The Moral Responsibility of Rulers
Going Back Beyond the Liberal Rule of Law for World Order
Anthony Carty and Janne Nijman
1. General Introduction*
1.1 Introduction
It is a generally accepted idea in contemporary international legal scholarship that to think about an international rule of law is a liberal project, the ‘sole thinkable principle of organization’ for the modern international system. Martti Koskenniemi opened his seminal article ‘The Politics of International Law’ with the observation that [s]ince the publication of Emmerich de Vattel’s Droit des gens ou principes de la loi naturelle appliquées à la conduite et aux affaires des nations et des souverains (1758), jurists have written about international matters by assuming that the liberal principles of the Enlightenment and their logical corollary, the Rule of Law, could be extended to apply in the organization of international society just as they had been used in the domestic one.1
He captures well the general understanding of the international rule of law in contemporary international scholarship. Underlying this common understanding of an international rule of law is the analogy with a liberal domestic society and the idea that it is a thoroughly modern legal concept. Both that analogy and the reduction of the rule of law idea to a project of European modernity deprive the international rule of law of a history of its own, as it is understood as merely a part of the liberal model for international society. We take issue with these two underpinnings. First, extending the liberal model from the domestic to the international society is highly problematic as it reifies a fundamental misunderstanding of the nature of international society.2 It transposes a constitutional set-up claiming the primacy of law over politics to
* The presentation of the chapters in the Contents follows roughly an historical chronology, firstly in the history of ideas, and then in the state practice. It consists of reflections of the editors which are not necessarily shared by the individual authors, and which are certainly less rich.
1 M Koskenniemi, ‘The Politics of International Law’ (1990) 1 EJIL 4.
2 See H Morgenthau, Scientific Man and Power Politics (Chicago UP 1946); see also the conclusion to Chapter 6 in this volume (on Richelieu).
The Moral Responsibility of Rulers: Going Back Beyond the Liberal Rule of Law for World Order. Anthony Carty and Janne Nijman. © Anthony Carty and Janne Nijman, 2018. Published 2018 by Oxford University Press.
the international level. It supposes moreover that most disputes are comparable to private law disputes—hence Hersch Lauterpacht’s famous private law analogy and international law—and that a professional judiciary is in place to settle disputes. Morgenthau argues that liberal internationalists take judicial settlement out of the context of democratic constitutionalism where individuals are equal in strength or weakness before the law, into an international context where States are not remotely equal and have much less clearly defined rights and interests. Additionally, they cannot usually be compelled by international sanctions.3 Morgenthau prefers to approach international disputes with a theory of prudence and moral judgement by statesmen, which entails recognition of the complexity of the usual disputes. ‘The choice is not between legality and illegality but between political wisdom and political stupidity.’4 To enforce the liberal internationalist principles of international law without relying on prudence and moral judgement—thus denying the political dimension—risks producing chaos rather than peace and justice.5 In short, the liberal internationalist analogy between the national and international society is unhelpful.
Second, to present rule of law for world order ideas as by definition modern ideas— ‘modern’ in the Hobbesian variant of ‘liberal’—that have developed as a response to the premodern tradition of natural jurisprudence and its subjectivism, is flawed too. This is so because the history of rule of law thinking is much older: in Europe, ever since Greek and Roman antiquity the idea of a rule of law is part of the law-as-justice discourse. While in China the liberal conception of rule of law may be non-existent, ethical thinking about guiding and constraining the power of the emperor dates back even longer. Also, this identification of the rule of law with liberal modernity has in the theory of international law represented by Koskenniemi, cited above, entrapped international law and the rule of law idea in particular in Hobbesian ontology, sociology, and politics.6 Whence it leaves no room for law grounded on and creating a space for rational argumentation and moral judgement, no room for politics within law as practical reason, within a space of ‘rule of law as justice’. It also leaves no escape from politics as the ‘furthering [of] subjective desires’ pure and simple.7
This volume engages with these two interrelated, in our understanding fundamental, misconceptions. The liberal, domestic society-bred, rule of law model cannot simply be transposed to today’s international society and ‘rule of law for world order’—thinking does not start with Hobbes, nor is it by definition modern/liberal of the Hobbesian persuasion. While this interpretation has come to dominate the discipline, and therefore the choice of Koskenniemi, who most adroitly captures the spirit of this harsher humanism, the present volume is a first attempt to break free. As such, it is both a historical and a modestly philosophical project. In section 1.2, we will briefly pause at the
3 See Morgenthau (n 2) 108–21. 4 ibid 120.
5 cf Morgenthau’s position against the Vietnam War early on (NYT Magazine 1965 ‘We are deluding ourselves in Vietnam’).
