International Law as True Law: A New Approach to a Perennial Problem

The question of the status of international law as true law has never been a merely theoretical question. The attitude of governments to the question has always been of practical importance. It is now a matter of critical topical concern given the great increase in the number of autocracies in recent years, and of democracies whose governments are showing autocratic tendencies, ignoring the fact that denying legal obligations risks the denial of legal rights owed to you by others. Law is reciprocal.

The normal approach to the question in recent centuries has been to consider the essential features of international law and then to form a judgment of the extent to which they share the essential features of national law. The judgment assumes that international law is a legal system among states, separate from national law.

In 1789 Jeremy Bentham proposed to change the name law of nations to international law to avoid the implication that the law of nations includes the internal law of nations. This two-realm view, which had been eloquently asserted by Emmerich de Vattel earlier in the century, makes it improbable that international law will be found to share the essential features of true law.

A new approach to the question may be to consider the universal social phenomenon of legality with a view to seeing international law as a particular instance of that phenomenon. This would correct what the philosopher Bertrand Russell calls a category mistake, replacing the category of national law with the universal category of legality.  An analogy might be with the category mistake of understanding divinity as the possession of characteristics of the human being.

Such a new view may begin by determining the nature and purpose of legality in the human condition. The human condition is remarkably like the condition of other animals.  Other animals have a brain, respond to the input of their senses, have emotions, form plans and carry them out, defend individual and the herd at any cost, kill and are killed.  The human species has inherited such things from its own evolution, especially in the form of instincts.

However, the human species inherited something else from its evolution, namely a uniquely powerful brain. The human brain has the capacity to think about its own operation, in what we call the mind. It has an unlimited capacity to imagine alternative realities and communicate them using language, creating the reality of a human world that is distinct from the reality of the natural world. The human species lives as an integral part of the natural physical world, but it is also lives in a human world of its own making.

This absolute freedom to invent alternative realities would have resulted in chaos in the co-existence of human beings and could have threatened the survival of the species, were it not for a series of constraints that the human mind has imposed on itself.

Rationality. Morality. Sociality. Legality. Rationality is a self-ordering of the mind, which leaves the possibility of irrationality because of other features of the mind, especially the unconscious mind. Morality is a self-ordering of behaviour, leaving the possibility of all kinds of immoral behaviour because morality has been the product of diverse religions and diverse cultures at different times.

Society is a self-ordering of communal life. There have been countless forms of society, including the family, the tribe, the nation and the empire, in which the human individual has participated in many different forms from slavery to citizenship.  Legality is the collective enforcement of social order. Each society applies legality in its own way.

All four constraints interact with each other in complex and dynamic ways. In this way, human beings have been able to create societies of ever-increasing complexity and relative stability, allowing the human species to survive and flourish and to dominate all other living species and the natural world.

For most of human history, religion was a fifth form of human constraint, providing the explanation and justification of the other four, by reference to a reality that surpassed natural and human reality. It remains as a source of constraint for billions of human beings, but, for countless other human beings, it is possible to explain and justify humanity’s self-imposed constraints in other ways.

The five constraints identified here might be seen as form of human self-evolving, allowing us not only to survive as a species but also to flourish through the benefits of ordered collective activity. They have allowed the human species to achieve its staggering success in making what may or may not be an ever-improving human world.

Philosophy, defined by Hegel as the thinking of thinking, the mind thinking about itself, seeks to offer universal explanations of the human condition, including the self-imposed human constraints. Hegel suggested that philosophy has two histories – the history of its development as a conversation among philosophers over the course of time, and the history of the application of philosophical ideas in social practice.

We might call them pure philosophy and applied philosophy, on an analogy with the use of those terms in mathematics. Hegel took the optimistic view that the practical application of ideas of pure philosophy had allowed the human mind and the human world to improve continuously.

We may be less optimistic, given that the human world is still a place full of conflict, from conflicts within the family to world wars, and a place full of self-harming evil of every kind. Humanity has created things that seem to threaten its survival and flourishing as a species and as individual human beings.  Mythology and religion have tried to explain this strange human perversity.

