SOCIAL THEORY OF LAW

WEEK FIVE

International Law

There has been considerable variation of the goal of international law – is it some sense of positive condition of ‘peace’ or simply the containment and sublimation of conflict so that war does not break out (i.e. the balance of power view, which grew in popularity after the Peace of Westphalia, see below)?

In ancient Athens, Plato set the original tone for the idea of international law when he argued that the individual soul and the city-state are organized by the same principles, aiming for equilibrium. By extension, the entire world might be organized according to similar principles.

n Starting in the 17^th century, this was called the ‘micro-macrocosm’ relation, and by the 18^th century the idea that the world could be organized as if it were one big state was called ‘cosmopolitanism’.

n Social contract theory -- the 17^th century strategy of trying to infer the origins of society from humanity in the ‘state of nature’ -- was actually based on the problems of achieving international order among states that had become laws unto themselves (i.e. the challenge of state sovereignty).

In the Middle Ages, ‘nationes’ originally referred to the residence halls of the universities, which were divided into people from different countries.

n In this context, the university was an international meeting place, with a status somewhat akin to the United Nations

n In the Middle Ages, when you broke the law, you would be tried by the laws of your people (‘nation’), not by the laws of the land in which the crime was committed.

n The so-called ‘nation-state’ is a post-18^th century attempt to reinscribe the racial component within the state, so as to create solidarity among people from disparate class backgrounds in times of war.

o In this respect, Papal efforts to forge a united Europe under Christendom (i.e. Holy Roman Empire) is comparable to Bismarck’s and Hitler’s efforts at a United Germany that transcends the territorial integrity of particular states.

o Not surprisingly, the First, Second and Third Reichs refer to, respectively, the Holy Roman Empire, Bismarck’s Germany, and the Nazi Germany.

Natural law provided one backdrop for international law – the basis of modern human rights legislation

n Natural law applied to all Christians who were seen as quasi-hereditarily linked together as part of the same ‘brotherhood in Jesus’.

n However, this is broken down first by Peace of Westphalia (1648), which removes natural law from the realm of legal enforceability (via the Pope’s armies)

o According to the Peace of Westphalia, states have the right to determine their own religion without the supervenience of the Pope. Thus, Plato’s analogy is perfected, as the self-governing individual is matched by a self-governing state

n The Peace of Utrecht (1713) carries this development one step further by making a geographically bound state, not the person’s religious or national lineage, the basis for jurisdiction and the prime guarantor of rights. It also established a presumption in favour of territorial integrity and self-determination in matters of monarchical succession.

o This has the effect of turning natural law into a revolutionary doctrine, since the positive law of the state is taken to be the default sense of legality unless proven otherwise (e.g. the American and French Revolutions, as well as 19^th and 20^th century suspicions about Catholic loyalties to the state.

o It is worth noting that the European Constitution is very much like a natural law document that subverts the sovereignty of states from both ‘above’ (e.g. human rights legislation) and ‘below’ (e.g. principle of ‘subsidiarization’ – i.e. devolve jurisdiction to the level where it can be most effectively implemented)

Modern international law begins in the 17-18^th century, with the rise of several states of equal power. Thomas Hobbes and Hugo Grotius provide two paradigms for resolving this situation, each starting from a radically different view of human nature:

o Hobbes says that you need a superagency to manage states that will always look out for their own interests first, distrusting the interests of other states. Thus, the problem of international law is how to avoid preemptive strikes and protective tariffs, probably by threatening wrongdoers with credible sanctions.

o Grotius says that the mutual sociability of humans ensures that each state will realize that it is in their own interest to do things that benefit all states. (The origins of the invisible hand argument.) By ‘mutual sociability’ Grotius means the tendency for humans to trust each other long enough to realize mutually beneficial ends.

n As Hedley Bull noted, both Hobbes and Grotius presuppose that international relations constitutes an ‘anarchical society’ without any greater sense of the human community than whatever can be maintained by the voluntary (Grotius) or coerced (Hobbes) cooperation of states.

o Thus, ultimately treaties and other trans-national institutions remain in force only as long as the major players benefit – not because they promote ends that transcend ‘reasons of state’. This explains why the League of Nations and the UN have a hard time maintaining enthusiastic support.

‘Standard of civilization’ = initially raised by Christian concern with the sanctity of human life, especially during the first wave of colonial expansion in the 16^th century, but by the 19^th century the standard shifted to capture the legal conditions that enabled foreigners trade on your soil without any threat to their lives

n Imperialism was officially about upholding the standard of civilization to those who would restrict it (e.g. closed-door Chinese and Japanese trade policies); hence, military backed free trade was justified.

n The standard of civilization mixed natural law concerns about a legality that transcends territorial sovereignty with a global capitalist ethic that called for ever expanding markets.

n In the Shield of Achilles (2001), constitutional lawyer and ex-Clinton national security advisor, Philip Bobbitt argues that the modern world is increasingly full of ‘market-states’, i.e. states whose main objective is to ensure that its citizens can trade freely so that they can sustain the livelihoods of the states (i.e. greater wealth generates more taxes and hence better public services and national defense)

o but the market-state is an ideologically weak state that attenuates individuals’ allegiance to national aims that aren’t clearly ‘good for business’ (note the US reluctance to fully commit to the reconstruction of Iraq).

Problems with Enforcing International Law

· What is the force of international law if one superpower has more power than the entire UN and is not counterbalanced, as in the Cold War, by the USSR? EU tries to provide counterbalance. But the middle classes of most countries are strongly tied to the US, so there is little clear incentive to decisively oppose US interests.

n e.g. even after Iraq war, while France and Germany will not help the US in the reconstruction, they are also not calling for new international law to prevent US unilateralism in the future

n the more general problem – one that is endemic to international law – is that the political ends often seems to justify illegal means: everyone wanted to get rid of Saddam Hussain but there was no legal means of doing it, so the US found an illegal means.

n However, one doesn’t need to just focus on overriding military might to subvert international law. It routinely happens in diplomacy, as ‘custom’ is invoked to withhold – or incompletely or deceptively share -- intelligence that a nation plans to use as a basis for taking pre-emptive action against another nation. This point could also be used to silence any public debate of such subversion within the nation itself.