Human rights and the use of force: Assertive liberalism and just war

Abstract

This paper critically explores the growing assertiveness with which liberalism has approached questions of the just use of force since 9/11. The liberal position rests upon broad claims about the centrality of human rights concerns to considerations of the justice of war. The claim is that a liberal-cosmopolitan respect for human rights forces us to reconsider the conservative, generally prohibitive, position on the use of force defended by traditional just war theory and enshrined in international law. This argument is has been most fully developed by Allen Buchanan in several important books and papers and it is Buchanan’s position that forms the basis for the critique of the assertive cosmopolitan attitude to the use of force that is offered in this article. The paper shows that both the just war tradition and those who theorize the ethics of the law of armed conflict have taken the moral and political reality of human rights seriously (in a manner that directly addresses Buchanan’s core argument) but that there remain compelling reasons to defend a conservative approach to the use of force.

Keywords

Allen Buchanan just war human rights institutional moral reasoning international law social moral epistemology

Introduction

This paper is driven by a concern with the permissive doctrine concerning the legitimate use of force that has been articulated and defended by many prominent liberals since 9/11 and the advent of the ‘war on terror’. The regimes that scholars such as Anne-Marie Slaughter, David Luban or Michael Doyle propose, and in particular that defended by Robert Keohane and Allen Buchanan, argue in favour inter alia of humanitarian military intervention (sometimes in the form of the responsibility to protect or R2P), a collective duty to prevent the acquisition of WMD by rogue states,¹ a more general right to preventive self-defence,² and even forcible democratisation.³ The proposed weakening of the constraints on the use of force that is characteristic of the UN Charter and of contemporary just war theory is not merely a reaction to the new insecurities presented by the asymmetries of the war on terror, although this is a key motivation.⁴ Nor is it a reaction to the frustrations faced by the liberal West in the UN (as in the work of Robert Kagan⁵) or an endorsement of the Bush Doctrine as formulated in the US National Security Strategies of 2002 and 2006⁶ (that said, the fact that differences in justification yield such minor differences in practice underwrites my concern). Rather it is presented as an articulation of the just defence of basic human rights.⁷

The two greatest achievements to come out of the carnage of the last world war were the new commitment to the governance of the use of force and a commitment to human rights. In very broad terms a respect for human rights and self-determination underpinned the prohibition on the use of aggressive force and encouraged a conservative approach towards the doctrine of self-defence and humanitarian military intervention. This conservatism, clearly captured by the Webster/Walzer formulation,⁸ saw war as the last resort in international dispute management and as the least useful and most dangerous tool for the protection of human rights. It could be contended that even this last claim overstates the extent to which international actors are prepared to link the use of force to human rights protection and promotion. Nevertheless, since the end of the Cold War political and scholarly debate and state practice has involved a significant renegotiation of the relationship between human rights and the use of force. It is this renegotiation in its post-9/11 guise that forms the core of this paper. The liberal argument has contended for some time that developments in international politics (in law, in ethics and in warfare) now pit human rights and the general prohibition on the resort to armed force against one another.⁹ Just war theorists and international lawyers have long railed against the impracticalities (and injustices) of institutionalizing a liberal conception of the just use of force, citing the utility of the blanket prohibition or ‘clear bright line’ argument in opposition to the Pandora’s box that the liberal theorists are forcing open.¹⁰ Nevertheless most also recognize the increasing import of human rights norms. But is it really time to drive a wedge between human rights and a broad prohibition on the use of military force?

The argument that we should has re-emerged most persuasively in the work of Allen Buchanan (often in partnership with Robert Keohane).¹¹ Their work has been incorporated into the mainstream debates as a solution to an important but relatively narrow problem and has quickly become a touchstone for liberal theorists exploring the institutionalization of preventive war.¹² Their most famous argument contains the following insight,

Even though preventive action is sometimes justified, it creates a number of serious risks, two of which are of special concern in respect to preventive action, even if they are not unique to it. The first is that self-interest masquerading as concern for the common good may lead to decisions that are unjustifiable. The second is that preventive action will undermine existing beneficial institutional norms constraining the use of force. Each of these risks is particularly worrisome since predictions that violence may occur are generally more subject to error and bias than observations that it is already occurring.¹³

