Reenchanting International Law

Abstract

Contrary to the current conception of international law as having an autonomous, rational justification, this article argues that international law requires a religious or comprehensive justification because international law is indeterminate. For example, the International Convention on Civil and Political Rights protects the Aright to self-determination@ and the Ainherent right to life." The International Convention, however, does not indicate whether the Ainherent right to life@ includes or prohibits a right to die and whether the inherent right to life trumps the right to self-determination by signatories protecting the right to die (e.g., the Netherlands). Interpreting and applying international law in these hard cases where the law is indeterminate requires relying on extra-legal norms which must be justified. Religious or comprehensive convictions are the most comprehensive normative convictions that humans hold, and all humans who act with reflective self-understanding (even if they do not believe in God) are religious. Consequently, a full justification of the extra-legal norms relied on in hard cases and the choice among them requires relying on religious convictions.

More specifically, I assume that interpreting and applying international law involves two stages - deliberation and explanation. Given this distinction, my heretical thesis is two-fold: 1) legal interpreters should fully justify their interpretations of international law by relying on their religious or comprehensive convictions in their deliberation about hard cases; but 2) judges and other public officials should only partially justify their decisions in their written opinions by explaining their decisions in terms of legal norms and noncomprehensive extra-legal norms. The first thesis focuses on all interpreters of international law, official or not, and argues that they should fully justify their interpretations based on their comprehensive convictions to provide international law with a Auniversal@ justification. By contrast, the second thesis focuses on judges and other public officials. Based on a proper understanding of religious pluralism, it maintains that these public officials should not write their comprehensive convictions in their written opinions or in the text of international treaties or covenants. Rather, international law should include only noncomprehensive legal and extra-legal norms. This leaves the official text of international law indeterminate so that a plurality of comprehensive or religious convictions can implicitly justify or legitimate international law. Religious or comprehensive convictions are thus the silent prologue to any full justification of international law. When international law is indeterminate, the process of full justification reintroduces religious convictions into the justification of international law and thereby reenchants international law.