13 UWSLR 137

EVIL REGIMES OF LAW: CHALLENGES FOR

LEGAL THEORY AND FOR
INTERNATIONAL LAW

JOHN R MORSS *

CONTENTS
I INTRODUCTION ............................................................................................... 137
II HART’S GUNMAN AND THE NATURE OF LEGAL OBLIGATION ........................ 141
III APOLOGY, UTOPIA, AND PHILOSOPHY OF INTERNATIONAL LAW .................. 144
IV PEREMPTORY NORMS AND THE FIDUCIARY STATE .......................................... 148
V CONCLUSIONS ................................................................................................. 152

I INTRODUCTION
This paper is concerned with the ethical dimension of the concept of
legal system, both at a national and at an international level. The notion
of an ‘evil system of law’ is an important yet troubling one. From the
point of view of jurisprudence, evil regimes of law are either a
contradiction in terms, or are deeply troubling. If an evil (or even
merely bad) system of law is by definition not a system of law at all, as
broadly claimed by theorists of the natural law orientation, 1 then evil
regimes masquerading as legal systems need to be unmasked in that
respect, as well presumably as resisted or challenged in other ways.
They must be shown not to be legal systems at all. This would still
raise difficult questions about the identification of ‘goodness’ and
‘badness,’ but would avoid the particularly tricky jurisprudential
questions of how to describe and to ‘interrogate’ systems that are at the
same time legal systems and systems that are to be reviled. That is to
say, if there is anything at all in the legal positivist 2 claim that legality

* Associate Head of School (Research), Deakin University Law School. Thanks to

Danny Priel for robust debate over Hart and his gunman; and to colleagues at Deakin
University Law School and to Helmut Aust and his colleagues at the Institute for
International Law, Ludwig-Maximilians-University, who gave me valuable feedback
on the topics discussed below. Some parts of the paper were discussed in ‘Holy Grail
or MacGuffin? What the search for jus cogens can tell us about international law,’
seminar presentation at the Institute for International Law, Ludwig-Maximilians-
University, Munich, October 2009.
1 See John Finnis, ‘Grounds of Law and Legal Theory: A response’ (2007) 13 Legal
Theory 315.
2 John R Morss, ‘Part of the Problem or Part of the Solution? Legal positivism and legal
138 JOHN MORSS (2009)

is not absolutely incompatible with malevolence, then a whole series of

theoretical challenges arise. These challenges include questions about
the differentiation between good and bad legal systems, about
boundary cases between those types, and about historical transition
from one type to another – for example a good legal system going bad
or a bad legal system going ‘good.’ 3 But the challenges concern
international as well as municipal (national) legal arrangements, and
therefore contribute to an understanding of what might be called the
nexus between ethics and world order.
One example of this ‘nexus’ is provided by the situation of the ‘failed
state.’ The civilian populations of so-called ‘failed states’ might well be
at the mercy of ‘war-lords’ or other extended quasi-criminal
organisations, and if ‘law’ is not co-terminous with ‘good laws’ then
the rule of such gangs might exhibit some elements of a legal system.
Powerful criminal organisations operating within states that can hardly
yet be called ‘failed’ – the case of Italy springing to mind here – might
also demonstrate some legal characteristics. Again, ‘rogue states’ might
well exhibit characteristics of legality both within their own borders
and beyond despite conduct that is deplored by the international
community. Afghanistan prior to the US-led invasion of late 2001
might be said to have exhibited the characteristics of a rogue state. 4
That is to say, early 2001 Afghanistan might be thought of as exhibiting
a legal system as such, and as constituting an international legal actor.
With respect to the latter, treating the 2001 invasion of Afghanistan as a
matter of self-defence between sovereign states, that is to say as an
armed response by one state (the USA) to the armed attack on it of the
other, would seem to presuppose international legal subjecthood in
both. In other words the formal character of Afghanistan was as a
legally constituted and legally competent entity even though it was
ruled by terrorists.
Something more should be said at this point on the question of
international legal personality since this raises important points
concerning the role of ethics at the global level. The recognition of legal
personality at the international level is an extremely catholic

education’ (2008) 18 Legal Education Review 55.

3 These terms are not employed disingenuously, but more precise terminology is
elusive. An evil or bad system of law can be provisionally defined as one that benefits
a few rather than the many or oppresses the many to the advantage of the few.
4 Richard Falk, ‘Appraising the War Against Afghanistan’, Social Science Research
Council <http://essays.ssrc.org/sept11/essays/falk.htm>.
13 UWSLR Evil Regimes of Law 139

