UCLA Journal of International Law and Foreign Affairs

International law and scholarship tend to ascribe certain perceived human attributes to States and to call upon those attributes as a basis for rationalizing how States conduct themselves in the international system and—particularly—to justify international norms and distributive outcomes.  Specifically, like humans, States are presumed to be (1) choice-driven, (2) rational, and (3) predominantly autonomous.  These, and other anthropomorphic attributions, pervade social science and, as Professor Jean d’Aspremont confirms, are particularly commonplace in international legal scholarship.[1]

However, this anthropomorphic conception of the State actor is empirically unsubstantiated and is an incomplete model for understanding why and how States do what they do and for justifying the international legal order.  Because much of the international legal order relies on these empirically unsubstantiated ideas, a theoretical discrepancy exists between what international lawyers believe is happening and the actual reality of global law and governance.

These attributions are congenital.  They played a key role in how modern international law originated, which explains why they are still operative in how contemporary international law functions.  To demonstrate this, I propose a historical account of one of the processes through which international law came to incorporate and depend on these attributions.  I start with the explicit assertion often made by the early theorists of international law, in this instance Francisco de Vitoria, that international legal actors must—and in fact do—possess reason.  I argue that because these assertions were often made in a throwaway manner, mainstream historical works in international law tend to either miss or underappreciate their significance.

I show that Vitoria’s belief that the legal actor is a rational being is not peripheral but rather central to his account of international law for three main reasons.  First, Vitoria suggests that possession of reason or rationality is the sole basis of legal subjectivity in the law of nations.  Relatedly, because they possess reason, international legal actors are necessarily autonomous.  Second, by arguing that all legal actors are similar because they reason, Vitoria suggests that international law can properly apply to them in a fair and neutral fashion.  In effect, the attribution of rationality allows Vitoria to legitimize an overarching normative framework within which relations between the legal actors may be assessed from an objective standpoint.  Third—and finally—to reinforce this framework, Vitoria characterizes any opposition to the common normative framework as emanating from the actors’ self-interest or bad faith and, accordingly, as inherently inimical to the common interest of all subjects of jus gentium.

[1].       d’Aspremont writes, for instance, that “anthropomorphism is rather commonplace in social sciences.  In the thinking about international law it is almost a dominant trait.”  Jean d’Aspremont, The International Law of Recognition: A Reply to Emmanuelle Tourme-Jouannet, 24 Eur. J. Int’l L. 691, 693 (2013).