Vol. 28 No. 1 (February 2018) pp. 4-6HOW TO DO THINGS WITH INTERNATIONAL LAW, by Ian Hurd. Princeton: Princeton UP, 2017. 187pp. Cloth $29.95. ISBN: 978-069-1170114.
Reviewed by Amber Vayo, Department of Political Science, the University of Massachusetts Amherst. Email: avayo@polsci.umass.edu.
Ian Hurd’s HOW TO DO THINGS WITH INTERNATIONAL LAW makes a compelling intervention in the arena of law and politics. Rather than accept the philosophical constraints of either IR realists or liberals, Hurd takes an instrumentalist view of international law that pulls from many schools of thought. Using a series of cases to illustrate his argument, Hurd brings a refreshing pragmatism to the discussion of what international law is by exploring it as part of international power politics rather than a neutral force which treats all state actors equally. In addition, Hurd brings in a good bit of legal philosophy cleverly concealed beneath a practical guide to understanding international power politics, and it works. By side-stepping disciplinary constraints, Hurd creates a provocative book that should find favor among interdisciplinary readers, especially those in IR and in law and society.
While unmasking the power dynamic inherent in international law could churn out a cynical pessimism, Hurd maintains a fairly non-biased—and at times hopeful—explanation of how law works. Abandoning the view that law is somehow a neutral force that is self-enforcing, he claims that “international law is properly seen…as a social practice in which states and others engage” (p. 2). His boldest claim is that “we cannot get away with assumptions of inherently superior, apolitical rule following” (p. 3). In addition to conceptualizing the social process of law, Hurd draws out the ways in which “the instrumental use of law to legitimize state policy is ubiquitous” (p. 5) by using contemporary cases such as the ban on war, the rules regarding nuclear weapons and drones, and the use of torture. The clarity and organization throughout the first three chapters, in which Hurd lays out his introduction and primary philosophical and methodological underpinnings, are common throughout the book. While each chapter is set up in a way that makes stand-alone reading easy (useful for excerpting), discussion of the permissive effects of law becomes a little repetitive by the sixth chapter.
Throughout his cases, Hurd explores different, interrelated conceptions of law through concrete examples. He first confronts the reality that wars, while illegal under international law, have been quite common since the end of the Second World War, and addresses the issues as a matter of law’s political power. He claims the UN Charter, “facilitates the use of force by providing self-defense as an iron-clad legal justification” (p. 51). When rule following becomes the validation of a state’s legitimacy, one does not get better outcomes; rather, as Hurd demonstrates, one finds a way to justify behavior as compliant with agreed upon rules (even if interpretation of those rules is contentious). This is the strongest case study where he outlines the permissive and constraining effects of law and links those effects back to the political process. While international law should constrain states from making war (and in theory, strong laws would constrain strong states), Hurd notes that the “self-defense” justification has given rise to a permissive effect on a country’s ability to engage in armed conflict (if not officially declared war).
Hurd posits that what counts as justification for war—not only existential threats, but dangers to state interests—creates permissive effects that in practice can bring war back to a statist conception where the “strong may do as they will” as long as they give the appearance of good faith negotiation with the rules. However, according to Hurd, this does not undercut law’s sovereignty because the justification undertaken, including by strong states, uses legal language and the legal process. Here, the sovereignty of law is not in international law’s ability to [*5] constrain actors, but in the ubiquity of legal and quasi-legal justifications to which states turn for legitimacy. Law is sovereign because it has become a necessary part of international political discourse. The need to justify one’s actions in terms of legality, then, meets Hurd’s criteria for law’s sovereignty even when states are acting in blatant self-interests and only paying lip service to laws. The core of Hurd’s theory is that law may not constrain as it intended, but violating the spirit of the law is not enough to disempower the rule of law. Further, Hurd’s theory accepts the differences between international and domestic law, and it contends that international law cannot be expected to function in the same way as domestic law (e.g., lack of enforcement, differing treaty obligations).
