts the authority of, and long-term allegiance to, the international legal order. In Legal Authority Beyond the State, the reasons why it is rational to submit our wills to that of another is our organising concept, which is then used to explain the immanent legality of international practice. Without this, we just measure behaviour which seems to correspond to what international courts prescribe. This is not the same thing as authority.

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