Hobbes on the International Rule of Law

| March 2014
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Perhaps the most influential passage on the rule of law in international law comes from chapter 13 of Thomas Hobbes’s Leviathan. In the course of describing the miserable condition of mankind in the state of nature, Hobbes remarks to readers who might be skeptical that such a state ever existed that they need only look to international relations—the relations between independent states—to observe one:

But though there had never been any time, wherein particular men were in a condition of warre one against another; yet in all times, Kings, and Persons of Soveraigne authority, because of their Independency, are in continuall jealousies, and in the state and posture of Gladiators; having their weapons pointing, and their eyes fixed on one another; that is, their Forts, Garrisons, and Guns upon the Frontiers of their Kingdomes; and continuall Spyes upon their neighbours; which is a posture of War.

The passage is influential because realists take Hobbes not only to be describing international relations but also making a statement about what international relations should be—an arena in which individual states relentlessly pursue goals that they take to serve their particular interests. It has to be that way, on the view traditionally attributed to Hobbes, because the conditions that make the rule of law possible within a state—namely, an absolute sovereign with a monopoly on the power to make, enforce, and interpret the law—are so conspicuously lacking in the international arena.

Hobbes’s view that these three functions have to be united in one person or body to avoid chaos has been rejected for some time. But even if one supposes that an effective rule of law requires a separation of powers between the legislature, the executive, and the judiciary, that separation occurs within a unified state in which there is some ultimate locus for each function; and no plausible equivalent exists and is likely ever to come into existence in the international arena. And yet international law exists, and critics of realism can point to examples of compliance by states with international law where such compliance seems plausibly to be against state interest. Hence, these critics argue, since international law constrains the power of sovereign states, there is an international rule of law, even though the international legal order lacks the institutional framework that we consider essential for the rule of law within states.

However, this argument from actual examples is problematic because the practice of state compliance with international law is not that easily demonstrated to be the product of legal constraint. Indeed, the problem goes beyond international law since the practice whereby a state generally complies with its own domestic law is hardly different in this respect, as I will show in the next section. But, as I will also try to show, this phenomenon does not so much demonstrate the truth of realism as that the ultimate questions in debates between realists and their critics are normative questions about how best to construct practice, and not only questions about how best to describe it. To think that Hobbes, to take just one prominent example, was providing only a description of state practice in the quotation above is to misunderstand what question he was asking when he inquired into whether the rule of law is possible, in domestic affairs or on the international level.

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Category: Issue 28.1, Roundtable: The International Rule of Law

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  1. Dom says:

    International Law as it is described in the UN charter, only works against individual state’s interests when that specific state’s interests go against the whole international community who have cosigned the Charter. Therefore the individual sate becomes lawless or rouge to the international community, just like an individual inside the state who goes rouge.

    Rules of law within the state are almost never constructed by the whole of the community, but only by a few members of those communities, and thereafter are amended and altered even by fewer members later on. Therefore rules within a state are a far cry from the real Social Contract and that is why it is easier to uphold those rules.

    Rules of Law in the interstate concept, truly can only be practical when actual Social Contract is implemented, and upheld by international military or police, where every state agrees on these rules.
    Of course United States sees International Law as a hindrance to it’s progress because it exploits and manipulates weaker states in order to grow. If United States existed within its own means, it wouldnt have to break or bypass the international law. If United States didnt break international law and allowed due process to proceed in case of a conflict, the international law would’ve been much easier to maintain and uphold.But in most cases United States creates these conflicts in its own interests instead of helping the UN to deescalate them. Theres simply no argument to refute this fact.