procedure, at least when the sovereignty of a territorial state has

already been established and a regime is recognised as effectively
occupying that territory. The procedure is inclusive of diverse political
regimes including military dictatorships. 5 Even if governments may
from time to time decide not to recognise particular other governments
as such, for example on the basis of unacceptable social arrangements
such as apartheid, this political sanction leaves unaffected the
international recognition of the state of which the impugned
government is currently the steward. Ongoing international
agreements are not voided. To this extent at least, international law
thus finds no conceptual difficulty in the notion of evil legal system.
Indeed finding ways of cohabiting with foreign regimes thought of as
deplorable if not downright despicable is the bread and butter of the
diplomatic tradition out of which much international law is derived.
It may thus be observed that the threshold for legal status in the
international domain is extremely low. Perhaps it is to be anticipated
that legality of a national system as such (of a system considered in
respect of its own jurisdiction, rather than in terms of its international
dealings) must be assessed against higher standards. But it may well be
that these dual aspects of legitimacy — the internal and the external –
while differing in many respects, are not entirely distinct.
Significantly, the problematic role of force is of relevance to questions
of legality in both domains. An early approach to these matters would
have suggested that internal legality would depend on force (as
represented by the commands of the sovereign), and that the absence
of enforcement on the international stage would, correspondingly,
precisely negate the pretensions to legality of international
arrangements. This ‘classical’ dualist account of the comparison
between municipal and international law is unsatisfactory for a
number of reasons. It is a notable trend of theoretical work and
perhaps more significantly of practical realities in international law in
recent decades that the sharp distinction between the domains of inter-
state legal relationships and of internal legal systems is becoming
increasingly blurred. 6 Individual citizens have recourse to international
human rights instruments and to tribunals that are empowered with
jurisdiction over the citizen’s own national government. Non-state

5 James Crawford, The Creation of States in International Law (2nd ed, 2006). States are also
undefined as to upper or lower limits of population or of geographical size, that is to
say there are no minima or maxima for these dimensions.
6 See Franck’s ‘piercing the statist veil’ in Thomas Franck, Fairness in International Law
and Institutions (1995) 6.
140 JOHN MORSS (2009)

actors are of increasing importance at the international law level. States

are coming to be thought of as one among many kinds of collective
legal entity on the international stage. 7
Of course, non-state actors come in many shapes, sizes and
orientations. Another example that demonstrates affiliations between
the criteria for international and for municipal legality is terrorism.
Terrorism may often be associated with failed or ‘rogue’ states, as well
as with organised ‘polities’ within and across the borders of states that
are not or not yet either failed or rogue. If a terrorist organisation
closely identifies with a religious movement then obedience to
devotional obligations may in itself constitute a salient form of legality.
That is to say, commitment to a systematic spiritual agenda may well
give rise to organized collective coordination of action that amounts to
compliance with the requirements of a legal system. (Both sides in the
historical invasions known as the ‘Crusades’, as well as in similar
conflicts such as the ejection of the Moors from Spain, might be said to
have exhibited compliance with legal systems). Any form of legitimacy
for a terrorist organisation is likely to be resisted by the state forces for
counter-terrorism, for which a characterisation of terrorism in terms of
criminality (or irrationality) is usually preferable. A similar attitude
might also be taken by non-state organisations, whether national or
international. 8 The recognition that legality is not the sole preserve of
the virtuous, or that (which come to the same thing) the recognition
that systems of obligation may be considered virtuous by those
governed by them irrespective of the opinions of those governed by
other regimes, gives rise to the same set of ‘evil regime’ questions.
These considerations suggest that evil systems of law merit scrutiny
and conceptual analysis. If evil in the world remains a major issue
facing humankind and if some of that evil is constituted by evil
systems of law, then some hints about ways of changing such systems
for the better would not go amiss. 9 These issues call for an enquiry into
available theoretical resources, including relevant versions of ‘the
philosophy of international law’ 10 as well as jurisprudential accounts of

7 John R Morss, ‘The Legal Relations of Collectives: Belated Insights from Hohfeld’
(2009) 22(2) Leiden Journal of International Law 289.
8 Religious organizations and civil peace movements might be thought of as opposed

to terrorism in general or in particular.

9 Philip Allott, The Health of Nations: Society and Law beyond the State (2002) 399; 37; also

see Philip Allott, ‘The Globalisation of Philosophy and the Philosophy of

Globalisation’ in Ronald St John Macdonald and Douglas M Johnston (eds), Towards
World Constitutionalism: Issues in the Legal Ordering of the World Community (2005).
10 The question of a ‘Rule of International Law’ as discussed by Jeremy Waldron, is
13 UWSLR Evil Regimes of Law 141

the criteria for legality and legal obligation. Both sets of ideas, which
may not be easy to reconcile with each other nor to synthesise, must be
examined if progress is to be made in the ethics of the systems under
which people live. In relation to the former, the philosophy of
international law, the focus of discussion will be the proposal of
Criddle and Fox-Decent that a set of precise ‘peremptory’ norms (jus
cogens norms) can be identified, non-negotiably governing the conduct
of states, and derived from the fiduciary responsibilities of the state
towards its citizens and indeed to the citizens of other states. 11 In
relation to the latter, one place to begin is with Hart.