The central issues are the potential for the abuse of a permissive rule that justifies the preventive use of force but more importantly (and more generally) the moral implications of ‘epistemic uncertainty’. Their solution takes the form of proposals for institutional reform that could mitigate such risks so as to defeat the argument in favour of inaction.¹⁴ The debate concerning the degree to which their ‘cosmopolitan institutional proposal’ (CIP) would solve the issue of self-interest and mitigate the issue of accurate knowledge of a temporally distant threat has been the subject of some analysis.¹⁵ Crucially, however, the concern about epistemic uncertainty refers not just to the difficulty of gaining accurate knowledge of potential attacks that have yet to materialize¹⁶ but more broadly to the moral disagreement and uncertainty about the extent to which our commitment to human rights underwrites an assertive or conservative approach to the use of force.¹⁷ This more general claim about global justice and institutional legitimacy, the element of the argument that Buchanan thinks is the most significant, has received very little attention. Yet it is here that the radical implications of his innovative and important liberal argument are most fully developed. This paper therefore focuses on an exploration of Buchanan’s central theoretical claims concerning the ways in which ‘institutional moral reasoning’ can help us overcome such uncertainty and underpin an assertive, human rights based approach to the use of force.

Buchanan’s argument is laid out clearly in the introduction to a recently issued collection of essays entitled Human, Rights, Legitimacy and the Use of Force, which is heavily influenced by (and includes work from) his collaboration with Keohane. Here Buchanan describes the central theses of his volume as the claim that,

Philosophical thinking about the ethics of international relations must take institutions seriously and

that issues concerning human rights, the legitimacy of international institutions and the use of force cannot be fruitfully theorized in isolation from one another.¹⁸

These general theoretical arguments have a huge impact on his account of the legitimacy of, for example, preventive war.¹⁹ The principal working part of his argument is his claim that ‘philosophical theorizing about human rights needs to be augmented by social moral epistemology’.²⁰ This argument permeates his work on just war and preventive action. It also forms the core of his earlier treatise Justice, Legitimacy and Self-Determination: Moral Foundations for International Law, where he terms it institutional moral reasoning.²¹ For Buchanan the interplay between norms and institutions is not a matter of ‘mere legalization’ or merely consequentialist.²² Institutional reasoning is central to the justification of human rights norms as it is this that overcomes the key argument against an assertive human rights based approach to the use of force – ‘the parochialism objection’.

Social moral epistemology or institutional moral reasoning places a heavy emphasis on the role that institutions have in the development of moral norms. Social institutions are not just places where norms are put into practice. They are a basic element of the very existence and social dynamism of norms. For Buchanan the most important moral norms in international relations are now human rights. Our very conception of human rights (including what rights there are or ought to be and the relative priority that human rights norms have over other moral and legal norms) depends on a broad view of how such norms operate in practice and an evaluation of an existing or potential institutional capacity to deliver on human rights principles in a fair manner. Buchanan does not think that there is much in the way of philosophical disagreement about the value of human rights. There is, however, significant uncertainty and disagreement about how we might fairly implement human rights and thus about the extent to which a commitment to human rights might trump a commitment to the non-use of force or to sovereign independence. These uncertainties are based on concerns about institutionalization of human rights but have significant implications for the moral conception of human rights itself. It is therefore crucial that we deal with such institutional uncertainty (and ways to overcome it) as a core part of moral reasoning. Buchanan writes:

This new perspective on the justification of human rights norms curbs the pretentions of philosophical theory in one respect, but expands the philosopher’s task in another: while traditional philosophical reasoning is not adequate for fully determining the content of human rights norms, but must be supplemented with institutionalized public reasoning, philosophical reasoning is needed to determine what sort of epistemic virtues institutions must have if they are to help determine the content of norms. To put the same point differently, traditional philosophical theorizing about human rights needs to be augmented by social moral epistemology, understood as the systematic comparative evaluation of alternative social institutions and practices as to their effectiveness and efficiency in forming beliefs that are critical for moral judgment and justification.²³

Buchanan uses this approach to argue that human rights must supplant the pursuit of peace as the core constitutive norm of the international order. Central to this position is the claim about the ‘epistemic virtues’ of institutions. For Buchanan plausible institutional reforms could create the sorts of trustworthy institutions that would underwrite a bolder and more systematic application of human rights principles to global governance. Finally he goes on to show that the sorts of institutions that would have the epistemic legitimacy that his account of human rights requires would also be capable of dealing with any objections to an institutionalized doctrine of preventive self-defence, humanitarian intervention and forcible democratization.

