The Nature of International Law

Gerry Simpson

• Publisher: Routledge
• Year: 2017
• Print ISBN:
  9781138706064
• eBook ISBN:
  9781351783750
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This title was first published in 2002: The purpose if this volume is to provide a map of some of the great theoretical debates within the discipline of international law. The essays included are structured as dialogues between international legal theorists on concrete subjects such as democracy, gender, compliance, sovereignty and justice. They represent the most interesting theoretical work undertaken in international law.

Part I
Three Overviews

[1]

Review of International Studies (1987), 13, 221–227 Printed in Great Britain

An anatomy of international thought

MARTIN WIGHT*

This is an attempt at analysing the political philosophy of international relations in a very short span of time, so I do not propose to discuss questions of method. Indeed I may sound dogmatic, but that is merely because I shall not have the time to exhibit my diffidence.

You might say there is no such thing as the political philosophy of international relations; I have therefore played safe and called it ‘international thought’ in my title to use the least pretentious phrase describing speculation about international relations. International thought is what we find in the discussions of the man-in-the-street or in the popular press. International theory is what we find in the better press and hope to find in diplomatic circles and foreign offices. The political philosophy of international relations is the fully-conscious, formulated theory, illustrations of which you may find in the conduct of some statesmen, Wilson, probably Churchill, perhaps Nehru; and it may be expressed by serious writers, for example Kant or Kennan, Machiavelli or Morgenthau. The differences between thought, theory and philosophy are partly in the precision with which they are formulated, and partly in the degree of their profundity. But I am not concerned with these and ignore them.

To help us examine international thought let us first consider international relations themselves, the state of affairs which produces international theory. As a preamble to our philosophical analysis a sociological analysis will ask the following question: what is this condition which we study under the name of international relations? What does it consist of, what are its ingredients? It has three component social elements:

1. International anarchy: the multiplicity of sovereign states acknowledging no political superior. Politics here are not ‘government’; they presuppose the absence of government.

2. Habitual intercourse: expressed in the institutions of diplomacy, international legal rules, commerce, etc.

3. Moral solidarity: the communion deeper than politics and economics, it is psychological and cultural, expressed in such phrases as the ‘society of states’, the ‘family of nations’, ‘world public opinion’, ‘mankind’.

To each of these elements there corresponds a way of looking at international relations. It may be by temperament and bias, it may be by intellectual conviction. Everybody is inclined to give greater importance and value to one or another of these three elements and in consequence one can trace three, at least three, coherent patterns of thought about international relations, two of which are indeed self-conscious intellectual traditions. To illustrate this, let us enquire into the nature of international society.

The first pattern

The most fundamental question you can ask in international theory is, What is international society?, just as the central question in political theory is, What is a State? Thinkers who emphasize the element of international anarchy in international relations answer this quite simply: Nothing. A fiction. An illusion.Non est. The first to make it explicit is probably Hobbes. Hobbes was certainly the first to make the equation between international relations and the state of nature. In the famous thirteenth chapter of Leviathan he anticipates the question, whether the state of nature, as he describes it, ever existed. He points first to American Indians, and second to ‘Kings, and Persons of Soveraigne authority, (who) because of their Independency, are in continuall jealousies, and in the state and posture of Gladiators’.¹ This equation, that the state of nature = international relations, that sovereign states in their mutual relations are in a pre-contractual condition, passes from Hobbes into the general stream of public law and political theory.

But there is a second equation: international relations may = the state of nature, but what is the state of nature? Bellum omnium contra omnes. The state of nature = international relations = the war of all against all, therefore there cannot be an international society. Society is established by the contract, international relations is pre-contractual, the term ‘Society of Nations’ is contradictory. This is implicitly the position of Machiavelli and Bodin and explicitly that of Spinoza, Rousseau, Kant, Hegel, Fichte and most legal positivists.

Bismarck, for example, showed impatience when the words ‘Christendom’ or ‘Europe’ were introduced into diplomatic language. Once, when Gorchakov was urging on him the view that the Eastern Question was not a German or Russian but a European question, Bismarck replied: ‘I have always found the word Europe on the lips of those politicians who wanted something from other Powers which they dared not demand in their own names.’² At the core of this pattern of thought is the doctrine that power is anterior to society, law, justice and morality. E. H. Carr in The Twenty Years’ Crisis restates the Hobbesian position: ‘Any international moral order must rest on some hegemony of power.’³ Here is Hobbes: ‘…before the names of Just, and Unjust can have place, there must be some coercive Power.’⁴ This position is also expressed by Morgenthau, when he says: ‘Above the national societies there exists no international society so integrated as to be able to define for them the concrete meaning of justice or equality, as national societies do for their individual members.’⁵ For this line of thought, the question: What is international society? admits of only one answer: Nothing!-until there is a world state.

