Philosophically Legal: A Conversation with Dr. Andreas Føllesdal

Andreas Føllesdal is a Professor of Political Philosophy at the Faculty of Law at the University of Oslo. Føllesdal’s work focuses particularly on international law through a philosophical lens. He has explored matters related to distributive justice, human rights in court, legitimacy and sovereignty of states, and international legal theory. In this interview, Føllesdal and HULR discussed how part of the solution for many contemporary problems lies in weaving through philosophy and law, and learning from other models of government and ways of thinking.

Andreas Føllesdal: Life and Career

We began our conversation by talking about Føllesdal’s interest in political philosophy, a field marked by the intersection between philosophy and law. The Professor explained that his interest was, at first, political philosophy. He wanted to contribute to the debate of questions such as “What sort of society should we have,” “Why should we obey authorities,” and “What is it that we think about the State?” Then, he gravitated toward international law, taking courses at Harvard Law School as a graduate student at Harvard, and ultimately doing his PhD in international political philosophy. After joining the Law faculty of the University of Oslo, his colleagues further helped develop his interest in international law. Despite regretting not having taken a law degree, Føllesdal is highly passionate about his work and especially enjoys the adrenaline involved in discussing ideas with colleagues.

Harvard Undergraduate Law Review (HULR): What inspired you to pursue a career focused on political philosophy where there is such a great intersection between philosophy and law?

Andreas Føllesdal (AF): At first, my interest was in political philosophy. I have been concerned with issues related to what we think about the State, with questions like “What sort of society should we have, and why should we obey authorities?” Then, I've been very lucky to be able to go more towards the direction of international law along the way. When I was a grad student at Harvard, I took many courses at the law school, but my PhD was still in international political philosophy. Over the years, working at the law faculty of the University of Oslo, I've had some very, very nice constructive colleagues who are lawyers and have sort of pulled me in that direction.

HULR: What have been the most challenging and the most rewarding parts of your career so far?

AF: The rewarding part has more and more become helping younger colleagues, who have good ideas worth pursuing. It is always a great source of intellectual adrenaline to be able to engage with creative minds. The frustrations, in part, have to do with the academic circumstances in Norway where I've been working. I think if I had known what direction I was going, I might have thought about getting a law degree early because it really helps to understand the basics of Political Philosophy.

Philosophy and the Justness of Law

At times, Law can be seen as a very restricted field, analytical, pragmatic, and straightforward, while philosophy is a more open, abstract, almost romantic, area. However, these two areas complement each other more than is usually thought, and Andreas Føllesdal proves so. Føllesdal finds that philosophy is deeply necessary for the right practice of law. To justly write and apply laws, lawyers must be aware of their own biases and unexamined beliefs. Føllesdal thinks that it is important for lawyers to ground their decisions on well-examined assumptions, having thoroughly thought about the different decisions they can make in a certain case, as only then can it be said with more certainty that the law is just. As such, philosophy can provide solid normative support for legal decisions.

This is decisive in International law since legislation in this field must take into account the experiences and beliefs of people from different countries and cultures. It is not sufficient to simply consider the lawyer’s own view, with all the unexamined cultural beliefs that come with it. Instead, it is relevant to do some philosophical work to understand, charitably, why people from other cultures behave the way they do and how these different perspectives can be reconciled, avoiding the risk of ethnocentrism and unjust imposition of one’s view over others. For example, it can be easy to deem a certain practice as against human rights and try to completely ban it, but Føllesdal advocates for the practice of understanding why there are such different views, analyzing which are the ones that should be respected and which are the ones that should be reformulated to ensure human rights are being complied with.

The examination of one’s beliefs is further important for the legitimacy of the courts. When laws are well-justified, they are more likely to be complied with, because the public it should serve understands that the law professionals’ reasoning is clear and just. This last point is also important — an international court should be providing some desirable and good service to the individuals and the states, promoting international justice and equality.

What should be done when these goals are not accomplished? One solution is civil disobedience. Drawing on Rawls, Føllesdal explained that civil disobedience can be used to alert that either the system is structurally unjust, or that some aspects of society are very unjust, despite the system being normatively just. These days, other forms of signaling that there are weaknesses that need to be corrected might be more appropriate due to the growing populist and authoritarian threat that already threatens international order.

