Commentators often question the legitimacy of international law by citing its inconsistency, ambiguity, and selective application. Some have argued that international law does not really exist because it is little more than a reflection of the behavior and values of the most powerful states. Powerful actors exert disproportionate influence over the composition of international law and are simultaneously able to ignore it when it becomes inconvenient. Legal scholar Nanjala Nyabola recognizes the validity of these critiques, but argues against the notion that this renders international law less real than domestic law. Since domestic law is also shaped by inequalities in social power and often applied arbitrarily and inconsistently, Nyabola argues against the temptation to dismiss international law as inconsequential.
By Nanjala Nyabola
It's one of the most common refrains you hear, especially in an American law school, as to why the US has no reason to abide by or participate in international conventions or nascent legal institutions like the international criminal court. The unspoken philosophical implications are: that there is such a thing as "real" law, and that domestic law has somehow achieved that gold standard.
After almost two years of grasping the essence of this "realness", swimming upstream against the glib acceptance that Law is, I find myself concluding that there is no such thing as "real" law. Domestic law is no more real than international law and if we allow one, the empty comfort of ascribed "realness", we should be able to extend this comfort to the other.
"Real" law is the necessary fiction that consequences must flow from the actions of one against each other, and that the Law as defined by those in power or with money, determines both the infraction and its consequences; yet another tool that those in power have to employ against the powerless.
They are able to do this, because even at the most prestigious centres for legal learning and thought, few grapple the meta-question that underpins the entire exercise: namely, what is law?
Pseudo-consensus
We take it for granted that there is general consensus on this question. But this pseudo-consensus is nothing more than a function of the passivity of those who learn and teach the law. It represents our reluctance to engage with those deep and elaborate questions that the great minds of Western philosophy at least, dedicated their lives to unpacking.
Plato urges us to unpack and reconsider what is "real". Augustine rolls up his sleeves and contemplates the nature of justice. The modern lawyers spending their time drawing up contracts or negotiating settlements will never read a philosophical text and spend their time moving around money, while the most pressing questions that determine the parameters of the profession - What makes one thing legal and the other illegal? When do laws change and why? - are left to philosophers with little connection to the day-to-day life of those affected.
Such ideas may not matter when we are considering an appropriate punishment for a killer given the unspoken agreement that arbitrarily taking a life is incompatible with a functional society. But it matters a great deal where the proscribed action clashes with underlying cultural values, like when animal cruelty laws prevent people from slaughtering goats during religious festivals.
It matters where those in power create the very circumstances that the marginalised will be penalised for, like when a government or school administration is unable to keep students safe in public schools but punishes parents and students for truancy.
It matters where the consequence of the law is a permanent and powerful alteration of the rights framework, such as when 29 percent of the male African-American population in Florida is unable to vote because of a law on permanent disenfranchisement.
I posit that what is "legal" represents elite consensus on the standards of behaviour that are acceptable, especially where the misbehaviour by the proletariat threatens elite interests. The evangelical Christian pastor, TD Jakes, put it most eloquently in one of his recorded sermons: "They throw you in jail when you rob a liquor store, but when you rob Enron, they don't know what to do with you."
The Western elite was previously united under the banner of religion, but the decline of the latter has left a lot of its ideas intact, while robbing them of their logic. Today, law is tautological; law is not because God says so, but because it is.
This isn't a call to anarchy; elite compromise is perhaps the most consistent characteristic of Western polity, from the white men of Athenian democracy to the Ivy League/Oxbridge public policy of the US and the UK. It is a necessary fiction like many others that allow society to function, but that doesn't make it any less of a fiction.
Elite consensus
So, if we allow and indulge this fiction in domestic law, why shouldn't we allow it in international law, especially where the positive consequences are apparent in domestic law? Namely, getting the powerless to buy into the fiction creates the kind of social change that the elites want in the first place.
The demonisation of crack-cocaine led to lowered rates of consumption: the decriminalisation of marijuana has broadened its social acceptance and even pushed presidents to admit that they've used it. Surely it makes no sense to deny international law the same opportunity to foster behavioural change that we have afforded domestic law.
Perhaps, the reason why there is so much resistance to affording such an opportunity is that the elites don't actually want to see the kind of social change that creating an efficient and recognised system of international law would lead to. After all, people are profiting from crisis and destabilisation, both personally and collectively.
It would be infinitely more difficult to pillage the DRC's coltan if there were a functional government in Kinshasa with significant clout in the Eastern provinces. The demand for AK-47s - currently estimated at two for every one person - in Somalia would likely decrease significantly if there was no need for armed escorts when walking to the grocery store.
How would the weapons/defence industry - one of the largest industries in both Europe and the US, taxes against whom conceivably pay for the social entitlement programmes in both regions - deal with a system of laws where their ability to export instability would be kept in check by a functional international legal system?
International law may not matter much to self-absorbed ideologues considering its limits at the university. But it matters a great deal to refugees fleeing wars, or to victims of drone strikes, or in countries where governments turn cancerous and parasitic against their own people.
The onus is on law schools and practitioners to think creatively about how elite consensus on this issue can be created. Ultimately, it comes down to two things: either change the minds of the elite, or change the elite. That is a call to anarchy.