This was the governing conception behind the United Nations Charter. The essentials of the Charter were agreed and drafted at the Dumbarton Oakes Conference in September 1944, when international relations were a state of war. The Third Reich and Japanese Empire were raging undefeated and nobody was confident of peace within a year. Hobbes argued that the only remedy for the state of war was an unlimited contract, whereby we all reduce our wills to one will, and appoint one man, or assembly of men, to act on our behalf in those things which concern the common peace and safety.⁶ This is precisely what signatories of the Charter did by Articles 24, 25 and 48. The Smutsian preamble to the Charter, which is in another tradition of thinking, was tacked on later; and it was only later again that it appeared that the Hobbesian sovereign of the UN was a schizophrenic paralytic incapable of action, so that the UN has never worked as it was intended.

The second pattern

But the two Hobbesian equations I have mentioned are not inseparable. It is possible to accept the identification of international relations with the state of nature without accepting the description of the state of nature as bellum omnium contra omnes. This is what Locke apparently does in the Second Treatise of Civil Government. He repeats Hobbes’ argument that if you are sceptical about a state of nature ever having existed you need only look at inter-state relations,⁷ but he goes on to argue, for a whole chapter, that whereas the state of war is a state of enmity and mutual destruction, the state of nature is a state of goodwill and mutual assistance. I say ‘what Locke apparently does’ because Professor Richard Cox’s book on Locke⁸ has placed a large question mark over the traditional interpretation of Locke, but perhaps we may still accept the public Locke at his face value.

Grotius likewise conceded that the social condition was inaugurated by the social contract but argued that the pre-contractual state of nature was the condition of sociability-the capacity for becoming social. Suarez argued that although every state is a perfect community, it is none the less a member of a universal body, this membership being the basis of international law, and with nice precision he described the universal body as ‘unitas quasi politica et moralis’.⁹

This is the sort of answer you will expect from those who emphasize our second component of international relations, habitual intercourse, institutions of diplomacy and law. Sovereign states, they will say, do form a society; they do not exist in a political or cultural vacuum, but in continuous political relations with one another. It is a society which must be understood on its own terms and not by comparison with domestic society, a society governed less by force, as the thinkers of the first group may hold, than by custom. It is a society with a system of law that is crude and not centrally enforced but still true law, a society without a government but regulated by certain special institutions such as diplomacy, the balance of power and alliances.

Locke’s conception of the state of nature leads to a different kind of contract from Hobbes’. If the state of nature is not so beastly, civil society need not be so severe, and the social contract can be limited as was the Covenant compared with the Charter. The men who drafted the Covenant (excluding Wilson) did not think international life had broken down, only that it had suffered unusual interruption, and had shown it was deficient in means for the pacific settlement of international disputes, and what was needed was (Locke’s words)’umpirage…for…ending all the differences that may arise amongst’ states.¹⁰ For this a limited contract was sufficient. Signatories did not surrender their natural liberties, their sovereignty; states simply undertook to limit the exercise of their sovereignty, the unanimity rule was not abrogated. If we can detect the sardonic smile of Hobbes between the lines of the Charter, in the Covenant we may discern the more bland and amiable assumptions of traditional Locke.

The third pattern

Now there is a third, quite distinct way of conceiving of international society and it is related to those who tend to emphasize in international relations the element of moral solidarity. They will answer the question, What is international society? in such a fashion as this: international society is none other than mankind, encumbered and thwarted by an archaic fiction of an international society composed of sovereign states. States are not persons, they have no wills but the wills of the individuals who manage their affairs, and behind the legal façade of the fictitious Society of Nations is the true international society composed of men. Now, this much is not in contradiction with the second complex of ideas which we have just been noticing: you will find Grotius speaking of societas generis humani more often than of societas gentium.

But this third pattern of ideas is distinguished by two master-premises: firstly, that the existing state of affairs, the existing arrangements of international life, are invalid and illegitimate; secondly, that they are going to be modified or swept away by the course of events itself. Both these premises are religious in nature. The first expresses the impulse to eradicate sin and suffering, which are condemned by being identified, or that austere moral concern which made Kant argue, in Rechtslehre, that if nations were in the state of nature it was their duty to pass out of it, and ‘all international rights … are purely provisional until the state of nature has been abandoned’.¹¹ The second premise, that the course of events itself is tending to bring about desired change, shows a desire for a theodicy. Every age has wanted to vindicate the justice of the universe in view of the existence of evil, but it is a peculiar modern manifestation of this desire, to believe that this vindication will be accomplished by the historical process itself. The belief in progress, historical inevitability, in the linear development of human affairs, whether evolutionary or catastrophic, is now often named ‘historicism’.

‘Historicism’ is a word that has changed its meaning since Meinecke wrote the history of Historismus. Then it had its original sense, of the doctrine that all values are historically conditioned, that reality itself is a historical process, and that history can teach nothing except philosophical acceptance of change. No...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Series Preface
• Introduction
• PART I THREE OVERVIEWS
• PART II IS INTERNATIONAL LAW, LAW?
• PART III WHAT IS THE SOURCE OF LAW?
• PART IV WHO ARE THE PRIMARY ACTORS?
• PART V IS INTERNATIONAL LAW NEUTRAL?
• PART VI IS INTERNATIONAL LAW JUST?
• PART VII IS INTERNATIONAL LAW DEMOCRATIC?
• Name Index