Chapter Two summarizes the compliance literature on international relations and international law, addressing both theoretical and empirical work. This literature can be divided into two groups: The first group explores why states comply with international law and is generally associated with the primary schools of international relations theory. The study may confirm or illustrate the applicability of aspects of one or more of these theories, although that is not necessary for it to be valuable in illuminating the motivations that affect policymakers and states. The second group within the compliance literature examines more closely how states comply at the domestic level and focuses on domestic policymaking within the United States government. In this regard, the chapter concentrates on two similar normative and process-oriented approaches. The first, the international legal process approach, is drawn from international legal scholarship; the second is primarily drawn from constructivist international relations theory, and was developed primarily by Wayne Sandholtz and Christopher Whytock, among others. Both approaches emphasize the role of internalized norms and the importance of process and organizational structure in decision-making. They are, accordingly, helpful in understanding the effect of legal norms, lawyers, and process in State Department decision-making.

Chapter Three explores the views of former officials regarding compliance by states with international law. Almost all former officials believed that international law constrains state behavior, at least to some extent, and that states comply with international law much of the time. The top positive factors favoring compliance, as revealed by frequency counts, were reputational concerns; state interest in a stable legal and institutional system; reciprocity, or the prospect of retaliation; ethical considerations, including ethical values underlying international law rules and respect for the rule of law; idiosyncratic factors, including the history and culture of states; and benefits flowing from participation in specific regimes. The significant role of ethical factors gives a boost to normative theories about compliance. The role of systemic interests illustrates the benefits of a multilateral, institutional, and rule-based system. Among the factors militating against compliance, the dominant factor was state interest. Many former officials suggested that decisions about compliance involve a cost–benefit assessment, a consideration of many factors including international law. The chapter concludes by considering the former officials’ perceptions about the reasons that states outside of the United States take into consideration regarding compliance with international law.

The historical relationship between linguistics and applied linguistics, one producing knowledge about language and the other applying it to real-world contexts, creates a hierarchy of linguistic knowledge, with linguistic knowledge at the top, everyday views on language at the bottom and applied linguistics somewhere in the middle, mediating between the two. This relationship has started to shift as applied linguists have sought to develop their own views of language based on their engagements with language users and contexts. A key framework for this book is a form of critical social realism that allows for more than one reality, grounds epistemologies in social relations and takes a critical-ethical position on choosing between different versions of the world. Central to this discussion are questions of ontology – what language is – and the ontological turn in the social sciences. Alongside ontological questions about what languages are, a related concern is whose version of language counts. Various ways of getting at this, from lay, folk and citizen linguistic perspectives, have emphasized this need to include knowledge of language from outside the disciplinary confines of linguistics. A practical theory of language surely needs a strong relationship with how language users think about language.

This chapter puts forth and defends a novel view of defeat, and it shows that it is superior to its competition in that it can account for the epistemic impermissibility of defeat resistance cases and normative defeat cases, as well as for the effect ignored defeat has on doxastic justification. On this account, defeaters are ignorance indicators1: facts that one is in a position to know and that reduce one’s evidential probability that p. Furthermore, I also put forth a novel account of the normativity at work in cases of normative defeat and negligent inquiry and evidence gathering.

Theme #9 is about exploiting dynamics already present in a situation to advance one’s interests. Many Sun Tzu ideas find a place here, reflecting Sun Tzu’s keen appreciation of war’s larger context (Passage #1.1) conjoined with the inherently dynamic quality of Sun Tzu’s core concept of shi.

Drawing on Putnam’s famous fact–value entanglement argument, Chapter 7 shows how economics is inescapably value-entangled, and argues that while economics is an inherently value-laden discipline it may still be an objective one. It describes economics’ value structure as being anchored by its main normative ideal shared across different approaches, individual realization – what most people in the discipline believe is most valuable and good about human society and characteristic of human nature. It compares two competing interpretations of what that ideal involves – one in mainstream economics and one in capability economics – distinguishing them according to the different additional values regarding what well-being involves, they adopt to give content to the individual realization ideal. It then evaluates these two approaches according to whether their different value structures are consistent – an analysis I characterize as value disentanglement. After this, the chapter turns to a general framework for ethics and economics – or ethics in economics – distinguishes four different forms of disciplinary relationships between economics and ethics, and argues that while cross-disciplinarity best describes the current status of economics and ethics, transdisciplinarity represents an aspirational conception of what an objective, value-laden economics ultimately requires.

