Democracy in International Law-Making

Principles from Persian Philosophy

Salar Abbasi

• Publisher: Routledge
• Year: 2021
• Print ISBN: 9781032127811
• eBook ISBN: 9781000513813
• Edition: 1
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

This book provides a critique of current international law-making and draws on a set of principles from Persian philosophers to present an alternative to influence the development of international law-making procedure.

The work conceptualizes a substantive notion of democracy in order to regulate international law-making mechanisms under a set of principles developed between the twelfth and seventeenth centuries in Persia. What the author here names 'democratic egalitarian multilateralism' is founded on: the idea of 'egalitarian law' by Suhrawardi, the account of 'substantial motion' by Mulla Sadra, and the ideal of 'intercultural dialectical democracy' developed by R?m?. Following a discussion of the conceptual flaws of the chartered and customary sources of international law, it is argued that 'democratic egalitarian multilateralism' could be a source for a set of principles to regulate the procedures through which international treaties are made as well as a criterion for customary international law-ascertainment.

Presenting an alternative, drawn from a less dominant culture, to the established ideas of international law-making the book will be essential reading for researchers and academics working in public international law, history of law, legal theory, comparative legal theory, Islamic law, and history.

1 Democracy in international law-making

DOI: 10.4324/9781003226239-2

1.1 Intellectual trajectory surrounding democracy in international law

1.1.1 From scholastic natural law of nations to realistic approaches toward international law

Thomas Aquinas (1225–1274), similar to Aristotle, considers law to be an ordinance of reason toward an end or a purpose of the highest importance to the community within which the law serves. To him, the most important and ultimate end for a community is happiness and human well-being. And happiness happens through authoritatively recommending, commanding, and binding certain sets of laws and norms.¹ Natural law (lex naturalis) is nothing but the rational process of discovering norms through reasoning, analogy, cooperation, and correspondence of the human intellect en route to achieving a common good, which is the ultimate end for the law—happiness and human well-being.

1 See Thomas Aquinas, ‘Summa Theologica, Vol. 1’ [1947] Trans. Fathers of the English Dominican Province (Burns & Oates) 92.

The doctrine of the law of nature was first utilized in the administration of justice by Roman jurists; the primordial elements of the law of nature were uniformity, simplicity, harmony, and equality.² Among the most pre-eminent Western theorists of natural law, Aquinas, in his ‘Treatise on Law’ (part of the Summa Theologiae), teaches that human nature is perfected and fully realized by the harmonious and habitual exercise of its intrinsic cognitive-affective capacities.³ For Thomas Aquinas, in light of Aristotle’s philosophy of human nature and human conduct, the human soul can resort to the entire universe of what is perceivable by acts of understanding, rational thinking, and inferring of human beings. Given this, the human mind may perceive truth only through thinking, analyzing, and inferring.

2 See (1903) 37 American Law Review 657. 3 See ibid.

Applicability of the law, or any set of norms inferred by the human intellect beyond the territorial state, either through coercion or inter-polity diplomacy, was not recognized until in the first century BC when Marcus Tullius Cicero, one of the most influential politicians and orators of that time, was in the office of the Roman Republic.⁴ Under his republican faction, which rhetorically rooted the moral implications of Western imperialism, Rome exerted direct rule over six adjacent provinces and even had deep political influence in other territories through inter-polity diplomacy.⁵ This new political implication based on political and territorial expansionism had moral justifications in inter-polity conquest and rule. Cicero extended the political theory beyond the notion of the state, and gave normative and moral justification for the Greco-Roman understanding of imperialism and the acquisitions of the Roman Empire in practice.⁶

4 See in general Peter Rose, ‘Cicero and the Rhetoric of Imperialism: Putting the Politics Back into Political Rhetoric’ (1995) 13 Rhetorica: A Journal of the History of Rhetoric 359. 5 See Benedict Kingsbury and Benjamin Straumann, ‘State of Nature Versus Commercial Sociability as the Basis of International Law: Reflection on the Roman Foundations and Current Interpretations of the International Political and Legal thought of Grotius, Hobbes, and Pufendorf’ 33–51, in Samantha Besson and John Tasioulas, The Philosophy of International Law. 6 See ibid.

Cicero’s moral justification for imperialism became so overwhelming that Romans thought the city-state of Rome would never fall. When King Alaric of the Vandals captured and conquered the city of Rome in 410 AD, the Roman Empire was shaken to the core and collapsed entirely.⁷ It was based on Cicero’s moral view of Roman expansionism that Saint Augustine (354–430 AD) established that the Roman Empire’s imperialism and its collapse were all according to the plan of God and occurred under the realm and domination of eternal law. Although Augustine’s natural logic was made to refute the claim by Roman pagans that attributed Rome’s calamities to the abandonment of the Roman Gods and the acceptance of Christ, the influence of his thoughts was so potent and permanent in establishing the doctrine of intrinsic reasonableness to the jurisprudence of the world, which led to ‘just war’ theories according to the rules of natural law of nations or ius naturalle gentium. This conceptual approach remained prevalent among European jurists for centuries. Based on the above-mentioned worldview, Alberico Gentili (1552–1608), a civilian jurist, recognized Justinian rules to govern inter-empire relations in and outside Europe by virtue of their inherent reasonableness. However, what makes Gentili a forward-looking, innovative thinker is his ‘humanist’ view of law in the global context. Based on Gentili’s ‘humanist’ view of inter-polity law, self-preservation or seeking the instant good before looking for principled moral axioms was crucial for defining the dynamics of international law.⁸ Thus, he stressed the struggle between an instant good, which is pragmatically relevant, and moral principles. However, he did make an effort to relativize self-preservation through his intellectual propensity and commitment to natural law. In other words, ‘it turns out that Gentili advances not so much a proto-positivist concept of law and a realist concept of sovereign power as his own blend of political responsibility and natural law’.⁹ During the 16th and 17th centuries, the basis of obligatory rules in inter-polity relations continued to remain in the scope of ius naturale, either from a scholastic perspective which held a richer corpus of moral constraints, or a humanist perspective which advocated the idea of self-preservation as a natural right.

