THE HEALTH OF NATIONS Part 8 pot

The treaty and the law create a micro-legal system within thegeneral legal system from which they derive their legal effect, and withinthe society from which they derive their social eff

the concept of international law 305

say, 1815, treaties began to perform a social function closely analogous

to legislation in national legal systems (The R`eglement on diplomatic

representation of19 March 1815 is a striking early example, but manyofthe other texts adopted at the Congress ofVienna are legislative infunction.)

10.40 In legislation, the dialectic ofideas dominates the dialectic ofpractice The dialectic ofideas which is concealed within the dialectic ofpractice ofcustomary law becomes the dominant form ofthe dialecticofpractice, in the sense that the act oflegislating reflects a specific pur-posive choice of a possible future for the society in question, a specificpurposive actualising ofthe common interest ofthe society, in accor-dance with the society’s theories and in implementation ofits valuesand purposes But legislated law is structurally the same as customarylaw, in the sense that it consists oflegal relations, so that behaviour inconformity with legislated law is also necessarily behaviour which servesthe common interest ofsociety

10.41 The idea ofthe legislative function oftreaties in tional society necessarily raises two questions: (1) in what sense is the

interna-common interest ofinternational society as a whole actualised in a treaty

among particular members ofinternational society? (2) in what sense is

treaty-law subject to a will-forming process of politics in international

society?

Common interest A treaty is a disagreement reduced to writing

(ifone may be permitted to do such violence to the hallowed tion ofa contract) But so is legislation The eventual parties to a treatyenter into negotiation with different ideas of what they want to achieve.Negotiation is a process for finding a third thing which neither partywants but both parties can accept The making oflegislation, at least

defini-in a society with an active system ofpolitics, is a similarly dialecticalprocess, by which conflicts ofideas and interests are resolved into a legalform which then re-enters the general social process as a new datum

A treaty is not the end ofa process, but the beginning ofanother process.And so is legislation The treaty and the law become a datum in the gen-eral social process, but it is a datum with a life of its own The parties

to a treaty, like the parties interested in the making ofa legislative act,

no doubt have different ideas about what has been fixed in the treaty,and different interests in relation to its interpretation and its applica-tion to actual persons and events But their degree ofcontrol over their

own social situation is limited by the social effectiveness of the treaty orthe law The treaty and the law create a micro-legal system within thegeneral legal system from which they derive their legal effect, and withinthe society from which they derive their social effect.

10.42 There is a common interest ofinternational society as a whole

in the creation ofmicro-legal systems oftreaties, just as there is a mon interest ofnational societies in the creation ofthe micro-legalsystems oflegislation They are an integral part ofa society’s legal self-constituting, its self-ordering through law Treaties are a delegation oflaw-making power The parties may make law for themselves, their legalcapacity to do so deriving from international constitutional law, whichmay set formal and substantial limitations on that capacity (for exam-

com-ple: ius cogens, interaction with legal relations under other treaties) But

the international legal system is a legal system which still contains a tomary form of law, and treaties have a complex and subtle relationship

cus-to cuscus-tomary international law

10.43 Treaty-law has three meta-legislative effects.

(1) The first such effect is that treaties are an integral and important

part ofthe dialectic of practice which generates customary international

law Within that dialectic, treaties may contribute to the formation oflegal relations applying not only to their parties but also to non-parties.(2) The second meta-legislative effect is that treaties may create a

general legal situation in which legal relations with non-parties are

mod-ified without their specific consent This is the case where a treaty powers a party to create a situation (say, a sea-area regime, or a regimeofuniversal criminal jurisdiction, or an arms-control regime, or a use-of-force regime, or an external trade regime) which cannot reasonably

em-be applied on the basis ofa discrimination em-between parties and parties This is especially the case where the international regime falls

non-to be applied within national legal systems, or where the internationalregime is an aspect ofan indivisible conception ofinternational publicorder In such a case, the corresponding legal relations ofcustomaryinternational law must be understood as containing the power (oftheparty) and the liability (of the non-party) to create and to be affected

by such a regime It follows that the ruling of the International Court ofJustice in the Nicaragua Case (1992), that the relevant customary inter-national law had not been modified by the existence ofthe UN Charter,can only be regarded as preposterous

the concept of international law 307

(3) The general-legal-situation effect is a particular instance of a

gen-eral effect of treaty-law Treaty-law breaks the network of mutuality which

underlies customary international law A customary legal system is a manent negotiating of a social contract, the forming and re-forming of

per-a legper-al bper-asis ofsociper-al co-existence from dper-ay to dper-ay, with per-a necessper-aryand inherent deep-structural mutuality oflegal relationships When, as

in the international legal system, the surpassing ofcustomary law bylegislation is not a surpassing by and for all members of society, therelationship ofthe two sources oflaw cannot be conceived either interms ofa lazy analogy with contract law or by a one-to-one correspon-dence with their relationship in a national legal system The existenceoftreaty-law modifies the legally protected expectations ofall membersofinternational society, including non-parties to particular treaties.10.44 Within the history ofnational societies, the ever-greater com-plexity and density ofsocial relations gave rise to the need for delegatedlegislation, and powers to make legislation are conferred, by legislativeact, on persons or bodies other than the primary legislative institution,especially the executive branch ofgovernment Nationally, the volumeofdelegated legislation soon came to exceed the volume ofprimarylegislation It is also important to understand that society delegates alaw-making function to countless forms of subordinate society, espe-cially industrial and commercial corporations, which are micro-systems

of self-legislation and self-government It is in the common interest ofsociety that such micro-systems should pursue their self-interest underand in conformity with the law of society which actualises the commoninterest ofsociety as a whole

10.45 With the development ofthe international public realm(Public Order 5, above), the need for delegated legislation has been met

by conferring legislative powers on international institutional systems.The volume oftreaty-law long since exceeded the volume ofcustom-ary international law The volume ofinternational delegated legislationprobably now rivals the volume ofprimary treaty-law And internationalsociety, like national societies, includes the activity ofcountless subor-dinate societies, other than the state-societies, not least industrial andcommercial corporations acting outside the place where they are in-corporated Such societies are systems ofdelegated self-legislation andself-government under and in conformity with international law andthe laws ofthe nations in which their activities take place