II. HART’S GUNMAN AND THE NATURE OF LEGAL OBLIGATION

Analytic jurisprudence takes Hart’s The Concept of Law as its touchstone
for the conceptualisation of legality in societal systems of control. For
Hart, in the legal positivist tradition, the virtue or otherwise of a legal
enactment is strictly irrelevant to its legal status as such. But Hart is
equally wary of substituting force for virtue as the criterion for legality,
instead seeking a middle way of a somewhat more sociological variety,
so to speak in between the poles of legal realism and legal idealism. In
this vein, Hart’s account of the gunman situation 12 is intended to
illuminate the distinction between obedience to a mere command, in
particular a command backed up by the threat of violence, and
obedience to the authoritative commands of law (obedience to a legal
system).
According to Hart, Austin’s much earlier (nineteenth century) account
of legal obligation had made the mistake of treating law as
fundamentally arising from the peremptory commands of a powerful
sovereign. Such commands were assumed by Austin to be backed up
by force or by the threat of force. According to Hart the command
backed by force is merely gun-law, not real law. When a gunman
robbing a bank orders the clerk to hand over the money, this ‘order’ is

relevant to this debate: John R Morss, ‘Facts, Threats and Reds: Common Law
Constitutionalism and the Rule of Law’ (2009) 14 Deakin Law Review 79, 93; also see
Philip Allott, Towards the International Rule of Law: Essays in Integrated Constitutional
Theory (2005).
11 Evan Criddle and Evan Fox-Decent, ‘A Fiduciary Theory of Jus Cogens’ (2009) 34 Yale
Journal of International Law 331.
12 H L A Hart, The Concept of Law (2nd ed, 1994) 19. Priel has suggested that the

distinction of gunman versus legal system is misrepresented by Hart and by those

who have followed him: Danny Priel, ‘Sanction and Obligation in Hart’s Theory of
Law’ (2008) 21 Ratio Juris 404.
142 JOHN MORSS (2009)

no more than a peremptory instruction: ‘Do it! (or else).’

It would not even be correct to say that the gunman is ‘giving an order’
to the clerk, in the sense that he might ‘give an order’ to his associate
(henchman) guarding the door. Hart’s point with this apparently
pedantic observation is that ‘giving an order’ implies some kind of
authority structure, that is to say some element of perceived or actual
legitimacy, whereas mere ‘ordering’ does not. By ‘authority structure’
is meant a hierarchical arrangement, even with the bare minimum of
stability, as a consequence of which an instruction rises above the
merely arbitrary or gratuitous. ‘Giving an order’ partakes if only
minimally of true command, that is to say ‘an appeal not to fear but to
respect for authority.’ 13 If the clerk has any reason to treat the
gunman’s instructions as authoritative – if the gunman is wearing
police uniform, for example, or if he is a respected member of the
clerk’s community – then something beyond mere coercion is taking
place, loyalty for instance. There is instead something systemic at work
– something so to speak sociological.
There is no doubt that this is the thin end of an important wedge.
Structured legitimacy of authority runs all the way from such modest
and admixed situations all the way to parliamentary enactments, and
perhaps customary law, 14 not to speak of Common Law. In another
direction perhaps it runs to the decisions of the UN Security Council,
and of the International Court of Justice, and to the United Nations
Charter itself. 15 Hart’s argument is that lawful obligation involves
authoritative regulation extended over time, over subjects or over
concrete situations. In other words, rules rather than utterances.
According to Kevin Toh,
Hart’s signal contribution to the twentieth century legal philosophy

13 Hart, above n 12, 19, 20. Some support for this distinction may also be found in
Hobbes, writing in the seventeenth century and influential on Austin. For Hobbes the
relationship is one of covenant, not naked fear. Hobbes’ sovereign is an actor, acting
in the name of those ‘natural persons who have covenanted to treat the words and
actions of the sovereign as their own.’ Thus the sovereign ‘puts on the mask of the
natural person to whom he speaks, compelling that person to treat his words as
commands and his actions as binding:’ David Runciman, Pluralism and the Personality
of the State (1997) 254. Hobbes’ account is complex in other ways as well: the sovereign
may be an assembly not a natural person.
14 John R Morss, ‘Can Custom be Incorporated in Law? On the Place of the Empirical in
the Identification of Norms’ (2008) 53 The American Journal of Jurisprudence 85.
15 ‘Another direction’ in the sense that for Hart, international law has to be thought of as

‘primitive’ in comparison with the democratic municipality with its parliamentary

enactments: John R Morss, ‘Sources of Doubt, Sources of Duty: H L A Hart on
International Law’ (2005) 10 Deakin Law Review 41.
13 UWSLR Evil Regimes of Law 143

consisted of his arguments to show that if laws prevail among a

community of people, then at least some members of that community
treat existence of laws as furnishing reasons and even obligations to
act according to such laws ... a departure from the older legal
positivist positions of Bentham and Austin. 16

