Ian Hurd, How to Do Things with International Law (Princeton, New Jersey: Princeton University Press, 2017), 200pp.

Reviewed by: Clayton J. Cleveland (Visiting Assistant Professor, College of the Holy Cross)

Ian Hurd’s How to Do Thing With International Law provides an important contribution to understanding international law and politics. The author does not treat a world based on power as the polar opposite of a world based on the rule of law as many scholars tend to do. Instead, he views power as an integral part of the practice of international law in the relations among states. In this perspective, international law is one way powerful actors exercise power in pursuit of their interests. Building upon this position, Hurd argues that there is an empire of international legalism that structures the relationships between actors who operate in the international system. He demonstrates the existence of this empire through how actors deploy legal arguments in the areas of war, developing new military technologies and state torture practices. Hurd finds that the use of legal argumentation in these cases by both supporters and detractors of state actions reveals the hegemony of international law in practice. While there are many aspects of this work that recommend it for advanced undergraduate and graduate level students of international law and politics, one key virtue is that Hurd does not conflate the aspiration of those who desire or disdain the rule of law with the actual practice of using international law.

Image 1: Soldiers of the Republic of Korea during an inspection
Photo Credit: UN Photo/US Army

Theoretically, Hurd begins his work by distinguishing between the rule of law in domestic and international realms. Scholars and pundits often assume the international rule of law emanates from domestic commitments. Hurd challenges this perspective, instead arguing that internationally obligations for similarly situated actors are different while the domestic rule of law requires consistent application across individual cases. For example, while the ban on war applies to all Member States of the United Nations, this ban functions differently depending on the capabilities of the actors. Legal exceptions to the ban on war emerge from claims to self-defense or from authorization by the UN Security Council as in the Korean War (1950–53) (see Image 1).

The legitimacy of actions depends on whether states successfully justify their behavior as one of these exceptions. In addition to the ban on war, Hurd shows how the development of new military technologies, namely nuclear weapons and drones, exist in legal domains despite a lack of specific international treaties to regulate their use ( Video 1: Geneva / Drones Heynes). Lastly, he focuses on how states have made use of existing legal instruments on torture to legitimize their practices which would otherwise be prohibited under those specific interstate agreements (see Image 2).

Image 2: General Assembly Adopts Convention Against Torture
Photo Credit: UN Photo/Yutaka Nagata

These empirical chapters support three contributions. First, Hurd’s work moves the discussion of international law beyond an objective or ‘true’ meaning of law. Second, this work focuses on the use of international law by highlighting the dynamic and dialectical relationship between the rules and state policies. Third, Hurd brings together two domains that are usually considered in isolation from each other: law and politics. He illustrates how these domains interrelate and affect one another in international affairs.

These contributions make this an important work for those interested in international relations. There are, however, some considerations where Hurd’s effort points out where more work needs to be done. In this review I focus on two areas of fruitful inquiry: alternatives to an empire of international legalism and the implications of law’s ambiguities.

In the empirical chapters, Hurd argues the use of legal arguments demonstrate the empire of international legalism. Despite the importance of legal argumentation to this thesis, Hurd does not develop how to distinguish legal argumentation from non-legal argumentation. The alternatives presented in this work include substantive foci such as humanitarianism or colonialism (pp. 132–133). These alternatives are substantive sources that do not determine the form of justifications which can be used while legal argumentation is a process-based concept which could be used as a means to advocate any of the substantive alternatives discussed by Hurd. Substantive claims can be made through legal argumentation and do not represent exclusive alternatives. The domination of legal argumentation is so wide-spread that no actor today rejects its use. This is part of its taken-for-granted quality. Methodologically, Hurd cannot use this constant presence to explain variance. This limits Hurd to explanation of the existence of the empire of international legalism but not the origins of this empire—as he admits (p. 55)—nor the content of the policies. This exploration could be used to highlight differences between systems. Delineation of these alternative systems and their associated forms of argumentation would strengthen Hurd’s argument and show the difference between legal arguments and an actor trying to justify their actions through another mechanism.

The pervasiveness of legal argumentation means that actors on all sides of an issue use this theory to advance their cause. Hurd’s international law as practice framework is not designed to explain variance in legal argumentation. It cannot explain why some legal justifications gain traction while others fail. Thus, this concept of legal empire cannot explain the content of international law and politics. What is explained is the “pull” of actors in international politics. According to Hurd, actors have incentives to justify their actions through legal argumentation because of its inherent worth (actions seen as legal are legitimate), instrumental value (actions seen as legal are easier to successfully carry out) or some mixture of the two. This idea that legal argumentation is necessary to advance their interests is so ingrained in international politics that the actor is probably not even aware of alternatives modes of argument. The only conscious choice is which legal arguments will be deployed. Theoretically and methodologically, it would be useful to have better understanding of why some legal claims are viewed by others as credible while other claims are illegitimate.

The second area of research concerns the implications of law’s ambiguity. Actors attempt to exploit the ambiguity between the law as stated in legal instruments and its application in specific cases. This is exhibited in the application of existing international law to new technologies such as drones ( Video 2: MQ-9 Reaper: King Of Deadly Drones). More powerful actors are more successful at exploiting this gap between the law and its application because they have more legal resources to use to justify their actions. Legal ambiguity matters for Hurd’s argument because it is the exploitation of law that sets up the ‘Empire of the International Legalism’ and allows powerful actors to claim justifications for their actions (p. 134). At the same time, Hurd claims that international law holds power over actors in the international system through legal categories “…by defining content and limits of rights…” (p. 52). The central tension between these two ideas is not fully resolved in this text. Under what conditions will international law constrain compared to the conditions where it empowers state actions is an important area for further research. This text performs an important service for starting this discussion and showing that international law is more than simply a constraint on state actions.

Image 3: Security Council Meeting on Strengthening International Law
Photo Credit: UN Photo/Ryan Brown

A key issue to understanding the difference between these conditions lies in the reception of the justifications deployed. The claim that legal arguments yield better reception than the enumerated alternatives is a crucial part of Hurd’s argument; however, the use of legal argumentation does not guarantee a successful justification of state actions and even powerful states can fail to successfully justify their actions using legal argumentation. Furthermore, when the justifications of powerful states compete for legitimacy, power or resources may not be the determining factor in how these claims are viewed by others. Most of international politics involves the deployment of justification claims among actors who control different amounts of resources in a given context. International actors acknowledge the value of claims under international law (see Image 3). Understanding whether these justifications deployed by powerful actors and accepted by others are close to the letter or spirit of the law or emerge as a form of fig leaf to permit state actors to engage in behavior they should not under the law is an important next step in the research.

Ian Hurd’s work is a profound and fascinating look at the intersection between international law and politics. This is an important work that will be useful for scholars and students looking to understand how states interact and deploy claims in their relations. It suggests that despite the rhetoric used by many leaders, the world is much more complicated than the dichotomy between an international order based on law and friendship versus the enmity of an anarchic chaotic world based on power. The reality is much more complicated as this work shows that the tools which are foundational to the law-based world are an expression of the power which dominates the Hobbesian perspective. How to Do Things With International Law will be an important part of the continuing discussions about international law and politics for some time to come.

 


Feature image credit: UN Photo/Ryan Brown