HULR: Commenting on David Lefkowitz’s book Philosophy and International Law: a Critical Introduction, you mentioned that international lawyers should care about philosophical approaches for three reasons. First, philosophy provides a set of analytical tools to get to core questions that underlie the structure and rules of international law. Second, laws that can be defended in terms of legitimacy, fairness or justice stand a better chance of being complied with. And thirdly, philosophy encourages legal scholars and professionals to examine their beliefs and how their decisions are influenced by those ideas. What is your opinion on the role of philosophy in international law? Do you agree with Leftowitz’s ideas, or do you think there is more to it?

AF: I think those are some of the central contributions. When reading works by other lawyers, I often find that they often make plausible assumptions of a normative or philosophical nature, but without reflecting so much on the fact that they make those choices and they could have made other choices. In these cases, political philosophy can be useful in providing normative support improving the soundness of those contributions. Similarly, I often find myself in agreement, for example, with feminist criticisms of international law or TWAIL criticism, and think that the institutions that are driving some of these critical perspectives could benefit from a sounder philosophical approach. So, the reason why so much of international legal regimes is that some people are being subjected to the arbitrary discretion of others through the means of law.

HULR: What do you think are the greatest issues faced by the international community or by international courts currently? What is the role of philosophy in contributing to the solution?

AF: The horrific situations we are witnessing in Israel and Gaza, and in Ukraine, the fact that the climate crisis is not being dealt with quickly and effectively enough, and that people are starving for no good reason are all areas where I think international law can be part of the solution. But it is also sometimes part of the problem and it is a very important task to help colleagues make international law more part of the solution than the problem.

HULR: Can you share your thoughts on the relationship between international law and global economic justice?

AF: I think that my colleagues and I are concerned about international economic justice. Political philosophers are exactly interested in the institutions that create wealth and affect wealth redistribution in the world. So, it's very clear that it is international law that makes the rules of the game for very much of what is now happening in the global economy. It is responsible for both the positive aspects, like making rules between states, but also for the negative ones. International law perpetuates massive economic inequalities within some states, because it allows states to maintain control over the national natural resources, and even allows in some states with absolutely no democratic accountability for powerful elites to take all the spoils of global economic trade, so, in many countries the benefits of economic globalization are clearly skewed towards an elite rather than to the general population.

HULR: How can international human rights courts be truly fair, if fairness can ever be obtained, when nations have different concepts of what is fair? And is there any possibility that international law is unduly imposing Western views in other countries?

AF: We have to think philosophically about what good reasons there are for these different views across the globe for human rights. Some differences seem to be understandable and respectable, and some seem to be based on very controversial and problematic views. For instance, some views about the capacities of women and various ethnic groups, about attitudes toward religious differences, and about gender or sexual orientation seem to be simply mistaken. Some of such claims jar so much with our normative intuitions in general that they might not merit the respect that more reasonable views would have. Another issue where Philosophy can be valuable is in the concern that at the start of a treaty, the human rights norms would be subject to some sort of negotiations among states. So, ideally, they would reflect an agreement among the states; however, in practice, our Social Sciences colleagues can tell us that the more powerful states and their norms tend to win out. And it is also worth noticing that there is not only disagreement between the West and the rest of the world, but there is also contestation within Western or Northern societies.

HULR: Can you elaborate on your views about the legitimacy of international courts?

AF: I have been in charge for ten years for a research program precisely on the legitimacy of the international or the global judiciary, and where international courts are very central, with a very good colleague, Geir Ulfstein. Among the more philosophical aspects, we have spent quite a lot of time discussing what is required for an international court to be legitimate or illegitimate. Our political science colleagues have been exploring the power play that goes on in setting up these courts in selecting the judges, who bring the cases and so forth; the legal colleagues have been looking at, among other things, who is interpreting these very often quite vague, legal terms in the treaties, what's the interplay between the international law and the domestic law in different countries. I have found that Joseph Rause’s understanding of authority is a helpful way to make sense of all the criticisms against international courts, and then help us figure out if some of these objections are correct or misguided. If we interpret them charitably, many of these criticisms essentially say that an international court that is legitimate has to provide a service to individuals and their states. If the court doesn't provide those services, then it's illegitimate. Some criticism is that the World Trade Organization Appellate Body might be doing a good job, but if they are pursuing trade objectives that are actually objectionable, then the quality of the job is irrelevant, because the aim of the whole system is corrupt. Other criticisms point out that advancing a case on international courts is such a costly process, or that the results are so biased in favor of the powerful, that it's not actually not providing the impartial adjudication or interpretation that the courts are supposed to do.

HULR: You have written about civil disobedience against international human rights courts. Do you think that right now there is any reason for civil disobedience against international courts, or more broadly against the international community?

