5. A Tradition of Anti-Formalism

The development towards the kind of pragmatism surveyed above has been traditionally accompanied by a series of criticisms of international law's alleged "formalism". The first generation of professional international lawyers in the last third of the 19th century used a flexible notion of "civilization" and a historically oriented political jurisprudence to expand its horizon over diplomatic protocol and outdated natural law. The inter-war generation attacked the formalism of sovereignty that it saw in pre-war doctrines and advocated tradition and interdependence as bases for a more solid international law. After the next war, reformist lawyers especially in the United States indicted the formalism of the League and based their "realism" on Cold War themes, either expressly policy-oriented in favour of the West or in a more social-democratic way highlighting the needs of international co-operation.⁴⁸ Legal realism always had its Hawks and its Doves but for both, it seemed useful to criticise old law for its "formalism" in order to support "dynamic" political change.

Interdisciplinary studies in the 1990's highlighted the extent to which the formal validity of a standard was independent from its compliance pull.⁴⁹ As the law was seen instrumentally, its formality seemed to manifest no particular merit: "hard law" was just a choice among other regulative techniques, including soft standards or the absence of any standards in case the imposition of one's preference seemed within the limits of the possible and in fact preferable if this might "minimise transaction and sovereignty costs".⁵⁰ In these debates formal law will find nobody speaking in its favour and is indicted as a utopianism supporting conservative causes. Anti-formalism is always a call for transformation: to overrule existing law either because it does not really exist at all, or if it does, it should not. The debate on soft law and jus cogens in the 1980s and 1990s manifested both of these criticisms and Prosper Weil's famous analysis of the pathological problems (the "dilution" and "graduation" of normativity) introduced in international law by such notions were of doubtful persuasiveness to anti-formalist critics who wanted to realise the good society now and had no doubt that they knew how to go about this.⁵¹ Avant-garde instrumentalism at the end of the century reads like German public law conservatism at its beginning: over every international rule hangs the sword of clausula rebus sic stantibus.⁵²

What makes the formalism - anti-formalism debate suspect is the extent to which anything may be and has been attacked as "formalism".⁵³ Although some of the most influential French international lawyers the 1920's and 1930's represented "functionalistic" or sociological approaches to the law, the call for renewal at French facultés de droit in the 1950's was still made in the name of abandoning formalism.⁵⁴ At least the following views have been labelled "formalism":

1. rationalistic natural law theories;

2. views emphasising the importance of (formal) sovereignty;

3. views limiting international law's scope to treaties or other (formal) expressions of consent;

4. views highlighting the importance of international institutions;

5. views emphasising "rigour" in law-application;

6. views stressing the significance of formal dispute-settlement;

7. views stressing a clear boundary between law and politics.

The list is by no means exhaustive. In fact, anything can be labelled "formalism" because the term is purely relational. "Formalist" is anything that contrasts with whatever the speaker advocates by its material fullness. In such case, the opposite view will inevitably appear to be holding fast to the dead weight of some "form" in contrast to richness of the speaker's "substance". The almost uniformly pejorative use of the term "formalism" in international law reflects the predominance of the instrumentalist mindset in diplomacy and international politics. The way the legal idiom constructs and upholds the structures of diplomacy and politics is left invisible.

The pragmatism surveyed above is thoroughly embedded in an instrumentalist mindset for which law is a technique to strike a balance between conflicting considerations on a case-by-case basis. But this easily loses the point of law as a standard of criticism of the way States and public institutions behave. Little room is left for the understanding of the form of law as the platform on which the international political community identifies itself identified by normative ideas, independent from the ideas of dominant factions.

The contrast between instrumentalism and formalism is quite fundamental in seeking to answer the question "what is international law for?" From the instrumental perspective, international law exists to realise objectives of some dominant part of the community; from the formalist perspective, it provides a platform to evaluate behaviour, including the behaviour of those in dominant positions. The instrumental perspective highlights the role of law as social engineering, formalism views it as an interpretative scheme. The instrumental perspective is typically that of an active and powerful actor in possession of alternative choices; formalism is often the perspective of the weak actor relying on law for protection.