Thus Hart shows that Austin’s gunman scenario misses the point and
that compliance with law is different from a response under duress. 17
For Hart unreflective obedience is the only kind of obedience
applicable to the gunman scenario. There is no legal system to obey,
only the ad hoc instructions of the criminal. To be sure, some of the
subjects of a fully-fledged municipal legal system may obey the law or
parts of it for reasons which differ little from the reasons of a gunman’s
victim — but this does not undermine the legality of the system by
which they are governed. The upshot of Hart’s analysis of the gunman
scenario is that legal obligation is not constituted by physical force. But
nor for Hart is it constituted by a recognition of the virtuous. A legal
regime is a regime characterised by general rules of obligation — a
matrix of social facts.
Among other consequences, Hart’s analysis has the effect of
‘dethroning’ the sovereign and thereby undermining the international
anarchism implied by Austin. Following Austin strictly, legal
obligation only arises within the territorial jurisdiction of a sovereign;
law can only be local (national), not international. Unless and until a
sovereign of the whole world emerges — in which case there would be
one global system of law — the world’s legal systems are inevitably
plural and there is no international law worthy of the name. Sovereigns
are in a state of nature with each other on the world stage. With Hart’s
account, however, the sovereign is replaced by rule systems as the
source of legal obligation, and the possibility of international law is no
longer denied. At the same time any presumption that authoritative
legal decrees, as of a sovereign, are benevolent either by definition or
by empirical tendency is cancelled. In defining lawfulness on the basis
of rules, Hart is expressly (for municipal law) or implicitly (for
international law) affirming the possibility of bad or even evil legal

16 Kevin Toh, ‘An Argument Against the Social Fact Thesis (And Some Additional
Preliminary Steps Towards a New Conception of Legal Positivism)’ (2008) 27 Law and
Philosophy 445, 457.
17 Duress as a criminal defence, to murder for example, itself raises important issues,

some of which arise in the international criminal justice setting: John R Morss and
Mirko Bagaric, ‘The Banality of Justice: Reflections on Sierra Leone’s Special Court’
(2006) 8 Oregon Review of International Law 1.
144 JOHN MORSS (2009)

systems as well as benign ones. 18 This insight must be kept in mind

while more recent contributions are examined.

III. APOLOGY, UTOPIA, AND PHILOSOPHY OF INTERNATIONAL

LAW
Contemporary philosophy of international law is best contextualized
by reference to debates over international law as a whole system. In
this respect conceptual debate in international law in the first decade of
the present century has been dominated by two closely related
concerns which together have defined what might be called
international law’s current problematic. These two concerns or agendas
are ‘fragmentation’ and ‘constitutionalisation.’
‘Fragmentation’ 19 bemoans the apparent breakdown of coherent,
unified, principles-based legal regulation at the international level into
myriad regimes. Public international law, it is suggested, is
disintegrating into a confused agglomeration of specialised
jurisdictions such as regional jurisdictions (Europe, Africa, the
Americas), topic-based jurisdictions (law of the sea, of whales, of
international arbitration), and mischief-based jurisdictions (such as the
proliferating international criminal tribunals, themselves of various
types and hybrids thereof). The simple series of sources for
international law as laid out in Article 38 of the Charter of the
International Court of Justice, and derived from the very similar
instrument governing the earlier Permanent Court, are being
overwhelmed by ‘soft law’ sources such as General Assembly
Resolutions and by regional sources having de facto international effect
such as EU law.
As well as contributing substantially to the ‘fragmentation’ debate,
Koskenniemi 20 has analysed international law’s discourse over several
centuries as vacillating between the two poles of ‘apology’ (a realist,

18 The role of legal officials in international settings is discussed by Patrick Capps,

Human Dignity and the Foundations of International Law (2009) 98.
19 Martti Koskenniemi, ‘The Fate of Public International Law: Between Technique and
Politics’ (2007) 70 Modern Law Review 1, 2.
20 Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal

Argument (2005); Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall
of International Law 1870—1960 (2001); Martti Koskenniemi, ‘International Law in
Europe: Between Tradition and Renewal’ (2005) 16 European Journal of International
Law 113; Martti Koskenniemi, Fragmentation of International Law: Difficulties Arising
from the Diversification and Expansion of International Law: Report of the Study Group of
the International Law Commission, Erik Castrén Institute Research Reports 21/2007.
13 UWSLR Evil Regimes of Law 145

descriptive approach close to politics or ‘international relations’) and

‘utopia.’ If the concern with ‘fragmentation’ is an apologetic stance
then ‘constitutionalisation’ is unashamedly optimistic if not quite
utopian. The constitutionalisation movement within international law
expresses the view that international law is becoming articulated in
ways that converge with the typical features of public law in
democratic municipal settings. 21 It therefore looks favourably on
municipal techniques for exerting judicial constraint on executive
power, 22 including the typical provisions of Bills of Rights, and seeks to
model regulation at the international level on such exemplars. One
notable version of international constitutionalisation would involve the
proposal that the Charter of the United Nations in itself represents a
World Constitution. 23 Similar claims have sometimes been made with
respect to the Universal Declaration of Human Rights.
24