10.46 Within national systems, it also became necessary to develop

forms of para-legislative acts (so-called soft law, such as codes ofpractice,

administrative rules, etc.), whose function is to control specifically thelaw-interpreting and law-applying behaviour ofpublic-realm personsand bodies They do not give rise to direct legal relations to which thecitizen is a party Rather they modify the application of pre-existingpublic-realm powers and duties in relation to the citizen They havebeen held to give rise to ‘legitimate expectations’ on the part ofthe cit-izen that such powers and duties will be implemented in accordancewith the soft-law provisions Such a thing has now been found to benecessary also in the international public realm Multilateral and unilat-eral declarations, resolutions, final acts, memoranda ofunderstanding,statements ofprinciples, programmes, action-plans – all such thingshave been developed organically to be something other than treaties,giving rise to legitimate expectations about the implementation oflegalrelations rather than themselves giving rise to legal relations In thoseinstitutional systems where national public law and international publiclaw are now functionally linked in the work of specialised internationalinstitutions, such para-legislative acts may especially affect the imple-mentation oflegal relations within national legal systems

10.47 Within national societies, and now within international ciety, it became necessary also to confer a new kind of legal power

so-on public-realm bodies All legal powers include a double discretiso-on(whether to exercise the power, what decision to take within the limits ofthe power) All legal powers include the potentiality ofthe modificationofthe legal situation ofpersons other than the power-holder But what we

may call administrative-law powers take these characteristics to a degree

which almost gives rise to a difference of kind Public-realm bodies takepower-decisions within broad areas ofdiscretion, sometimes formulated

in the most general terms (‘necessary in the public interest’, ‘with a view

to the preservation ofpublic order / international peace and security’, ‘inaccordance with equitable principles’, ‘on a basis ofnon-discrimination’,

‘to give effect to the purposes of the present Act / treaty’) Although ern administrative law gives to courts a legal power to define and controlthe outer limits and the procedural aspects ofsuch discretions, the gener-ality oftheir scope and the scale oftheir effects (perhaps, the whole pop-ulation or all members ofinternational society) give a sort oflaw-makingpower to public-realm bodies, including international institutions

mod-the concept of international law 309

10.48 Politics Politics seeks out public-realm power Public-realm

power seeks to negate politics The social struggle to control and influencethe exercise ofpublic-realm power arises most powerfully in relation tothe making oflaw The exercise ofpublic-realm power, especially themaking of law, is a sustained effort to resolve the struggle of politicsinto an act which defines and enacts the common interest ofsociety andtranscends particular interests Treaty-law, like all law-making, is a by-product ofpolitics Treaty-law negates the politics which produces it Inthe case oftreaty-law-making, however, the role ofpolitics is obscureand complex

10.49 There are three phases in the making oftreaty-law

(1) Projection The internal political process ofeach participant

gen-erates its input into the negotiation (sometimes referred to as tions to the delegation’) and then projects that input externally into thenegotiation The nature ofthe internal process is specific to each societyand its constitutional structure The process may itselfinvolve complexinter-departmental negotiation within the public realm, and negotiationwith parliamentary organs or relevant special interest-groups

‘instruc-(2) Negotiation Negotiation is dominated by potential treaty-texts,

most often prepared in advance, and the crux of the negotiation is asearch for ‘forms of words’ acceptable to all, or the relevant, participants.The passionate and formless world of politics is reborn as a world ofwords Matters ofgreat practical consequence, perhaps involving lifeand death on a great scale, are concentrated into the tiny mass ofa fewwords, in a sort ofritualised trench-warfare, in which big victories aremeasured in small gains ofverbal territory

(3) Re-entry The treaty-text produced by negotiation is taken back

into the internal political process ofeach participant In constitutionalsystems where the executive branch ofgovernment and parliament aresystematically integrated, the final acceptance ofthe treaty may be rel-atively straightforward, politically and legally Elsewhere, most notori-ously in the United States constitutional system, the re-entry stage is aresumption ofthe projection stage, and the fate ofthe treaty-text is asuncertain as that ofany other executive-branch initiative

10.50 The Wilsonian new-diplomacy ideal of‘open covenants openlyarrived at’ has not proved possible, even in the most apparently public

of conference-settings (Of the Paris Peace Conference itself, HaroldNicolson, a member ofthe British delegation, said: ‘few negotiations in

history have been so secret, or indeed so occult’.) The crux ofa tion, as in the most traditional forms of diplomacy, is still located in con-fidential meetings ofrestricted groups ofparticipants A form ofnegoti-ation which has become common since 1945, and which may be entitled

negotia-to be called a new form of diplomacy, is parliamentary diplomacy –

large-scale conferences in which there is a projection of extra-parliamentarynational politics, in the form of open-ended participation by personsand groups other than the representatives ofthe national and interna-tional public realms and where the rituals ofdiplomatic negotiation areovertaken by free-ranging debate of a broad political character, aboutends and means, values and purposes But, even in this form of negoti-ation, the last word as to the content ofthe treaty-law and its re-entryinto the national legal systems remains with the controllers ofthe publicrealms

10.51 The making oftreaty-law is accordingly anomalous in tion to national constitutional systems, in the sense that it brackets outofthe national process a central part ofthe making ofa form oflawwhich is liable to become an important factor in national public-realmdecision-making, or even to become part ofthe substance ofnationallaw This bracketing-out means that normal national constitutional pro-cesses, including political accountability for executive-branch action,may apply in a disorderly way, ifat all, to treaty-law-making Treaty-law-making, a substantial and rapidly increasing part ofthe law-makingofthe international legal system, continues to share in the unrealityoftraditional diplomacy, a ghost-filled world of‘power’ and ‘nationalinterest’ and ‘foreign policy’, the world of war by other means (It followsthat nothing can be said in favour ofthe existence and the work oftheInternational Law Commission, which manages to combine the unreal-ity ofthe academy with the unreality oftraditional diplomacy.)