This view of law’s power is difficult to separate from normative conceptions of what law should do (prohibit most wars), and it is difficult to accept the view that a law which is not meeting its purpose is effective. Hurd stops short of asking whether we expect too much of international law when we only conceptualize effective law as that which constrains strong states. Perhaps he should do so, because buying his assertion is premised upon being able to (or willing to) parse out law’s power socially and politically from its power as a constraining force. There were many places where this argument was implied, leading to an overall believable book, but pulling it out explicitly and early on would have saved readers some unease.
A useful addition would have been taking more time to elucidate two major concepts Hurd touches upon, but does not exploit to their full potential: legal endogeneity and juridification. These concepts appear to be social mechanisms, which shape the way international law works, with a similar focus on procedural justice and process rather than substantive due process or outcomes that Hurd exposes. Going through his cases, these two concepts can be linked to Hurd’s overall realistic view of the law-power-politics dynamic. Here the juridification of the process would be a useful tool for outlining Hurd’s claims and situating them within existing scholarship. Hurd references and at a few points mentions the process of juridification—the increasing reliance on law to solve political problems, particularly absent normative or humanitarian arguments—but does not do the concept the justice it deserves. The process of juridification, “legalistic solutions, the judicialization of policy, the formalization and automation of the political process” (Silverstein 2009)—is the missing link between Hurd’s discussion of permissive law and “no law” (as with drones) and his later discussion of the empire of law. Laws that manifest their power in controlling discourse rather than action, which is what Hurd suggests is often the case, are a signal of juridification and endogeneity rather than inherent, apolitical, self-enforcing rules. Additionally, much of what Hurd expects readers to accept — that law’s power stems from its political power and legitimacy conferring capacity — links directly back to the process of juridification.
Like the discussion of juridification, the legal endogeneity he illustrates needs to be more explicit. Hurd (rightly) contends, “the rule of law prioritizes faithfulness to the rules as they exist over other forms of reasoning or judgment, biasing outcomes towards the accrued preferences of strong states” (p. 135). This point goes into the concept of legal endogeneity, through which “organizational structures influence the content and meaning of law” (Edelman et. al. 2011, p. 890), pulling law right back into the realm of social process that Hurd asserts in his introduction. According to legal endogeneity, it is the process that can take over, and process and policy themselves become a stand-in for outcomes. It is the procedural justice that matters, not the substantive due process or outcomes (e.g. a policy against racial harassment becomes enough to shield companies from racist actions). Through this lens, law’s power as stemming from the frequency of legalese justifications makes sense.
While the book is written to appeal to a wide level of scholarship and could be useful to both academic and non-academic readers, the tool non-legal political scientists might find most useful is the utilitarian way he explains compliance and legitimacy without getting into [*6] the esoteric weeds about it. By disentangling compliance and legitimacy, Hurd is able to position compliance as a social marker (going back to his introduction) and legitimacy as a shared agreement that a law is warranted. While legitimacy does not necessarily cause compliance, a lack of compliance does not mean the law is illegitimate or viewed that way by a majority of actors. This was the most compelling and original offering of the chapter on torture. Hurd shows that laws against torture are seen as legitimate at an unusually high rate, including among non-state actors and rebel groups, but that compliance with anti-torture regulations is not as high. This chapter serves as a practical guide to understanding how legitimacy works and what compliance means in international law. He is able to expose compliance as both a source of strength, and a negotiating point (states agree to which laws are binding upon them, and are further allowed to justify their compliance or non-compliance in their own terms).
Overall, this is a thought-provoking book that is well worth the reader’s time, and it has the potential to spark productive conversations that cut across disciplinary boundaries.
REFERENCES:
Edelman, Lauren B., Linda H. Krieger, Scott R. Eliason, Catherine R. Albiston and Virginia
Mellema. 2011. “When Organizations Rule: Judicial Deference to Institutionalized Employment Structures.” AMERICAN JOURNAL OF SOCIOLOGY 117(3): 888-954.
Silverstein, Gordon. 2009. LAW’S ALLURE: HOW LAW SHAPES, CONSTRAINS, SAVE, AND KILLS POLITICS. Cambridge: Cambridge University Press.
© Copyright 2018 by author, Amber Vayo.
