(A) Capps Prelims 19/5/09 12:48 Page vii. Acknowledgements
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1 (A) Capps Prelims 19/5/09 12:48 Page vii Acknowledgements In writing this book I have accumulated many debts. First, I would like to thank the School of Law at the University of Bristol for providing me with an exceptionally friendly intellectual environment in which to work. The University also provided me with research leave in the year , some of which was spent at the Universities of Melbourne and Cambridge, which provided me with the time to get this book started. Many of my colleagues at the University of Bristol have been subjected to the ideas set out in this book and I am grateful for their thoughts in response. Specifically, I would like to thank Chris Bertram, Malcolm Evans, Steven Greer, Dean Machin, Harry McVea, Oliver Quick, Bronwen Morgan, Marc Moore, Lisbeth Witthofft Nielsen, Tony Prosser, Phil Syrpis, Tonia Novitz, John Parkinson, Achilles Skordas and Brenda Sufrin. I must also single out Julian Rivers who has read drafts of this book many times and has provided encouragement every step of the way. In broader academia, I should mention friends and colleagues who have read portions of this book or discussed my ideas with me: Philip Allott, Samantha Besson, Deryck Beyleveld, Roger Brownsword, Basak Cali, Tony Carty, Rob Cryer, Keith Graham, Dino Kritsiotis, Therese O Donnell, Henrik Palmer-Olsen, Stanley Paulson, Amanda Perreau-Saussine, Arthur Ripstein, John Tasioulas, Stuart Toddington, Stephen Tierney, Colin Warbrick and Chanaka Wickremasinghe. My publisher, Richard Hart, has been incredibly supportive of the project and patient with me as an author. Kate Grady s help with the editing process was first rate. This book is based upon some essays which have already been published. Some of the methodological claims I defend in Chapters 1 to 5 of this book were first written about in the articles Incommensurability, Purposivity and International Law (2000) 11 European Journal of International Law 637, Methodological Legal Positivism in Law and International Law in K Himma (ed), Law, Morality, and Legal Positivism (Stuttgart, F Steiner, 2004) 9 19 and Sovereignty and the Identity of Legal Orders in C Warbrick and S Tierney (eds), Towards an International Legal Community? The Sovereignty of States and the Sovereignty of International Law (London, British Institute of International and Comparative Law, 2006) The substantive arguments made in Chapters 5 to 10 were first written about in The Kantian Project in International Legal Theory (2001) 12 European Journal of International Law 1003 and The Rejection of the Universal State in N Tsagourias (ed), Transnational Constitutionalism: International and European Perspectives (Cambridge, Cambridge University
2 (A) Capps Prelims 19/5/09 12:48 Page viii viii Acknowledgements Press, 2007) The ideas set out here have also been presented in a number of papers delivered at the University of Bristol, Brunel University, the University of Copenhagen, the University of Edinburgh, the University of Lund, the University of Nottingham, the University of Sheffield and also at University College, London and the London School of Economics and Political Science. What is offered here substantially elaborates on the arguments found in these essays and papers. Finally, I would like to thank my family. Specifically, I must mention my parents, Alan and Naomi Capps, as well as my brother, Ben Capps. It is Lisa Branney, however, who should receive my principal thanks. I have found this a difficult project and at no point has her support wavered. I am immensely grateful to her. Bristol, February 2009
3 (A) Capps Prelims 19/5/09 12:48 Page ix Acknowledgements vii Introduction 1 1 Philosophical Problems for International Lawyers 9 Conceptions of International Law in Space and Time 11 Scepticism in the Philosophy of International Law 16 Theory and Practice 18 Conclusion 20 2 The Methodological Problem 23 The Methodological Problem in Legal Science 25 The Methodological Problem 25 Is International Law Racist? 27 The Ontological Problem 33 Conceptual Analysis and Focal Analysis 39 Conceptual Analysis 40 Focal Analysis 43 Conceptual Analysis, Focal Analysis and the Raw Data 45 The Legal Scientist 47 Conclusion 49 3 The Conceptual Analysis of International Law 51 Hart s The Concept of Law as a Form of Conceptual Analysis 52 Legal Positivism 53 Hart s Concept of Law 56 Hart s Non-ambitious Concept of Law 57 Hart s Ambitious Concept of Law 59 International Law as an Indeterminate Form of Law 61 Usages and Conventions 65 The Legal Scientist, the Ordinary Language User and the Legal Official 65 Law as a Social Practice 68 Theoretical Values 69 Law as a Conventional Practice 70 Paradigm Cases and the Internal Point of View 74 Conclusion 75