6 See in particular Koskenniemi (n 1).
7 Koskenniemi (n 1) 5; A Carty, review of M Koskenniemi, The Politics of International Law (Hart 2011) (2012) 13(2) Melbourne Journal of International Law 1–20. There are more optimistic versions of the possibility of rationality in modern liberal theories of the rule of law, above all J Habermas, Between Facts and Norm, Contributions to a Discourse of Law and Democracy (W Rehg tr, MIT Press 1996).
dual identity of this volume. Section 2 then introduces the alternative intellectual history of early-modern European thought as carved out in this volume, section 4 does the same for the intellectual history of Chinese thought. Section 3 is an interlude to bridge sections 2 and 4. In section 5 we allow ourselves some philosophical reflections inspired by the intellectual histories narrated in this volume. Ultimately, ‘going back beyond the liberal rule of law for world order’ means that this volume engages in a revisit of natural law jurisprudence. That tradition takes a good look at human nature and when formulating standards of morality, which are considered relevant to (international) law, and it conceives of law as justice, that is, it includes a space for ethics, for moral judgement. Hence, it is likely that the philosophical part of our project—the going back beyond modern liberal internationalism—will encounter critiques that are commonly directed against classical natural law theories. These will probably be critical of the hegemonic nature of ‘universality’, the subjectivity of ‘right reason’ and justice, and the impossibility of objective values. These considerations will be confronted in section 5; here we will build primarily on the historical inquiry we have undertaken, which explains the turn to ius gentium et naturae as a counter-hegemonic force, that is, as a turn to law as justice constituting a source of morality for standards of governance. Hence, rule of law as justice provides a source to draw on for rulers when making moral judgements and a source for the ruled when contesting the authority that binds them.
1.2 A dual project: history and philosophy of international law
The present volume aims to offer a two-step critique of the liberal understanding of the idea of a rule of law for world order that dominates international law and international legal thought. It carves out an alternative history of rule of law for world order thinking—‘rule of law as justice’—and on the basis of this ‘turn to history’8 it means to point to a philosophical way out.
In the dominant liberal internationalist version, the rule of law is understood to be based upon the consent of the absolutely free and sovereign agent, upon the latter’s willingness to follow consensual, agreed procedures to resolve disputes and, more generally, upon a willingness to engage in negotiations in good faith, especially by providing reasoned justifications for one’s viewpoint. Liberal internationalism rejects the idea of a system of objective values inherent either in human nature or in a natural world order of Being. On the contrary, it depreciates values and natural principles (of justice) as subjective and highly political, and it puts forward the idea of a very thin international rule of law—ie minimal obligations of States to each other coupled with rather thick obligations of the State towards itself, grounded in an expansionist conception of freedom—as the modern way.
8 See also eg M Koskenniemi, ‘Why History of International Law Today’ (2004) 4 Rechtsgeschichte 61–66; A Kemmerer, ‘Turning Aside: On International Law and Its History’ in R Miller and R Bratspies (eds), Progress in International Law (Martinus Nijhoff 2008) 71–93; T Skouteris, ‘Engaging History in International Law’ in J Beneyto and D Kennedy (eds), New Approaches to International Law (T.M.C. Asser 2012) 99–122, 103; G Galindo, ‘Martti Koskenniemi and the Historiographical Turn in International Law’ (2005) 16 EJIL 539–59; M Craven, ‘Theorising the Turn to History in International Law’ in A Orford and F Hoffmann (eds), The Oxford Handbook of the Theory of International Law (OUP 2016) 21–37.
The liberal rule of law idea came to replace and suppress natural law and justice in international law and international legal thought in (early) modernity. With its appropriation by the liberal tradition the idea was cut off radically from a very long and rich tradition in which, for example, Aristotle and Cicero had defined rule of law, especially in the context of relations among nations, in terms of the ‘rule of reason’9 and the rule of natural law.10
As a history project, this volume first turns to early-modern European thought to reconnect to a non-liberal history of the law of nations. While this going back to history may be understood as a critical move emerging from both historiographical dissatisfaction with how the history of the rule of law idea is constructed and political dissatisfaction with the continuous reproduction of liberal internationalist international law and politics, the intellectual history that is carved out in this volume is a true history project in itself, and relevant as such. It aims to unearth alternative understandings of ius gentium et naturae and rule of law for world order in early-modern European thought; understandings that have been marginalized by the domination of liberal international thought since Hobbes.
