There has never been a better time to be an international lawyer. International Law is at last emerging as a sophisticated legal system, in an international society experiencing take-off – to borrow two metaphors from development economics.
International Law is living its own 1860’s. From the 1860’s, especially in European countries and the United States, the forms of law multiplied prolifically to respond to the vastly greater complexity and energy of society. Legal fragmentation and institutional innovation were an expression of self-transforming social vitality – as they are now in the emerging international society.
International lawyers are the most privileged of all lawyers. International Law is the law of all laws, the law of the whole human world. International lawyers are front and centre in the drama of making the new international society.
But there’s something that greatly limits the part we can play in the project of making the law of the new international society. The international world suffers from a grotesque poverty of philosophy. That phrase – ‘poverty of philosophy’– was used by Karl Marx in 1847 to criticise the situation at the level of national society.
Our predecessors at the national level had the great advantage that they could use thirty centuries of intense thought about the forms of law and order required for the good life lived in a good society.
The grotesque poverty of philosophy at the international level means that the international world has one big idea. Everything else is a deduction from that one big idea.
The one big idea is that the international world is not a social phenomenon but an anomalous excrescence from national societies, an exogenous unsocial dependent reality, isolated from the vast intellectual superstructure required for the survival and prospering of national society.
Re-imagining the one big idea of the international world is an exciting challenge for those of us who think for a living. It is an exciting challenge for international lawyers. And it is a particularly delightful challenge for those of us who are philosophical idealists.
Idealism, like relativity, comes in two forms – general idealism and special idealism.
General idealism recognises that reality is made from ideas. The whole of science, the whole of society, the whole of law – all of them are nothing but a fabrication of thinking, to echo the Japanese idealist philosopher Nishida Kitaro. And what the mind has made the mind can change.
Special idealism recognises that the mind contains a particular kind of idea – the ideal – a powerful form of mental energy that leads us to make a better reality, caused by the magnetic attraction of ideas such as justice, the good, the true, the beautiful, the ideal…
In George Bernard Shaw’s play The Doctor’s Dilemma,written in1906, the doctor had invented a cure for a life-threatening disease. How should he choose the people whose lives he would save?
The idealist’s dilemma is also about curing disease and saving lives. But it’s more complex. The idealist’s dilemma is three dilemmas. Should we simply give up, and admit defeat? Who should we talk to? Should we tell the truth about the real state of the world?
So – the first dilemma. Should we idealists simply give up, go off and cultivate our gardens? It’s certainly tempting. Look at human history. The good done by good ideas has often been undone by bad ideas.
The high civilisations of ancient Greece and Rome were compatible with incidental barbarism. The Emperor Constantine’s legitimising of Christianity led to the politicising of a deeply unpolitical religion.
The American social ideal of the ‘city on a hill’ contains an idea of ‘exceptionalism’ which has proved anti-social in relation to the rest of the world.
Europe’s idea of its cultural superiority fuelled an imperialism in which others paid a high price to acquire its incidental benefits.
Revolutions have often been negated by reaction, sometimes replacing a bad social order with something even worse.
The ideal of self-determination opened the way for new tyrannies and corrupt oligarchies and failing states.
The ideal of freedom has produced the extreme unfreedom of modern democratic-capitalist-technocratic society.
We must also remember certain notorious tyrants when we think of the great world-changing ideas of Hobbes and Rousseau and Marx and Nietzsche.
Then there is Emmerich de Vattel, the brilliant 18th-century rationaliser of the one big international idea, proposing an international legal system appropriate for the newly emerging nation-states. We’ve lived the Vattelian idea-system for two hundred turbulent years.
Idealists have a special interest in the phenomenon of social change, because social change contains a change in dominant socialised ideas. We might even identify – tentatively – three Isaac-Newton-style Laws of Social Change.
Law I. Inertia favours the past over the future. You preserve the social institutions in form, but transform their functions – for example, the British monarchy.