rela-The future of the international legal system

10.52 The aggiornamento ofinternational society means purposively

bringing international society into line with our best ideas and highestexpectations about society in general At the beginning ofthe twenty-first century, such a thing seems at last to be a reasonable enterprise

It is an enterprise ofwhich the reconceiving ofthe international legalsystem is an integral part It is also an enterprise which faces a series

the concept of international law 311

of formidable obstacles which we must identify if we are to overcomethem

10.53 (1)The degradation of universal values The emergence

ofpo-tentially universal values after 1945 suffered a deformation as the ing values were subjected to almost instant rationalising, legalising, in-stitutionalising and bureaucratising That is to say, they were corruptedbefore they could begin to act as transcendental, ideal, supra-societal,critical forces in relation to the emerging absolute statism of society,including ‘democratic’ society They were also systematically corruptedbefore they could acquire a more clearly universal substance, so that theybecame vulnerable to charges ofcultural relativism and hegemonism.And they were corrupted, finally, in the context ofthe so-called ColdWar which was waged, at the ideal level, as a cynical disputation aboutgeneral ideas, so that the ‘winning’ ofthe Cold War could be presented

emerg-as a final validation ofgeneral ideemerg-as It will not be eemerg-asy to redeem theidea, the power, and the social function of transcendental values fromsuch relentless degradation

10.54 (2) The hegemony of the economic In democratic-capitalist

so-cieties, experience over the last two centuries ofthe relationship betweenthe economic development ofsociety and its socio-political develop-ment (including the development ofthe legal system) suggests that there

is a definite correlation between the two, but no unequivocal tion, either in point oftime or in substance Leading cases (the UnitedKingdom, the United States, Prussia, Japan, the European Union) showsignificant differences on the most critical of all points, namely, thepost-Marxian questions ofwhether socio-political change is caused byeconomic development and whether the form of socio-political change

correla-is determined by the form of economic development However, suchquestions have themselves been overtaken by a form of general socialdevelopment which has led to the conceptual and practical dominanceofeconomic phenomena over all other social phenomena

10.55 The economy has become a virtual public realm The omy’ here means the socially organised transformation of natural andman-made resources through the application ofphysical and mental ef-fort In a capitalist society, private-interest economic activity is seen asactivity also in the public interest The primary function of managementofthe traditional public realm, where social power is exercised exclu-sively in the public interest, has gradually come to be, not the service

‘econ-ofsome common interest ofwell-being conceived in terms ofgeneralvalues (say, justice or solidarity or happiness or human flourishing),but the maintaining ofthe conditions required for the well-being oftheeconomy, including, above all, the legal conditions.

10.56 The global economy is the limiting-case economy, as the formatory activity of the whole human race comes to be socially organ-ised under an international legal system which is, in this context, dom-inated by the laws ofthe nations (§10.22 above) Functional economichigh-values will dominate the development ofthe global economy, andhence presumably the further development of the international legalsystem, to an even greater extent than in national societies, so long asthere is only a piecemeal international public realm and rudimentaryinternational politics

trans-10.57 (3) The poverty of politics When politics is seen as a general

social process for determining the common interest, then it is possible

to make judgements about the way in which politics makes such minations in particular societies or at particular times Since early in thenineteenth century, institutionalised politics has been public-opinion-led and ends-oriented There developed alongside such politics a pub-lic decision-making system (‘government’) which is rationality-led andmeans-oriented The merit ofa political system might be measured bythe degree to which it allows for a rich debate about both ends andmeans and provides efficient systems for resolving the debate in theform of legal and other action

deter-10.58 Politics in the most socially developed national systems hasrecently degenerated into an impoverished debate within narrow dialec-tical limits, focused particularly on the manipulation of mass-opinion

At the same time, the professional controllers of the public realm cians and public servants) have acquired an unprecedented degree ofdepoliticised pragmatic power, corresponding to the urgency and com-plexity ofthe day-to-day problems ofthe internal and external man-agement ofsuch systems, especially the economic problems It is theexternalised form of this politics-free power that has been pooled inthe intergovernmental institutions ofthe international public realm.And the controllers ofthe economic virtual public realm, often causinglarge-scale social effects by their private-interest decision-making, arenot accountable through the general public-realm political and legalcontrol-systems, but devote substantial resources to managing the

(politi-the concept of international law 313

outcomes ofthose systems The development ofthe international tem, including the international legal system, is likely to be determined

sys-by such national developments It is not likely that international politicswill be better than the best ofnational politics, even ifit ever comes to

be better than the worst

10.59 (4)The poverty of philosophy Who killed philosophy? Was it

democracy, with its capacity to process all questions ofends and means

in the public forum? Or was it capitalism, with its own internalised highvalues, interpreted and applied in the market-place? The primary per-petrator was philosophy itself While societies continued to embody thefruits of old-regime transcendental philosophy in the forms of their so-cial organisation, and continued to enact the fruits of old-regime philos-ophy in their self-understanding, their high values and their purposes, anew-regime philosophy, strictly an unphilosophy or an anti-philosophyofterminal pragmatism, decreed that old-regime transcendental philos-ophy is impossible, an illusion, a fraud It followed that the surpassingofold-regime philosophy on its own terms was impossible, and that thesurpassing ofexisting forms ofsocial organisation and social conscious-ness was possible only to the extent that such surpassing arose withinexisting social processes Democracy and capitalism have taken powerover the possibility oftheir own negating, and hence over their ownsurpassing, and it is philosophy which has given a spurious charisma

to their mental absolutism Corrupted social consciousness fills the vate minds ofhuman beings everywhere with low values generated assystematic by-products ofsocial systems which will soon be, ifthey arenot already, beyond the redeeming power ofhigher values

pri-10.60 The reciprocating character ofa legal system, formed by andforming the ideal and the real self-constituting of society, means that alegal system cannot be better than the social consciousness that it enacts