This chapter addresses the book’s first question by focusing on what classical Pragmatism can tell us about constructivist-inspired norm theory. Pragmatism can contribute to a new wave of norm research, which focuses on how normativity (or appropriateness) is established and not just how norms change. Pragmatism finds normativity in experimental processes that test a norm’s ability to ameliorate the lived experience in social and political contexts (rather than in abstract theorizing). This requires a commitment to epistemic fallibilism, deliberation and inquiry. Drawing on the writings of Peirce and Dewey in particular, the chapter argues that this process can only resolve normative doubt and establish epistemic authority if the knowledge of those affected by a practice is included in the community of inquiry that establishes normativity. What Dewey called a ‘stock of learning’ emerges from this process, which can be used as a starting point for acting in uncertain situations and judging the relative strength of the alternatives offered in processes of norm contestation. The chapter relates this argument to important contributions to norm theory, including the Habermasian-inspired ‘logic of arguing’ and Antje Wiener’s ‘theory of contestation’. It illustrates the Pragmatist contribution with reference to the debate on the anti-torture norm.

This chapter introduces the concepts of convergence and fragmentation in international human rights law (IHRL) by providing and discussing their definitions and meanings. Building on the conclusion of the 2006 ILC Report on Fragmentation in international law and drawing on existing literature on the matter, the chapter assesses the extent of normative fragmentation and proposes a new definition of judicial fragmentation in IHRL. Moreover, this chapter also engages in a discussion of how convergence and fragmentation relate to the concepts of universality and relativism, key for any comparative discussion on human rights.

In this chapter, we consider the ways in which these normative framings structure both policy interventions but also ways of thinking about the multicultural nature of contemporary Britain. The work of the Blair Government’s Commission on Integration and Cohesion is considered where one of the authors served as a commissioner between 2006 and 2008. The notions of integration and cohesion are considered for the ways in which they, at times, fail to provide a particularly helpful frame for understanding the dynamics of social change, the diachronic rather than synchronic evolution of racialised politics in the United Kingdom, the highly localised restructuring of economy and society that structure the crucibles out of which new diversities emerge.

To understand why a narrative conception of identity offers a robust basis for understanding the nature and ethical significance of the role of personal bioinformation in self-characterisation, it is necessary first to establish what such a conception involves. This chapter reaches beyond metaphors of storytelling to review the key features of several prominent philosophical theories of narrative identity – exemplified by the approach by Marya Schechtman. According to these theories, our practical identities are constituted by our first-person accounts of who we are. Our self-narratives comprise multifaceted, diachronic characterisations of who we are as whole individuals, agents, and moral beings. We do not simply ‘have’ our identity narratives. We construct and interpret them, and they play a key role in supporting valuable experiential, evaluative aspects of a practically engaged and flourishing life. Our self-narratives are only capable of fulfilling these practical roles to the extent that they provide relatively intelligible and integrated accounts of our characteristics and experiences – in our own eyes and also in the eyes of those around us. This is, therefore, a crucially normative conception of identity, according to which the attainment of a coherent, inhabitable practical identity is an achievement, albeit a provisional and ever-evolving one.

Despite the tremendous renaissance of comparative constitutional law, the comparative aspect of the enterprise, as a method and a project, remains under-theorized and imprecise. Methodological self-awareness has not been one of the field’s strengths. In comparative constitutional law (and Constitutionalism in Context more generally) the term “comparative” is often used indiscriminately to describe what, in fact, are several different types of scholarship, each with its own meanings, aims and purposes. What is more, various vocational, jurisprudential, academic, and scientific stakeholders involved in practicing the art of constitutional comparison. This chapter will explore the various types, aims and methodologies deployed in exploring constitutional phenomena comparatively across time and space. In so doing, it will identify some gaps in the field’s contemporary methodological matrix and suggest ways in which these deficiencies may be addressed and overcome.

This chapter begins with a real-life example that sets the scene for the core question engaged in this book: what is the substantive content of the obligations corporations have in relation to fundamental rights? The goal of the book is to develop a general legal analytical framework to answer this question at an intermediate level of determinacy that can guide decision-making in concrete cases. It also considers the institutional changes required to give effect to the framework and render it meaningful. In so doing, it highlights the union of substance, process and institutional design. The chapter outlines the methodological approach I adopt: it combines international and constitutional law; straddles the boundary between public and private law; engages insights from disciplines such as philosophy, economics and political science; and combines the normative and descriptive. The chapter also provides an outline of the structure of the argument in this book and brief description of what is accomplished in each chapter.

Trish Salah contextualizes the broad post-2010 emergence of transgender fiction in a longer history of earlier trans and queer fiction and theory while arguing that “trans genre writing” has found recent prominence as a new minor literature. Particular challenges have led trans writers to innovate at the levels of language and aesthetics, perspective (collective, but not homogeneous), and genre, among others. Moreover, these works thematize and challenge norms and imperatives of empire, race, history, visibility, and geography.

