Reflection on the Philosophical-Historical Roots of the Crisis in Western International Law Thinking

Abstract

International Law appears to have lost both its possible civilizational foundations — the Greco-Roman/Christian doctrine of natural law and the contract theory, based on the “Humanist” confidence in the creative potential of individual will. In practice International Law — as it continues to exist — consists of either contractual arrangements among two or more States, or unilateral assertions of will by individual States, usually contested by other States. In this sense, International Law has become privatised, a matter of duelling individual perspectives, with no ontologically objective environment within which “warring” individuals can be embedded. This is the context in which the so-called Lauterpacht approach to International Law arises. It claims that the application of private law analogies should be suitable for international legal decision-making. Legal analysis and judgement then becomes a matter of weighing up the force of two or more competing wills. Another problem is that the social contract theory prioritises the striving for security as the central human characteristic. The legal discourse closes itself off from alternatives capable of questioning this idea. For one possibility, the idea that world society is a natural family of Nations is excluded. The new goal of the social contract, after the Great Depression and World War II, was to establish a liberal order wherein human opportunities would be significantly expanded and universal prosperity would be guaranteed. The basic tenet of liberalism is the dismantlement of the State, which is supposed to be the form through which individuals participate in their own governance. As this State retreats, private economic interests, regulated only by private law, if at all, take precedence. So, the long pathway from the 17th century confidence in the humanist construction of the State through the social contract of free and equal individuals ends up at present in a critical breakdown of order, where an antinomian spirit prevails at all levels of society, domestic, transnational and international. This diagnostic exercise offers no solution, although it does indicate obstacles which could, conceivably, be overcome.