The volume sets out to do this without having defined the rule of law idea beforehand, recognizing the multiplicity of its meanings. As the rule of law is an essentially contested concept, authors and editors discern the concept or idea to operate rather as a jurist’s sensibility about the relationship between law and politics, about speaking truth to power, about constraining force and power, about subjecting rulers to standards of a higher normative order (generally rooted in natural law) prescribing them to act responsibly, virtuously, justly, and non-arbitrarily, to the benefit of the people and the common good. In short, our history project on the rule of law idea is neither an essentialist nor a nominalist project.
In Part I ‘Law and Justice in Early-Modern European Thought on World Order’ the historiographical focus is on how, in the context of the gradual shift from a medieval to a modern Europe, from an empire to sovereign States, the quest for good government and accountability of (newly emerging) sovereign rulers causes earlymodern European scholars to turn to ius gentium et naturae in lieu of the dominus mundi system of emperor and pope, as the higher normative structure to ground, guide, and constrain the conduct of the newly emerging rulers of Europe both within and without the State. It shows how timely rule of law concerns—loosely defined as they may have been—then contributed to the development of the idea of an international or universal rule of law and to the development of the law of nations and nature as such. Indeed, it is a history of the law of nations as a higher public law of nature rather than as a model of private law such as in Hobbesian or liberal contractarianism. As such, we explore the ‘rule of law’-driven, early-modern turn to ius gentium et naturae as an important counter-hegemonic contribution to the development of the law of nations relevant to international jurisprudence today. The turn to ius gentium et naturae as a body of norms to hold rulers to account for their conduct within and
9 Aristotle, The Nicomachean Ethics, Book V.
10 Cicero, The Laws, Book II. 13. See also BZ Tamanaha, On the Rule of Law History, Politics, Theory (CUP 2004) 11.
without their State made by many early-modern scholars spurred the development of international law and international legal thought. Of course, this turn also served to justify colonialization and extra-European war and trade. The latter move was a hegemonic one that minimalized the normative power of ius gentium by redefining natural law as natural rights. The former move may be taken as counter-hegemonic in that it sought a ‘symbiotic relationship’ for ius gentium as universal natural law and justice, so as to make sure ius gentium would be normatively substantive enough to fulfil its role as a standard to identify rulers’ responsibilities and hold them to account. That is, for the authors of Part I ius gentium has a ‘rule of law as substantive justice’ role, a morally thick or material rule of law.
In Part II our second main historiographical objective unfolds. That is to put these early-modern European ideas into a cross-cultural dialogue with Chinese thought in order to explore anew the foundations for world order today, or at least possible ideational bridges for Europe–China relations. Obviously, both traditions of thought are internally hugely diverse as well as contested. Another element complicating such intercultural dialogue is the fact that the international rule of law is generally understood as a Western project. Indeed, in as far as the idea of a rule of law is linked to the modern State its origins are European, developed within the European discourse. To unpack this understanding above all brings out the particular liberal conception of the (international) rule of law that has come to dominate. This recognized, our first historiographical objective is just that: freeing rule of law for world order thinking from its liberal entrapment and giving it back its ‘law as justice’ roots so as to make it available for our second historiographical objective, that is the cross-cultural dialogue on pluralist international order. This dialogue comes with the realization that the different cultural understandings of international order and law (as morality, justice or ethics) are not so incommensurable as they are often argued to be.
Section 4 of this chapter explicates the intellectual history as developed in Part II of this volume. It brings to the fore how for centuries the Chinese official ethic was taken to be Confucianism.11 Confucian thought has several key characteristics, which may amount to an idea of universal order. It is founded on the idea of a universal empire that is all-embracing and indivisible. Thus, there can be neither rivalry nor equality between individuals and States. Hence, a direct comparison with ius gentium raises many difficulties. The system of Confucianism proceeded from China as the centre of the world, with others submitted to its greatness in a hierarchical structure. The Tianxia or emperor placed himself at the top of the world order. At the end of the day the system was ethically rather than legally grounded. This way of thinking is sharply opposed to either a Hobbesian or Vattellian model of (sovereign) equality and appears to attach to China a dangerous ideological tool. This said, the Confucian system of thinking in late-imperial China (1644–1911) imposes considerable restraints upon the conduct of the emperor and includes the idea of a scholar class imbued with the Confucian ethic to advise on responsible