If the role of philosophy in human self-surpassing and self-perfecting isnot restored, perhaps with the assistance ofnon-Western participants

in global social consciousness, then the development ofthe tional legal system is condemned to be the impoverished product ofanimpoverished human consciousness

interna-10.61 (5) The tyranny of the actual The actual seems inevitable

be-cause, ifit could have been otherwise, it would have been otherwise.From the necessity ofthe actual it is a short step to the rationality ofthe actual (Hegel), to believing that what is is right (Pope), in the best

possible world (Leibniz) But the human actual, including the socialactual, is the product ofhuman choice, that is to say, moral choice Torationalise or naturalise the human actual is to empty it ofits moral con-tent, to neutralise it It has been an effect, if not the original purpose,ofthe ‘human sciences’, over the last century-and-a-half, to rationaliseand naturalise the human actual, and so to make the actual seem to bemorally neutral We seek to assign ‘causes’ to things in the human world,such as slavery or trench-warfare or genocide, knowing that causation isour category for understanding the non-human world Conversely, weassign personality to reified ideas ofparticular social systems (‘nation’

or ‘state’ or ‘class’), so that actuality-making choice is isolated from anyparticular human moral agent or agents, and then we speak ofthe ‘in-tention’ ofsuch a systematic process, knowing that a process cannot bemorally responsible

10.62 Nowhere has human demoralising been as relentlessly tised as in the international realm, the imaginary realm inhabited by

prac-‘states’ It is practised by those who act within that realm and by thosewho study it The external aspect ofgovernment is still conducted inpursuit ofwhat is still called ‘foreign policy’ through the means stillknown as ‘diplomacy’, old-regime games as anachronistic as real tennis

or prize-fighting And those who study such things still seek to uncoverthe rules ofsuch games, as ifthey were studying the behaviour ofalienlife-forms, as if their bizarre ideas of the human actual were the hypo-thetical rationalising ofsome part ofthe natural world

10.63 The meaning and the measure ofhuman progress are difficult

to establish A fair general judgement might be that material progresshas not been matched by spiritual progress It also seems right to saythat such human progress as there has been, over the last several thou-sand years, has been due to three strange accidents ofevolution, or giftsofGod: rationality (the capacity to order our consciousness); moral-ity (the capacity to take responsibility for our future); and imagination(the capacity to create a reality-for-ourselves) Using these capacities,

we found within ourselves another capacity, the capacity to form theidea ofthe ideal – the idea ofa better human future which we canchoose to make actual The ideal has been the anti-entropic and anti-inertial moving-force of human progress, of human self-surpassing andself-perfecting To overcome the tyranny of the actual, to overcome theignorant and infantile belief that the actual idea and the actual practice

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ofthe self-organising ofhumanity are necessary and inevitable, we needonly to recall and recover our extraordinary power constantly to recon-ceive the ideal, in order yet again to choose to make it actual

The new paradigm

10.64 The new paradigm ofthe international legal system is a new idealofhuman self-constituting It has three leading characteristics (1) Theinternational legal system is a system for disaggregating the commoninterest ofall-humanity, rather than merely a system for aggregatingthe self-determined interests of so-called states (2) The internationallegal system contains all legal phenomena everywhere, overcoming theartificial separation ofthe national and the international realms, andremoving the anomalous exclusion ofnon-governmental transnationalevents and transactions (3) The international legal system, like any legalsystem, implies and requires an idea ofa society whose legal system it is,

a society with its own self-consciousness, with its own theories, valuesand purposes, and with its own systems for choosing its future, includingthe system ofpolitics

10.65 The idea ofinternational society, the society ofthe wholehuman race and the society ofall societies, takes its place at last, centurieslate, within human self-consciousness, and international law finds itsplace at last, centuries late, within the self-constituting of internationalsociety, that is to say, as an essential part ofthe self-creating and theself-perfecting of the human species

International law and the idea ofhistory

Law’s histories – The third memory – The third memory andinternational law – The lure ofhistoricism – The makingofthe past – From human history to human law – Human memory

The future of the human world will be a product of its present state The present state of the human world is a product of its past states In our contin- uous present we tell and retell the story of our past But the writing of history

is a dangerous occupation In seeming to tell us what we have been,it seems

to tell us what we are,and so to tell us what we can be and even what we will be The fact that we cannot see what we have been except through the eyes of what we are means that we are always in the process of making the past It means also that the writing of history is also a history of the writing

of history Past historiography is part of the history of the past.

A central temptation of historiography is to claim that it is a human science,uncovering the nature of human nature and human nature’s laws Human existence and human behaviour are facts as much as any other fact

of the material universe,so surely there must be the possibility of discovering

a human ontology at least as soundly based as the consensual ontology of the natural sciences and a human metaphysics at least as soundly based as the consensual metaphysics of the physical sciences We have reason to believe,in the light of the long history of historiography,that such a claim is unjustified The laws of human nature exceed the hypothetical power of the human mind.

International history,the history of all-humanity,is a limiting case of the dangers of historiography,if it seems or claims to tell all-humanity what it is and what it might be Instead,we should want to use historiography as a form

of ‘teaching by example’,showing us what human beings are capable of,the good and the evil that humans do,and reminding us of our responsibility to choose a better human future,to constitute a better form of human sociality,

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imposing on ourselves as a species the laws necessary to make that better human future.

Law’s histories

11.1 International law, like any other legal system, is a bridge betweenthe social past and the social future through the social present But in-ternational law has a unique fourfold relationship to the past It is thelaw ofa social system which is the product ofmany pasts, the pastsofall human societies It is a universalising ofthe pre-existing val-ues not merely ofone particular society, but ofall human societies

It is a form of law which is generated by a law-making process whichtransforms past events involving all human beings into present legalrelations affecting all human beings It is a product of the past that con-ditions the future not merely ofone particular society, but ofall humansocieties Law is a real presence ofthe social past International law is

a real presence ofthe human past Law is an actual potentiality ofthesocial future International law is an actual potentiality of the humanfuture.1

11.2 Like any legal system, international law has its own history,

a history which is both intrinsic and extrinsic It has an intrinsic

his-tory ofthe development ofits structures and systems (personality, making, treaty, arbitration, permanent diplomacy, intergovernmentalinstitution), a history ofits legal substance (law ofthe sea, diplomaticlaw, humanitarian law, human rights law), and a history ofits idea of

law-itself(legal philosophy) It has an extrinsic history ofits relationship to

all other social phenomena, other social structures and systems (custom,religion, morality, subordinate legal systems), and ofits relationship tothe phenomena ofgeneral history, to the things that historians writeabout (war and peace, the rise and fall of empires, revolutions, socio-economic change, the psychology ofworld-historical individuals, thedevelopment ofideas and ideologies)

1 ‘Real presence’ and ‘actual potentiality’, with their Aristotelian overtones, express the strange fact that law, like a work of art or a genetic programme, is something which acts as a timeless cause, producing pre-determined effects as and when conditions in present time require

it to do so, and which will continue to do so in the future ‘Present’ time is the moral present, the moment ofmoral and legal choice, when choosing the future presents itselfas a necessity.

