Vol. 15 No.7 (July 2005), pp.602-606
JUSTICE, LEGITIMACY, AND SELF-DETERMINATION: MORAL FOUNDATIONS FOR INTERNATIONAL LAW, by Allen Buchanan. Oxford: Oxford University Press, 2004. 520pp. Hardback. $35.00 / £25.00. ISBN: 0198295359.
Reviewed by David Mednicoff, Department of Legal Studies and Center for Public Policy and Administration, University of Massachusetts – Amherst. Email: email@example.com .
These are dark times for contemporary international law. While the central institution in the global legal order, the United Nations, moves slowly to respond to internal and external critiques of its efficacy, selective violation of cardinal principles about the use of force and torture by the U.S. threatens the creeping progress of the international legal regime since the end of World War II. At the same time, even some of the best friends and erstwhile practitioners of the genuinely idealistic and influential normative international trends of human rights and humanitarianism are having doubts about the projects in which they have engaged (e.g., Kennedy 2004; Rieff 2002). Both friends and enemies of a globalized order can agree on the troubles besetting international law as its two principal architects, Western Europe and the U.S., apparently overlap in the renewed vigor which their citizens attach to nationalistic politics.
Into this context steps Allen Buchanan, a distinguished philosopher who has thought and written extensively about state secession and other issues that connect legal theory and politics. His new creative and insightful book aims to provide philosophical grounding for reform of international law based on coherent tenets, many of which contrast starkly with what he demonstrates are imperfect assumptions of contemporary global order. In particular, Buchanan departs from most discussions of his subject by rejecting explicitly the primacy of national sovereignty as the justification and touchstone of international law.
Buchanan’s theory is fairly easy to restate, in part because the author himself is well-aware of the need to summarize and recapitulate his major points (e.g., pp.1-13). The book is organized into three main parts, each devoted to the elaboration of one of the three moral foundations contained in the book’s title. In the first part, Buchanan posits that the major moral foundation for international law should be the collective fulfillment of what he calls the Natural Duty of Justice, by which he means the obligation of people to help create structures to provide all individuals with access to just institutions (p.86).
Buchanan defines justice more specifically as the protection of basic human rights. In making human rights so central to his theory, he is well-aware that some of the rights enumerated in the Universal Declaration of Human Rights remain contested and controversial, particularly socioeconomic rights (pp.222-224). Buchanan has both a pragmatic and a philosophical response to this problem. Pragmatically, he [*603] suggests that it is sufficient to posit a coherent notion of justice as human rights to include only those rights that are uncontroversial. Philosophically, he argues that there is little actual reason to favor political over economic rights, often dichotomized as negative and positive rights (pp.195-200). The author’s specification of both a practical solution to understanding justice in human rights terms and an analytical, aspirational argument as to what a morally consistent position on rights should be is typical of the way he links political practice and ideal philosophy throughout the book.
If justice is defined as the defense of basic human rights, and international law should be evaluated in terms of its realization of this idea of justice, the notion of what constitutes political legitimacy – the subject of the book’s second part – follows rather directly. Buchanan contends that only a political entity that protects its population’s basic human rights – i.e., that satisfies his idea of a minimal standard of justice – is legitimate in exercising political power. In developing this concept of legitimacy, the author is clear about the importance of distinguishing between the legitimacy of a state in general and the legitimacy of a particular government, as well as the significance of differentiating political legitimacy and political authority. While it might seem counter-intuitive to argue that political authority must satisfy more stringent conditions than legitimacy (p.237), this is in line with Buchanan’s lack of interest in discussing political systems that claim or are believed to be legitimate (p.235).
Thus, the second part of the book focuses upon how a government satisfies an external, moral standard of political legitimacy based on the first part’s elaboration of justice as the preservation of basic human rights. As he did in the first part, Buchanan takes care to articulate his concept of legitimacy in a way that is not so idealized as to preclude its satisfaction by any current political system (p.236). Although the full realization of justice requires democratic authorization (pp.249-257), absent such authorization, a government can be legitimate as long as it protects credibly the most basic human rights (pp.259-260). Part Two also extends Buchanan’s idea of legitimacy as the promotion of justice from individual national governments to the international legal system as a whole (pp.289-327).
The third section connects the earlier elaborations of justice and legitimacy to the question of state self-determination and secession. Again, one simple principle emerges from Buchanan’s elaborate analysis. International law should only support a right to secession when it is a remedy of last resort in the context of a state’s inability or unwillingness to prevent serious violations of basic human rights (pp.331-332). The link between the author’s idea of justice as human rights and state legitimacy as the support of justice is evident. However, the detailed discussion of why secession should be restricted to the remedial right described in this part of the book seems nonetheless somewhat tangential to the broad task of developing a general moral theory of international law in two ways.
First, the amount of prior work that Buchanan has done on state secession means that this part of the book sometimes elaborates on specific points [*604] and responds to critics’ comments on his previous publications in a way that does not always tie clearly into the ambitions of the present study (e.g., pp.369-373). Second, it is not always obvious, apart from the author’s expertise, why secession as a topic receives so prominent in a position in his philosophical grounding of international law. The general use of force by states or the problem of international law’s institutional growth and enforcement are both pre-eminent concerns, to which Buchanan might have devoted a more central role than parts of his final chapter (pp.440-474). To be fair, the author states openly at the beginning of the book that using the issue of state secession as the inspiration and cornerstone for his construction of a moral theory of international law has both advantages and disadvantages (pp.1-2). I still found the third section of the book taking me away at times from the central thrust of Buchanan’s ambitious project.
