Just for a couple hours. So thank you for having me and thank you for being here.
So perhaps like a lot of you, I've been thinking a lot over the past few years about my commitment to international law,
what I value in it and why, because we seem to be at a transition point.
International law is like all law, a product of the social and political conditions in which it operates.
And these conditions seem to me to be changing some of this over the past few years has had to do with Donald Trump.
But there have also been many other factors in play, especially in the United States.
So the American public right now is seriously questioning America's outsized role in constructing the global order.
And even if we weren't, our geopolitical position, especially relative to China, is changing.
Nationalist movements have sprouted up in different parts of the world.
The humanitarian impulses that were for many years ascendant in international law now seem in decline,
as is evident in the parent listlessness of the International Criminal Court.
Europe's migration crisis and the complete failure to address gross and systemic human rights abuses of the sort committed in Syria and Myanmar.
So now seems like a good time to take a step back and ask what do we want international law to look like?
What vision for it should we aspire to achieve? Needless to say, each of us might prioritise different policy goals for international law.
So we might want to grow or redistribute the global economic pie. Mitigate climate change.
Reduce threats to human security and so on. Today, I want to put aside questions of policy and focus instead on the question of legal form.
Whatever policies might be pursued, why should we want them to be pursued through international law?
What does international law bring to the table that makes it preferable to other forms of social ordering?
That's, of course, a really big question. But we can start with the basic point that international law is a kind of law and an expansive philosophy.
Philosophical literature explores what makes law as an enterprise worthwhile.
This literature uses the umbrella concept of the rule of law to try to capture the attributes of law that are in general valuable.
So today I'm going to draw on this literature to offer two visions or ideals for the international rule of law.
I'll argue that each of these visions visions captures something important about international law.
But while the first vision already informs much of the thinking in the field, I think the second, which has largely been overlooked,
might more often provide a suitable framework for evaluating when and why international law is worthwhile.
So let's start with the first more familiar vision. This vision of the rule of law prioritises obedience to law as a way of constraining straight
to state discretion and thereby ensuring that states do not exercise power arbitrarily.
So here the rule of law and by extension the international rule of law requires establishing conduct rules that satisfy three basic criteria.
First, the rules must be relatively precise and content. Second, they must be stable as inconsistently and impartially applied.
And third, they must work to constrain the discretion of the people who have power to make particular governance decisions.
These three criteria for the rule of law depict an ideal in which the law directs people on what they are supposed to do and then they do it.
The criteria are context independent, so they are meant to define what the rule of law requires across issue areas,
and they define it more or less as an alternative to the arbitrary exercise of power.
So, as I said, this vision of the rule of law should sound familiar to international lawyers.
It drives how many of us evaluate the enterprise and informs the kinds of arrangements that we tend to prise or seek to implement.
Just think of all the efforts to clarify the normative content of international law.
We must establish precise conduct rules.
People say because and I'm quoting here, excepting only vague general principles weakens the laws power to impose meaningful constraints.
In other words, imprecision in the content of international law reduces its constraining effect.
And that is thought to be a problem. The worry is that certain areas of international law are insignia are insufficiently clear or precise.
And so they don't direct states on what to do or therefore constrain state behaviour.
This worry drives the many efforts to make international law more precise.
Or think of the claim, which is variously expressed that internationalise too easily infected by power politics,
not consistently and impartially applied. Again, the instability and the application of international law is thought to be a problem because
it means that states and especially powerful states might not adequately be constrained.
This is why international lawyers favour third party adjudicative institutions. International courts and tribunals serve.
And Karen Altar's words to, quote, subordinate powerful actors to the rule of law.
They have again quoting alter, quote, the authority to say what international law means to apply the law in concrete
cases and thus to indicate what compliance with international law entails.
Geared to bear on the Louise Cheney and John Young voters say something similar adjudicative institutions contribute to the rule of law.
They say that providing for the law is, quote, consistent and impartial enforcement and thereby,
quote, ensuring that legal rules prevail over power in the settlement of disputes.
Again, if the rule of law is about constraining state discretion for the first vision that international
UN needs to be impartially and consistently applied so that it constrains all states,
including the most powerful ones. And then there is the whole cottage industry devoted to state compliance with international law.
This work asks when and why states would comply with international law even if they would prefer to do something else.
The normative assumption is that if states comply with international on these situations, then it must be doing what it is supposed to do.
It must be constraining their discretion.
Some go so far as to say that the only reason to have international law, the only way in which it matters, is if it generates compliance.