For Buchanan the restrictionist approaches are unjustifiably conservative because they fail to take the potential for institutional reform (and its implications for a more assertive account of human rights) into account.²⁴ His argument concerning the moral and institutional nature of normative justification is compelling and we are therefore forced to confront the issue of whether we ought to abandon the constrained just war/legalist view on the governance of force in favour of Buchanan’s permissive liberal view. The key to this question is another – is it true (as Buchanan maintains) that the just war/legalist position is ‘methodologically flawed’ because it is not empirical enough and that the costs of continued adherence to the just war norm are therefore ‘intolerably high’?²⁵ My response here is that Buchanan’s answer to the first part of this question is incorrect: the legalist/just war position does not exhibit the empirical and theoretical flaws that Buchanan ascribes to it. Indeed Buchanan’s theoretical innovation within liberal-cosmopolitan theory has, if anything, brought his position closer to the approach exhibited by many writers in the legalist/just war tradition. Both sides of the debate can claim to be developing an account of institutional moral reasoning. In order to demonstrate this I first offer an exposition of Buchanan’s important contribution before contrasting his position with arguments developed by Christian Reus-Smit and Michael Walzer (as representatives of the legalist/just war tradition). It is clear, I contend, that their works do offer an account of institutionalized public reasoning. The crux of the disagreement between the assertive liberal position and the conservative just war/legalist position ultimately concerns the nature of institutional moral reasoning and the extent to which it encourages us to endorse a conservative or assertive approach to the use of force. Having made this case I then suggest that both Reus-Smit and Walzer offer good reasons to believe that we still have solid human rights-based reasons to think quite conservatively about the use of force.

Buchanan and the liberal case for a permissive regime

Buchanan’s assertive liberalism is driven by the claim that the protection of human rights is both the central goal of the international system and that legitimate global governance institutions must have this goal at their core.²⁶ He goes on to argue powerfully that existing institutions that govern the use of force fail this test. Buchanan’s argument about the centrality of human rights to the legitimacy of global governance institutions rests on two claims. The first is broadly descriptive but underpins the second and more theoretical claim. Buchanan begins his analysis of ‘human rights and the legitimacy of the international order’ with the following statement:

At the dawn of the modern human-rights era, the role of human rights in the international legal order was rather minimal … The situation is different today … There is growing acceptance of the idea that conformity to human rights norms is a necessary condition of the legitimacy of governments and even of states … these developments signal the transition from an international legal system whose constitutive, legitimizing aim was peace among states (and before that merely the regulation of war among states) to one that takes the protection of human rights as one of its central goals.²⁷

As a statement of fact this has some merit but the extent to which international society has made the transition to a human rights based system is the object of significant disagreement. One of the main reasons for the just war/legalist conservative approach to the use of force is that the legitimacy of military action to protect or promote human rights is hotly disputed. Buchanan acknowledges this concern. At worst such claims can be self-interested or based on biased or parochial, rather than universally shared, accounts of what human rights require or justify. At best the question is beset by moral disagreement and uncertainty about the ‘proper goals of the institution’, about ‘what global justice requires’ and ‘what role if any the institution should play in the pursuit of global justice’.²⁸ It is to this challenge (the crucial issue in deciding between just war/legalist conservatism and an assertive liberal regime) that Buchanan dedicates the most sophisticated version of the cosmopolitan-institutional argument.

Buchanan’s eminently plausible starting point is that human rights norms have developed over the 62 years since the Universal Declaration of Human Rights to the point where the institutions that both initiated the human rights culture and govern its practices are now under considerable pressure because they appear to be unable to live up to the success of human rights norms. The issue is not merely one of procedural legitimacy (is the United Nations Security Council really entitled to authorize to humanitarian warfare?) but of ‘substantive’ legitimacy (do the current institutional practices fully reflect our moral obligations to respect human rights?). The idea that we need substantive standards to inform our understanding of the legitimacy of procedures governing the use of force is central to the debate.²⁹ It is the very absence of such standards that makes critics of the assertive liberal cosmopolitan model insist on a conservative approach to the use of force. Buchanan acknowledges that ‘a plausible standard of legitimacy for global governance institutions must somehow accommodate the facts of moral disagreement and uncertainty’.³⁰ In part (but not in whole) this is because, Buchanan argues, the current human rights regime lacks substantive justification. In the declaratory and conventional texts of human rights law such issues are glossed over for the sake of agreement on a list of basic standards. Now however ‘this rationale for avoiding the issue is no longer cogent. The very success of the institutionalization of human rights makes the issue of legitimacy and hence justification inescapable.’³¹ As human rights norms come to be used in novel ways (think about the argument for the institutionalization of humanitarian military action) the question of justification inevitably arises. Such justification is, in part, an institutional matter as ‘the justification of human rights, properly understood, is a dynamic process in which a provisional philosophical conception of human rights both guides and is fleshed out by public processes of practical reasoning structured by legal institutions’.³² The required justification will have to accommodate factual and moral uncertainty but this is something to be addressed institutionally rather than philosophically. It is here that institutional reasoning plays its most important normative role.