If instrumentalism today needs no particular defence, it may be useful to highlight the twin virtue of formalism. First, it is indispensable. Every standard is always formal and substantive at the same time. The very ideas of treaty and codification make sense only if one assumes that there at some point emerges an agreement, an understanding, a command that is separate from its legislative background. When States enter an agreement, or when some behaviour is understood to turn from habit into custom, the assumption is that something that was loose and disputed, crystallises into something that is fixed and ascertainable. The point of law is to give rise to standards that are no longer merely "proposed" or "useful" or "good", and which therefore can be deviated from if one happens to share a deviating notion of what in fact is useful or good. This property is often termed their "validity". To accept that positive law enjoys that property is not to say anything about how it is recognised in individual rules or standards, nor indeed of whether any actual standard so recognised would possess any particular meaning as against some other putative meaning. Validity indicates a formal property that leaves the norm so characterised a "flat, substanceless surface" - but a surface without which no "law" could exist at all.

Second, the fact that the legal form is a "flat substanceless surface" expresses the universalist principle of inclusion at the outset and makes possible the ideas of a pluralistic international world."[O]nly a regime of noninstrumental rules, understood to be authoritative independent of particular beliefs or purposes is compatible with the freedom of its subjects to be different".⁵⁵ Between the form of the law and a decision in to project on it a meaning "x" instead of "y", is a professional technique that excludes no interpretation a priori, that enables stakeholders to articulate their grievances as legal claims on conditions of equality, including them into the normative universe as subjects of rights or carriers of distinct identities. The form of law constructs political adversaries as equals, entitled to express their subjectively felt injustice in terms breach of the rules of the community to which they belong no less than their adversaries - thus affirming both the inclusion as the principle that the conditions that apply to the treatment of any one member of the community must apply to every other member as well. In the end, competent lawyers may disagree about what this means in practice. But the legal idiom itself reaffirms the political pluralism that underlies the Rule of Law, however inefficiently it has been put into effect.

There is a constant push and pull in the international world between a culture of instrumentalism that looks for the efficient realisation of outcomes, and a culture of formalism that insists that actors justify their decisions by formal standards and thus affirm their accountability. It would be wrong to associate this dialectic with fixed positions representing particular interests or preferences. Instrumental action is a necessary part of the search for good rules or institutions beyond the status quo. And any present rules are always also mechanisms to support particular interests and privileges. "Power" and "law" are entangled in such complex ways that it is difficult to interpret particular events as manifesting either one or the other: power works through "formal rules" - just like instead of "naked power", we see everywhere power defined, delimited and directed by rules.

But the analytical difficulty to distinguish between "power" and "rules" does not undermine the need to assess the political virtue of the cultures of instrumentalism and formalism by reference to the historical situation. As the debates around the fluid dynamism of globalization have demonstrated, formal standards and institutions be needed to protect the weak members of the community, and pose demands on the powerful ones.⁵⁶ There is no magic about such standards and institutions. They do not automatically produce the protection they promise but may also buttress privilege and provide a camouflage for ignoble social practices. Hence my reference to instrumentalism and formalism as "cultures", sensibilities and biases, traditions and frameworks, sets of rituals and self-understandings among institutional actors. Where instrumentalism possesses, as pointed out above, a "heroic" mindset, formalism, with its associated tropes about the rule of law, rights and constitutionalism, associates with impartiality and pluralism less in terms of definite institutional models than as regulative ideals for a profession without which no community could be truly self-governing, that is, rule itself by standards it recognises as its own (instead of those of some influential faction). For this purpose, the community needs servants that administer those standards (instead of trying to invent them) - the class of lawyers – whose traditions and practices are defined by their closeness to the "flat, substanceless surface" of the law.

6. Instrumentalism, Formalism and the Production of an International Political Community

Modern international law puts the international lawyer at the heart of the legal system. It is possible to represent that position schematically by reference to the two types of logic at play in the international rule of law. Here is the international relations theorist Hedley Bull:

"The special interests of the dominant elements in a society are reflected in the way in which the rules are defined. Thus the particular kinds of limitations that are imposed on resort to violence, the kinds of agreements whose binding character is upheld, or the kinds of right to property that are enforced, will have the stamp of those dominant elements. But that there should be limits of some kind to violence, and an expectation in general that agreements should be carried out, and rules or property of some kind, is not a special interest of some members of a society but a general interest of all of them."⁵⁷

So described, law unites an instrumentalist logic, one that looks for the realisation of objectives through law, with a formalist logic, one that establishes standards of behaviour. Now it is obvious that neither logic is fully constraining. The instrumental logic is indeterminate as the objectives always leave a number of possible choices: what does "peace and security" mean and how should it be realised in the Middle East, for example? Nor is the formalist logic ever fully formal, but always in practice somehow partial and biased. However general the rules of law are, their equal application appears unjust because the reality to which they are applied is profoundly unequal: should large and small States, democracies and dictatorships really be treated alike? The form of law is realised in particular rules or decisions that are no longer formal but that always involve a political preference, a bias in favour of some substantive value of interest.