This chapter offers reflections on the results presented in the previous chapters. One section argues that while it is difficult to prove that teachings contribute to the development of international law, it seems probable that they do, including by influencing the ICJ when it contributes to the development of international law. The next section suggests how the Court's practice may be adjusted in potentially beneficial ways. The arguments are presented, in favour of increased transparency about the application of teachings, increased diversity in what teachings are applied, and increased regulation in how teachings are applied. These arguments must be balanced against significant counterarguments, and this must be done by the individual judge. A third section shows how the Court's practice compares with that of other international courts and tribunals. The Court's majority opinions are most similar to those of the International Tribunal for the Law of the Sea, while its individual opinions sit roughly in the middle of a spectrum between various institutions. The final section has ideas for future research.

Section 5 of Hume’s An Enquiry Concerning the Principles of Morals, “Why Utility Pleases,” is a remarkable text for a variety of reasons. First, there is no directly analogous section in the Treatise, so it raises questions about whether Hume engaged in substantial revision of his previous thought. Second, it offers evidence of a normative moral theory. Third, because Hume discusses the role of utility so favorably, it may suggest a nascent form of utilitarianism. Finally, “Why Utility Pleases” advances some of the few positions that draw criticism from Adam Smith. This chapter addresses each of these features. In response to the first, I argue that there are important differences between the Treatise and Section 5, but none that involve a rejection of the claims of the earlier work. In response to the second, I argue that “Why Utility Pleases” is best interpreted as falling squarely within Hume’s descriptive moral psychology. In response to the third, I argue that the notion of Hume as a utilitarian is dubious. Finally, in response to the fourth, I suggest that the disagreement between Smith and Hume, though nuanced and interesting, is not deep.

At this moment, the literature and discourse on command responsibility is incredibly convoluted and controverted. I will show how these knots were produced by an underlying inadvertent contradiction with the culpability principle. The contradiction was created by surface-level doctrinal reasoning that did not adequately consider the deontic dimension. The subsequent twists and turns to deny, obscure, evade, or resolve this contradiction have led to increasingly complex and obscure claims about command responsibility.

The inquiry demonstrates the problems of inadequate attention to deontic limits. It also shows how deontic analysis can help us better understand the trajectory of the command responsibility debate. We can see old controversies in a new light and generate new prescriptions. I argue that command responsibility can be restored to its simple and elegant origins if it is recognized as a mode of accessory liability. As a result, the causal contribution requirement should be respected. This solution is not perfect, but I will show that this is the best reconciliation of the text, precedents, and the culpability principle. By resolving the core contradiction, the myriad complications and mystical evasions about command responsibility become unnecessary.

In this chapter, I address important preliminary challenges to any discussion of deontic principles in ICL. Thoughtful scholars have raised concerns that familiar liberal principles may be entirely out of place in ICL. I will argue: (1) For any system that chooses to punish individuals, deontic principles do matter, and thus they should constrain ICL. (2) This does not necessarily mean replicating formulations of fundamental principles familiar from national systems; instead we can return to our underlying deontic commitments and see what they entail in these new contexts. (3) We can learn from common critiques of liberal accounts, to build a sensitive, humanistic account of deontic principles.

In response to various criticisms of criminal justice and liberal principles, I emphasize the ‘humanity’ of criminal justice. Criminal justice and its restraining principles are sometimes portrayed as abstract, metaphysical, retributive, vengeful, Western, or ideologically unmoored from experience. But criminal law serves pro-social aims. Its constraints are rooted in compassion, empathy, and regard for humanity. An intelligent liberal account considers all facets of human experience, including social context, social roles, and collective endeavours. Principles reflect broadly shared human concerns, and can be refined through human conversation.

In this chapter, I examine a different controversy in command responsibility: the mental element. Scholars and jurists have raised powerful, principled objections to the modified fault standards in command responsibility, such as the ‘should have known’ standard in the ICC Statute. They are absolutely right to raise such questions, because a negligence standard in a mode of accessory liability seems to chafe against our normal analytical and normative constructs. However, I advance, in three steps, a culpability-based justification for command responsibility. I argue that the intuition of justice underlying the doctrine is sound.

I argue that the ‘should have known’ standard in the ICC Statute, rather than being shunned, should be embraced. I argue that the ‘should have known’ standard actually maps better onto personal culpability than the rival formulations developed by the Tribunals.

This chapter gives an example of the two-way conversation and illumination in the encounter between criminal law theory and ICL. This is an instance where ICL, by highlighting special contexts and problems, can lead us to reconsider some of our initial reactions and conclusions. Command responsibility delineates a set of circumstances where our normal reflexes about the lesser culpability of criminal negligence may be unsound.