7 Alaric was a Visigoth king, a barbarian who has the distinction of having sacked Rome. It was not what he wanted to do: In addition to being a king of the Goths, Alaric was a Roman magister militum ‘master of soldiers’, making him a valued member of the Roman Empire. Despite his allegiance to Rome, Alaric knew he would conquer the eternal city because it had been prophesied: ‘Penetrabis ad Urbem’ You will penetrate The City. Despite or to avoid his destiny, Alaric tried to negotiate peacefully with the rulers of Rome. Far from being the enemy of Rome, Alaric worked as king-maker, installing Priscus Attalus as emperor, and keeping him there despite policy disagreements. It didn’t work. Ultimately, Rome’s refusals to accommodate a barbarian led Alaric to sack Rome on August 24, AD 410. 8 See Andreas Wagner, ‘Lessons of Imperialism and of the Law of Nations: Alberico Gentili’s Early Modern Appeal to Roman Law’ (2012) European Journal of International Law 873, 874. 9 Ibid. 881.

Grotius (1583–1645), the founder of international law, identified international law completely with the law of nature as it echoed morality, reasonableness, and equity above and in advance of any posited statutory letters of the law.¹⁰ For Grotius, like his predecessor Gentili, the applicability of legal and moral norms over foreign sovereigns and their subjects is a requisite for the protection of justice worldwide.¹¹ This was the basis for his account of the state of nature whereby ‘the right to self-defense and certain property rights and contractual rights (all capable of being vested in individuals, sovereign states, and their entities) were considered applicable beyond any given polity’.¹²

10 See Malcolm Nathan Shaw, International Law Uppl. 6, 1120. 11 See Hugo Grotius, The Law of War and Peace: De Jure Belli Ac Pacis, Libri Tres, vol 3, Book 2, Chapter 8 ‘on Acquisition Commonly Said to be By the Law of Nations’ (Bobbs-Merrill 1925). 12 Benedict Kingsbury et al., in Samantha Besson and John Tasioulas, The Philosophy of International Law 42.

It is significant to note that Grotius was inspired by Gentili’s ‘humanist’—pragmatist—view concerning the conflict between moral principles and circumstantial goods and institutions. With a ‘humanist’ view of the notion of a state of nature in inter-polity laws, Grotius advocates immoral institutions that have legal weight for the sake of self-preservation. For example, Grotius did not accept that anyone was a slave by nature, but he accepted slavery by consent, for the punishment of a delict, by capture, and in certain circumstances by birth to a mother who is a slave. According to him, a norm which was immoral but just under certain circumstances, as a part of ius gentium, was considered recognizable and hereupon valid.

The intellectual stream of validation of circumstantial goods before moral principles in inter-polity laws was also reflected in the 1648 Treaty of Westphalia.¹³ The Treaty of Westphalia formally ended the Thirty Years War (1618–1648), a prolonged struggle over religion and political power in which most European powers had been involved. The Thirty Years War was a religious conflict; the height of the struggle between Catholics and Protestants, which had begun with the Reformation in the 16th century. It was also a fight for the supremacy of Europe, with France and Sweden opposing the German Emperor, who belonged to the house of Habsburg. Lastly, it was a conflict between the Emperor and the larger German territories, which sought to throw off their constitutional commitments to the Emperor and to establish a sort of semi-independence. This treaty was a decisive point in the history of international law since the long-lasting ideological war, which was then considered as moral,¹⁴ ended for the sake of seeking a common circumstantial good, which was of no moral weight in this particular case of ideological tension.¹⁵ The treaty of Westphalia marks a shift from fighting for moral and ideological principles toward seeking common benefits and goods among European polities and nations.

13 See, Bardo Fassbender, ‘Westphalia, Peace of (1648)’, Max Planck Encyclopedia of International Law [MPEPIL]...

Table of contents

• Cover
• Half-Title
• Series
• Title
• Copyright
• Dedication
• Contents
• Foreword
• Acknowledgement
• Table of treaties / resolutions / conventions / reports / cases / websites
• Abbreviations
• Introduction
• 1 Democracy in international law-making
• 2 Multilevel international law-making: The current status
• 3 Democratic egalitarian multilateralism: Genealogy of a new understanding on law and democracy in the global context
• 4 Democratic egalitarian multilateralism and international legal theory
• 5 Democratic egalitarian multilateralism in the international law-making apparatus
• Conclusion
• Index