Rules-based orders are always territorial
NEWS FROM UNCIBAL
The law is not valid outside the polis; its binding power applies only to the space that it encloses and delimits.
-Hannah Arendt
International law is back in the news again, with three rumbling news stories all concerning it to some extent or other: the abduction of Nicolas Maduro; the proposed take-over of Greenland by the USA; and the UK’s almost pathologically self-hating transfer of the Chagos Islands to Mauritian sovereignty.
These stories are a study in contrasts, and I am by no means making an incisive remark in observing that a clear break is opening up between British and American approaches to the question of the ‘rules-based international order’. For the current US administration (although there is nothing really very new in this), what matters is the national interest. If you can set up something that walks and quacks like a rules-based international order which serves said national interest – as the UN Charter and other UN treaties did when originally created – then, great. You can call it a ‘rules-based international order’. But since you set it up in the first place, you should not allow yourself to be constrained by it if the facts change, and certainly not if it works against your interests.
For the current British government, though, international law is holy writ. Sir Kier Starmer and many of the people around him – the extraordinary raft of popinjays, goodie two-shoes and narcissists who crew the main human rights chambers in London (at Matrix and Doughty Street) – do not just like international law. It is their ideology. They actually believe that it can change the world for the better. They see it as a blueprint for global peace and harmony: just get everybody abiding by the law, and history will come to an end. In this vision of the world, nation-states are embarrassing relics of an antique era dominated by war, bigotry and parochialism. They need to be replaced by something better: global governance, which will usher in a new dawn.
How to understand this dispute? Ultimately, I am afraid it has to be understood as a conflict between two responses to the legacy of Thomas Hobbes. As we shall see, there is truth in both. But the truth is also that one is infinitely preferable to the other.
On the one hand, the US government has, it appears, concluded that the ‘rules-based international order’ is taking it for a mug. As Hobbes said long ago, ‘Where there is no commonwealth, there nothing is unjust.’ If there is no sovereign to enforce the law, then there is not a strong reason to abide by it. And if there is no strong reason to abide by the law, then people will disobey it when it suits them. Law, as Hobbes remarked, would then become ‘but empty words’, and mankind would be ‘in the condition of war’ – by which he meant not necessarily open fighting but a situation of mutual suspicion in which everybody must be prepared for conflict at any moment. What Washington appears to have decided is that since China, Russia, Iran and others of its enemies evidently consider themselves to be ‘in the condition of war’ in these terms, and international law to be ‘but empty words’, only a very naive and foolish great power would voluntarily limit its scope of action to what international lawyers tell it would be lawful. Game-theoretically, it is stupid indeed to abide by particular norms or standards if nobody else is.
Let us call the response of the current US government the ‘pro-Hobbesian’ one. For reasons which I will come back to, I label it this advisedly. The approach of that government may not be pro-Hobbesian in general. But in respect of international law in this limited sense it reflects his thinking.
On the other hand, international legal scholars and practitioners (such as the current UK Prime Minister and those around him) have long complained about the Hobbesian conception of law, particularly as elucidated by his intellectual descendant John Austin, writing in the 1830s, who pooh-poohed international law as mere ‘positive morality’, i.e., ‘posited’ or declared moral precepts. Moral precepts are all well and good. But they don’t achieve anything if people want to violate them. To prevent that, you need a policeman: a sovereign.
Some of these anti-Hobbesians have advanced a purely positivist response, which is to claim that law can exist without a sovereign or method of enforcement through recognition. As long as people behave as though the rules are rules – as long as they act as though they believe the rules to have authority – then there is a system of law. Hence, as long as states act as though there is such a thing as international law, then there is. It follows that getting state officials to act as though there is such a thing as international law, through education, shaming, acculturation, persuasion and so on, is the main priority.
Others have made a (generally inchoate or unconscious) natural law response, which is that there are certain values with which the system of inter-state relations is imbued (human rights, development, non-discrimination, sustainability, etc.) and that these inform the structure of international law. Just because the law does not ‘live up to’ those values (this is the type of language that gets used) and achieves poor compliance does not make it any less of a legal system. Rather, the more the law reflects the values in question the more ‘lawish’ it is, irrespective of how effective it is in practice. The failing is not in the law, in other words, but in the lack of compliance, and solving the compliance problem is all that is needed.
The combination of these various anti-Hobbesian responses gaining traction in recent decades is, as you will probably have guessed, a distinctly activist tone to international legal thought. What needs to happen, it is thought, is for everybody to sign up wholeheartedly to the values which ‘we’ like (human rights, development, non-discrimination, sustainability, etc.) and make rules putting those values into effect. And those rules will be followed because they will align with the values in question, which everybody will in the end hold dear. It is really a struggle, in other words, for hearts and minds. Educate the future generation of lawyers, and persuade the future generation of world leaders, to think a certain way and adopt particular ideals, and the rest will follow. There is no need for sovereign enforcement – all that needs to happen is for people to be better.
This I think more than anything else explains the absurdity of the behaviour of Sir Keir Starmer, Lord Hermer, David Lammy, and the other legally trained members of the Cabinet: they genuinely believe that, by handing the Chagos Islands over to Mauritius and paying the Mauritians tens of billions of pounds for the privilege simply because a clearly biased International Court of Justice advised them to do so; by giving citizenship through technicalities to hard-left Egyptian radicals who hate Britain and then allowing them to come and settle in the country; by refusing to solve the ‘small boats’ problem or that of illegal immigration more broadly; and so on, they are setting a good example for others to follow. They actually think they are changing hearts and minds – as though Vladimir Putin can somehow be shamed into acting like Ken Barlow just through Sir Keir Starmer’s ostentiatious displays of self-flagellating virtue. This is bad craziness – nobody should be under any illusions regarding how bad and crazy it is – but that is truly what they believe. Being a super-goody-goody will make other nations want to be goody-goodies too.