The quote, whole point of international law yet and says is, quote,
to create a structure whereby the costs of shifting strategy away from compliance
becomes higher than it would be without legal regulation in that particular area.
If states don't comply with international law and it therefore doesn't control their conduct, then it's not worth the paper it's written on.
Or so the first vision of the rule of law suggests and the obsession with obedience and rule following that it generates.
The idea of the rule of law is a constraint is, of course, appealing in certain contexts.
So take the use of Bellen, which is an area of law in which I do a lot of my research,
that that area of law should, in my view, constrain how states use force across national borders.
But remember, this vision is content independent.
It's supposed to provide a model not just for certain areas of international law, but for all of international law.
And in my view, this across the board ideal for international law has very real and very underappreciated flaws.
In particular, I think just grafting the vision of the rule of law is constrained from the domestic context for which it was first developed.
And sort of flopping it onto international law loses something significant in translation as applied to international law.
It seems to me that the reasons for constraining state discretion are less compelling,
and the reasons for allowing state flexibility in the exercise of their discretion are more compelling.
So let me unpack what I mean here.
In the domestic context, the central concern for the rule of law is the relationship between a state and its people.
Rule of law theorists focus on limiting how states exercise power in order to protect people
who are subjects of the state from the centralisation of power in the hands of the state.
We want to be sure that a state cannot arbitrarily decide, for example, whose properties expropriated,
who must live near an environmental hazard and whose food is contaminated. Put differently,
we want the state to be constrained in the everyday administration of government
so that its subjects know what to expect and can organise their lives around it,
not be subject to the whims or biases of the people who happen to be making decisions that will significantly impact their lives.
Having precise and stable conduct rules that constrain governmental discretion is a good way of doing that.
Note that some rule of law theorists have argued that these are the criteria that I mentioned earlier are still insufficient.
So if the goal is to constrain how states exercise power over people,
the argument goes it's not enough just to establish precise conduct rules that are consistently applied.
The rules must have particular content. They must incorporate basic human rights values that protect people from governmental abuse.
I don't want to right now adjudicate this debate between the thin conception of the rule of law
that is completely content independent and the thicker one that has a human rights overlay.
I just want to flag that this debate exists.
And note that even under the thicker conception, the three criteria that I mentioned earlier, I thought to be critical to constraining state power.
They are thought to be necessary, even if not sufficient, for the vision, but for the first vision of the rule of law.
So when we shift from the domestic to the international context, those reasons for constraining state discretion become less salient.
Although some areas of international law directly touch individual lives as when international courts criminally prosecute people.
Most of international law is mediated through domestic, legal and political systems.
National actors must take steps to implement it. These actors must retain the power to make international law relevant or not in people's lives.
So while individuals still need robust protections from governmental decisions at the national level,
including perhaps decisions relating to international law, they are for structural reasons more shielded from what happens on the international plane.
Now, some analogised the position of individuals and national law to that of states and international law.
They posit that weak states need comparable protections from arbitrariness and abuse.
The analogy, in my view, doesn't quite work because the relationship between states is not at all like that between a state and its own people.
The international legal system is highly decentralised so that even states that are relatively weak by
conventional standards still retain considerable control over how international law affects them or their people.
The bottom line is that the coercion that a state experiences in the ordinary course of its
international relations is not at all comparable to that which it routinely imposes on its own people.
The state is less often, though, again, not never. Less often, though not never needs law to protect it from arbitrariness and abuse.
Of course, we must still prioritise clarity, stability and obedience to law for other reasons that are independent of its content,
for example, to foster predictability or coordination in international affairs.
But these reasons are ultimately not about protecting individuals from state power.
And so they are, in my view, less compelling than the reasons for insisting that states constrain themselves through domestic law.
They more readily budge in the face of competing considerations. I just want to pause and be clear here.
I'm not arguing that states should aimlessly disregard international law.
I'm arguing that the normative case for establishing stable conduct rules that all states always obey,
no matter their content, is weaker than many assume.
At the same time, the reasons for not establishing such rules are more compelling in the international context.
States vary enormously in their needs, interests, values and capacities,
insisting that they all consistently obey the same conduct rules consistently and impartially applied will.
In many, though again, not all settings be counterproductive or itself a source of oppression.
Any one rule is likely to be inconsistent with what the people in some states need or want, with what their governments can realistically provide.
Positive international law already to some extent recognises this point.
Many international legal instruments define state obligations in terms that are highly, contextually variable.
That affords states significant discretion to decide what measures they will take to satisfy their own obligations,
or that allows states to limit the scope or effect of particular obligations as applied to them.