11.3 Like any legal system, international law’s idea ofitselfhas

inter-nal and exterinter-nal perspectives Its interinter-nal perspective is its significance

seen from the perspective of participants in the system as they act asparticipants in the system Such a perspective is, in the first place, a log-ically necessary consciousness: that is to say, to participate in the system

is necessarily to participate in its idea ofitself; to play a game is to playthe rules ofthe game Secondly, it is an observable significance, that is

to say, an idea which an outside observer may infer from the behaviourofparticipants acting as such And, thirdly, it is a psychological signifi-cance, actually present in the consciousness ofparticipants Needless tosay, neither the validity nor the efficacy of international law, no morethan ofany other legal system, depends on anything more than a hypo-thetical minimum ofactual awareness ofthe system’s theory ofitselfonthe part ofthose currently participating in the system The validity andefficacy of the system are rather an effect of the first (logical) aspect ofthe internal perspective

11.4 The external perspective ofa legal system’s idea ofitselfis its

idea ofits significance in relation to other social phenomena, othernatural phenomena, other aspects ofhuman consciousness, both indi-vidual and social consciousness It is a function of social consciousness

to generate theories2 about a society’s structures and systems whichexplain them and justify them, ideas which create an internal perspec-tive ofthe society’s idea ofitself The external perspective ofa legalsystem’s idea ofitselfis part ofthe internal perspective ofa society’sidea ofitself A democratic-capitalist society or a theocratic society or

a totalitarian society has appropriate theories ofthe presence oflawwithin that society The external aspect ofinternational law’s idea ofitselfis part ofthe internal aspect ofinternational society’s idea ofitself

11.5 These five aspects ofthe significance ofinternational law as

a legal system (its particular relationship to the past, its intrinsic andextrinsic histories, the internal and external perspectives ofits idea ofitself) are in constant motion in relation to each other, as they are inany legal system At any given moment in time, a society’s social con-sciousness must contain some sort ofintegration ofits ideas about its

2 A special meaning is given to the word ‘theory’ in Eunomia, § 2.45 A theory is a society’s

explanation ofitselfto itself.

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legal system, a functional integration, sufficient to enable the society tocontinue to function as a society Such integration may be imposed bythose who control social consciousness as part ofa general social the-ory which it is within their legal and practical power to impose Or elsesuch integration may be the subject ofceaseless renegotiation as partofsociety’s general social process, its day-to-day self-constituting, itsreal constitution.3Experience shows that a society’s effective functionalintegration at the level ofsocial consciousness is compatible with highlevels ofuncertainty, confusion and dispute about all five aspects ofthetheory ofits legal system

11.6 After five centuries of the intrinsic and extrinsic history of ternational law, five centuries ofthe negotiating ofan idea ofitselfand

in-an idea of its place within international society, there is still no effectivefunctional integration of a theory of international law within a theoryofinternational society To diagnose the causes ofthat state ofaffairs is aformidable challenge for the international historian, seeking to recoverthe past ofinternational society and the past ofinternational law It is atask made no easier by the fact that there are high levels of uncertainty,confusion and dispute about the very idea of the ‘past’ and even aboutthe very idea ofthe recovery ofthe past in the form of‘history’ Sincethe earliest recorded history, the human past has not been a thing but

an idea The idea ofhistory is an idea with its own history tional history, the history ofall-humanity, is a limiting case ofthe ideaofhistory International law, with its unique relationship to the historyofall-humanity, is a limiting case ofthe relationship ofall legal systems

Interna-to the past At the beginning ofthe twenty-first century, the public mindofall-humanity may at last be capable oftaking stock ofthe place withinthe history ofall-humanity ofthe legal system ofinternational society,the society ofall societies.4As a prolegomenon to the study ofthe historyofthe place ofinternational law in international society, its intrinsic andextrinsic history, it is first necessary to consider the notorious problemsconnected with the idea ofthe recovery ofthe past

3 For the three dimensions (ideal, real and legal) ofthe self-constituting ofa society, see

Eunomia, ch 9 The real constitution is the social struggle to give effect to the ideal

constitu-tion, including through the making oflaw (the legal constitution) The three constitutions determine each other dialectically.

4 Such a theory is proposed in Eunomia, centred on the ideas ofsociety (the collective

self-constituting ofhuman beings in consciousness) and law (the self-ordering ofa society).