Philosophy has sought to understand both human self-evolving and human self-harming. Pure and applied philosophies of human society have had a great effect in forming the present condition of the human world, including human co-existence at the level of all-humanity.

Thomas Hobbes suggested that the aboriginal human condition is conflict, hence the need for the power of society.  John Locke suggested that the aboriginal condition is freedom, and society is designed to protect that freedom, so that the individual has natural claims that set limits on the power of society. Jean-Jacques Rousseau suggested that the aboriginal condition is freedom, but society imposes chains on human beings which destroy their natural good nature.

These ideas took effect as applied philosophy. Hobbes is reflected in the overwhelming power of modern society. Locke is reflected in the balance of power between the individual and society in liberal democratic society.  Rousseau is reflected in the natural rights that the individual can claim against all societies, not only the society of which the individual is a citizen.

A particular universal philosophy has had a long-term deep-structural effect on the development of human society, namely, the ancient Greek philosophy of Platonic idealism. The human mind contains inherent ideals of perfection which we can never attain but which can cause us to try to do better.  The good, the true, the beautiful, the just. This idea took social effect in the early theology of Christianity which was a coming-together of ancient Judaism and Neo-Platonism. It took effect in the new humanism of the Renaissance and the Enlightenment.

Idealism takes effect in modern societies when they act as systems of human self-improvement. Politics is not only a power struggle but also a struggle to interpret and apply ideals in the actual conditions of a society. Idealism takes effect in the practical application of legality when the law is used ‘to pursue that course which upon the whole is the most conducive to the happiness of the whole community, by means of motives to be applied by the legislator’ (Jeremy Bentham).  International law may be seen to have the same function, with international politics being not only a global power struggle but also a struggle to apply ideals at the level of the society of all-humanity.

At the end of the fifteenth century, the European worldview was suddenly enlarged massively to include not only the ancient cultures of Egypt, India, China, and Japan but now also ancient indigenous cultures of America and Africa and other places in Asia. The response of the Spanish founders of the modern law of nations was to recognise all such peoples as belonging to humanity. They should therefore be treated, as required by Natural Law, on a basis of equality.

‘There is indeed a law, right reason, which is in accordance with nature; existing in all, unchangeable, eternal… It is not one thing at Rome, and another thing at Athens: one thing to-day, and another thing to-morrow; but it is eternal and immutable for all nations and for all time.’ Cicero’s words, echoing ancient Greek philosophy and stoicism, had a substantial effect in medieval and post-medieval Europe.

The dramatic modern social development of the nations of Europe coincided with the expansion of the European worldview. They proved to be not only competitive but also chronically conflictual, with endless internecine wars. With the decline of Natural Law as an applied philosophy, it was necessary to recognise another form of legal constraint, namely, a customary law of nations, in the universal tradition of customary law, creating the legal status and general rights and obligations of states and governments and other legal actors.

For most of human history, societies have been self-ordered by customary law, law without a lawmaker other than society itself.  Sometimes customary law has been codified. Sometimes rulers added to the law by the instant law of decrees. The dominance of legislation over customary law is a feature of complex modern societies. In Britain it began in the fourteenth century with the development of parliament and, even then, the Common Law continued as a form of customary law, with the general principles of previous judicial decisions acting as rules of law, unless superseded by legislation.

Scholars in recent years have shown that customary constraints on relations between competing and conflicting peoples have always existed, at least in the form of ad hoc diplomacy, formal agreements written on stone or papyrus or parchment, especially peace treaties, and restraints on the conduct of war.

It was only in the nineteenth century, with the development of the so-called sovereignty of so-called nation-states and its disastrous hypernationalism, that governments could be allowed to suppose that states were in a condition of absolute freedom, and that any constraints on that freedom could only occur by an act of their sovereign will, expressed by the executive branch of their governments, regardless of the common good of humanity.

In the twenty-first century, humanity has become aware of its capacity to threaten the further flourishing and ultimate survival of the human species by its own efforts, and through autonomous global social and economic and electronic systems that no government can control. We can see now that the denial of the status of international law as true law compounds that threat. Applying a pure philosophy of international law as true law could be a revolution, not in the streets, but in the mind.