In the case concerning The Use or Threat of Use of Nuclear Weapons (1996), for instance, the International Court of Justice was requested by the UN General Assembly to give an advisory opinion on the legal status of nuclear weapons. From the perspective of the instrumentalist logic, the relevant regulation (human rights law, environmental law, humanitarian law, and the law concerning the use of force) sought to accomplish several types of objectives: above all protection of human life and the environment, as well as the survival of States. These objectives proved indeterminate, however, and both opponents and supporters of nuclear weapons argued by references to them. The instrumental logic did set some limits to what the Court could say, but it did not - indeed could not - fully constrain. A decision by the Court was needed to complete the instrumental logic - a decision that would, then, be undetermined by the instrumentalist logic itself.

The formalist logic was equally indeterminate. To decide that threat or use of nuclear weapons would be illegal would have created a consistent material bias in favour of States in possession of conventional weapons or in de facto possession of undisclosed nuclear weapons. To require the dismantling of disclosed nuclear arsenals would have revolutionised the existing military-political relationships in unforeseen ways. But to decide that nuclear weapons ware lawful would have maintained the systemic bias in security policy in favour of nuclear deterrence and gone against the deep-rooted popular sense that the existence of such weapons constitute a permanent hostage-taking by nuclear weapons States of most of the world's population. Neither illegality nor legality could remain fully within the formalist logic. Both broke through pure form to appearing to buttress one or another kind of material bias. Indeed, it was impossible to decide either way without the decision seeming "political". And because the political choice in this case seemed too important for the Court to take, it chose the path of recognising the insufficiency of both logics: "the Court considers it does not have sufficient elements to enable it to decide with certainty that the use of nuclear weapons would be necessary at variance with the principles and rules applicable in armed conflict in any circumstance."⁵⁸

I have elsewhere defended the Court's silence inasmuch as it protected the need for a sustained political condemnation of the killing of the innocent, lifting it from the banal instrumentalism of modern law.⁵⁹ Irrespective of that position, however, the case illustrates the indeterminacy of both of the two types of logic behind the Rule of Law, as outlined by Bull above. Neither instrumental calculation nor a purely formal analysis could grasp the status of such weapons: a decision was needed that was irreducible to the two logics. Here the decision was silence. In other cases, as pointed out above, the Court may have recourse to balancing, contextualisation, and bilateralisation, among a host of other techniques, to complete the instrumental and formal structures within which it works.⁶⁰ Each of such techniques is, again, indeterminate. None of them explain why this argument was held relevant, why that interpretation was chosen. The decision always comes about, as the political theorist Ernesto Laclau has put it, as a kind of "regulated madness", undetermined by any structure outside it.⁶¹

As such, the Court's decision (or a lawyer's opinion) is always a genuinely political act, a choice between alternatives not fully determined by external criteria. It is even a hegemonic act in the precise sense that though it is partial and subjective, it claims to be universal and objective. But it is this very partiality and political nature of the decision that ensures that it is an aspect of, or even a creative moment of a political society. Here finally, is the significance of the under-determination of the two logics behind the Rule of Law. The society upheld by international law is not an effect of technological reason, nor even of (some conception) of formal reason tout court. It is an effect of decisions, made under conditions of uncertainty and conflict and amenable for immediate criticism from alternative standpoints. That international law is not a passive reproduction of deductions from some globalising logic or other (economic, environmental, humanitarian) structure beyind itself, institutes the international society it governs as a political community that seeks to decide for itself what rules govern it. It is, as Bull noted, a union of "dominant elements" and "general interest". Not reducible to either one or the other, international law is the terrain in which the never-ending struggle between the two is being waged.