International Law

One of the favorite ideas in international law, especially for positivists, is that of Hobbes’ state of nature, where there is “the war of all against all” and life is “solitary, poor, nasty, brutish, and short.” 

This is meant to highlight the “anarchy” (in the colloquial sense, no offense to anarchism) of the international system, in which states, like individuals in a Hobbesian world, will be terrible to each other absent some way of regulating behavior.  It also shows that the rules may not have inherent value (no natural law here) but are simply needed to keep things together (around here we jump back to Thucydides, which apparently, a young Hobbes took a stab at translating).  Hobbes’ Leviathan, the sovereign, did it within states, and positivists argue that absent an overriding international sovereign, some order must be based on rules agreed to by and amongst nation-states, and such rules are valid to the extent they are consented-to, etc.  Another, often underrated, benefit of citing to Hobbes is to shore-up the enlightenment basis and street cred of positivist international law, to in effect show “look how far we have come” on the basis of smart people like Hobbes and then through Holmes (if in the US) and so on.

Without getting into the issues of sovereignty (at least not today), if states are representative, etc., I wanted to ask if the assumption about Hobbes is accurate, and whether it applies.  There are classic counters to a Hobbesian view.  Locke saw man as a social animal.  There is the view of Rousseau that people are neither good nor bad, but are socialized one way or another.  Tabula rasa views abound.  Why not for states?  Maybe states will be peaceful, maybe warlike, but it is the system itself that encourage competition and war?  Maybe it is a certain type of state or world view?  And if one takes a look at the Rawls’ “original position”, sort of a state of nature, he argues people would actually seek out a system of basic rights and equality with rules designed to protect the worst off since one wouldn’t know where one would end up (there are troubles taking this “overseas”).  Though of course all of these have their nuances and critics.  Professor Unger, for one, taught a class on the human nature debate (and he personally rejects the concept of a timeless human nature), just highlighting how many views there are.  There is enormous ongoing psychological and biological debate of whether there is human nature or not.  This may be right or wrong, and perhaps a few bad apples can overwhelm a peace-loving (or peace-neutral) mass, but the basic validity of an individualized all-against-all state of nature should not automatically be taken for granted.  It may have been “externally” brutish against nature and then against other groupings, but maybe not all against all.  But how far does that bond with one’s “kin” go, and if it goes even beyond the family, then there is possibly something outside an “authority” holding it all together.  And as sociologists have at least suggested, systems of domination may have been created and may not be inherent, and at least the systems of domination as they exist today may not be inherent.  Though history, through its constant wars and dominations, would easily suggest the contrary, it is at least worth wondering if this is inherent or just that social systems of domination keep replaying over and over.  Of course, if there is no way to break the cycle then perhaps the difference between an inherent state of nature and a socialized state of nature that will always be is irrelevant.  But there is a lot of play here, and the debate just keeps getting bigger. 

The other problem is extending whatever this over-simplification of Hobbes means to nation-states.  This rough equivalence of states with individuals is troublesome on any number of fronts, especially when one gets outside of “traditional” Westphalian states and into post-colonial states, new states, post-conflict amalgamations and the like.  Does recognizing a purported “state” that subjugates minorities (or sometimes majorities) to various persecutions, letting it make rules and bind parties (think of extreme economic cases of foreign investment agreements binding local communities to move or pay debts for projects they might not approve of), all in the name of stability, reduce violence within the international system or add to violence within the system and more importantly, add to an overall level of violence (here using violence not only in the classic sense, but also in a more Foucault-like sense of political violence) if one takes out the black box of sovereignty?

There are no easy answers of course, and I do not necessarily disagree with positivism.  To paraphrase Churchill, perhaps the system we have is the worst except for all others.  But to assume that the state of nature existed as such, then assuming that it applies to an international system of states, and then assuming that we need rules based on the consent of sovereign states, requires cutting through a lot of muck, which many IL scholars simply sidestep by citation to notable “authorities.”  Thinkers to the contrary have their own little pool and clique and work amongst themselves. 

Finally it has struck me as odd how, though positivists reject the notion of “natural law” of St. Augustine, positivists have accepted a very negative view of human nature and origins, in some ways almost an original-sin (or at least destined-to-sin) view.  But the “salvation” is of the body through rules and systems of engagement rather than the salvation of the soul through faith.  What if all this meddling into the supposedly base human nature is actually the corrupting factor?  I do not really believe that, but it is worth considering.