Whether a norm is valid can depend on institutional context .… where appropriate institutions are present, a more permissive norm may be valid than would be the case if these institutions did not exist …. Constraints on agents can be achieved not only by their adherence to narrowly drawn norms but also by a combination of more permissive norms and institutions.³³

This is the nub of the matter. Our commitment to human rights may indeed urge us towards relaxing the constraints on the use of force. However the international community is reluctant to accept the argument that our commitment to human rights implies this policy shift because the institutions that govern force do not appear to have the power to prevent self-interested or biased abuses of any relaxing of these constraints. Buchanan’s point, however, is that we must consider these normative risks in light of the supposition that we can always reform institutions, should the risk/reward analysis require it. The biggest risk is what Buchanan terms the parochialism objection – ‘the charge that human rights are expressions of either an arbitrarily limited set of values or an arbitrary ranking of values’.³⁴ This can, of course, play out in many ways but the key is the risk that the human rights justification for an increase in the range of legitimate force will be appropriated by the powerful or the dangerous in a way that works against the goal of respecting rights. It may also be the case that any decision about reform is hampered by moral uncertainty and disagreement about the proper goal of human rights institutions. But there is also risk in not developing a human rights-based conception of institutional legitimacy. Put simply it is the cost of not protecting individuals against threats to their basic human rights posed by terrorists, genocidal regimes or tyrannical rulers. Buchanan argues that his institutional approach reduces the risk of abuse and the risk of factual or moral uncertainty in a way that alters the risk/reward analysis and that it is this possibility that has been overlooked by those who object to his liberal proposition. The crucial claim is that the conservatism inherent in the just war/legalist approach is undertheorized and insufficiently empirical. Buchanan’s target here is the assumption that the institutional resources to counter the threat of parochialism and abuse do not and could not exist.

Because Just War theorizing simply assumes that institutional resources are negligible, it is inherently conservative. Because Just War theorizing does not take up the burden of an empirical enquiry into the benefits and burdens of adhering to norms designed to function in the absence of institutions versus developing new norms, it is methodologically flawed.³⁵

The strength of Buchanan’s own position is that it does not shirk this empirical/normative duty. His social epistemology of human rights recognizes that human rights are not abstract philosophical principles but institutionally embedded norms. He therefore develops both a provisional justification for human rights (the modest objectivist view) and explores the epistemic virtues (by which he means the capacity of an institution to mitigate the risks outlined) of the institutional framework and of potential feasible alternatives to the existing framework.

The modest objectivist view and the epistemic requirements of international institutions

Buchanan’s principal theoretical innovation is the argument that philosophical justification is partial because any complete justification is an institutional (or social/political) as well as a philosophical matter. The philosophical element he terms the ‘modest objectivist view of human rights’ which, he argues, rests on three assumptions.

Every person counts equally in some morally fundamental sense, and this basic equality of moral worth grounds an entitlement to conditions needed to secure the opportunity to live a decent or dignified life (the equal regard assumption).

Certain things can be done to human beings or certain deprivations they can suffer generally undercut the opportunity for their living a decent life (the standard threat assumption).

Feasible and morally acceptable social institutions and practices can significantly reduce these standard threats (the institutional response assumption).³⁶

As an account of human rights there does not appear to be much here to call parochial. Its major premise (that individuals have such rights) is qualified with the historically specific ‘now’.³⁷ So the claim is that this is the core of our normative framework in our actually existing human rights culture. To object to any of the three core assumptions about rights would be to reject in total the very idea of human rights and it is undeniably the case that human rights are central to the current international legal and political order. Buchanan notes that the real risks of parochialism do not arise in this element of the argument but in the ‘factual presuppositions’ of human rights norms – in the account of the conditions that prevent people from living a decent life, in a narrow view of the institutions that can counter threats to a decent life or in a restricted view of the impact that protecting or enforcing rights can have on the basic human interests of some.³⁸ The normative role of the institutions of international society (at all levels including states, NGOs, regional organizations and the UN) is to make explicit and to revise critically, where necessary, these factual presuppositions. The key argument here is that the greater the capacity the institutions have for this task, the more confidence international society can have in a stronger and more permissive human rights regime because the dangers of parochialism are diminished. Institutions must be able to access factual information crucial for the justification or specification of human rights norms, achieve an inclusive representation of interests and provide principled and authoritative specifications of human rights.³⁹