Perhaps even more noteworthy than the three broad principles that Buchanan develops for international law are three potential foundations which he explicitly and insightfully rejects – (1) the primacy of states’ national interest, (2) the importance of consent by a majority of national governments, and (3) the immorality or imprudence of violating international law when trying to reform it.
The first of these issues is perhaps most forcefully discussed. Buchanan is relentless in refusing to see a power-maximizing notion of national interest as determinative of states’ approaches to international law. He does this for a simple reason – that each state in the world system has a right to formulate its international legal commitments does not mesh well with a universal global morality based on the Natural Duty of Justice that gauges the legitimacy of political orders. Thus, the book argues against two related positions – the Realist view that the international legal order cannot and should not be based on morality (pp.31-45), and the statist contention that whatever a particular government decides to be its global policies is deserving of respect and primacy in international law (pp.8; 106-117).
Buchanan’s attacks on national interest and Realism are grounded in tight analytical logic and reference to empirical trends. As I suspect he is aware, his thoughtful insights on why morality is a more cogent foundation for states’ international legal behavior than self-interest and power maximization are unlikely to persuade many who take the latter as axiomatic. The book tries to address this by engaging with some of the political science literature on Realism, but this is more often done through quick references to influential works (e.g. p.29, fn.14), than through detailed engagement with particular international relations theorists’ work (e.g. the discussion of Morgenthau, pp.108-112).
Buchanan’s possibly most controversial position is to deny the importance of popular consent as a principle for state legitimacy and of the consent of states as the basis for the contemporary international legal order. The core of the argument here is an attack on Lockean consent theory (pp.240-249), that represents the book at its most compelling and creative. [*605]
Buchanan is similarly enlightening in rejecting Legal Absolutism, or the perspective that legal reform is illegitimate if it is based on breaking that law. The focus here is mainly on the need for humanitarian intervention to protect basic human rights, even though such intervention is generally against international law (pp.440-446). The strength of this analysis is the connection that the author makes between the moral justice of international legal reform and the empirical inadequacy of current international legal institutions and mechanisms for change (pp.446-459). This type of connection requires a delicate balance of argument and example, which is very difficult to carry off effectively.
This raises my only real concern about the book. Though useful and logical in many respects, Buchanan’s efforts to move between a method, grounded primarily in ethical and philosophical argument, and a praxis of reformist international legal morality with some concessions to empirical reality, may undermine the book’s persuasive power for some readers. The author’s approach invites disagreements about when it is sensible to reason from empirical facts as opposed to abstract logic.
For example, given the centrality of human rights to the book’s thesis, more readers might be convinced of the importance of morality and justice in the international system if it were grounded more in the empirical realities of global interdependence (e.g., Held et al. 1999, at pp.424-452), and creeping consensus over the primacy of basic normative rights (e.g. Falk 2003, at Chapter 5), rather than in something as abstract and contestable as the Natural Duty of Justice. This is particularly the case since Buchanan asserts that this Duty itself is partially founded on facts (p.87). Although he takes great pains to connect ideal theory to non-ideal principles that are relevant to existing global order (pp.64-68), those who doubt the persuasiveness of his moves between these two areas on particular points may find themselves doubting the general argument.
I offer this observation because I am convinced both by many of Buchanan’s claims and the importance of the task he sets for the book; I would like for his theory to have as wide an influence as possible. Precisely because of the current salience of the book’s issues and the potency of its conclusions, I wish that it were more accessible to a variety of undergraduate and general readers, and, especially, to international law practitioners and prominent policy makers. Indeed, I must confess my belief that, even faculty members who are trained in international law or international politics may find parts of the book slow-going and rather abstract in reasoning style, despite clear, occasionally lively prose.
I do not mean to conclude that the significance of Buchanan’s book is weakened because he writes from the vantage point of applying political philosophy to public policy. Indeed, much of the integrative integrity and creative force of the author’s achievement comes from his interdisciplinary background and careful analytical logic. This is, in short, a work that I admire tremendously and embrace as likely to be influential to scholars and advanced graduate students. [*606]
Yet I also hope that the book will inspire other scholars to consider the issues that it raises and the heresies it embraces in more focused follow-up studies. Should this happen, perhaps Buchanan’s views will reach the varied audience in the United States and elsewhere that needs new reasons these days to take seriously the idea that international law can and, indeed, must serve to advance justice with a capital “J.”
Falk, Richard. 2003. THE GREAT TERROR WAR. New York: Olive Branch Press.
Held, David, Anthony McGrew, David Goldblatt, and Jonathan Perraton. 1999. GLOBAL TRANSFORMATONS: POLITICS, ECONOMICS AND CULTURE. Stanford: Stanford University Press.
Kennedy, David. 2004. THE DARK SIDES OF VIRTUE: REASSESSING INTERNATIONAL HUMANITARIANISM. Princeton: Princeton University Press.
Rieff, David. 2002. A BED FOR THE NIGHT: HUMANITARIANISM IN CRISIS. New York: Simon and Schuster.
© Copyright 2005 by the author, David Mednicoff.