ILaw is bad – gives too much power to unethical lawyers and results in dangerous foreign policy

The problem, of course, is that this view of the law permits or legitimises seemingly gross ethical transgressions, allowing lawyers to sidestep morality in favour of technique.34 Indeed, the law may actually encourage such sidestepping given that lawyers are ‘professionalized in a manner that undermines moral reasoning skills’. 35 For scholars like Hatfield, the blame for the torture debacle lies with American legal education and process, and the ‘professionalization of moral deference’ it encourages. In his words, ‘[w]e do not expect lawyers to say “no”; we expect lawyers to figure out “how”. I cannot pretend to be shocked by the results.’

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Here we find the danger of policy-oriented jurisprudence and the idea of amoral lawyering: if law is seen as a flexible resource to be deployed toward a variety of policy ends, then an amoral lawyer’s role can easily descend into being an agent of unsavoury or evil purposes. One can, of course, point to several cases where international lawyers have been trotted out to put forth dubious legal justifications for the policies of the powerful.37 Exploring the ways in which international law is silenced, co-opted or manipulated by powerful non-legal actors surely remains an important area of inquiry.38 However, such inquiry rests on and reinforces the assumption that lawyers are relatively powerless agents serving, or being exploited by, more powerful non-legal forces. This risks overlooking how ‘international humanitarianism is powerful’ and how lawyers are becoming powerful actors in their own right.39 Rather than explore the manipulation of ‘weak law’ by the powerful, then, this article focuses on the dark sides of international law’s strength. In doing so, it will examine how the assumption of international law’s weakness and the idea of the amoral lawyer both empower lawyers within bureaucracies as part of a broader shift that has important implications for institutional and personal responsibility, as well as foreign policy outcomes.

The power of international law and the inflated importance of the lawyer

Today, international law has become so widespread and powerful as to be almost ‘hegemonic’. 40 With the legalisation of world politics, international law is replacing other legitimating discourses (such as morality or religion) as the primary means of condemnation and justification in global affairs. Indeed, according to Paul Kahn, the ‘deepest criticism that one can make of political behavior is that it is in violation of a legal norm’. 41 With such a shift, lawyers have become almost priest-like figures in foreign and defence policy circles and the military: hearing confessions, assuaging troubled consciences, communing with a higher inscrutable authority, and ultimately blessing operations and decisions.42 Indeed, one military lawyer has confided that he grew ‘tired of being a High Priest in a secular army’. 43

This elevation of the lawyer is not merely symbolic. As Fernando Nuñez-Mietz convincingly demonstrates, due largely to the importance of compliance lawyers in Western democracies are increasingly ‘structurally empowered’ to play a more visible and vital function within institutions and decision-making bodies.44 Such ‘lawyerization of foreign policy’ brings with it a shift from ‘discretionary decision making’, where a leader’s practical judgment is authoritative and determinant of the decisional output’ to ‘[l]awyerized decision’ where ‘the state … grants decisional agency to (some of) its legal advisors’. 45 In other words, legal advisors are moving from ‘advisors’ to decisionmakers. This shift is has troubling implications, especially as non-lawyers are not well positioned to understand, let alone resist it.