AF: It depends on which of the courts we are talking about, I think. The theory of civil disobedience that I found most helpful is one that John Rawls enunciated 50 years ago. He warns that civil disobedience might be thought of either as an alarm bell or a very extreme attempt to improve an unjust system or some unjust aspects of a system whose general structures are normatively just. He then pointed out that civil disobedience might be justifiable, or unjustifiable, but one of the conditions for it to be justifiable, in addition to the purpose being normatively good, is that it shouldn't be making the whole system so unstable that there's a risk of it unraveling. I think, for some of the courts and some of the regimes that are worth having, too much intentional non-compliance in order to improve them might not be the best strategy these days. So, the European Court of Human Rights is facing big challenges in responding to authoritarian and populist governments, for instance, even after Russia left. I am among the critics of the court on some details, but I think it's important for states that are considering not complying with international regulations in order to improve the court to reconsider whether this is the best time to do so.

HULR: Since the Second World War, the US has been the “cop of the world.” How can the US contribute to the development of other countries without unjustly interfering in their laws and policies?

AF: There are many ways that states can go about strengthening the quality of life and the rule of law in other countries. Even when warranted, military intervention is so risky and so likely to backfire that it seems unwise to go that route. Preferential trade agreements would be one way to help other countries, increasing competence building within other countries.

Federalism: United States and European Union

In the interview, Føllesdal also compared the United States with the European Union in matters relevant to global economic justice and international law. In the US there is a historical redistribution bias, while the European Union can lean more towards cooperative development between states, which Føllesdal finds normatively more defensible, as these laws can more easily be seen as promoting social justice than those which prevent redistribution, with the States being allowed to be sometimes at odds with the federal government. However, there have been epochs in US history, like the New Deal era in the 1930s, where there was an acceptance of greater social redistribution. Føllesdal noted that, even though the European Union is not formally a federation, in terms of Human Rights protection, there is great cooperation between states and a common institution of human rights control, that would perhaps be even stronger if the European Union were a real federation.

HULR: You wrote an article about “A just yet unequal European Union: a defense of moderate economic inequality,” where you mention the tension between European Union sovereignty and each country's sovereignty. How do you think that this model of federalism in the United States impacts the justness of laws and policies?

AF: It certainly does affect. One important difference between the US federal constitutional legal system and that of the European Union is that, as far as I can tell, the Constitutional Fathers of the US were very concerned about preventing redistribution across the states. So, they built systems that ensure that goal is accomplished, and I think some of those constraints have worked well. The European Union, on the other hand, is committed in some ways to a certain solidarity, between the different regions and states within the EU, taking some redistributed measures. This means that in the EU there’s more of a redistribution by design than in the US. The EU is still by no means a perfect system, but I think that, in the stated objectives, its principles are normatively more defensible than those that guided the constitutional Fathers in the US.

HULR: Do you think that, given the nature of the US Constitution, it would be possible to increase this mindset of redistribution in the US in a way that is more like that of the European Union?

AF: We've seen in the history of the US several political movements increasing more solidarity or more redistribution. The New Deal, for instance, was a clear effort in that sense. My main observation is that the States can block redistributive measures a bit too easily. There might be ways for that hurdle to be overcome, either by changing constitutional levers, or through other political action, if there's sufficient political will among the states and their politicians.

HULR: What would it mean for international law and human rights if the European Union was a real Federation?

AF: This is a very interesting question in so many ways. I think that the European Union already has a lot of the elements of a federation when it comes to human rights. One of the issues that sets it apart from a true Federation is that it's still not clear how much human rights control or review of the central European Union bodies there is. So, the States of the Union have decided that the European Union itself should become subject to the European Convention on Human Rights, which would make the European Court of Human Rights review the human rights compliance of the EU bodies. However, this proposal of the member states was met with very strong resistance from the Court of Justice of the European Union. I think that once that is solved in some sufficient way, the human rights protection within the EU will be, I think, very close to what we see in a more standard Federation. The human rights policies of the European Union outside its borders are already partly happening, but they might have been different if the EU was a federation.

Throughout the interview, HULR explored with Andreas Føllesdal themes that are important to him, from the symbiosis between philosophy and law to the way governments can shape the justness of laws. Føllesdal’s journey through philosophy and law is proof that our understanding of the world is only richer when we are willing to blend boundaries between fields, drawing knowledge, for example, from both philosophy and law to imprint more justice into the world and advance causes that truly change lives.