The lines between the pro- and anti-Hobbesian responses as I have here described them are fairly clearly drawn in the positions of the current US and UK governments. But I said earlier on that there is truth in both of them. And in fact at face value there is something attractive about the anti-Hobbesian position. This is because, while Hobbes was obviously onto something, his conception of law is undoubtedly very thin. And this is because he did not have a concept of law’s connection to a territory or a people – his own idea of sovereignty was a cardboard cutout, depicting an ‘artificial man’ simply making laws in the name of hedonistic goals, and therefore maintaining order. And it is true, as somebody like Sir Keir Starmer would no doubt point out if asked, that real world law does not quite work in this way: it is imbued with values and ideals, it does reflect cultural norms, and it does emerge from human relationships within a social context. So actually, it really does matter what people believe.
What is also the case, as has often been pointed out, is that Hobbes’s idea of human beings as existing in a state of war without the sovereign is anthropologically dubious. Humans are violent and rivalrous. But they aren’t always. They also love one another and spontaneously cooperate. Again, as Sir Keir Starmer would no doubt argue (if he had ever thought about it), international relations is not just a matter of pursuit of the national interest. No doubt nations do pursue their interests, but it is not really credible to argue that beliefs and values are irrelevant – one cannot understand the behaviour of Iran, China, North Korea, or indeed the USA or any country on earth without an understanding of feelings and beliefs as influences on human conduct.
The problem, however, with the anti-Hobbesianism of an international lawyer like Starmer is the failure to actually understand Hobbes’s error. The error in Hobbes’s conception of law is that, to repeat a point I made earlier on, he did not have a concept of law’s connection to a territory or a people. He imagined it as a mere tool of sovereign command – a way to impose order from above. But law is, inherently, connected to a territory and a people, and emerges from them.
To understand this, it is helpful to return to a point I have made in previous writings (here and here), elucidated most fully by Carl Schmitt and, later, Hannah Arendt. In The Human Condition, drawing on Schmitt, Arendt describes the essence and foundation of law as lying in the concept of nomos or apportionment: law is about the drawing of boundaries. It is not ‘the content of political action’ (as Starmer and his ilk might envisage it) and nor is it a mere ‘catalogue of prohibitions’. It is ‘quite literally a wall’ which divides the polis from what is outside it, and thereby brings into being a political community. What makes a polis is the fact that the people in it are under the same system of law, and the coherence that gives their interactions.
Law, she therefore tells us, is what makes a polis, or a city, ‘identifiable’ and ‘determines the character of its inhabitants, setting them apart and making them distinguishable from the inhabitants of all other cities’. It defines the space within which a particular people can live alongside each other without violence, circulating freely, and thereby creating together a particular settled way of life. And in doing this it also ‘produces the arena where politics occurs’, since it allows the people within the city wall to engage with each other without being in a situation of Hobbesian ‘war’. In so doing, they create their own distinct pattern of interacting, and generate the norms under which they live.
Law is intrinsically both territorial, then, and also concerning of a particular people, and the role of the sovereign is the most basic legal and political one of all: creating and maintaining the city wall itself, without which a settled way of life is impossible. The sovereign is what gives the polis its security, identity, and legality, making it literally the sine qua non for the existence of a political order as such. And without it there is no people but, if you like, a mere population – what Arendt calls an ‘agglomeration of houses’ which may as well be occupied by anyone and which has therefore no political life.
Hobbes’s error was to reduce the understanding of law to mere ‘content of political action’, and to disconnect it from people and territory. And so while we can agree with the anti-Hobbesian international lawyers that Hobbes had a poor understanding of law itself, we cannot agree with the conclusion they draw from it, which is that if we can somehow make everybody on planet Earth be nice to one another and have nice ideas and values, then it does not matter that there is not a global sovereign to enforce rules.
And that, to be clear, is what they honestly believe. The Irish barrister-cum-academic Conor Gearty, recently deceased but a very prominent figure in these circles, once summarised this mode of thinking quite well when he wrote that the fundamental message of human rights law is merely that ‘one should strive to act with humanity to one’s fellow human being’. And that is genuinely about as deep as it goes – as though 4,000 years of thought on ethical matters have culminated in the idea that the essence of morality is being nice. There is no underlying concept of the good life, no underlying concept of the human being, no underlying concept of what ‘acting with humanity’ actually means, no underlying concept of conflicting interpretations of ‘acting with humanity’ or what to do about such conflicts. There is just the unreflective operationalisation in law of the prevailing bourgeois manners of the day.
That is a conceptual, political and legal dead-end, because it fails, just as Hobbes failed, to account for the connection between law, territory, and people, and to understand the role of the sovereign in securing and maintaining that connection. What is interesting about Donald Trump and the people around him is that, without making this entirely explicit, they seem to be resting their project on precisely such an understanding. What matters, in respect of law and sovereignty, is the city wall which makes politics possible. Within that city wall a distinctive way of life, an American way of life, is given effect. Without it, anything goes. That is bad for, say, Nicolas Maduro. But to portray it as mere bullying or an actualisation of might making right is a shallow and foolish thing to do. Ironically, despite me describing it as ‘pro-Hobbesian’ in respect of international law earlier on, it may better be described as a righting of Hobbes’s error: a rediscovery of the sovereign’s role as that of uniting law, territory and people so as to create the conditions for a settled way of life to emerge and be maintained. We may or may not like the consequences of that. But we would do well to consider the implications for our own modes of government as we survey the scene around us.
This article (Shminternational Shmaw) was created and published by News from Uncibal and is republished here under “Fair Use”
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