By Dr Lee McConnell, Senior Lecturer in Law, University of Bristol Law School
Notions of the ‘public good’ or ‘public interest’ are found in many areas of legal doctrine and discourse. At the international level, references to such ideals are perhaps most common in the context of human rights, but they are also present in many other subfields of international law. The UN Charter commits itself to the promotion of ‘social progress and better standards of life in larger freedom’, and to the ‘economic and social advancement of all peoples’. In the domain of State responsibility, erga omnes norms are said to be owed to ‘the international community as a whole’ (Barcelona Traction at [33]). The UN Convention on the Law of the Sea designates areas of the seabed and ocean floor as ‘the common heritage of mankind’ (Art 126 and preamble). The Outer Space Treaty provides that space exploration ‘shall be carried out for the benefit and in the interests of all countries’ (Art 1). The GATT/WTO agreements recognise that trade relations should be ‘conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income’ worldwide (Marrakesh Agreement Establishing the World Trade Organization, preamble). As this brief survey demonstrates, international law is a field that ‘tells a story of its own progressive development, and of its prominent role in the betterment of others’ (Sinclair, 2017: 2) It is a field which portrays itself as playing a substantial role in responding to global concerns, and as possessing ‘an immanent progressive value for the world, for civilization, for humanity’ (Skouretis, 2011: 6).
Such narratives have been said to give rise to particular forms of subjectivity. International lawyers usually ‘see themselves as “progressives” whose political objectives appear not merely as normative hopes, but as necessary insights into the laws of historical or social development’ (Koskenniemi, 2017, 39). Whereas ‘to work in a bank is not to be for banking’, the same cannot be said for many international lawyers (Kennedy, 1994: 335 emphasis added). But this is not universally so. Indeed, there are many who find themselves unable to shake the suspicion that the field is at best ill-equipped to meet its own lofty aspirations, and at worst functions to buttress and reproduce many of the problems it purports to address. Nevertheless, even those who reject the idea that international law is, in its very essence, ‘a public good’ may still hold some residual hope for the discipline. They may see international law as a tool or instrument, albeit an imperfect one, capable of being harnessed and put in service of a ‘public’, and that public’s particular conception of ‘the good’.
Prompted to reflect on what value notions of the ‘public good’ have in the context of international law, I find myself arriving at a position of relative ambivalence. Viewed in idealist terms, abstract, aspirational notions such as these can serve as repositories of ‘the imaginary’ – as prompts to reflect on dissatisfactions with the existing state of affairs and to consider how law might play a role in moving us closer towards our desired collective futures. Conversely, at their worst, vague terms such as these risk being co-opted by powerful actors seeking to advance and legitimate their own interests under the banner of the common good. Indeed, references to ‘the public interest’ in legal discourse can be seen as part of what Duncan Kennedy has termed a ‘universalisation project’ – a strategic restatement of the concrete concerns of a particular group in terms of the abstract interests or values of the whole (Kennedy, 1997: 308).
My own scepticism concerning the value of notions such as the ‘public good’ stems from lessons I have learned from several related strands of jurisprudence. More than a century ago, the American Legal Realists cautioned against what they termed ‘legal formalism’ – an adjudicative technique premised on the logical derivation of concrete legal decisions from highly abstract premises such as ‘property’ or ‘freedom of contract’ (Leiter, 1999) (Reimann, 1990). Realists such as Karl Llewellyn claimed that formalism invited inconsistency and unpredictability, failed to account for changing socio-economic realities, and concealed distributive and other policy-dimensions to rulings from view (Llewellyn, 1938: 129-30). These themes were built upon by Critical Legal Studies scholars, who highlighted the indeterminacy which pervades legal language, and noted that such abstractions are a site of continued struggle between competing political/ideological movements (Kennedy, 1985). Similar insights have been advanced by theorists of international law. In exposing international law’s structural indeterminacy, Martti Koskeniemmi has called for international lawyers to move ‘beyond objectivism’ (2006: 519-21); to abandon the view that definitive or ‘objective’ interpretive decisions can be reached via a process that is internal to legal argumentation, or by reference to some stable ‘external’ ground – which might include an articulation of the ‘public interest’. Instead, he calls on the profession to acknowledge the inescapable moment of politics in any interpretation or application of legal doctrine (ibid: 602). And while he is not entirely pessimistic about this interpretive struggle, having issued calls to make use of ‘international law’s professional vocabulary for critical or emancipatory causes’ (ibid: 589), Koskenniemi nonetheless recognises that ‘out of a number of “possible” [interpretive] choices, some choices – typically conservative or status quo oriented choices are methodologically privileged in the relevant institutions’ (ibid: 610). Such considerations give pause to those seeking to deploy abstract notions of the public good at the international level, particularly when radical social transformation is the goal.
Another lesson we can learn from the American Realists is the importance of disaggregating seemingly monolithic concepts that tend to ‘lump’ together and obscure various discrete, micro-issues. In this connection, I want to unpack some of the factors that make the articulation and deployment of notions of the ‘public good’ particularly difficult, both generally, and in the specific context of public international law.