Take the principal obligation in the Paris Agreement on Climate Change.
It requires each party simply to, quote, prepare, communicate and maintain successive nationally determined contributions that it intends to achieve.
Likewise, the core obligation of the International Covenant on Economic, Social and Cultural Rights.
The icy ESR provides that each state must, quote,
take steps to the maximum of its available resources with a view of achieving progressively the full realisation of the relevant rights.
If one adopts the vision of the rule of law is constrained,
these sorts of provisions are problems, evidence of a deficiency that ought to be corrected.
They are imprecise and cannot consistently be applied because they give each state too much discretion to decide on its own what it will do.
But it's not at all clear, at least not to me, that that's the right way to evaluate them.
Such provisions accommodate real differences amongst states.
States demand and to some extent need the flexibility to adapt international law to their own circumstances.
Indeed, given the world's diversity push, pushing them all to obey the very same conduct rules will often be oppressive.
It will mean locking them into arrangements that they accepted before the full implications where a parent
or pushing them to go along with majoritarian preferences in the interest of international cooperation.
There's little reason to believe that those results would systematically advance basic rule of law values like justice, fairness and human freedom.
To the contrary, scholars who write from the whale tradition,
those who emphasise third world approaches international law have long argued that international rules too often prioritise the interests,
values and perspectives of the powerful and operate to the detriment of those that have historically been marginalised.
In other words, establishing precise conduct rules that are consistently applied might constrain all states,
but it might do so with disparate effects and in ways that further diminish the positions of the less powerful.
It will at times be a source not of human freedom and emancipation, but of oppression.
The WTO trips agreement is a good example. Almost immediately after the agreement was signed,
many developing countries started complaining that its intellectual property protections were too onerous or even harmful as applied to them.
Insisting on rule following in this context begins to look like something that we might want to avoid.
It looks like the rule by law instead of the rule of law. So on balance, the first vision of the rule of law,
the rule of law is constraint is less compelling for international law that it is for domestic law.
The reasons for constraining state discretion are less salient, and the reasons for allowing more flexibility are more salient.
Again, I'm not saying that the vision is problematic in every single setting in which it is invoked.
Just that we should not assume that it is across the board desirable.
We should not assume that precision, consistency and constraint are always for the good.
So those who want to push international law in those directions and again, many people instinctively do,
should make a case for that push in the specific settings in which it is made.
And in light of the countervailing considerations, for example, while the rule of law,
while the first vision of the rule of law might define the ideal for the use of Balam,
it's not as compelling for intellectual property rights or for the full realisation of economic, social and cultural rights under the CSIR.
We should be more mindful of its limits as a normative ideal. So what's the alternative?
What might the rule of law entail, if not rule following, if not directing people on what to do and then having them do it?
The second vision for the international rule of law is less about using international as a constraint on state power and more about using it,
in Jeremy Waldron's words, to, quote, commit to a certain method of arguing about the exercise of public power.
The idea here is that the rule of law is advanced through legal argumentation and debate.
Again, think of the obligations in the Paris Agreement and in the ICSE are their content is highly imprecise and contextually variable.
So they fall short of the first vision of the rule of law because they give
considerable discretion to states in the implementation of their own economic,
social and cultural rights, or the right of economic, social, cultural rights of the people in their territories.
But insofar as they help structure an iterative process of legal argumentation debate, I want to argue they might will satisfy the second vision.
I mean, to tell you why, I think international laws, argumentative practise, promotes the rule of law.
But before I do, I should probably explain what I mean by it.
So is all lawyers know legal arguments have a particular structure and style.
Most fundamentally, they focus on questions relating to public authority. They address not or not only whether particular conduct is feasible,
but also whether it is appropriate, whether it is consonant with the precepts of the regulated group.
Legal arguments offer reasons for positions that purport to reflect the interests and values of the group.
They tie the reasons to the facts. They rely on particular text norms and methods of analysis.
They are subject to external scrutiny and debate and so forth.
Arguments can be more or less legalised depending on the extent to which they display these attributes.
But and this is a point worth underscoring and argument need not use a derivation
of the word law or invoke any particular text or norm to be legal in kind.
What makes it legal and kind is its structure and style and its particular focus on issues of public authority.
So let me give you a concrete example from the use of Belem. You might remember that in 2017,
the United States attacked a Syrian airfield after evidence surfaced that the Syrian regime had again used chemical weapons against its people.
The United States didn't explain how its action was consistent with the black letter doctrine on the use of that one.
