Normative IR Theory and the Legalization of International Politics: The Dictates of Humanity and of the Public Conscience as a Vehicle for Global Justice
| Author | Peter Sutch |
| Date | 01 April 2012 |
| Published date | 01 April 2012 |
| DOI | 10.3366/jipt.2012.0023 |
| Subject Matter | Article |
NORMATIVE IR THEORY AND THE LEGALIZATION OF
INTERNATIONAL POLITICS: THE DICTATES OF
HUMANITY AND OF THE PUBLIC CONSCIENCE AS A
VEHICLE FOR GLOBAL JUSTICE
PETER SUTCH
Abstract: This paper explores the relationship between normative international
political theory and the politics of international law. It begins by arguing that a
gap between the normative (in moral terms) and the moral (in legal and social
terms) still exists in the literature before going on to examine an approach
to closing this gap. This approach, it is argued, is common to a plurality of
theoretical approaches including liberal cosmopolitanism, social constructivism
and forms of particularism. In exploring ‘institutional moral reasoning’ or ‘social
moral epistemology’ the paper argues that respecting the institutional autonomy
of the international legal order is a key component of the approach. In order to
test the extent to which the various positions do respect the autonomy of the
legal order the paper engages with an analysis of the extent to which human
rights have become the key constitutive norm of global politics.
Keywords: Human rights, institutional moral reasoning, international law,
normative theory, social moral epistemology
The purpose of this paper is to explore how we might relate the debates
concerning international justice in normative international political theory (IPT)
to the debates concerning the legalization of International Relations (IR). The
importance of this relationship lies in the fact that the legalization debates
have opened a vital social and institutional space for the consideration of
questions of international justice. Modern IR theory largely sidelined questions
of justice, partly because justice was considered an institutional virtue and
anarchical international politics was said to lack the relevant institutions but
also because justice was a normative idea and as such fell outside the purview
of a largely positivist discipline. The empirical legalization literature has
Journal of International Political Theory, 8(1–2) 2012, 1–24
DOI: 10.3366/jipt.2012.0023
© Edinburgh University Press 2012
www.eupjournals.com/jipt
1
Peter Sutch
increasingly challenged the portrayal of IR as lacking relevant institutions and
constructivist contributions to these debates have enriched our understanding
of the normative context in which the constitution of the international legal
order develops. Yet the gap between the legalization literature and the IPT
literature that explores questions of international justice remains significant.
While both explore questions of law, institution building, legitimacy and justice
they do so in very different theoretical registers. Despite their common focus the
literature on the legalization of international politics has tended to adopt a legal
or sociological approach to normativity (here meaning the origin, legal status and
impact of norms) where IPT has taken a moral approach to the normative. The
legal or sociological approach offers valuable insights in to the ways that justice
claims arise and how such norms function in international society. It also offers
vital, institutional and normative purchase in the ‘real world’, a space where
questions of justice can be pursued and, sometimes, acted upon. Nevertheless,
from the perspective of the political theorist of international relations, such an
approach offers an impoverished, rather descriptive, set of tools for dealing with
the idea of justice. The moral approaches adopted in the rich IPT literature claim
to remedy this but any theory of justice that fails to engage adequately with the
institutional context in which normative claims are developedrisks being viewed
as largely irrelevant or, to use the classic IR pejorative, utopian. As the renewed
interest in the justice of the international legal order intensifies the failure of
normative political theory to engage with the relevant facts of the international
legal order and the failure of the empirical researchers to engage with the relevant
normative debates is an impediment to research. In what follows I suggest that,
in order to nurture what I view as an essential synergy between the study of
the sociological, the legal and the moral, we need to better understand the
relation between them in order to build the necessary theoretical bridges to
an understanding of the nature and potential institutionalisation of international
justice.
A key reason why IR scholarship and International Law (IL) scholarship has
a limited interest in questions of justice is found in the well established view
of international society, and thus of international law, as a rather primitive, or
immature, form of society and law. Thomas Franck, in an article entitled ‘Is
Justice Relevant to the International System?’, argues that
the exposed role of legitimacy and the minimal role of justice distinguish the
international rule system from its domestic counterparts. It is not entirely an agreeable
task to argue that justice is largely irrelevant to the international rule system, but it
is necessary to do so if the dynamic of that system is to be understood, studied and
gradually reformed. (Franck 1989: 945)
His argument, which resonates with much of the constructivist and English
School literature (see below), is that the principal agents of international society
2
To continue reading
Request your trial