Outcasting, Globalization, and the Emergence of International Law

Over the last several centuries, we have been undergoing a profound sociocultural transformation, which relates to the recent emergence of international law. This transformation is every bit as fundamental as those that we once went through when first transitioning from hunter-gatherer forms of life (which did not yet have legal systems or engage a distinctive sense of legal obligation) to more sedentary forms of agricultural living (with larger population densities, incipient domestic legal institutions, and — ultimately — an emergent distinction between morality and law.) As in that earlier case, our present transformation is one of the most important ones within our natural history as a species.

We have, however, failed to understand critical aspects of this transformation, and this is due in large part to three more basic failures: first, our failure to appreciate certain critical dimensions to the philosophical question whether international law is law; second, our failure to appreciate how our natural sense of obligation functions, and the sociocultural conditions under which a new and distinctive sense of international legal obligation can arise and function in our lives; and, third, our failure to recognize the distinctive and pervasive role that outcasting (as that phenomenon has been introduced and described by Oona Hathaway and Scott Shapiro in their recent Yale Law Journal article of the same name) plays in international law as a functional substitute for physical sanctioning in domestic law.

This Essay embeds Hathaway an Shapiro's main findings in Outcasting within a more general (and purely naturalistic) account of the psychology of obligation — as developed in my prior work on the Deep Structure of Law and Morality. I argue that the pervasive practices of outcasting that Hathaway and Shapiro have identified in the international arena should be understood as providing the 'evolutionary stability conditions' for a new and distinctive sense of international legal obligation in us; and that this shared sense of obligation provides one of the basic preconditions for the emergence of a genuine and distinctive de facto system of international law. These arguments thus place some of Hathaway and Shapiro's main claims about the existence of international law on a much firmer and more empirical foundation, while leading to the development of a distinctive and more accurate account of the relationship between outcasting and the emergence of international law.

There is also a normative point to this Essay. It argues that, once we understand the specific types of sociocultural transformations that lead to the emergence of distinctive legal systems (along with the psychological attitudes that tend to animate them), we will also see that we are committed to a specific method for evaluating international law. This method shows why it may be appropriate to import certain familiar forms of evaluation from one domain where law has uncontroversially emerged (namely, the domestic arena) to another where it appears to be emerging (namely, the international arena). This method also cautions against the uncritical application of consequentialist standards to evaluate international law.