Author : Anthony carty
International lawyers frequently aspire to affirm the existence of international community and the presence of authority to speak on its behalf. However by forcing a hierarchical representation of legal values upon nations, which have not accepted them, international lawyers, and the politicians whom they advise, risk unleashing a whirlwind of violence. The myth or the Biblical story of the Tower of Babel, is a millenniums old warning of the presumption which can lie behind an apparently reasonable desire for global unity and harmony. I take as a welcome task assigned to me by the coordinator of this issue of the journal, to demonstrate that those who support the idea of international community fail to address the horizontal inter-state fragmentation of international society.
I am going to approach this task, which I have been labouring for approximating twenty years since the publication of The Decay of International Law, not by elaborating what I see as all the stages necessary to set the scene for a non-foundational dialectic in international legal argument, but merely by focussing on what I think is just one of the many stumbling blocks in the way of placing any dialectical arguments at all on the agenda of mainstream formalist international lawyers.The stumbling block is the formalist definition of the state as the primary subject of international law. This entity, which is, of course, an invention of the lively imagination of the formalist international lawyers, can hardly be any more capable of dialectical argument than its creators.
Non-foundational dialectical legal argument takes as its starting point, the contingency and, therefore, relativity of legal arguments presented by states. These arguments may appear to the states themselves as objective representations of legal truths, i.e. in terms of analytical or normative legal theory, correct approximations to already valid legal norms This will usually have the corollary that, where disagreement arises, one or more states are taken to misrepresent legal truth and are therefore delinquent, and must be punished. Legal formalists, who are all foundationalists, tend to be rather violent people, always running to the Security Council, or around it, to enforce their legal representations on others. The non-foundationalist, who is as sceptical of himself as he is of others, must endeavour, in the present climate of international violence, to try to reassert the egalitarian priority of the inter-subjective as itself the only formal category with which to work. All legal argument will in fact be perspective driven, contingent to time and place, and, above all, relational, reactive, i.e., whether the parties are aware of it or not, dialectical. The non-foundational argument is anti-objectivist in the sense that it resists the search for a point of validity to resolve an argument, which is outside the parties themselves.
The difficulty with all of this for the formalist international lawyer is, quite simply, he does not see what it can mean to say that states could argue. Political scientists such as Raymond Aron may call states “cold monsters”, prone to quite glacial argument, but, for lawyers these entities have no personality at all in an anthropomorphic sense. This is why the first difficulty for both legal formalists generally, as well as for those who want to see a legal form to an international community, is how there can be any language of understanding, misunderstanding, recognition or mis-recognition in relations among states. How can one reach so far as a dialectic of clashing cultures among entities conceived by formalist lawyers as corporatist in character, and conceived by international constitutionalists as stepping-stones on the way to a world corporate entity? The corporatist way of thinking excludes any direct contact with the human elements, which make up the community behind the state.
The corporatist way of thinking about the state resolves the problem of political legitimacy through a theory of representation, which has its roots in various forms of contractarianism. All of these theories suppose that legitimacy arises through the consent of the individual and this can be supposed – here enters the mythical character of contractarianism – to be given because of an original contract whereby he can be taken to have consented to the institutional framework whereby he is politically represented. Political legitimacy will be the equivalent of legal validity. If decisions are taken by corporatively authorized representatives then they will be legally valid and binding. The formalist lawyer’s self-appointed task will be to assess whether decisions taken by supposed authorized representatives have been so taken. I say self-appointed task, because the most dominant theory of contractarianism applied by international lawyers is the Hobbsean variety, whereby the representor and represented are subsumed into one person, so that issues of invalid state actions, at least at the international level, are difficult to imagine. Of course, state representatives accuse one another readily, of having committed invalid and illegal acts, but as there is not yet a world state, a world corporate entity which could resolve the validity of these allegations, it is precisely this type of mutual abuse that states find so frustrating and leads them to behave violently towards one another. So, whatever limited function the international lawyer may have as an external relations lawyer, a branch of constitutional law, at the international level he has really almost nothing to do. Nonetheless his conceptual framework for approaching international legal personality bars him from more productive avenues, such as the development of international legal dialectic.
It is proposed here to reiterate this argument by means of a close reading of contemporary French doctrine on international law, also as French is the second language into which this article will be translated. While by no means every country follows French doctrine, it is sufficiently sophisticated, in terms of awareness of the background of political theory underlying international law, to be taken as a genuine challenge for my project. The French state as a corporate entity in the formalist legal imagination is incapable of recognising any internationally significant dialectic, because it is, at the internal, domestic level, unitary and uni-dimensional. This primary international law understanding of corporatism is Hobbsean. It requires a unity of the represented and the representative in the latter. The essence of the state as a subject is a single will, which projects itself externally. There is quite simply no place for inter-subjectivity within the state and inter-state meeting is confined to a formal convergence of wills which represents a thoroughly statically conceived fettering of otherwise sovereign state discretion. This Hobbsean approach recognises that at the international level, there is no world corporate entity.