First, who is (or, who are) international law’s public(s)? The answer to this question will to some extent determine the content of any resulting notion of ‘the good’. As is well known, international law has historically given prominence to the ‘wills’ and ‘interests’ of ‘civilised’ States, as articulated by the executive branch of their governments. The 20th century saw several drastic shifts in this regard; the decolonisation movement vastly expanded the number of formally independent States, and the rise of human rights placed new emphasis on the interests and entitlements of natural persons. At the same time, international law has both facilitated, and been shaped by, the rise of immensely powerful private actors including foreign investors and multinational corporations, whose interests are protected via prohibitions on the expropriation of private property, rights to compensation, and other substantive and procedural guarantees set out in a vast network international investment agreements.
Beyond humans and their legal constructs, the emergence of international environmental law has prompted us to question how international law might be put in service of the wider natural world. Does ‘nature’ now form part of the ‘public’? Does it have ‘interests’, and if so, how are those interests known, articulated, and protected? In passing, Joanne Conaghan (2023) has recently commented that the notion of the ‘public good’ has moral and ethical connotations that are not carried by the term ‘public interest’. I tend to disagree. Any account of the public interest demands an answer to an immediately prior question, namely, ‘who (or what) has “interests” that are to be taken seriously?’ This is (at least in part) a question of who (or what) is owed direct moral or ethical consideration. It prompts us to distinguish the beings and entities that we regard as ‘subjects’ from those that are merely ‘objects’. In Kantian terms, it is a question of who is an ‘end in themselves’, and who is simply a ‘means to an end’? These are important moral/ethical dilemmas which prompt us to query whether the ‘public interest’ is inherently anthropocentric, and what this may mean for international law’s capacity to respond to the damage presently being inflicted on the wider natural world. Moreover, to speak in terms of ‘public interests’ is to posit a relatively stable, possessive (collective) subject that is capable of accurately understanding, articulating and communicating ‘its values’. The construction of such a subject entails numerous assumptions, each of which carries complicated ethical and moral dimensions.
Finally, what can be said of ‘the good’? Conceptions of the good are notoriously difficult to pin down. In my own thinking on such matters, I am guided by the work of Theodor Adorno. Adorno’s work is steeped in negativity. It relies on the notion that ‘[o]ur ideas of freedom emerge in the negation of what is negative, of the unfree conditions in which we live’ (Cook, 2014: 78). As such, for Adorno, a ‘utopian future could not be affirmatively defined’ (Buck-Morss, 1979: 89). It was only through critique – through the constant negation of the falsity that taints our thought – that any emancipatory potential could be glimpsed. On Adorno’s view, any positive articulation of ‘the good’ will be partial and contingent. It will reflect – at least to some degree – the particular material, socio-historical circumstances in which it is formulated, and will perhaps be subtly embroiled in the reproduction of those very conditions. This is to say very little about what ‘the good’ looks like, or whether international law, as an instrument or tool, can move us towards it. Indeed, these insights caution against an unbridled idealism, highlighting our limited ability to positively know, imagine or prefigure a totalising notion of what is ‘good’. But despite his acknowledgment that all thought is mediated by existing material conditions, and is thus unable to offer a definite path to emancipation, Adorno clearly saw some utopian potentiality, however small, in the Sisyphean struggle of critical thought; ‘the thinking that conceives the difference from what exists’ (Adorno, 1973: 313). In this regard, his perspective offers some residual hope that in striving to articulate the flaws in our extant competing visions of ‘the good’, we might slowly move towards something better.
References
Adorno, Theodor, Negative Dialectics (Continuum, 1973).
Buck-Morss, Susan, The Origin of Negative Dialectics (The Free Press, 1979).
Conaghan, Joanne, ‘Legal research and the public good: the current landscape’ (2023) 43 Legal Studies 576.
Cook, Deborah, Adorno on Nature (Routledge, 2014).
Kennedy, David, ‘A New World Order: Yesterday, Today, and Tomorrow’ (1994) 4(2) Transnational Law and Contemporary Problems 329.
Kennedy, Duncan, ‘The Role of Law in Economic Thought: Essays on the Fetishism of Commodities’ (1985) 34 American University Law Review 999
Kennedy, Duncan, A Critique of Adjudication (Harvard University Press, 1997).
Koskenniemi, Martti, From Apology to Utopia (CUP, 2006).
Koskenniemi, Martti, ‘Between Commitment and Cynicism’ in Jean d’Aspremont (ed) International Law as a Profession (CUP, 2017).
Leiter, Brian ‘Review: Positivism, Formalism, Realism’ (1999) 99(4) Columbia Law Review 1144.
Llewellyn, Karl, ‘Through Title to Contract and a Bit Beyond’ (1938) 15 NYU Law Quarterly Rev 117.
Reimann, Mattias, ‘Nineteenth Century German Legal Science’ (1990) 31 Boston College Law Review 860.
Skouretis, Thomas, The Notion of Progress in International Law Discourse (TMC Asser Press, 2011).
Sinclair, Guy F, To Reform the World: International Organizations and the Making of Modern States (OUP 2017).