The third memory

11.7 History is public memory It is the remembering ofthe publicmind.5Like the memory ofthe private mind, history is as much a for-getting as an unforgetting The human past is mostly lost beyond recall,

as dead as the human beings who made it Social consciousness tains no algorithm for determining what will be remembered and whatwill be forgotten The public past, like the private past, simply haunts

con-us like a dream Like a dream, the unforgotten past is full of familiarand unfamiliar faces and places, full of meaning and meaninglessness,full of the anxiety of an actor, involved and responsible, and full of thegaze ofthe spectator, detached and powerless, but lacking the continuityand coherence and seamless density ofour lived experience, and lackingthe integrating focus of our moral and practical responsibility for whathappens next We are what we were, as individuals and societies, but wehave very imperfect knowledge of what we have been

11.8 As compared with the remembering ofour private minds, tory has the further strange characteristic that it is a remembering ofthings that we did not experience.6 They may be things done by peoplewith whom we feel a particular affinity – our ancestors, our nation, ourco-religionists, those who have made a social reality which we regard

his-as our social reality Or they may be things done by people who seem

to be alien, exotic perhaps, things done by people and in circumstanceswith which we seem to share no common feeling or common interestbeyond the fact that they have been done by people who are also humanbeings A dream ofa past which is not our own, history neverthelessbecomes our own, and ceases to be a dream, when we live in the realitywhich it has formed We are what our societies have been, and we cannotescape the presence ofthe social past And we cannot escape society’sidea ofits past It is as ifeach human being possesses a second memory

as a member ofall the societies to which we belong, a social memory asactive as our personal memory, but still less under our personal control.And the social past and the social memory which we share and cannotescape must include the past and the memory ofthe social co-existenceofthe human species, the history ofall-humanity

5 The ‘public mind’ is the consciousness or ‘mind politic’ ofa society See ch 4 above.

6 Thucydides was the first ofcountless generals and politicians who have recounted their own experience, which becomes the second-hand experience ofthe reader.

international law and the idea of history 321

11.9 A bolder speculation is the idea that there is a faculty of memoryofthe human species itself, a species-memory, a biological memory, a

phylogenetic memory, which we may here identify as a third memory.

The idea is that, beyond the consciously accumulated public memory ofthe human species re-presented to itselfin the form of‘history’, somepart ofthe experience ofthe human species has been accumulated inthe inheritance ofall human beings The idea has taken three successiveforms: (1) the idea of human nature; (2) the idea of human speciescharacteristics as an evolutionary residue; and (3) the idea ofa collectiveunconscious within the human mind

11.10 The significance ofthe idea ofa third memory, in whicheverform, is that it implies that the human past is not merely a collection ofcontingencies acting as causes and effects of each other, but must be seen

as subject to pre-conditioned or pre-programmed parameters whichtranscend the willing and acting ofactual human beings It suggests thatthere is a hidden necessity which sets limits on the apparent freedom ofhuman behaviour, a human constant in the midst ofan infinity ofhumanvariables It suggests that the phenomena ofhistory are epiphenomenaofa reality which is as permanent as events are transient It suggeststhat our understanding of that necessity, however imperfect, offers anexplanatory matrix for interpreting the past Such an idea would alsopermit us to believe that the future will be much like the past, at least

at some fundamental level, and even that we may project our idea ofthe past into an idea ofthe future on some basis which is more soundthan mere speculation or wish-fulfilment or self-interest Among otherthings, it would tend to reinforce the idea that the international futurewill merely be a continuation ofthe international past

11.11 (1) The idea ofa human nature came naturally to the versalising mind ofthe philosophers ofancient Greece Their vividawareness ofhuman diversity led them to look for evidence ofhumanuniformities Their initiation into what we call natural science, espe-cially the science ofbiology, taught them that natural uniformity is asfundamental as natural diversity, that there are types of animals as well

uni-as particular animals Their epistemology led them to find universals inthe particular, to define a definition as a universalising ofevery partic-ular to which it is referable Their metaphysics led them to look for areality manifesting itself in appearances, an order which is present inall instances ofordering It was not merely an easy step, but a necessary

step, to suppose that there is a human uniformity, a human universal, ahuman reality, a humanity ofwhich each human being is an instance.7

11.12 To postulate the common identity ofhumanity is only thebeginning ofa task, and a passionate struggle, to identify the content

of that humanity The effort to distinguish the natural in the humanidentity and the human situation from the contingent, the conventional,the transient and the illusory has been the mainspring ofphilosophy, notonly social and ethical philosophy but also epistemology itself, insofar

as philosophy’s study ofitselfis the study ofhuman consciousness itself

To do philosophy is to think universally To philosophise about thingshuman is to universalise the nature ofhuman beings

11.13 The beliefin an ultimate uniformity in things human is thenecessary, ifusually unspoken, premise ofthe ‘human sciences’, as theyhave developed over the last two centuries They are customarily sup-posed to depend on a particular methodological foundation which iscustomarily supposed to be a borrowing from the method of the naturalsciences But what they have copied from the natural sciences, for betterand for worse, is rather the scientist’s foundational belief in the uni-formity of nature.8 And that belief, we may say, is itself inspired by thePythagorean insight, a semi-mystical wonder at the universality ofmath-ematics, a universality ofthe universe which includes the universality ofthe natural world, and the universality ofthe human world as part ofthe natural world

11.14 (2) The idea ofuniversal human characteristics as an lutionary residue seems to be a necessary corollary ofDarwinian evo-lutionary theory It is a central postulate ofevolutionary biology thatbiological change is retained at the level ofthe species, and hence thatindividual species-members carry the characteristics ofthe species in ad-dition to the unique characteristics oftheir individuality.9Once again,

evo-to postulate such a thing is only the beginning ofa task and a struggle evo-to

7 The Aristotelian human animal, with biological characteristics, took on, with the Stoics, the

purely philosophical species-characteristic of humanitas (humanness).

8 Durkheim expressed trenchantly the naturalistic goal which had inspired the founding fathers of social science (Hume, Saint-Simon, Comte, Mill): ‘All that [sociology] asks is that the principle ofcausality be applied to social phenomena not as a rational necessity

but only as an empirical postulate.’ E Durkheim, The Rules of Sociological Method (1895) (eds

and trs S A Solovay and J H Mueller; Chicago, University ofChicago Press; 8th edn, 1938),

p 141.

