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Hobbes on the International Rule of Law

Published online by Cambridge University Press:  19 March 2014

David Dyzenhaus
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Extract

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.

Type
Roundtable: The International Rule of Law
Information
Ethics & International Affairs , Volume 28 , Issue 1 , Spring 2014 , pp. 53 - 64
Copyright
Copyright © Carnegie Council for Ethics in International Affairs 2014 

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References

NOTES

1 Hobbes, Thomas, Leviathan, ed. Tuck, Richard (Cambridge: Cambridge University Press, 1996)Google Scholar, p. 90.

2 Ibid., p. 221.

3 Ibid., ch. 18, especially pp. 128–29.

4 See Dyzenhaus, David, “Hobbes on the Authority of Law,” in Dyzenhaus, and Poole, Thomas, eds., Hobbes and the Law (Cambridge: Cambridge University Press, 2012)CrossRefGoogle Scholar, p. 186.

5 Fraenkel, Ernst, The Dual State: A Contribution to the Theory of Dictatorship (New York: Octagon Books, 1969)Google Scholar, first published 1941.

6 Schmitt, Carl, Political Theology: Four Chapters on the Concept of Sovereignty (Cambridge, Mass.: MIT Press, 1998)Google Scholar, revised edition of 1934, p. 5.

7 There is also a direct genealogical link between contemporary versions of realist international relations theory and Schmitt through the work of perhaps the most influential realist of the last century, Hans Morgenthau. See Scheuerman, William E., Morgenthau (Cambridge: Polity Press, 2009)Google Scholar. While Scheuerman shows that Morgenthau's engagement with Schmitt was complex, as was correspondingly his realism, he also suggests that Morgenthau's followers neglect the complexity and espouse a realism that is closer to Schmitt than to Morgenthau. Both Fraenkel and Morgenthau were protégés of the social democratic lawyer, and “father” of German labor law, Hugo Sinzheimer; see Scheuerman, pp. 12–14.

8 Kelsen, Hans, Peace Through Law (Chapel Hill, N.C.: University of North Carolina Press, 1944)Google Scholar, pp. 3–4.

9 Ibid.

10 Lauterpacht, Hersch, The Development of International Law by the International Court (London: Stevens & Sons Limited, 1958)Google Scholar.

11 Ibid., p. 158.

12 Hobbes, Leviathan, p. 191.

13 Ibid., pp. 102–103.

14 Kelsen made precisely this point when he argued that sovereignty is fully compatible with submission to the jurisdiction of an international tribunal. Judicial decisions, he said, are “objective and impartial,” and “not political decrees issued according to the principle, which is a negation of law, that might goes before right”; Kelsen, Peace Through Law, p. 48. He continued: “Even if the decision of an international tribunal does not constitute the strict application of a pre-existing legal rule, it is supposed to be founded on at least the idea of law—that is, on a rule which although not yet positive law, ought, according to the conviction of independent judges, to become law and which really becomes positive law for the case settled by the particular judicial decision. It is the submission to the law, to the law not as a system of unchangeable values, but as a body of slowly and steadily changing norms, which is not incompatible with the principle of sovereign equality since it is only this law that guarantees the co-existence of the States as sovereign and equal communities.” Ibid., pp. 48–49.

15 For a treatment of international law that elaborates this kind of theme, see Brunnée, Jutta and Toope, Stephen J., Legitimacy and Legality in International Law: An Interactional Account (Cambridge: Cambridge University Press, 2010)CrossRefGoogle Scholar.

16 Hobbes, Leviathan, p. 204.

17 Ibid.

18 Ibid., p. 244.

19 Ibid., p. 110.

20 Malcolm, Noel, “Hobbes's Theory of International Relations,” in Malcolm, , Aspects of Hobbes (Oxford: Clarendon Press, 2004), pp. 431, 455–56Google Scholar.

21 Hobbes, Leviathan, p. 102. Malcolm, “Hobbes's Theory of International Relations,” p. 438.

22 Malcolm, “Hobbes's Theory,” pp. 445–46.

23 Ibid., pp. 449–55.

24 Lauterpacht, Hersch, “Kelsen's Pure Science of Law,” in Jennings, W. I., ed., Modern Theories of Law (Oxford: Oxford University Press, 1933)Google Scholar, p. 105.