4 (A) Capps Prelims 19/5/09 12:48 Page x x 4 Focal Analysis and Ideal-Types 77 Purposivity and International Law 80 Human Dignity and the Purpose of International Law 80 Normative Positivism and International Law 83 Focal Analysis and Ideal-Types 84 Action and Axiology 85 Ideal-Types 86 The Ideal-Type and Collective and Institutionalised Social Practices 88 General Concepts 91 Weber on International Law 93 Ideal-Types and Practical Reasonableness 93 The Concept of International Law Relies upon the General Concept of Law 94 Purpose and Meaning 98 Practical Reasonableness and Ideal-Types 101 Components of the Concept of International Law Practical Reasonableness and Human Dignity 103 The Idea of Human Dignity 106 Human Dignity as Empowerment 108 The Substantive Question 109 Generic Features of Agency 112 Distributive and Authoritative Questions 114 The Authoritative Question 115 Action and the Generic Features of Agency 117 The Universalisation of Generic Rights 119 The Distributive Question 121 The Concept of International Law 122 Dignity in the Kingdom of Ends 122 From the Kingdom of Ends to Positive Law 123 Conclusion The Logic of the Autonomy Thesis 127 The Autonomy Thesis 130 Structure of the Autonomy Thesis 131 Hobbes Version of the Autonomy Thesis 132 Kant s Version of the Autonomy Thesis 136 Oppenheim s Version of the Autonomy Thesis 139 Weil s Version of the Autonomy Thesis 141
5 (A) Capps Prelims 19/5/09 12:48 Page xi xi Failure of the Autonomy Thesis 142 Adjudication and Function 143 Legitimacy as a General Condition for the Success of the Autonomy Thesis 145 The Autonomy Thesis and International Law 146 Public Practical Reasons 149 Practical Reasonableness and the Law 151 Conclusion Law as a General Concept 157 The Bare-Autonomy Thesis and the Integrated-Autonomy Thesis 159 Moral Reasoning and Law 161 Ideal and Non-ideal Theory 162 Justification of the Autonomy Thesis 164 Immorality of the State of Nature 164 Law as a Community Governed by an Omnilateral Will 168 Kant s Justification for Law 169 Enforcement 173 Justification of the Integrated-Autonomy Thesis 175 Law Constitutes our Freedom from Dependency 177 Rousseau s Concept of Law 182 The General Concept of Law 183 Conclusion The Foundations of the International Legal Order 187 A Justification for International Law 188 Civil Incorporation and the Sovereign State 190 The State and Civil Incorporation 191 Sovereignty and Collateral Moral Rights 193 The State and Agency 195 International Legal Order 197 Kant s State of War 197 Why is the State of War Not-rightful? 199 The Integrated-Autonomy Thesis and the Sovereignty of International Law 201 Institutional Design 203 International Legal Order as a Suprastate System 204 International Legal Order as an Interstate System 205 Interstate or Suprastate Institutional Design? 208
6 (A) Capps Prelims 19/5/09 12:48 Page xii xii Conclusion 210 Lauterpacht and the Progressive Interpretation of International Law 210 Unanswered Questions The Discontinuity Thesis 215 Alternatives to International Legal Order 218 Sovereign States are Not Similar, in Relevant Ways, to Human Agents 218 A Rejection of the Universal State, Not International Legal Order 220 The Sovereign State Cannot be Considered an Agent 222 Transgovernmental Law Instead of International Law? 226 Rejection of International Legal Order 229 Sovereign States are Not Similar, in Relevant Ways, to Human Beings 229 Prudence and International Legal Order 230 The Environment in which Sovereign States Find Themselves is Not Similar in Relevant Ways to the Environment in which Human Beings Find Themselves 232 Are International Relations Not Unreasonable? 234 Approximations to International Law 235 Surrogates, Analogues and Approximations 237 The Possibility of Perpetual Peace 239 Conclusion International Legal Order in Ideal and Non-ideal Theory 243 Ideal Theory 245 Norm-Creation 246 Custom 248 Interpretation 250 Enforcement 255 Failure of Interstate Design for Ideal Theory 255 Non-Ideal Theory 257 Juridical and Moral Concepts of the State 258 Institutional Architecture and Norm-Creation 265 Enforcement 268 Self-Defence 269 The Concept of International Law and the Role of the International Lawyer 270
7 (A) Capps Prelims 19/5/09 12:48 Page xiii xiii Conclusion 273 Bibliography 277 Index 291
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