9 Darwin considered the biological heredity ofthe human species in The Descent of Man and

Selection in Relation to Sex (1871) He argued that an instinctive moral sense in man is an

evolutionary product See also A Flew, Evolutionary Ethics (London, Macmillan; 1967) and

international law and the idea of history 323

identify the distribution of universal and particular biological istics in the human animal A very great deal turns on the chosen distri-bution Our species-characteristics may seem like a fate, an inevitability

character-or, at least, an excuse To overcome our species-characteristics throughthe use ofsome other aspect ofour potentiality – overcoming instinctthrough the use ofreason, to use a hallowed formula – is considered

to be an application ofexceptional energy, an anti-entropic act, ifweassume that to submit to our species-characteristics requires no specialapplication ofenergy, that it comes naturally to us, as we say Ifwe as-sume that, say, aggression and predation are part ofour evolutionaryresidue, then to behave co-operatively and altruistically may seem likesupererogatory acts ofvirtue

11.15 A bolder speculation has been the idea that human characteristics have been retained at the social level.10Sociobiology hasits point ofdeparture in the idea that the human animal is biologi-cally a social animal, and hence that part ofour evolutionary residue

species-is expressed in our social behaviour It would follow from thspecies-is that, atthe social level also, our species-characteristics have some determiningeffect on the form and functioning of human societies and on the in-teracting ofhuman societies Once again, it would seem to follow thatifsocieties do what comes naturally – say, ifthey compete and conflict

to the point ofmutual self-destruction – then that is not surprising initself, and hence that, on the contrary, if societies live peacefully andco-operatively, then that is an overcoming ofa sort offate or necessity,

a display ofheroic virtue, another triumph ofreason over instinct.11

Ofcourse, it might equally be possible to suppose that socially positivebehaviour – such as the protection of‘human rights’12– is explicable inbiological terms

K Lorenz, Behind the Mirror A Search for a Natural History of Human Knowledge (tr R Taylor;

New York, Harcourt Brace Jovanovich; 1977).

10E O Wilson, Sociobiology – the New Synthesis (Cambridge, MA, The Belknap Press ofHarvard

University Press; 1975).

11 Much has been written on the biological bases ofaggression, and its relevance to

under-standing the conflictual behaviour ofstates See J Groebel and R A Hinde (eds.), Aggression

and War Their Biological and Social Bases (Cambridge, Cambridge University Press; 1989)

(with bibliography).

12E O Wilson, On Human Nature (Cambridge, London, Harvard University Press; 1978),

pp 198–9 ‘1 suggest we will want to give [the idea ofuniversal human rights] primary status not because it is a divine ordinance, or through obedience to an abstract principle ofunknown extraneous origin, but because we are mammals I suggest that this is the true origin ofthe universal rights movement and that an understanding ofits raw biological causation will be more compelling than any rationalization contrived by culture to reinforce

11.16 Once again, the problem is that it is impossible to resolveconflicts between competing hypotheses about the content ofthe evo-lutionary residue at the social level, and yet different hypotheses lead todramatically different deductions, and hence judgements, about actualsocial behaviour For example, to believe that warfare is or is not bio-logically natural is liable to have significant effects on the decisions andjudgements we make and hence on the behaviour ofhuman beings inrelation to each other A choice ofhypothesis is, in such a case, literally

a matter oflife and death

11.17 But there is a more profound problem raised by hypotheseswhich locate an evolutionary residue in the present human condition

It is more than arguable that the development ofhuman consciousness,itselfa product ofbiological evolution, has not only terminated humanparticipation in the process ofnatural species-selection but has also en-abled the human species to override, as it were, its biological inheritance.Human physiology is, no doubt, a biological inheritance, but that partofphysiology which makes possible human consciousness has enabledhuman beings to behave in ways which have no necessary relationship toany biological necessity.13It is, ofcourse, possible to imagine biologicalexplanations for the most bizarre, and seemingly the most unfunctional,ofhuman behaviour, from torture to tree-worship to playing computer-games, but such an explanation would be too speculative and generalised

to form a basis for rational decision-making

11.18 (3) It is an ancient speculation that there is an unconsciouspart ofthe human consciousness which has some sort ofpower overthe conscious part ofthe mind, and over which the conscious mind haslittle control, and hence that the unconscious mind has an uncontrol-lable power over human behaviour, including human behaviour which

is rationally selected.14 Since society is a product ofthe human mind,

and euphemize it.’ See also G E Pugh, The Biological Origin of Human Values (New York,

Basic Books; 1977), speculating that ‘primary values’ (including, say, justice) may be a biological inheritance at the root ofmoral and social values.

13 R Dawkins, The Selfish Gene (Oxford, Oxford University Press; 1976) Dawkins postulates

a unit ofcultural inheritance (a meme) which acts in ways analogous to the gene as a unit

ofbiological inheritance In The Extended Phenotype – the Long Reach of the Gene (Oxford,

Oxford University Press; 1982), Dawkins considers evolutionary theory at the level of the netic totality (phenotype) ofan organism, an idea with useful implications, ifonly heuristic, for understanding social phenomena.

ge-14 See L L Whyte, The Unconscious Before Freud (New York, Basic Books; 1960).

international law and the idea of history 325

or rather ofhuman minds interacting, it is certainly not rash to ulate that social consciousness reproduces all aspects ofthe individ-ual mind, including the unconscious mind, and hence that the activ-ity of a society will also be affected by the power of the unconsciousmind

spec-11.19 A more daring speculation is the idea that the unconsciousmind ofeach human being participates in some sort ofcollective un-conscious which is, in some way, shared with all other human beings.Such an idea has been proposed in two distinct forms: either as a systemwhich has developed within human consciousness and which conditionsthe current content ofsocial consciousness,15 or as a human species-characteristic which causes an underlying uniformity in the distinctcultural manifestations of different societies.16 The idea ofa species-consciousness gives rise to an obvious and fundamental problem –how can it be reconciled with generally accepted notions ofgeneticswhich exclude the inheritance ofcharacteristics acquired in the courseofthe life-experience ofthe organism, except to the extent that a gene-mutation occurring in a particular organism is transmitted to its own pro-geny or a mutated genetic form establishes itself as a separate species?17

15 ‘[A] collective mind, in which mental processes occur just as they do in the mind ofthe

individual’ S Freud, Totem and Taboo – Some Points of Agreement between the Mental Lives of

Savages and Neurotics (1912/1913) (tr J Strachey; London, Routledge & Kegan Paul; 1950),

p 195 Sociology is ‘applied psychology’ (New Lectures, 1921/1933) Freud also believed that the mind contains an ‘archaic heritage’, a phrase borrowed from G Le Bon: La psychologie des

foules (1895), which includes not only the individual super-ego but also collective mental

phenomena that are at the root of‘civilised’ social phenomena.