Law II. Exceptional change requires exceptional energy. Social change is normally linear in a chaotic sort of way, unless some exceptional social force intervenes, such as the forms of social collapse known as war and revolution or the intervention of the kind of people Hegel calls world-historical figures – an Alexander or a Napoleon or the founder of a religion.
Law III. Exceptional change generates a countervailing force of resistance to social change. It is remarkable how often the old class power-structure survives a revolution, perhaps stronger than ever, borrowing some of the new ideas.
But idealists don’t give up, don’t throw in the towel.
Why? Idealists are realistic utopians. We know all about the duality of the human being – capable of self-harming and self-destroying – capable of self-surpassing and self-perfecting and self-evolving.
The great utopian thinkers were perfectly familiar with the dark side of the human condition, but they were also optimists about the possibility of a better world – Plato, Pico della Mirandola, Thomas More, Bacon, Vico, Rousseau. Contrast them with so-called dystopian thinkers who insist on extrapolating from the dark side of the human condition.
Someone has to do the heavy thinking of human self-perfecting and self-evolving. And that is the job of us idealists.
So – the second dilemma – who should the idealist speak to?
People who regard themselves as practical people, involved in what they call the real world, are impatient with those of us who specialise in thinking about that real world. Such people include many legal practitioners. They have a Manichean view: practice good, theory bad.
And yet Vattel’s theory was welcomed and admired by kings and politicians and diplomats – perhaps because his theory rationalises and justifies their bizarre behaviour.
Kark Marx and Antonio Gramsci were right to identify the cultural hegemony of the ruling class. Those who have most social power have most power over the formation of a society’s ideas. And that has certainly been true in International Law.
What Marx and Gramsci underestimated was the propensity of the ruling class to disagree within itself. The ruling classes of earlier centuries were seething cauldrons of disagreement about everything. From the existence and personal attributes of God to the most elegant cut of a gentleman’s doublet. From when to grow turnips to the educability of the toiling masses.
‘I am a human being, and nothing human is alien to me.’ That wonderful saying from a play by the Roman playwright Terence (Heauton Timorumenos) was the state-of-mind of the old educated ruling classes, our predecessors-in-office. They knew that critical and creative thinking can change the world, can make a better world.
So, we idealists don’t need to address any audience in particular. We must say urbi et orbi what we have to say and keep on saying it. Public thinkers are megaphones of the mind. The future will hear us. And the future will decide what to do with what we’ve said.
So then there is the idealist’s third dilemma. What should we say? Should we tell the truth, the whole truth, about the state of the world as it is?
That is the most painful of the idealist’s dilemmas. Even at this moment, it inhibits me from saying all that should be said.
‘To tell the truth is revolutionary.’ That was a saying of Ferdinand Lassalle, the founder of German socialism.
‘High over roaring Temple-bar, we must look at all things as they are.’ That is from a poem by Alfred Tennyson, contemplating the chaotic and troubling reality of nineteenth-century London.
The bourgeois hero of a play by Molière, the seventeenth-century French playwright, was trying to make himself into a gentleman. He was pleased and proud to learn that he had always spoken in prose, without knowing it – which obviously meant that he was not far from being a poet.
People who think that they’re practical people speak theory in everything they say and do, every day of their lives, even if they don’t know what the theory is, or where it came from.
The philosopher Julia Kristeva speaks of our life as a form of writing. To live is to write the story of our living. Each one of us – each society – is a work of fiction – a story with a huge back-story in human history and in our minds. Thinkers such as Vico and Husserl and Freud, among very many others, have studied the vast accumulation ofideas present in our societies and in our minds that determine our view of ourselves and our view of the world.
Nation and state and government are notorious fictions, metaphysical entities existing only in and for the human mind. The whole of the law is a vast work of fiction, a masterpiece of the human imagination, creating its own entirely artificial reality. Lawyers – even practising lawyers – are creative writers, re-inventing the story of the law every day.
