Imagining the Rule of Law: Rereading the Grotian ‘Tradition’

International law exists in the slippery zone between abstract speculation on binding principles and realistic deference to power. The position of Hugo Grotius as ‘father’ of international law, this article will suggest, results from the way later lawyers have appreciated his suggestion that when human beings enter that zone, they will discover a tendency to subordinate themselves to ‘rules’ that is lacking from other living creatures. Grotius then uses this assumed tendency to explain the trust and confidence with which members of good societies agree to live in peace and expect mutual benefits from cooperating with each other. The same tendency also entitles them to punish those who question the beneficial nature of these rules or lay down obstacles to their expansion. The importance of Grotius in the history of legal thought is highlighted by the manner in which the idea (though not the expression) of the ‘rule of law’ emerges in De iure belli ac pacis (1625) as a powerful justification of the government of a post-feudal, commercial state. 1 ‘Politics of International Law’: One Last Time In two earlier contributions to this journal, I discussed the role that international law plays in the international political world. In the first issue 30 years ago, I examined the old belief that recourse to law would take international actors away from the divisive and dangerous field of ‘politics’ and into the world of abstract and neutral rules to be applied by impartial courts and expert arbitrators.1 I tried to show that even as law did offer a specialist vocabulary and a set of institutions that would enable the translation of raw interests into the language of rules, the way those rules then operated remained still dependent on contestable (and often contested) assumptions about the world. This was not to say that international law was useless. On the contrary, its ‘indeterminacy’ – the way it did not contain substantive resolution applyparastyle "fig//caption/p[1]" parastyle "FigCapt" 1 ‘The Politics of International Law’, 1 European Journal of International Law (EJIL) (1990) 4. 18 EJIL 30 (2019), 17–52 within itself – enabled the activities of international actors to be assessed in a professionally competent way by reconciling the demands of practice with the ideals those actors trumpeted to the world at large. If, in the end, all depended on the ‘structural bias’ within that profession, this did not detract from its authority as long as the bias was understood by dominant actors in that community – in practice, elites – to be respectful of the way they had come to distinguish ‘law’ from mere ‘politics’. Legal competence was the ability to produce that equivalence. In providing it, law made historically specific relations of power seem natural and acceptable. In the update to that article that I was invited to publish in 2009, my goal was to say a little more about the operation of the linguistic techniques that accounted for the formal ‘grammar’ of competent law.2 I also focused on how ‘fragmentation’ had undermined the centrality of generalist bodies like the International Court of Justice and moved authoritative speech into functional ‘regimes’ that derived their persuasive power from a combination of technical complexity and commitment to substantive objectives. The ‘politics of international law’ would now express itself in the clash of specialist vocabularies – trade and environment, security and human rights, human rights and humanitarian law and so on. Political conflict had become a conflict of jurisdictions. This would often take place through ‘re-description’, the professional characterization of an aspect of the world in the language of a functional institution, enabling the institution to assume competence over that aspect. I expressed a worry about how those re-descriptions tended to move the relevant problems from the realm of political contestation. They became part of an increasingly managerialist approach to world problems. But I also suggested that the regimes actually remained quite openended – that they were, in fact, equally indeterminate as law – and, thus, opened strategic possibilities for engagement in the search for a more just world.3 These texts analysed the operations of law as language. Focus was on argumentative rules. How were contrasting principles ‘reconciled’, or rights ‘balanced’ against each other, so as to produce a feeling of closure? What about the rule/exception structure? How did arguments about ‘will’ turn into points about ‘behaviour’ and viceversa so as to produce a sympathetic nod from the audience? If this was ‘critical’, it was so to the extent that it revealed how, despite its formal nature, law still invited those engaged in it to operate with the help of concepts and frameworks that were not neutral in respect of their distributive consequences. This led me to examine how legal institutions developed their ‘structural bias’, the set of usually unarticulated assumptions about the world that enabled closure in an otherwise open world of argumentative possibility. The result of this two-pronged analysis – a discussion of the formal properties of the legal ‘grammar’ and a study of its uses within international institutions – was an exposé of the ‘politics of international law’, a demonstration of how authoritative speech was generated in international legal institutions. The exposé 2 ‘The Politics of International Law: Twenty Years Later’, 20 EJIL (2009) 7. 