It didn't claim to be acting pursuant to the Security Council's authorisation in self-defence or with the Syrian government's consent.
Many international lawyers have taken this to mean that it therefore did not present a legal argument to justify the strike.
I think that's wrong. The United States did, in fact, try to justify its exercise of military power by reference to international law,
in its words, by reference to Syria's, quote, widespread violations of international law.
It invoked several international legal texts to argue that it was upholding not just its own principles,
but interests and values of the international community as a whole.
It alluded to background legal norms when it asserted that it use force only as a last resort only after the,
quote, exhaustion of all reasonably available peace for remedies and only as,
quote, necessary and proportionate to the aim of deterring and preventing the future use of chemical weapons by the Syrian government.
It also appeared before the Security Council, the international institution,
with legal primacy in this area to explain its conduct and subjective reasoning to external scrutiny.
In short, the United States conceded that it was not entitled to attack Syria just because it could.
It recognised that any authority for its operation would have to come from other states, and it made a pitch to them to earn this authority.
These are the ingredients of a legal argument, and we can contrast that approach with the one that the United States took in January
20 20 when it conducted a targeted airstrike against Iranian general custom Sulimani,
who was at the time on business in Iraq. In the days following that strike, the United States mostly just thumbed its nose at international law.
President Trump and other administration officials vacillated incoherently about their justification for using military force.
They variously suggested that the action was justifiable to deter imminent attacks at Sulimani,
was plotting, that it was retribution for earlier attacks. And that was just part of a broader geopolitical contest with Iran.
U.S. officials did not provide the details to substantiate any of these justifications. And at times, they trafficked in conspiracy theories and lies.
So these two examples. Syria in twenty seventeen and Sulimani in 2020 put in stark relief the second vision of the rule of law,
the one that centres on laws, argumentative practise. In each example, international law did not constrain U.S. power.
The United States, by most accounts, violated international law so did not satisfy the first vision for the rule of law,
the one that focuses on constraining power through law. Moreover, and now I'm just repeating myself.
This is a context in which we might actually prise obedience and constraint. The first vision might actually be the ideal.
But even if that first vision is the ideal,
we should have a normative framework that can help us understand why the US approach in this Sulimani incident was so troubling.
Beyond the fact of the violation,
and if we think that the only way international law can matter is if states comply with it or if it constrains their power,
then we will come up short. The second vision of the international rule of law.
By contrast, the one that focuses on its argumentative practise gives us more traction here.
So I want to suggest that international laws, argumentative practise promotes four key values that are commonly associated with the rule of law.
And it does so even when it doesn't serve the constraining function that the first vision of the rule of law prioritises.
First, at the most basic level, legal argumentation signals that material power is not a sufficient basis for making governance decisions.
Those who have the power to make particular decisions must show not only that they can implement a decision,
but that they may that they have authority to do what they want to do.
In international law, the relevant authority, of course, rest beyond the jurisdiction of any one state.
So those who want it have to earn it from other global actors when they argue about whether they have it.
They indicate, even if only implicitly, that it exists and that it matters, matters enough for them to fight over it.
Arguments about international law does reinforce and preserve the expectation that governance
decisions must be rooted in some authority that resides at the international level.
When the United States struck Syria in 2017, at least recognise that its decision had to be justified by reference to international law.
It accepted the general proposition that use of force issues are properly addressed by the group of states and are not entirely up to any one of them.
The U.S. must message in the Sulimani and said it was different.
It was that the United States would do as it pleased and the rest of the world would suffer the consequences in not presenting a legal argument.
The United States treated the authority of international law as irrelevant. Second,
legal argumentation serves to hold those who make decisions accountable for their
actions because international legal authority rests with the collective and say so,
wanted on their side,
must earn it from other actors arguing with them about whether they have is a way of holding them accountable for their decisions.
When a state seeks to establish that it has authority, when it makes a legal argument to support what it has done,
it effectively empowers other actors either to confer authority on or to deny authority to it.
The argument becomes a tool for legitimising or delegitimizing its behaviour in law in some circumstances.
Legal argumentation might work to shape whether or how a state exercises its power.
A state that can't reasonably justify a decision but choose to do something else.
But note that legal argumentation doesn't necessarily constrain power through stable conduct rules that are consistently applied.
It constrains power by cultivating the expectation that governance decisions that lack authority are in some
sense illegitimate and by giving external actors a central role in making that legitimacy determination.
What's more, even if a legal argument doesn't affect a state's operational behaviour, it still has a way of holding the state's feet to the fire.