Buchanan’s point is that the rules governing the use of force are restrictive because the institutions governing force are untrustworthy – they lack the epistemic qualities that would give them legitimacy. We have to weigh these shortcomings and their potential for abuse against the cost of not enforcing respect for human rights. We also need to consider what reforms, if any, could mitigate the institutional shortcomings in a way that shifts the cost/benefit analysis. If institutions are sufficiently reliable to make efforts to secure compliance with human rights norms legitimate, this can make all the difference.⁴⁰ The better the epistemic legitimacy of the institution the more likely we are to revise our understanding of the content of particular human rights norms or indeed of the range of human rights norms. We may even revise the core conception itself.⁴¹ It is clear, however, that the institutions that currently exist have real shortcomings. Two clear examples can suffice here. First, the current state consent model of international law making effectively gives states that systematically violate the human rights of their citizens a ‘legitimacy veto’.⁴² This ‘right’ to withhold consent from international institutions, no matter how valuable they are, Buchanan argues forcefully, clearly undermines the institutional goal of respecting and protecting human rights and thus undermines the legitimacy of the legal status quo.⁴³ Second, the UN with its indefensible veto privilege for the Permanent Five in the Security Council, encourages both the abuse of power and strategic bargaining which clearly undermines the epistemic legitimacy of the system.⁴⁴

In response to these shortcomings Buchanan and Keohane develop a series of institutional proposals that are intended to overcome the risks of preventive action. The first proposed model ‘relies exclusively on the Security Council but creates mechanisms for ex ante and ex post accountability and removes decisions about the use of force from the scope of the Council’s permanent member veto’.⁴⁵ The accountability mechanisms would include the need for a supermajority of nine council members and an impartial ex-post review. Where there is no time for ex-ante discussion due to the pressing need for action there would still be an ex-post review backed up (as in the first case) by sanctions. A treaty-based system of sanctions would apply to those who acted where there was no clear mandate or ex-post justification and to those who voted against action where there was clear justification. All the mechanisms – from dropping the veto to imposing sanctions on recalcitrant members – are designed to reduce inertia, promote fair-dealing and encourage use of information in matters concerning the governance of force. Dropping the veto has the additional benefit of removing a morally suspect relic of the early days of the post-war UN.⁴⁶ This is the essence of this reform proposal but also the reason why Buchanan and Keohane believe it to be infeasible since

States that now possess the veto are unlikely to relinquish it and no one else can make the proposed change. Moreover it is especially unlikely that they would relinquish the veto over something as important and controversial as the [preventive] use of force.⁴⁷

The second proposal, dubbed ‘accountability despite the veto’, offers the same measures but leaves the veto intact. The hope is that this would reduce the likelihood that vetoes would be used during the process but, ultimately, neither scholar is convinced that it would prevent the arbitrary and self-interested use of the veto that breeds inaction. The third mechanism, and the one which they present as the most promising, is to ‘implement the Security Council-based accountability mechanisms described in the second proposal but supplement them with a supporting role for a coalition of reasonably democratic states’. This coalition would be geographically unrestricted in membership, and designed to go into operation only in the event of deadlock in the Security Council. The most obvious advantage of this third proposal, argue its authors, ‘is that it provides for the possibility of responsible decisions to use force when the Security Council fails to do so. But another equally important advantage is that the possibility that a decision will go to the democratic coalition provides an incentive for the Security Council to act more responsibly.’⁴⁸

The call for a coalition of democratic states appears to mirror similar calls from the US right wing⁴⁹ but has a long pedigree in liberal and democrat thinking.⁵⁰ The claim is that democracies are more likely to respect human rights and thus pass the minimal moral acceptability criterion for legitimacy.⁵¹ The ex-ante and ex-post accountability mechanisms guarantee the epistemic legitimacy of the process and together the epistemic legitimacy of the governance regime is improved to the point where the risks of not acting to prevent or stop massive human rights violations outweigh the risks of parochialism.

This exposition cannot do full justice to the elaborate and detailed work of Buchanan and Keohane. Nevertheless the working parts of the argument are now in front of us. The argument in favour of rejecting the constraint on the use of force typically found in the contemporary just war/legalist position rests on the cost in terms of massive human rights violations versus the cost in terms of the risk of abuse and moral uncertainty. Buchanan (and other liberal commentators) acknowledge that risks posed by abuse/parochialism and uncertainty are indeed significant but argue that some feasible reforms to the governance institutions serve to mitigate such risks.⁵² The mitigating power of the reforms is not simply procedural but substantive in that it embodies the core normative value – respect for and protection of human rights. These moves underwrite legitimate institutional governance for humanitarian intervention, preventive self-defence and (for Buchanan at least) forcible democratization because each instance of the use of force suffers from the same risks, and seeks to respond to the same challenges (massive violations of human rights). This yields the assertive liberal challenge to the just war tradition.⁵³

Human rights and assertive liberalism: responses from the legalist and just war traditions