The French philosopher Jean-Paul Sartre diagnosed a psychological condition that he called bad faith – lying to ourselves. Bad faith causes the existential anxiety – the Angst– of our everyday lives. International lawyers should be especially troubled by Angst. The international world is a world of ultimate bad faith – in which humanity lies to itself about itself.
The big lie of the international world is the suppressing of an unbearable truth. The big truth that we repress is this: We have inherited a world order that is a fundamental world disorder, causing one disaster after another, shaming the humanity of the human species.
It’s a world disorder of states – those random by-products of the chaos of history, artificial amalgams of lands and tribes. It’s a world of governments, some of them no better than criminal conspiracies, still playing the games of diplomacy and war that kings and tyrants have always played.
War is savage insanity. Those are the words of the sixteenth-century Dutch philosopher Erasmus. And yet we rationalise war. We even justify war. And now we’re living at a time when a pandemic of violence is plaguing the world in religious and ethnic conflicts, causing horror and terror and squalor and misery and suffering to countless innocent human beings.
James Cahill has suggested that the whole world now seems to be a battlefield of overt and covert war. The insanity of the human species.
We often refer to the distribution of social power in a society as its class-system. In the emerging international society, there is an emerging global class-system. There is a vast international bureaucracy accountable to no one – a bureaucracy of the kind analysed by Max Weber, purporting to govern rationally, rather than politically. There is an aristocracy of globalised wealth and ultimate economic power, owing social allegiance to no national society. There are the masters of globalised science and technology, beyond social and moral control. There is a disempowered and dispirited global middle class. And there is a massive global underclass with no present expectation of living a good life in a good society.
We may hear echoes, in all this, of national class-systems in Europe and the United States at the beginning of the twentieth century.
And, all the while, human beings are becoming alienated from their own humanity – in the sense of that word discussed by thinkers such as Rousseau, Marx and Marcuse. Human beings are being dehumanised by suprahuman collective systems and suprahuman technologies – autonomic systems, self-governing, beyond the control of actual human beings.
And yet the trending global philosophy is whateverism. ‘Whatever. Things are as they are, and always will be.’ That is the latest version of a perennial defeatist philosophy, stretching back to the Sophists of ancient Greece and the many forms of Hellenistic scepticism.
And then there is our relationship to the planet where we live. The whole human future depends on the well-being of the natural world. But we organise our co-habitation with our natural habitat by aggregating subordinate interests, rather than by disaggregating the common interest of humanity.
Disaggregating the common interest of society is the function of law. Disaggregating the common interest of humanity is the true function of International Law – ‘the advantage not of particular states…but of the great society of states’ – to echo one of the founders of modern International Law, Hugo Grotius, writing in 1625.
So how do we find the common interest? That is the function of politics.
Politics is an expression of society’s life-force, its impulse of life, as I call it in my own work. Politics is anoverwhelming and insatiable desire for social change – the expressing of a collective libido, to adopt another term used by Julia Kristeva.
The Latin word libido is a central concept of the mind-philosophy of Sigmund Freud, studying the individual human mind. To extend the use of the term to society – to speak of a collective social libido is to describe a real phenomenon, not merely to speak metaphorically. Politicians channel the collective libido – sometimes in more ways than one. (People sometimes speak about ‘the aphrodisiac of power’.)
Substituting politics for diplomacy is a major challenge in making the future of international society.Making bureaucratic internationalism politically accountable is another major challenge in making the future of international society.
We may be reminded of a controversial provision in Section 10 of the Articles of Agreement of the World Bank. ‘The [World] Bank and its officers shall not interfere in the political affairs of any member… Only economic considerations shall be relevant to their decisions.’ As if there can be economic considerations that are not political considerations.
Politics translates social values into judgments of the common interest, which may then be put into the universal form of law. Law is then disaggregated and particularised and applied, modifying real-world behaviour, reconciling common interest and private interest.
When we give effect to the law, we may do so out of self-interest. But, in so doing, we also act as agents of the common interest of society That is the wonder and the magic of law. The unfreedom of the law can give us the freedom to lead a better life in better societies – as Rousseau so brilliantly observed.
