In his latest book, Transnational Legality: Stateless Law and International Arbitration, published by Oxford University Press, Professor Thomas Schultz explores the frontiers of what makes law, and how international arbitration helps test these frontiers.
In particular, the book offers reflection on the extent to which legality and the rule of law can serve as a moral and political benchmark for transnational stateless regimes – a benchmark, for instance, to assess the political morality of arbitration’s current autonomy from states.
The author reminds us that law should not be trivialised. A muddled system of guidance should not be called law. Then again, law without the state and without territory undoubtedly is at best around the corner, if not already in front of us.
Professor Schultz spoke to us about his new book and the shaping of transnational legality.
What should we call law when it is not the law of one or several states?
There is plenty of choice. Most people believe that law has to be something that is produced by states. That way, at least, it is fairly clear what law is.
The state, or several states together, tell us what we have to do, and if they follow certain procedures to do this, this seems a fair thing, a legitimate command. We should obey it because it is the law, and law is something we generally believe to be something good for us. Therefore we shouldn’t – ideally – break it.
But, is there anything inherent in law that makes law law? The answer is no, there isn’t. We could use the term law for any set of rules a community gives itself. It could be a qualified version of this idea, for instance, only those rules that embody certain basic human right ideals. Or it could be whatever the ruling power says it is. We are all potential Humpty Dumpties. There is nothing inherent in law that makes it only creatable by states.
Law is whatever we want to call law. This means we have a choice – as I said, plenty of choice.
How should we exercise that choice? What should we call law? We can do something else, but should we call law only commands of states, because only states can guarantee a certain degree of justice? People like Hans Kelsen, who worked at the Graduate Institute quite some time ago, believe as much.
Then again, what is the basic idea of justice that we seem to associate with law, as if it were inherent in it, as if the label of law should only be affixed to something which exhibits that idea of justice?
That it the key question this books seeks to pose. The answer it offers – even though the point really is the question, not the answer – is that what we should call law turns on issues of predictability. The purpose of law is to allow us to predict and plan, to give us, as the late American scholar Lon Fuller used to put it, “dependable guideposts for self-directed action”.
So to answer your question, “What should we call law when it is not the law of one or several states?”, we should, I believe, call law whatever provides dependable guideposts for self-directed action.
Of course, this now poses the question: what are such dependable guideposts? What are guideposts in the first place? And what level of dependability is required? This is where it becomes slightly complicated. The book answers these questions.
Does it actually matter what we call law?
Well, what is the point of law in the first place? Does it serve any particular function, different from, say, social norms, or religious norms, or the commands of a gunman or a tyrant? If it does, then it would seem to matter that we can distinguish it from these other norms.
There is something in the league of moral authority, of legitimacy, about law. Something we wouldn’t want to entrust to a religious leader. Something we wouldn’t want to let just any social group decide. Something that makes us ill at ease with calling law heinous regimes and abhorrent orders. Something we think is rather precious about law.
This idea of legitimacy, of legitimate authority associated with law, can of course be abused: it is assumed (this has never been empirically examined, as far as I know), that people comply with legal commands more than with non-legal commands, according to social rules.
Calling something law increases the level of compliance with that something, because it is perceived to have some special form of legitimate authority. Most people consider it bad to break the law – bad in a moral, not a prudential, sense.
The label of law directs behaviour. It is an incentive for behaviour. What we call law matters for this incentive. We can dub this the rhetorical effect of legality: calling something law makes it appears more legitimate.
Besides, I’m an academic lawyer. I’m supposedly competent to deal with law. I’m supposed to spend my days working with law, to research and teach law, to write law papers. What shapes my areas of competence and responsibility is the idea that this word carries – “law”.
This may sound strange, and in a sense it is. But exclusion strategies based on this are common: the elimination of competitors in the field based on the argument that what the person does “is not law”. Excommunication is just around the corner…
How can we take into account the consequences of calling something law when we shape the concept of law in the first place?
If, indeed, calling something law increases compliance – all other things being equal – by creating a perception of legitimate authority, then the idea would be to build conditions of legitimacy into the concept of law: only something that exhibits a certain type of legitimacy, a type that makes sense when compared to law’s authority, should be called law.
Of course, what exactly that type of legitimacy should be is the stuff of long musings. In the book I take a minimalist approach: if law is understood to be something fairly predictable (recall that predictability obtains by degree, and is not an on/off feature), and should be obeyed because that predictability makes law socially valuable, then we should call something law only if it does exhibit an appropriate degree of predictability. Whether it is made by states or not is not inherently important – though contingently it may be.
How does international arbitration help to illustrate the problem? Could you give us an example?
International arbitration has long been a classic example of law without the state. Many people in arbitration cherish a sort of high-minded rhetoric according to which arbitration creates one or several transnational stateless legal systems.
Why do they cherish this? Is it appropriate? Can we, should we, let arbitration regimes elbow aside dysfunctional national and international legal systems, in order to create legal systems that work better and are less concerned with these boundaries of states that indeed so often don’t match our socio-commercial interactions? Any conditions apply?
Transnational Legality. Stateless Law and International Arbitration. Thomas Schultz, 2014, 224 pages, 978-0-19-964195-6