It could be argued that such claims represent the position that

international law as a whole system is benign – not just well-
intentioned but also well articulated to deliver beneficial outcomes to
people and to peoples around the globe. This is not to suggest any lack
of sophistication or lack of awareness of shortcomings of the system in
these contributions, but rather to point out that such proposals urge
that at least the basics of a good international system are in place. This
orientation is definitely optimistic, if not utopian. On the other hand
the concern for fragmentation would seem to represent a pessimistic or
somewhat dystopian view. The fragmentation argument would seem
to suggest that international law as a whole is dysfunctional, and

21 Benedict Kingsbury, Nico Krisch, and Richard Stewart, ‘The Emergence of Global
Administrative Law’ (2005) 68 Law and Contemporary Problems 15; Nico Krisch, ‘The
Pluralism of Global Administrative Law’ (2006) 17 European Journal of International
Law 247.
22 See similarly, the ‘ongoing institutionalization of the international legal order’

referred to by Georg Nolte and Helmut Aust, ‘Equivocal Helpers – Complicit States,
Mixed Messages and International Law’ (2009) 58 International and Comparative Law
Quarterly 1, 28.
23 Bardo Fassbender, ‘The United Nations Charter as Constitution of the International

Community’ (1997) 36 Columbia Journal of Transnational Law 529, 567; S. Breau, ‘The
Constitutionalization of the International Legal Order,’ (2008) 21 Leiden Journal of
International Law 545; for an approach derived from critical theory, Susan Marks, The
Riddle of All Constitutions: International Law, Democracy and the Critique of Ideology
(2000).
24 Simon Chesterman, ‘I’ll Take Manhattan: The International Rule of Law and the

United Nations Security Council’ 1 Hague Journal of The Rule of Law (2009) 67, 67; 2005
World Summit Outcome Document, UN Doc. A/RES/60/1 (16 September 2005),
<http://www.un.org/summit2005, para 134>; also see André Nollkaemper, ‘The
Internationalized Rule of Law’ (2009) 1 Hague Journal of The Rule of Law 74, 74.
146 JOHN MORSS (2009)

therefore a ‘bad’ (if hardly ‘evil’) system. That international law has a
‘dark side’ is hardly to be denied. 25
Conceptual work in international law thus opens up a debate over
whether the global legal system as a whole is ‘good’ or ‘bad,’ in ways
that connect up with the conceptual questions of evil systems of law. If
as suggested above an evil or bad system of law can be provisionally
defined as one that benefits a few rather than the many or oppresses
the many to the advantage of the few, then there are several grounds
on which international law might be vulnerable to characterization as a
bad system. Extreme inequalities in terms of poverty and access to
health services, escalating degradation of the environment and
tolerance of the development of weapons of mass destruction by
chosen elite states, are all examples of ‘black marks’ against the regime
of international law as we know it — at least to the extent that
international law plays a part in these crises. Less dramatically, and
more technically, the same point could be made about international
law’s conservative axioms defending the territorial integrity of existing
states against self-determination claims and defending colonial
administrative boundaries in post-colonial times under the doctrine of
uti possidetis. 26 Counter-arguments could be made, asserting the
beneficial effects of international law, but the possibility of doing so
conforms to the more general theoretical point as made by Hart:
(international) law is not good by definition, or simply by virtue of its
lawfulness to the extent it has any.
Against this background, some representative contributions to
contemporary philosophy of international law may be sketched.
Current debate in the philosophy of international law includes a range
of proposals concerning the relationship between the discipline of
international relations, the sphere of the ethical or moral, and
international law. Allen Buchanan has made substantial contributions
to debate in international law especially in relation to human rights,
secession and self-determination, and the legitimacy of international
legal systems. Thus Buchanan 27 proposes that if international law were

25 David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism

(2004); Scott Veitch, Law and Irresponsibility: On the Legitimation of Human Suffering
(2007); Anne Orford, ‘International Law and the Making of the Modern State:
Reflections on a Protestant Project’ (2008) 3 In-Spire: Journal of Law, Politics and Societies
5.
26 Suzanne Lalonde, Determining Boundaries in a Conflicted World: The role of Uti Possidetis

