A regime's pitiless slaughter of civilians, particularly in an urbanized middle-class country close to Europe, drives segments of the public on both sides of the left-right divide to demand that something be done to quell the killing. When, as in the case of Syria, the regime cannot be shamed, has financial and materiel reserves and backup funding and troops from powerful allies, and has no higher ideal than self-preservation--when, in other words, it is immune to diplomatic and economic pressure--demands for responsive action quickly translate into demands for the use of force, whether direct or by proxy. And because in these enlightened times the projection of force across national borders is widely felt to be legally problematic, determining an appropriate reaction to the slaughter becomes a task for lawyers, no less than strategists.
In the course of rising to the occasion, lawyers have underscored the different visions of international legal order that divide the profession and shape the legal analysis of its individual members. In his essay, Anthony D'Amato adds to our stock of visions. (1) While D'Amato does not apply his vision to the Syrian slaughterhouse, he says enough about its implications for legal assessment of humanitarian intervention to strengthen my claim about the capacity of one's vision of international law to deeply influence judgments about its application.
LAWYERING THE USE OF FORCE
I will shortly examine D'Amato's implications, but, as a prelude and also as a way of illuminating through contrast, I want to consider briefly the work of lawyers who have faced Syria head on. Some of them have confronted the Syrian situation without acknowledging their vision, much less conceding its influence on their conclusions. Writing in The New York Review of Books, David Cole, for example, says flatly that if, without Security Council authorization, President Barack Obama had authorized missile strikes in the wake of the August 2013 chemical weapons attack that killed hundreds of civilians in a single night, "he would have violated ... international law, which forbids the offensive use of force without Security Council approval." (2)
Cole, however, is a constitutional, not international, lawyer, so his apparent failure to appreciate the range of interpretations allowed by the range of visions of international law is not surprising. But unduly confident invocations of international law can also be found among international legal scholars. For instance, in finding that "humanitarian intervention without Security Council authorization is in principle compatible with the UN Charter," (3) Robert Howse and Ruti Teitel rely on a particular interpretation that sees the UN Charter text as closely balancing the concern for national sovereignty with the realization of human rights so as to enable the claim that force can be employed unilaterally in their defense. (4)
Unfortunately, the Howse-Teitel interpretation is hard to reconcile with the overall tilt of the Charter text and structure or with the historical context and associated assumptions and value preferences of the founding states. (5) But it is one of the few hermeneutical gambits open to scholars who are reluctant on moral grounds to yield the legal terrain to categorical opponents of military intervention but constrained by their self-imposed commitment to what Ken Anderson calls the "formalist" school of international legal jurisprudence. (6)
Formalists: The Purists and the Eclectics
Anderson begins his assessment of the legality of intervention in Syria by identifying two approaches to international law, the "formalist" and the "pragmatic," and by finding that they "provide very different answers" to the question of legality. (7) His general conception of formalism, while implied by his discussion of the arguments for humanitarian intervention available to its adherents, never becomes entirely clear. The term is ambiguous in that formalists can, I would argue, fall into one of two camps: the purists and the eclectics.
The first camp of formalists could be followers of the view that law is a closed discursive universe with distinctive modes of reasoning and interpretation insulated from the volatile world of power politics and ideological and sectarian struggle. To distinguish members of this camp, let's call them the "purists," although "isolates" would do just as well. For purists, the law envisioned as principles and rules is largely embodied in interstate agreements and in practices that at some point in time achieved virtually universal acceptance as legally required. In other words, the law is static, frozen in time until its substance is altered by actors and through procedures, the authority of which is itself fixed by state-approved rules. Interpretation in concrete cases is effected through close reading of the relevant legal texts, assisted by reference to context and policy consequence only where, in the words of Article 32 of the Vienna Convention on the Law of Treaties (in large measure an expression of the formalist vision), the text "is ambiguous or obscure" or a close textual reading "leads to a result which is manifestly absurd or unreasonable." (8)
The second camp of formalists in what I take to be Anderson's dyadic mapping of international law's domain, whose members I will call the "eclectics," overlaps the first in that members of both seek to distinguish legal norms from moral norms and from merely political arrangements and understandings. (9) In addition, both groups find the authority of international law largely in the acts, claims, and acquiescences of states, even while recognizing that official positions may be influenced by or even channel other actors such as nongovernmental organizations (NGOs), corporations, and senior figures in intergovernmental organizations. Both camps fall within the broad realm of legal positivism, but their differences are deep.
Eclectics begin with the premise that law--whether seen as clusters of written rules and principles, or as a process, or both--is a means, the single most reliable means, for helping participants in any developed social system to predict those acts, and failures to act, that will be generally deemed legitimate and those that will be condemned and possibly penalized. In addition, eclectics see law as a means for facilitating cooperation and coordination among large groups to advance shared interests. Like the purists, they believe that law is a unique means for enhancing the stability of the relations of states by materializing consensus primarily in texts deemed to have a peculiarly obligatory character. Unlike the purists, however, eclectics argue that law cannot fulfill its central purposes unless it is interpreted and applied in light of conspicuous changes in or clarifications of the views of key social actors about what constitutes legitimate behavior in any given set of circumstances.
By the logic of their position, purists must reject the eclectics' conclusion about the necessity of incorporating into the interpretation of texts any data external to the legal process. On the contrary, purists must argue that law best accomplishes its ends, including shaping views about what constitutes legitimate behavior, when it limits the resources available for and hence the potential flexibility of interpretation. Changing political, social, and economic conditions will not thereby detach law so conceived from reality because the changes will drive modification of the law by means of the procedures for change already embedded in the legal order.
To be sure, there will inevitably be lag time during which tension between the law and the interests of its subjects generates increasing deviance. But in terms of the collective ends that laws are intended to serve, the costs of the lag are less than the costs of an elasticity that fosters contention about the law's intent and facilitates the subversion of its purposes. Eclectics argue, to the contrary, that formal change is difficult; hence lag times could be dangerously prolonged.
A lag is dangerous because where a purist interpretation in the face of changing circumstances conflicts with the imperative interests of important states, conflicts of interest between states comfortable with the results of the purist interpretation and states that see that interpretation as injurious to their evolved interests become emotional conflicts of principle as well as interest. The former are more bitter and less susceptible to compromise: How can a "law-abiding" state compromise with a "rogue" state? Moreover, eclectics will argue that,
where important interests are at stake, advocates will find ambiguity in texts or will claim that a literal reading would produce an absurd result, absurd in light of the purpose that the text considered as a whole was intended to serve. Thus Howse and Teitel, sounding like formalists, find in the UN Charter text support for humanitarian intervention in the Syrian case, just as the great Myres McDougal, no friend of formalism, paradoxically found indisputable authorization in the Charter's self-defense exception for the partial blockade of Cuba during the 1961 missile crisis. (10) By relying on an epistemologically constrained interpretation of unchanging norms to the end of enhancing the stability of interstate relations, the purists have as much chance of securing their objective as the French had with the fixed defenses of the Maginot Line, which were easily circumvented by the German blitzkrieg at the outset of World War II.
While, in today's legal world, purists could be placed on the list of endangered species, they once thrived. When, for instance, Hans Kelsen, their most eminent representative, wrote his exposition of the new UN Charter and came to Article 51, he airily dismissed the argument for the preemptive use of force in the face of an imminent threat. (11) To him, the...