In Law Beyond the State, Carmen Pavel sets out to show that a stronger institutional framework for international law is both morally necessary and practically achievable. She has a twofold task: to rebut skepticism about international law in general and to argue for a version of international law more robust than currently exists. She makes a strong case. If her excellent book receives the attention it deserves, it will shift the conversation about global justice and international law.
Skepticism about international law in scholarly and political discourse reflects the persistent influence of Hobbes, who argued that transnational cooperation and restraint are impossible in the absence of an international sovereign to enforce compliance. But history has proven Hobbes wrong because international law has deepened beyond anything imaginable a century ago, much less in the seventeenth century. In Pavel’s words, “the development of international law has both outpaced and outpredicted the theoretical models used to characterize international politics as a war of all against all” (p. 17).
Leaving Hobbes, Pavel turns to Hume, whose nuanced account of the emergence of justice, law, and government fits much better with historical experience. Law finds its basis in convention, a body of rules formed prior to government that earn general support and moral approval because they advance our mutual interest. Cooperation builds trust which enables further cooperation, in a process that Hume scholars have called “dynamic coordination.” The same reasoning that supports domestic law also supports the development of international law, a conclusion drawn by Hume himself. Pavel supplements Hume’s account by arguing that law, both domestic and international, must also safeguard individual rights. Together, mutual interest and individual dignity constitute the normative foundation of law.
Against the realist school of international relations, Hume reminds us that experience can change actors’ preferences, norms, and habits. Pavel criticizes the tendency of realists to posit a simplistic account of individual and state motives and to slide from descriptive to prescriptive claims. As she astutely notes, “Instrumental rationality or means-ends rationality posits that if an agent has end X, and A is the best means to accomplishing X, the agent ought to choose A. But it does not follow from this that the agent ought to accomplish X” (p. 70). Realists fail to see that “if states can choose means, they can choose ends as well” (p. 73), that choosing means often involves ranking ends, and that a view on which survival trumps all other values has little to recommend it on either prudential or descriptive grounds.
Individuals and states, their outlook shaped by historical experience, have enough sympathy and foresight to support the legal constraints that advance the freedom and well-being of all. The purpose of international law “is to fortify the protections of the rights of states and individuals, to limit the arbitrary, unchecked power of international institutions over states and of states over each other and their citizens” (p. 142). But at present, international law is insufficiently developed. If we take international law seriously as law, we must adopt the internal morality of law, meaning a conception of the rule of law both procedural and substantive that is rooted in values of fairness, transparency, stability, impartiality, and individual rights. International law falls short of this standard because powerful states often manage to escape general rules; international courts (such as they exist) enjoy limited geographic jurisdiction; states claim the right to override international law or interpret it to their liking; and the interface between international and domestic law and between different bodes of international law is marked with pervasive uncertainty. Of most concern is the “à la carte” or optional character of international law: in marked contrast to domestic law, most international law rules are binding only on those states that individually consent to them.
The patchy character of international law is reflected in persistent international injustice: flagrant violations of state sovereignty and fundamental human rights, exploitation of weak states by strong, unequal participation in international rule making, and the inability to solve urgent collective action problems such as the climate crisis. Against this backdrop, Pavel’s arguments build up to a call for a global constitution. She has in mind a written document that enjoys a legal status above ordinary treaties; spells out nonoptional global norms such as sovereign equality, noninterference in the internal affairs of states, and prohibitions of aggression, crimes against humanity, slavery, and torture; defines permissible ways to enforce these norms; creates fair and inclusive second-order rules to guide the formation of international law and resolution of collective action problems; clarifies the relation between international and domestic law; and establishes international bodies with the authority “to interpret, apply, and enforce constitutional norms, ideally on a nonconsensual basis” (p. 156). Deference to national law and ordinary treaty law is preserved over broad policy areas, but global constitutional norms and the judgments of international courts authorized to interpret them are supreme over national law. Though a global constitution is the goal, it could begin as “a voluntary constitutional compact among liberal democracies and other willing nations” (p. 134). The process would require both an international pact and amendments to national constitutions (p. 136).
Pavel’s reasoning is illuminating and persuasive, rooted in admirable command of her subject and contemporary theoretical debates alike. She sharpens her arguments by answering possible objections from realists, statist constitutionalists, and legal pluralists. Often, she can show that the legitimate concerns of rival theories are best accommodated by her approach. She does not flee from difficulties, but is clear-eyed about the challenges of her topic. Her book is likely to spark vigorous debate and energetic dissents from multiple directions. Some readers may object that the dangers she wants to combat have more to do with false values than deficient institutions—that the backlash against international law is at root a backlash against the values of equality and dignity to which she appeals. I expect her answer would be that the fight over institutions and the fight over values are the same struggle. She writes: “While states have the means of creating a stronger system of rights protection for both states and individuals and for solving a variety of cooperation problems, they lack the will to do so. Constitutionalization is a means of creating the will” (pp. 181–82). Woven through her account is a vision of justice, cooperation, equal respect, and moral responsibility. We reaffirm our values when we build institutions that hold us accountable to them.