(2002).
27 Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for
International Law (2004).
13 UWSLR Evil Regimes of Law 147

to be properly established on the basis of a systematic and coherent

principled framework, its connections with the moral would be
revealed and its contribution to a justice-based international relations
would become possible. Buchanan’s approach to international law
(and indeed to international relations) might thus be termed
reductionist with respect to the primacy of a domain of moral
principles. On the other hand Ratner 28 has proposed that international
law should, without losing its identity or complexity as a discipline
and more or less in the form we know it, become the bridge between
international relations and the ethical so that all three would be treated
as autonomous yet contiguous disciplines. Ratner’s proposal sees
international law as the answer to a problem – the problem of
establishing a meaningful nexus between ethics and world order,
between the moral and the political. If politics is the art of the possible,
and if ethics may be referred to as the art of the obligatory, then
international law for Ratner presents itself as the missing link between
those arts. 29
Buchanan and Ratner share an approach that is cautious and pragmatic
in comparison with Philip Allott for whom the necessary changes to
international law are wholesale and rather revolutionary ones rather
than piecemeal and evolutionary. 30 All three however agree on the
significance of ethics for international law. This theme is developed in
greater detail by two contemporary appropriations of Kantian theory
in the context of international law: the ‘state as fiduciary’ argument of
Criddle and Fox-Decent and the practical rationality approach of
Patrick Capps. 31 Both contributions are concerned with systemic
aspects of international law. Capps’ contribution is much more
technical in its appropriation of Kantian philosophy than is that of
Criddle and Fox-Decent, for whom the appeal to Kant is of a somewhat
general nature as indicated below. Partly for this reason, only the first
of these contributions (Criddle and Fox-Decent) will be discussed in
detail here, but the larger project of bringing to bear the resources of
European moral philosophy on questions of international law should
be thought of as an important aspect of the larger context for their
work. In other words, the evaluation of international law is a matter of

28 Steven Ratner, ‘Is International Law Impartial?’ (2005) 11 Legal Theory 39.
29 Also see Hilary Charlesworth and David Kennedy, ‘Afterword: - and Forward: There
remains so much we do not know’ in Anne Orford (ed), International Law and its
Others (2006) 401, 401-2.
30 Philip Allott, Eunomia: New Order for a New World (2001).
31 Capps, above n 18.
148 JOHN MORSS (2009)

lively debate.

IV PEREMPTORY NORMS AND THE FIDUCIARY STATE

Peremptory norms (jus cogens norms) are defined as non-derogable
rules of law at the international level, proscribing the most egregious
violations of human rights and prescribing various aspects of the
conduct of states in their dealings with each other and with individual
persons. The project of Criddle and Fox-Decent involves the scrutiny of
a number of ‘candidates’ for peremptory norm status with a view to
identifying those norms that truly deserve that special status, that is to
say as norms that should compel the conduct of states. In effect Criddle
and Fox-Decent are developing an ethics of international relations, a
principled set of norms that states should treat as obligatory. This
project has direct relevance to any discussion of the capacity of legal
systems to embody virtue or benevolence. Indirectly, it also has
relevance to the debate over evil systems of law.
It should be remarked that a narrow reading of the jurisprudence of
the International Court of Justice finds only one such norm
unambiguously and authoritatively identified (in 2006) — the
prohibition of genocide. 32 However there are many international
norms that are routinely categorized by influential commentators
under this heading. These include such diverse norms as a
(conditional) prohibition on the use of armed force; the principle of
self-determination (of peoples); the prohibition of piracy; and the
procedural requirement that international undertakings should be
honoured, otherwise referred to as the principle of pacta sunt servanda.
In contrast with customary international law, to which the peremptory
norm bears some resemblance, there is no requirement for the actual
practice of states to provide evidence for such norms; their status is in
some sense based on principle rather than observance, effect or
consent. However it is important to stress that these norms are, in
common with treaties or with customary international law, thought of
as defining or constraining the conduct of states, not the conduct of
other forms of collective or of individuals as such. Peremptory norms
would appear to constitute constraints on the autonomy or sovereignty

32 Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Rwanda)
(Jurisdiction and admissibility) [2006] (International Court of Justice, General List No 12,
3 February 2006) at <http://www.icj-cij.org/docket/files/126/10435.pdf>; a possible
second being the prohibition on the use of force; on both see Criddle and Fox-Decent,
above n 11, 339 fn 36.
13 UWSLR Evil Regimes of Law 149

of states but would also appear to rely on that sovereignty for their
application. Peremptory norms constitute a set of rules as to what
‘Princes’ should and should not do, so to speak, in the light of reason.
Criddle and Fox-Decent examine the grounds for identifying
peremptory norms. Consistent with the principled or deontological
nature of these norms, Criddle and Fox-Decent enquire into the ethical
basis or what might be called the ‘inner morality’ 33 of the identification
criteria applicable to particular candidates for jus cogens status. Criddle
and Fox-Decent may thus be said to be employing the machinery of the
peremptory norm in order to define the good in a national legal
system. 34 When is a state benevolent, and a good world citizen among
the community of global states? Against what benchmarks may this be
tested? Expressed in this blunt manner the questions may look
unsophisticated but hardly trivial. 35
The specific proposal by Criddle and Fox-Decent is that
reconceptualising jus cogens or peremptory norms in terms of
‘fiduciary’ relationships helps to establish a normative basis for jus
cogens that is not inappropriately reliant on state sovereignty. If
anything the explanatory position is to be reversed: state sovereignty is
to be redefined as reliant on the set of properly identified jus cogens
norms. States are entitled to the prerogatives of sovereignty, such as
the territorial prerogatives, only if their conduct, evaluated against
their obligations towards natural persons, justifies that status. In effect
Criddle and Fox-Decent define a good legal system as one that acts in
accordance with the fiduciary desiderata. Their analysis relies on the
important claim that understood in a normative manner (as against a
merely procedural manner) legal relationships between states must be
consistent with the responsibilities that states undertake for the welfare
of their citizen. Indeed any state’s legitimate power/authority is to be
thought of as constituted (directly or indirectly) by its delivery of those
responsibilities — by its caring for persons. 36

