INTRODUCTION

Discussion of international law, as much as of any body of legal rules, invites a distinction between inputs—the processes that convert preferences and beliefs into something recognized as “law” —and outputs—the content of the legal rules generated by lawmaking processes. Most normative accounts of international law consider only the latter. Whether the topic comprises the laws of war or the nature of international human rights, discussion tends to focus on the content of the rule rather than its provenance.

There exists, however, an older tradition that considers the normative value of the international lawmaking process. It reaches back at least to Jeremy Bentham. It maintains that the content of rules cannot be separated from the means of their creation, and that lawmakers are more likely to adopt substantively desirable rules when lawmaking is structured and constrained in a particular way.

A focus on the lawmaking process, I submit, permits us to explore a particular dimension of justice, namely the relationship between law and liberty. Laws that reflect the arbitrary whims of the lawmaker are presumptively unjust, because they constrain liberty for no good reason. A strategy for making the enactment of arbitrary laws less likely involves recognizing checks on the lawmaker's powers and grounding those checks in processes that allow the governed to express their disapproval. The system of checks and balances employed in the U.S. Constitution embodies this strategy, although reasonable people can debate its efficacy.