At another time of revolutionary change – 1776 – the great Tom Paine had a charming Manichean moment. He said that society is a blessing, and government is a necessary evil.
What we call constitutionalism means using social power to transcend governmental power, using legal power to transcend legal power. That is the great principle that we call the Rule of Law. It took many centuries of thought and experience to articulate clearly the idea of constitutionalism and to place it at the heart of the good life in a good society.
There are two kinds of idealist revolutionary. A conservative revolutionary wants to use the best of the past to make a better future. A socialist revolutionary wants to get rid of the worst of the past to make a better future. Evolutionary constitutionalism is one of our greatest inheritances from the past.
Installing the Rule of Law in international society is a major challenge in making the human future.
To use the idea of society in re-writing the international story is to implant new philosophical genetic material in the biology of international society – a modification in the philosophical genome of international society.
The transforming idea of society creates the possibility of evolutionary constitutionalism at the global level – giving practical effect at last to ‘the moral and political unity of the human race’– to echo the words of the Spanish writer Francisco Suárez, another of the founders of modern International Law, writing in 1612.
We must treat the diseases of the social mind at every level, helping to sublimate humanity’s wild energy in making a better human world at every level, from the family and the village to the international society of the whole human race, the society of all societies.
Our ultimate challenge in making a better human future is to think the new and necessary philosophy of all human existence. Cognitive therapy for the human species.
The Irish poet Seamus Heaney said: ‘Whatever is given can always be re-imagined.’ (Seeing Things, 1991)
Re-imagining the international story is hard work, without public reward or honours. And it meets resistance. Vested interest in what-is is the permanent and formidable enemy of what-might-be.
I’m going to end with a paean of joy and praise. Remarkable things have happened during the fifty years that I have been actively involved in International Law.
There is the 1860’s phenomenon that I mentioned at the beginning – International Law as the emerging legal system of an international society experiencing take-off.
There is the great sophisticating of the study of International Law over the last twenty-five years.
But my praise and joy are directed especially at the emergence of a large number of younger intelligent and committed international lawyers. A wonderful thing.
Old international lawyers are beyond reason and beyond redemption. Younger international lawyers can respect the social responsibility that goes beyond our professional responsibilities.
Voltaire was a leading figure of the eighteenth-century French Enlightenment – concealing his defiant idealism behind a façade of scepticism and despair.
In his novel Candide,Voltaire enjoyed making fun of what he misunderstood of the rationalism of the German idealist philosopher Leibniz. But Voltaire’s Candide can also be read as a diatribe about the horrors caused by public power.
In the famously ambiguous final pages of the novel, Dr Pangloss doesn’t admit defeat.
The Turkish wise-man had told him to stop worrying about the horrors of the world.
But Pangloss persists: ‘I was hoping that I might reason with you a little about causes and effects, about the best of possible worlds, the origin of evil, the nature of the soul, and the pre-established harmony.’ (Those are still favourite topics of us philosophical idealists.)
And Voltaire himself didn’t give up the struggle. He did not go off and cultivate his own garden at Ferney. He went on arguing vehemently about everything, until the day of his death.
A delightful ben trovato story is that, on his deathbed, the priest asked him to renounce Satan. Voltaire said: ‘this is not the time to be making enemies’.
Non-engagement is also engagement, as they used to say in 1960’s Paris. To translate that into plain English: whateverism butters no parsnips.
Echoing Antonio Gramsci again: we need a new kind of fully engaged intellectual – able to balance pessimism of the intellect with an invincible optimism of the will in making the human future.
I’m more hopeful now than I have ever been that International Law will have a better future, playing its proper part in the making of a radically better human world.
We idealists will not give up. We will speak to anyone who will listen. We will tell the truth.
The only power over power is the power of ideas.
Idealists of the world, unite!
We will use the power of ideas to make a better world!
This is the text of a speech, delivered on 23 May 2014, by Professor Allott at the Spring Conference of the International Law Association (British Branch) at the Inner Temple, London. For a recording of the speech, see here.