33 Consistent with this terminology, Fuller’s articulation of the Rule of Law is

incorporated into the Criddle and Fox-Decent analysis: ibid 361.
34 For an argument that international law should itself display high (fiduciary)
standards also see Evan Fox-Decent, ‘Is the Rule of Law Really Indifferent to Human
Rights?’ (2008) 27 Law and Philosophy 533.
35 A related set of questions is addressed in the work of John Rawls and the question of
the good state versus the bad state is implicit if not explicit in much political
philosophy; see Buchanan, above n 27, 45.
36 Also see the international ‘responsibility to protect:’ Louise Arbour, ‘The

Responsibility to Protect as a Duty of Care in International Law and Practice’ (2008)

34 Review of International Studies 445.
150 JOHN MORSS (2009)

For Criddle and Fox-Decent the ‘fiduciary’ relationship is thought of in

a manner derived from certain writings of Kant. Independently of his
important writings on international law and the cosmopolitan as such,
Kant had argued that the paradigm case of parental care to children (or
more broadly of the present generation to the next generation) reflects
a general kind of obligatory welfare attitude. 37 Children having not
volunteered or agreed to be born in the first place, those responsible for
procreation by those acts of procreation accept correlative obligations.
For Criddle and Fox-Decent, this desideratum enables a principled
categorisation of a number of putative candidates for the status of
peremptory norm or jus cogens. Criddle and Fox-Decent thus attempt a
novel definition of the jus cogens norm with the interesting outcome
that some norms routinely included as peremptory are now to be
excluded, and some unfamiliar norms are now included.
For Criddle and Fox-Decent, the rights of citizens that are to be
protected are predominantly (but not entirely) their rights as
individuals. States have duties to take care of their citizens’ (and in
some circumstances, others’) individual rights, and the set of these
duties may indeed exhaust the terms of Statehood — so States may
exist solely in order to protect those (at least generally speaking)
individual rights. Thus ‘States exercise sovereign authority as
fiduciaries of the people subject to state power’ 38 and correspondingly,
peremptory norms ‘express constitutive elements of sovereignty’s
normative dimension.’ 39 The ‘chessboard’ of named states, each with
its own defined geographical terrain, is to be thought of more as a
political arrangement than a legal one. 40 This approach is broadly
consistent with a tradition in international law particularly associated
with Hersch Lauterpacht, 41 according to which (first), the (‘municipal’)
legal systems of sovereign states are held to be in principle of a piece
with and convergent with inter-State law — the so-called ‘monist’

37 Somewhat closer to these better-known contributions of Kant is the authors’ search

for a ‘fiduciary conception of cosmopolitan citizenship:’ Criddle and Fox-Decent,
above n 11, 380; thus ‘jus cogens norms constitute a universal bill of cosmopolitan
human rights’, ibid 359. On Kant’s approach to social welfare and equality rights see
Otfried Hoffe, Categorical Principles of Law (2002) 216; for a more contemporary
viewpoint, T Pogge (ed), Freedom from Poverty as a Human Right: Who Owes What to the
Very Poor? (2007).
38 Criddle and Fox-Decent, above n 11, 333.
39 Ibid 332.
40 It might be said that Criddle and Fox-Decent converge with the position of Buchanan
(see text above) in eliding international law as such by focusing on the role of the
ethical.
41 Capps, above n 18, 211.
13 UWSLR Evil Regimes of Law 151