The argument pushes the state to explain and try to justify the decision to the various external constituencies that are paying attention.
The Solomonov strike is again instructive, although Iran and Iraq each complained to the Security Council that the United States had acted unlawfully.
The United States communicated through its evident disregard for the enterprise that
it was not particularly invested in justifying its conducted international law,
and the vast majority of other states didn't press it to do so.
The result was that the use of Bellen seemed not only materially but also normatively irrelevant.
It did not constrain the decision to use force, but neither did it legitimise or delegitimize that decision by not having the argument.
States did not hold the United States accountable for the strike.
Third, legal argumentation is a way of showing respect to people who care about or are affected by particular decisions.
The argument treats people like they are not just pawns in some geopolitical game of chess,
but individuals who deserve a recent account of what is happening and why and who might themselves have views worth sharing on the subject.
Quote, even if compliance is not the issue. Frederic Schauer has explained giving reasons for governance decisions is still a way of showing
respect for the subject and a way of opening a conversation rather than forestalling one.
Mark Tushnet has made a similar point, arguing in law, he says, quote, expresses respect for people is reasoning and reasonable beings,
which, quote, does seem an unqualified human good in trying to justify the Styria operation under international law.
The United States recognised that it owed various audiences an explanation for its conduct.
It conceded that it was not entitled to attack Syria just because it had the military power to do so.
It explained that its action was based on general principles that, though contested, reflected a considered view of the public good.
Now, for example, the president's own personal vendetta and address competing normative positions.
Of course, many people would have preferred for it not to have conducted the attack.
But given that it did, its legal arguments at least informed others of what it was doing and why, and invited them to think about its logic.
Voice objections and demand a reasoned response, including in the institution that is specifically charged with addressing such situations.
The U.N. Security Council, the Solomonov case is again different.
The Trump administration is changing and untether justifications express not respect,
but contempt for those who expected a reasoned account of what it did. And if you don't think this matters, other people do.
U.S. Republican Senator Mike Lee called the administration's briefing to Congress, quote,
insulting and demeaning for the way it tried to stifle rather than engage seriously in a recent discussion.
And to be clear. Lee's complaint was not about the legal or policy merits of the Sulimani strike.
He emphasised that he supported the Trump administration and admired what he saw as its overall restraint in dealing with Iran.
His complaint was that the administration was not serious about publicly justifying its action in law.
The administration's message, in Lee's words, were, was that we, quote, need to be good little boys and girls and not debate this in public.
For Lee, that message was, and I'm quoting here, absolutely insane.
Wrong and again, insulting. Not trying to justify the action in law was a show of disrespect.
Finally, international argumentative practise helps can constitute a decent global politics about the contentious things that states do in the world.
It enables people in different parts of the world to engage together on the
issues that they all care about while structuring and relatively positive ways,
how they gauge, again, legal arguments of a particular structure and style.
The participants use the laws, various resources, its text norms,
methods and institutions to explain how their positions are consonance with the interests and values of the group.
The argument thus pushes them to grapple with the politics of the group.
Those who engage in these arguments plainly disagree about which policies best promote the public good
through disagreements at times run so deep that they cannot definitively or authoritatively be resolved,
and their legal positions are almost certainly informed by their own interests or passions.
Still, there is value to putting them in conversation with one another and pushing them, as Shantell Move has said,
to, quote, see themselves as belonging to the same political association and sharing a common symbolic space.
My colleague Don Herzog explains that, quote, Debate over principle,
over the common good and justice is a distinctive and invaluable moment of political life.
It requires a depth and seriousness of purpose, he says, not because it is detached from or just a cloak for the participants on preferences,
but because it involves the dissonant intertwining of principle and interest in trying to define their own priorities in relation to the group.
The participants must in some way contend with the politics of the group.
They must confront what is at stake in concrete decisions not just for themselves, but also for others who care about the decisions.
Take another example from the use of Bellum.
About a dozen militarily powerful states now claim that they may use force in self-defence against non-state actors.
If the state from which these actors commit an attack is unable or unwilling to address their threat.
This claim has formed nearly two decades of debate amongst a broad range of actors.
Although the participants have plainly been motivated by their own interests and values, they have also argued about principle.
They have pushed for their priorities to be reflected in the use of Belen's normative resources.
I know the proponents of the unable or unwilling position have not much changed their position as a result of the debate.
Their critics evidently still want to argue with them about and focus the world's attention on it rather than just passively accept it as inevitable.
The critics want these states to contend with and to take into account and address their opposing views.