3 This was further elaborated in my ‘Hegemonic Regimes’, in M. Young (ed.), Regime Interaction in International Law: Facing Fragmentation (2011) 305. Imagining the Rule of Law 19 was intended also to suggest ways in which students and practitioners who wanted to make an impact in the world, by attacking or supporting a position, were to go about that task in a professionally competent way. Since that time, much of my work has become historical. I have wanted to examine the ways in which types of legal speech have become authoritative, have operated to support or critique powerful institutions and have eventually lost to competing vocabularies. If the older work was mostly analytical, the newer studies tried to understand how legal concepts have operated in response to developments in the political world – how, for instance, law once replaced theology as a form of authoritative speech and economics took over from law.4 Both lines of enquiry focused on (not to say, were obsessed by) international law’s relationship to international power. The analytical work asked questions such as ‘how does “customary law” operate?’ and ‘what are the strengths and weaknesses of argument on “human rights”, “humanitarian intervention” or “the definition of aggression”?’. The newer studies examined the life and times of ‘discursive formations’ with significant legal content such as ‘Spanish scholasticism’, ‘the public law of Europe’ or ‘ius naturae et gentium’ and, of course, ‘international law’ tout court.5 What did they mean? How did they emerge? What institutions were they associated with? What understandings of the world did they project? What were their strengths and weaknesses? There are many ways to write about the history of international law. Older histories were often composed as exercises in providential or ‘Whig’ history that told the story of international law as increasing institutional maturation and specialization of a ‘tradition’ going back to the formation of modern statehood and diplomacy, perhaps even into Greco-Roman antiquity. These studies were frequently inspired by a moral commitment to international law as a progressive force. Other histories have preferred to describe international law as an element in the unending struggle for power in a world history where imperial ‘epochs’ have followed each other in more or less monotonous succession. The tenor of these works has been more detached, even critical. Alongside linear or circular narratives, works with more limited ambition have focused on particular legal institutions such as ‘just war’ or more technical items such as ‘freedom of the high seas’, ‘diplomatic immunity’ or ‘investment law’. Many histories have concentrated on individual lawyers or moments; the interwar period being a recent favourite. Many have been written from a post-colonial angle.6 4 I have explained this in more detail in ‘Law of Nations and the Conflict of the Faculties’, 8 History of the Present: A Journal of Critical History (2018) 4. 5 The idea of ‘discursive formation’ comes, of course, from M. Foucault, The Archaeology of Knowledge (1972). While it is common to separate in Foucault’s career distinct ‘archaeological’ and ‘genealogical’ phases, I have read it as a much more continuously vacillating set of insights into the formation and operation of types of European knowledge as forms of European power. Like many others, in seeking inspiration, I find myself constantly coming back to all aspects of Foucault’s work. 6 I have discussed these in ‘A History of International Law Histories’, in B. Fassbender and A. Peters (eds), The Oxford Handbook of the History of International Law (2012) 943. 20 EJIL 30 (2019), 17–52 These debates have sometimes taken a methodological direction. Attention has been given to questions about ‘anachronism’ and the context.7 To what extent is it allowed to read a past text, a lawyer, period or institution by reference to considerations that are important today but were not present (in the same form) at that earlier moment? Is legal meaning imprisoned in context or does it travel in time? And what is ‘context’ in the first place? While such methodological strictures have their uses, the choices they present are sometimes overly Manichean. All significant history is inspired by contemporary concerns and carried out through the lenses provided by the present. All good history also seeks to understand its object, to the extent it can, by reference to the condi