position – and (second), this monism is understood on the basis that all
legal regulation is ultimately concerned with the rights of individual
people.
In contrast to orthodox accounts, the Criddle and Fox-Decent state-as-
fiduciary analysis excludes from the domain of the peremptory pacta
sunt servanda. This exclusion is made on the grounds that change of
circumstances, affecting human survival and other rights, might
properly override an inter-state agreement (for example, a trade treaty
relating to foodstuffs). 42 It also excludes the prohibition of piracy (on
the grounds that piracy is predominantly a private or quasi-criminal
matter). On the other hand Criddle and Fox-Decent include as
peremptory norms the observance of due process (for example in
matters of arrest, detention and trial) even in emergency circumstances;
and the prohibition of public corruption (‘kleptocracy’). 43
The second of these — perhaps the most innovatory of their proposals
— directly addresses matters of the bad, if not evil, regime of law. Thus
Criddle and Fox-Decent locate a series of fundamental and non-
negotiable obligations in those governmental bodies into whose care
citizens entrust themselves. In effect good governance receives an
operational level of description. 44 Correspondingly, their fiduciary
approach, with its list of specific fiduciary duties, provides for some
fine-grained analysis of ‘bad governance:’ for some gradation of those
regimes in which one or more of these duties is neglected. It might be
supposed that a regime neglecting sufficient of these duties would
deserve the name ‘evil’ (or perhaps ‘failed’). One could speculate that
humanitarian intervention might be predicated on such a calculus.
Certainly the Criddle and Fox-Decent model envisages that national
legal regimes (states) may from time to time fall short of the ideal
represented by the list of duties. Their analysis therefore contributes to
our operationalised understanding of ‘goodness’ and ‘badness’ in legal
systems.

42 Criddle and Fox-Decent, above n 11, 377.

43 Ibid 371-3. There are also communalities between the fiduciary and the orthodox lists,
as with the principle of self-determination of peoples. It is not clear however who the
fiduciary is for whom in this case and self-determination (that is to say autonomy)
might even be said to be conceptually inconsistent with any fiduciary relationship.
44 John R Morss (2007) ‘Good Global Governance: Custom, the Cosmopolitan and

International Law’ (2007) 3 (1) International Journal of Law in Context 59.

152 JOHN MORSS (2009)

V CONCLUSIONS
While the Criddle and Fox-Decent approach is very different from
Hart’s in its commitment to an explicit set of values, it is alike to Hart’s
rule-based approach in that it can be used descriptively. 45 Bad or evil
systems of law can be comprehended. Virtue is not presupposed. An
intriguing question is whether international law as a whole could be
evaluated on the basis of this model of fiduciary obligations. The
interrelated topics of fragmentation and of constitutionalisation in
global international law, outlined above, both embody values-based
presuppositions about the purpose of international law. If legal
systems may be hijacked for evil purposes, without thereby necessarily
losing their status as legal systems, then it would seem that a global
legal system, such as international law aspires to be, cannot be immune
from such a fate.
It may be that a minimal level of such factors as efficiency and
effectiveness must be reached before the question of ‘hijacking’ arises
for any legal system – local, regional or global. 46 If so, international law
as we know it may be considered safe from hijacking by virtue of its
inadequacy in these respects. Even if that is the case the possibility
would remain an unsettling if ‘academic’ one. One might compare that
somewhat hypothetical concern with the concern explored by Kant in
relation to a centralized world government. Just as Kant warned
against the tyrannical possibilities in that scenario, so might one
explore totalitarian possibilities in a unified scheme of international
law. However despite ‘fragmentation’ both the efficiency and the
effectiveness of international law ‘as a whole’ may be greater than its
detractors sometimes suggest so that the concerns may be more than
merely hypothetical. A whole world perspective on law, and one that
suspends belief in the virtue of international law as such, would seem
worth exploring. One contemporary approach to this is through the
notion of systems. 47

45 A Hartian reading of the Criddle and Fox-Decent account could be made: with the set
of fiduciary criteria playing the part of ‘rule of recognition.’
46 Strictly speaking of course, the term ‘hijacking’ must be thought to include benevolent

as well as ‘evil’ purposes.

47 Andreas Fischer-Lescano and Gunther Teubner, ‘Regime-Collisions: The Vain Search

for Legal Unity in the Fragmentation of Global Law,’ (2004) 25 Michigan Journal of
International Law 999; Richard Collins, ‘Constitutionalism as Liberal-Juridical
Consciousness: Echoes from International Law's Past’ (2009) 22(2) Leiden Journal of
International Law 251. In this connection one might ask whether the world as a whole
may be treated as a legal subject (I owe this idea to William Twining).
13 UWSLR Evil Regimes of Law 153

A common thread in the above issues is the use of force. Hart’s analysis
replaced the Austinian notion of obedience to law as duress with an
account based on the implementation and following of rules. The force
of law is for Hart not vulgar coercion by a ‘gunman’ but the more
gentle persuasion of social practice. The Criddle and Fox-Decent
proposals also centre on norms that compel, but which are not
physically coercive. It seems that it is of the nature of legal systems,
whether jurisdictionally circumscribed or international, that they
comprise persuasive norms. Being persuaded ‘to the dark side’ is at
least as salient as being persuaded in the other direction. It is important
that the ethical malleability of law is not overlooked in times of
emergency, for example at a time when international polities, as
fiduciaries, are being challenged to cooperate over the regulation of
environmentally catastrophic industrialization. Law’s flaws must be
acknowledged if law is to contribute to the saving of the world.
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