For a cosmopolitan political theorist to accuse just war theorists of a lack of empirical detail represents a significant intellectual turnabout. But this is why the legalist/just war traditions must take Buchanan’s challenge seriously. The two principal elements of his social moral epistemology or institutional moral reasoning argument combine to present real challenges to core tenets of these more conservative traditions. The first challenge is the claim that norms and institutions must be considered together and, most importantly, that institutional reforms can radically alter normative ambition. The legalist/just war position has no settled form. It can be seen to evolve historically as the normative and institutional structure of international society develops. Its evolution is, of course, contested internally but there is little doubt that contemporary concerns with humanitarian intervention versus the prohibition of non-defensive war or the limits of just self-defence (pre-emption versus prevention) are coloured by the specifics of post-Cold War UN institutions and the human rights discourses that are a vital part of that order. It is also clear that many scholars in this field have struggled to square the circle of the need to protect human rights in a global order that protects, as a founding value, the sovereign independence of states. The thought that radical reform of the institutional context should be part of the prescriptive project (including what Buchanan calls ‘illegal legal reform’⁵⁴) has not really been a major part of the endeavour. Most scholars are methodologically tied into charting the normative evolution of the global order and to remaining within the socially sanctioned boundaries of that order as it currently exists. In most cases this is not intended as a conservative project. In many cases the work emphasizes the normative movement towards a human rights based global society (often critiquing neo-realist and neo-liberal conservatism) but there are epistemological reasons why the leap to Buchanan’s more ambitious stance is avoided.

In order to fully grasp this position it is useful to first address Buchanan’s second insight. Buchanan’s point, that many theorists have overlooked the possibility that institutional reform could radically alter the risk/reward analysis, is intimately tied up with his claim that justification relies on social moral epistemology or institutional moral reasoning. This argument supplements the contemporary trend in liberal-cosmopolitan political theory towards developing a ‘practical’ or ‘incompletely theorized’ account of human rights that is grounded in the facts of human rights in our system.⁵⁵ The acknowledgement that normative justification is partly a social process also moves Buchanan firmly on to the theoretical ground occupied by the social constructivist, international society and just war schools. At a deep theoretical level constructivists and just war theorists (in Walzer’s mode) share a commitment to connecting moral and public reasoning and can all be said to share an interest in institutional moral reasoning. The essence of institutional moral reasoning is recognition of the vital role that moral debate plays in the social and institutional context in which the legal order is constituted. The claim is that starting from within the discourses of international society gives the theorist access to what Hurrell terms ‘a stable and shared framework for moral, legal and political debate’.⁵⁶ Buchanan, writing in a very different philosophical tradition, suggests that institutional moral reasoning is an essential corrective to abstract moral theorizing on the one hand and the conservative positivism of most international law on the other.⁵⁷ There is, however, still a theoretical gulf between the two traditions. This gulf can helpfully be characterized as disagreement over the nature of social moral epistemology.

Among the legalist supporters of the constrained regime governing the use of force, the debates concerning the politics of international law are especially rich.⁵⁸ Reus-Smit’s account of the language and practice of normative justification argues that the idea of institutional moral reasoning grants access to the moral, legal and political debates, but also imposes certain constraints on the theoretical enterprise. The constraint might best be understood as the requirement that the theorist respect the institutional autonomy of the international legal order. In particular, we must focus on the distinctive ways that legal norms are used and the institutional process that enables or constitutes the ‘socially sanctioned’ interpretation of such rules.⁵⁹ This claim is common to both sides of this debate yet Buchanan’s prescription for an assertive institutional structure that takes human rights seriously is especially far-reaching. It is radical not just in its prescriptions concerning the use of force but in its transcendence of what Reus-Smit calls the equalitarian regime that underpins contemporary international society.⁶⁰ For Reus-Smit, who heralds the ‘progressive cosmopolitanisation of international law’,⁶¹ the equalitarian regime models the formal legal and political equality of states under the UN charter system and (for all its faults and contradictions) has been vital in reducing the incidence of interstate warfare. His work sharply criticizes the liberal argument in favour of a ‘formal rehierachisation’ of international politics ‘whereby democratic states would gain special governance rights – particularly with regard to the legitimate use of force – and other states would have their categorical rights to self-determination and non-intervention qualified’.⁶² Similarly Hurrell’s account of the development of the global order that gives rise to global solidarism has significant overlap with Buchanan’s approach. Like Buchanan, Hurrell identifies the evolution of international law from narrowly bilateral treaties to multilateral and universal instruments, instant customary law and superior norms as heralding the normative (in the moral sense) development towards global justice and a more coercive solidarism.⁶³ Nevertheless his argument, while acknowledging the increased normative ambition of international society, also acknowledges that the structures of security management remain firmly in the pluralist world.⁶⁴