For Ricoeur, Freud’s genetic models ofshared consciousness ‘will have to be understood not only as tools meant to co-ordinate ontogenesis and phylogenesis, but as instruments of interpretation meant to subordinate every history – that ofmores, ofbeliefs, ofinstitutions –

to the history ofdesire in its great debate with authority’ P Ricoeur, Freud and Philosophy.

An Essay in Interpretation (tr D Savage; New Haven, London, Yale University Press; 1970),

p 179 See also R Bocock, Freud and Modern Society An Outline and Analysis of Freud’s

Sociology (London, Thomas Nelson & Sons; 1976).

16 ‘My thesis, then, is as follows: In addition to our immediate consciousness there exists a second psychic system ofa collective, universal, and impersonal nature which is identical in all individuals This collective unconscious does not develop individually, but is inherited.’

C G Jung,The Archetypes and the Collective Unconscious (Princeton, Princeton University

Press; 2nd edn, 1968), p 43.

17 J.-B Lamarck (1744–1829) proposed that species-members may transmit to their offspring characteristics acquired during the life-experience of the species For a discussion of writers who have proposed various forms of human Lamarckism (including the supersession of

one race by another (higher) race), see P J Bowler, Theories of Human Evolution A Century

of Debate 1844–1944 (Oxford, Basil Blackwell; 1986/1987), esp ch 9.

11.20 A society is an inheritance ofacquired characteristics, formed

by biology but transcending biology In the second memory which is

a society’s history, collective consciousness, including its unconsciousstrata, is retained and remade and handed on It is the shared con-sciousness ofhuman beings who share in the species-memory oftheirbiological inheritance and who make what they can ofthat inheritance

by the social activity which it makes possible

The third memory and international law

11.21 The extrinsic history ofinternational law is the story ofits lationship to a social past which is an unsocial past, to a rudimentarysecond memory which is full of the contents of species-memory, fullofthe outward signs ofthe unconscious consciousness ofhumanity’sbiological inheritance In default ofa history ofthe self-making ofall-humanity through social activity, it is the idea ofa natural human history,

re-a third memory which is re-a species-memory, which hre-as hre-ad re-a decisiveeffect in the making of international law’s idea of itself

11.22 Such human naturalism has had a particularly powerful effect

at three crucial moments18in the history ofinternational law – (1) in theappeal to ‘natural law’ within the internal perspective ofinternationallaw’s idea ofitself; (2) in the postulating, within the external perspectiveofinternational law’s idea ofitself, ofa ‘state ofnature’ as the original,and perhaps continuing, state ofco-existence ofhuman societies; and(3) in the ‘realist’ rejection, within the extrinsic history ofinternationallaw, ofthe efficacy, or even possibility, ofinternational law as the law of

an international society

11.23 (1) The idea of natural law is founded on the idea that

law-abidingness is part ofhuman nature and that patterns oflaw-abiding can

Freud was well aware ofthe Lamarckian difficulty, but treated it as irrelevant The resolved problem ofthe epistemic status ofhis ideas left him free to suggest that he was dealing with phenomena at a different level from that of mere biology Jung believed that he had overcome the problem by assimilating the ‘archetypes’ ofthe collective unconscious to human instincts The archetypes merely make possible the cultural forms in which they are represented ‘The representations themselves are not inherited, only the form, and in that respect they correspond in every way to the instincts which are also determined in form

never-only.’ (C G Jung, The Archetypes (fn 16 above), p 79).

18 ‘Moment’ is here used in approximately the Hegelian sense: das Moment (a determinative

element in a social structure or a determinative development in a social system), as opposed

to der Moment (a moment in time).

international law and the idea of history 327

be uncovered by human reason in contemplating humanity’s situation

as part ofnature.19Such ideas suggest as a corollary that such patternsmight be allowed to have the same kind of social effect as ‘law’ which isimposed socially (‘positive law’) and so become a sort of‘natural law’,

a paradoxical formula implying a law without a law-giver As a furthercorollary, it was suggested that natural law could, and would necessarily,apply to the law-givers themselves to regulate their co-existence, sincethere was no law-giver to impose law on the law-givers

11.24 The term ‘natural law’ carried two alternative metaphoricalresonances It could evoke an association ofideas with ‘laws ofnature’,

a formulation which is now more or less obsolete but which was used

to refer to the wonderful orderliness of a Platonic-Aristotelian universe,and later a Newtonian universe, which seemed to be a perfectly law-abiding, or at least a mathematics-abiding, universe In this perspec-tive, the content ofinternational law, as a special case ofnatural law,might be determined by universalising human law-abiding experience

In another perspective, the idea ofnatural law was associated with theidea ofhuman rationality, so that its content, and by further derivationthe content ofinternational law, could be determined by necessary de-duction from the most general principles of human order These twostrains ofnatural law – universalising and particularising – dissolvedinto cloudy confusion when international law’s idea ofitselfbegan todevelop vigorously after, say, the year 1500, an effort full of intellectualseriousness and moral commitment but taking the unfortunate form of

a mingling ofthe unity-from-diversity ofthe Roman law ofnations withthe particularity-from-universality of medieval scholasticism

11.25 It is difficult to judge whether such an enterprise contributed

to the cause ofestablishing the rule oflaw in international society, orset it back by several centuries It is arguable that Grotius, in particular,past-master ofthe use ofironic empiricism and ambivalent rationalism

in a sublime cause, lent unintended assistance to the cause ofthosewho could use the motley residues of history to reach very differentconclusions and who would use the equivocal power ofreason to deduce

19 In the most cogent presentation ofthe idea ofnatural law, Thomas Aquinas found the sources ofnatural law in the ‘natural inclinations’ ofhuman beings, and in the specifically human characteristic ofreason, which enables us to know and to seek the good Natural law

is a participation in eternal law, which is ‘the ideal ofdivine wisdom considered as directing all actions and movements’.