So to sum up, the second vision of the international rule of law highlights that international law is
much more is about much more than just establishing and following a bunch of rules.
It's also, and perhaps more critically, about how we explain, justify, argue about and bolster particular governance decisions.
Laws, argument and practise is important because first it fosters the expectation that share power is not a sufficient basis for making decisions.
Second, it helps uphold the people. It helps to hold the people in power accountable for their decisions.
Third, it shows respect for those who care about the decisions by providing a reasoned account of what is happening and why and flop forth.
It fosters are relatively healthy politics about the many contentious things that states do in the world.
So, OK, I've offered two distinct visions of the international rule of law in one international law should ideally constrain state power.
In the other, it should give states and other actors face to argue about the exercise of state power.
We might, in the abstract one, advance both of these visions of the international rule of law simultaneously.
So we might want to establish stable conduct rules that limit state discretion while also fostering legal argumentation and debate.
But as a practical matter,
these two visions of the rule of law routinely push in different directions and require making trade-offs prioritising laws.
Argumentative practise often means tolerating greater levels of discretion, unpredictability and inconsistency in the laws application,
because law best fosters argumentation by staying elastic and contestable so that people can use it to advance different positions,
not by establishing clear rules that are mechanically applied. For example,
the use of Belen's conduct rules invite a lot of argumentation about how they
apply in concrete cases because they are and have always been so open textured.
The same is not true of the highly technical and specific conduct rules that govern,
for example, international civil aviation under the Chicago convention. Argumentation benefits from opiate openness.
But the more open a given area of law is, the less likely it will control the people who act under it.
That Trade-Off, between creating room for legal argumentation and creating and constraining state discretion is not always worth making.
Again, the critical point, though, is that the question of whether the Trade-Off is worth making and therefore which
vision of the rule of law we should prioritise cannot be made in the abstract.
It depends on the specific interests and values that are at stake.
And on the political economy in which the law operates in some circumstances and against international civil aviation might be a good example.
Constraining state discretion through settled contract rules is both possible and important.
But that vision for international law can also often be infeasible because of the horizontal structure of international law.
Constraining states through precise conduct rules that are consistently applied is often not an option.
States, in large part decide for themselves what they are willing to do. See again, the Paris Agreement.
And even when that first option is that first vision is an option, it will sometimes be repressive.
The extraordinary diversity and disparities in the world mean that always trying to constrain
states through the clear and consistently applied conduct rules is not always desirable.
Remember the WTO trips agreement? So in these latter circumstances, the instinct to try to harden international law is, in my view, misguided,
at times even pernicious rather than instinctively and always push toward precision, stability and constraint.
In other words, rather than always strive for the first vision of the rule of law, we should in many contexts pursue the second.
We should look to foster opportunities for legal argumentation and debate.
For example, we should see real value in the review processes that been that have been on stablish under the Paris Agreement and the ICSE are.
These review processes prod states to engage in the argumentative practise that is distinct to law,
to explain and defend their conduct and law to the many people who care about and are paying attention to what they are doing.
Perhaps we should try to create similar processes in other areas of international law that have not been amenable to precision,
stability and constraint. For example,
perhaps the U.N. General Assembly should conduct a periodic review of situations involving the use of force in order
to push states to articulate and defend their positions on the use of Ellem as applied in concrete fact patterns.
That kind of review might not lead to more precision, stability or constraint.
But it would provide an important venue for legal argumentation and debate.
The second vision of the international rule of law helps us see why that might be valuable.
And the upshot then is that it's wrong to think that international law is inherently deficient
or worthless if it does not satisfy the first vision of the international rule of law.
If it does not establish precise rules, it can states consistently obey. In fact, we should sometimes prefer for it not to do that.
And we should push for it to satisfy the second vision. But one is that is about fostering its argumentative practise.
This second vision is admittedly not a model for efficiency,
but it might make international law fairer and more legitimate to the many people who are affected by it.
And it might, in the long term, be more effective at achieving particular regulatory goals.
To accept as much, we need not be Pollyanna.
We simply need to recognise that putting states in straitjackets is not always the best or only way to get them to do things.
They might more readily and more legitimately move toward a given policy goal if they have a good deal of discretion in deciding how to get there
so they can accommodate their many other commitments and then are constantly prodded to explain and justify their decisions to various audiences,
both internal and external, who care enough to push them to improve and they muddle in the right direction.
The second vision of the rule of law, this puts in view a model for international law that has too often been derided
or neglected and that I think we ought to harness to advance international law.