My point is not merely that some scholars take a different position to Buchanan. It is that scholars can take Buchanan’s account of the importance of institutional justification seriously, yet offer opposing analyses. In part this is because the constructivist approach to social and institutional reasoning has a richer view of the epistemic qualities of institutions. Reus-Smit’s work here has its roots in an earlier critique of Keohane’s ‘Demand for International Regimes’⁶⁵ where he argues persuasively that the politics of international law should be viewed as ‘interstitial’, as combining idiographic, purposive, instrumental and ethical reason.⁶⁶ His account of the constitutive and complex nature of reason requires us to take a ‘holistic view of institutional rationality’⁶⁷ and to defer genuinely to the outcomes of institutionalized reasoning. Buchanan and Keohane make it clear in the very first paragraph of ‘the legitimacy of global governance institutions’ that they are more interested in the morally normative than in any question of sociological legitimacy.⁶⁸ Yet as Hurrell, Reus-Smit and many others who concentrate on the politics of international law have demonstrated, the way that agents constitute the legal order, debating the merits of various interpretations of the law and of the merits of human rights driven reform, is an essential part of any social moral epistemology. One of Reus-Smit’s major criticisms of the liberal argument in favour of establishing a hierarchical international politics concerns the lack of sociological legitimacy such an order faces. He writes:

Curiously, this need for international legitimacy has been all but ignored by advocates of liberal hierarchy. They strongly imply, of course, that a democratic coalition or pacific union would be legitimate, but they attribute this legitimacy to superior political and moral qualities … By definition legitimacy is a social phenomenon, it depends on the judgment of others … Theorists such as Fukuyama and Buchanan and Keohane might decide that democratic coalition is legitimate a priori, but if international society determines otherwise, then their judgment is moot.⁶⁹

Reus-Smit’s account of legitimacy is close to Buchanan’s in that he too argues that human rights are a central constitutive norm in modern international politics and therefore understands the attractiveness of the way that Buchanan and others attempt to resolve the trade off between order and justice in international society.⁷⁰ Nevertheless he believes that the liberal resolution to this central issue runs into significant problems. At stake here is the account of what the ‘empiricism’ that Buchanan finds lacking in the just war/legalist response requires. It overlooks the fact that a core part of the epistemic quality of an institution is not merely its ability to generate fair dealing and trust.

When actors create institutions, they are almost always engaged in the simultaneous social identities, definition and validation of individual and collective interests, deliberation on the good and the just, and the strategic pursuit of instrumental objectives.⁷¹

The idea that the commitment to human rights principles (even one fully compatible with the modest objectivist view) would lead members of international society to abandon the ‘equalitarian’ regime based on sovereign equality in favour of a formal rehierachization overlooks the centrality of the norms of procedural justice tied up with multilateralism in contemporary international politics. International law is a fragmented system of law with a series of regimes covering distinct areas (from trade to human rights to the law of the sea). The idea that human rights could naturally become the guiding set of norms for all regimes to the point of undercutting the equalitarian regime seems to put the liberal cart before the institutional horse. The modest objectivist view of human rights does not insist on the reconstitution of the international legal order. It does offer that possibility, but the debate is one that asks all actors to choose between an equalitarian conservative approach to the use of force or an assertive hierarchical approach. Reus-Smit continues his empirical attack on ‘the liberal license to use force’ by pointing to the practical problems in identifying democratic states that appear to live up to the minimal moral acceptability criterion that befits them for superior status in international decision-making.⁷² Buchanan himself recognizes that the record of the USA in recent world affairs may mean that any coalition of democratic states might benefit from the absence of a superpower ‘widely regarded – and not without reason – as an international scoff-law’.⁷³ Add to this the reaction of powerful but excluded states such as China and Russia and it is hard to avoid the conclusion that Buchanan’s social moral epistemology exhibits precisely the empirical (in the theoretical and practical sense) flaws that he ascribes to the proponents of military restraint. Underpinning this difference of opinion are more than two distinct views of the way that human rights should be employed in the reform of international institutions. The crucial difference is in the concept of rationality that underpins each conception of social moral epistemology. For Reus-Smit epistemic uncertainty about the role of human rights in the constitution of international society is to be worked out by the actors themselves as they consider the institutional moral reasons supporting the assertive or conservative approaches.

