•  
  •  
 

Buffalo Law Review

Document Type

Article

Abstract

What is international law? Any theory of international law must explain both its technical nature and its moral force and must also show how the two come together in practice in order to give it the priority that it claims. For example, the genocide cases before the International Court of Justice exhibit a puzzling dedication to procedure. The Court is invited to examine the war in Gaza strictly on the basis of the Genocide Convention, without assessing any allegations of war crimes or other alleged violations of international law. The reason is a well-known procedural rule—namely that states have to consent to the jurisdiction of the ICJ before they appear before it. This puts the judges of the court in an impossible position: they must both apply international law and ignore it. How can it be that international judges turn a blind eye to alleged crimes against humanity (and so do the litigants that bring the case to court)? It seems that in international law a technical rule takes priority over the suffering of millions of innocent civilians that remains without investigation and without remedy. How can the priority of jurisdiction be accounted for rationally? Standard theories of law fail to provide an answer: Kelsen’s legal positivism, Raz’s service conception of authority, political theories of the “legitimacy” of international law, all fail to explain why jurisdiction has priority. We find a compelling answer, I believe, in Grotius’ ethical argument for law. Grotius follows Cicero in arguing that all persons in the world have an ethical duty to create and maintain a civil condition so that they can have an institutional basis for their common life with others. Such duties of “sociability” become relevant through the “salience” of historical institutions, as argued very recently by Ronald Dworkin, who also seems to share the Grotius/Cicero view of law. Just like all law, international law makes sense as part of the ethical project of jointly creating the civil condition.

Download

Share

COinS