The constitutive approach to institutional moral reasoning that we find in the legalist/just war tradition prioritizes politics over philosophy. In part this has its roots in a view of the limits of rationality⁷⁴ and the role that politics plays in the social construction of value. A classic example here is the manner in which Walzer’s political theory presents the view that decision-making and normative justification is a social rather than philosophical affair.⁷⁵ For Walzer morality is a social object and recognition of that fact encourages a deep pluralism and a respect for the political processes through which people create and contest those vital social objects. This position does not deny the authority of universal human rights but structures the way he treats their emergence, iteration and development.⁷⁶ For Walzer a lot depends upon the degree to which we are prepared to ‘accept the risks’ of politics. Agents may not choose to give up multilateralism for a human rights based and hierarchical international order. Walzer’s argument that the role of the philosopher who recognizes the requirements of social moral epistemology is one of social criticism could be read as an interesting twist on the limited role Buchanan now sees for the philosopher in respect of normative justification. In fact Walzer goes further to argue that there are good reasons (stemming from the reiterative nature of universal moral principles) for endorsing a pluralist and multilateralist institutional structure. Indeed, the claim that the just war theory has not considered the possibility that institutional reform could make a more permissive regime more attractive is flatly contradicted by Walzer’s exploration of institutional reform found in the final chapter of Arguing about War.⁷⁷ The mere fact of such a clear contradiction is of only minor interest but the argument advanced in that essay, which sets out to answer the question ‘what constitutional goals should we set ourselves in an age of globalization?’ is far more revealing. Giving himself the theoretical option of seven different constitutional arrangements ranging from an imaginary Kantian ‘world republic’ to international anarchy Walzer opts for a constitutional model that aspires to overcome the problems of the ‘decentralization of sovereign states’ through a series of institutional reforms but chooses, as an ideal, a pluralist model that has, as one of its acknowledged potential shortcomings, a limited capacity for peacekeeping and human rights enforcement.⁷⁸ Walzer does recognize the importance of human rights in contemporary international society but argues (following his account of human rights developed elsewhere) that

Difference as a value exists alongside peace, equality, and autonomy, it does not supersede them. My argument is that they are best pursued in circumstances where there are many avenues of pursuit. The dream of a single agent – the enlightened despot, the civilising imperium, the communist vanguard, the global state – is a delusion.⁷⁹

This is not just an argument about the degree to which human rights have become important to international society. It is a disagreement about the nature of human rights and the socially determined understanding of what a proper respect for human rights requires. Walzer’s account of the reiterative, inherently social development of human rights leads him to argue that ‘we can (and should) defend some minimal understanding of human rights and seek its universal enforcement, but enforcement in the third degree of pluralism would necessarily involve many agents, hence many arguments and decisions, and the results are bound to be uneven’.⁸⁰ This is considered preferable because it protects ‘the equality for groups and individuals across the globe’ and in doing so preserves the social freedom to shape our human rights culture which is a vital feature of its current and continued legitimacy.⁸¹ It is this final point that joins Walzer and Reus-Smit in the principled rejection of Buchanan’s account of institutional moral reasoning. This, in turn, supports the argument that a rejection of hierarchical institutional framework for the defence or promotion of human rights by military means is not ‘empirically flawed’ and unduly conservative but that it is a consequence of taking institutional moral reasoning seriously.

Conclusion

Buchanan’s account of the justificatory power of social moral epistemology and the importance of human rights to institutional legitimacy is compelling but the claim that the just war/legalist approach to the governance of force is unduly conservative is not conclusive. Buchanan argues that such military reticence is caused by the insufficiently empirical nature of the just war and the legalist positions, by which he means that they do not offer an institutional-moral account of legitimacy. In this paper this argument has been challenged by exploring the ways in which constructivist readings of the politics of international law and just war scholars have endorsed but contested the idea of institutional moral reasoning. What divides them, I have argued, is an account of what social moral epistemology or institutional moral reasoning can justify. Much of this comes down to the claim that the idea of human rights has become a central constitutive norm of international society. None of the positions that I have examined here deny the importance of human rights to contemporary international law and politics. However, the idea that a hierarchical rather than equalitarian regime is likely to further the cause of human rights and the contention that it should do so by military means is met with significant resistance in the discourses of international society. Surely this evident scepticism is germane to the construction of a social moral epistemology necessary for the legitimacy of the liberal proposal. Such scepticism is not merely an empirical fact, it builds on moral and legal norms concerning the relevance of political freedom and self-determination for the development of a legitimate human rights regime. My principal point is that this is not just a debate between liberals and just war theorists. It is better viewed as a debate about the content and role of social moral epistemology or institutional moral reasoning. This is, contrary to Buchanan’s claim, a debate to which defenders of constraint in the use of force have made detailed contributions. To my mind, an account of the institutional legitimacy of human rights protection does not commit us to a defence of the assertive liberal model.