11 As Henan Hu explains in Chapter 13 this is usually what is regarded as traditional Chinese thinking.
government. The hierarchical social structure also requires moral quality of the emperor to be supreme, his rule is a rule of leading by moral example. A Chinese way of thinking generally more agreeable to the West is the Daoism of Lao Zi. Daoism envisaged a metaphysical order above independent States in the Warring States and the Spring and Autumn periods. This is a primordial theory of law resting on an ontology of the Unnameable, which exists before the coming into being of Heaven and Earth. Unlike the compelling example of Confucian benevolence, the Lao Zi Daoist inspires through restraint and through opening space for others. It has as a government model the self-restraining ruler, and is inherently anti-hegemonic.
Studying both European and Chinese thought within the context of a single volume on morally responsible rulers, no matter how difficult, does provide us with the first leads for further transcultural dialogue about good government, ‘rule of law’ conceptions, the limits of (international) law, and the need for ethics and political wisdom within the context of international law. A major belief of our work is, in any case, that international law is underdetermined and thus there is always a need for ethical judgement. Our historical project aims to uncover within both Eastern and Western traditions of thought pockets of softer humanism that may assist us in going back beyond a Hobbesian international order.
2. An Intellectual History of European
‘Law of Nations and Nature’ (Part I of this Book)
2.1 A tradition of northern humanism
In what became a seminal book, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant, Richard Tuck examines ‘the relationship between the modern, liberal political theories of the seventeenth century—the theories which rested on the concept of natural rights and the humanist political theories of the previous century’.12 With his account of this relationship, he sets out a history of modern political and legal thought, centred crucially around Hobbes,13 that grounds international order on autonomous agents and individuality expressed in rights language and that identifies (early-) modern international thought as liberal to its core.
While we take no issue with Tuck’s critique of liberal internationalist thought and its—ultimately—predatory nature, nor with his argument that the modern, liberal tradition defined international law into a very thin, sovereign rights (and entitlement) based legal order developed largely to justify conquest and colonization beyond Europe, we do call into question Tuck’s reductionist reading of early-modern
12 R Tuck, The Rights of War and Peace (OUP 1999) 1.
13 See for earlier contributions to the standard account of Hobbes’s political and moral theory, eg Th Nagel, ‘Hobbes’ Concept of Obligation’ (1959) 68(1) Philosophical Review 68–83; D Gauthier, The Logic of Leviathan. The Moral and Political Theory of Thomas Hobbes (1969); JWN Watkins, The Hobbes’s System of Ideas Ideas (2nd edn, Hutchinson University Library 1973); J Hampton, Hobbes and the Social Contract Tradition (1986).
European humanism—which we argue was crucially ambiguous and diverse. There are various humanist traditions to take into account when reading the early-modern natural law theorists (such as Grotius), which one has to recognize lest their theories on the law of nations and nature might be misunderstood.14
Tuck’s interpretation of Hugo Grotius is a case in point. This interpretation amounts to a proto-Hobbesian reading that centres around Grotius’s redefinition of natural law as individual natural rights and that marginalizes the concept of natural law as ‘law as justice’ in Grotius’s thought. It builds on a reductionist reading of sixteenth-century humanism as a single monolithic tradition of harsh Italian humanist war jurisprudence and Ragion di Stato theory, which then would have come to define seventeenth-century natural law jurisprudence as natural rights theory. Understanding Italian humanist war jurisprudence as ‘the humanist view of international relations’,15 or assuming one school of thought to be the Renaissance humanist anthropology and world view, overlooks the richness and crucial ambiguity of early-modern humanism. Underlying the historical inquiries in this volume, however, is a recognition of the multiplicity of early-modern humanisms in general and the distinctiveness of northern humanism in particular. This is crucial since it does not provide egoism and self-interest as grounding notions for the law of nature and nations yet sociability and the human capacities to reason, will freely, and care. The European tradition of northern humanism defies Tuck’s dichotomy between late scholasticism and early-modern humanism crucially on this anthropological unpinning of law and legal thought.16 Both late scholasticism and early-modern humanism draw on an imago Dei anthropology, conceiving of humans as rational animals with an innate, metaphysical telos, endowed with intrinsic dignity, worth, and power.17 Compared to, for example, contemporary reformer Martin Luther, Erasmus minimized the effects of the Fall on humans as imago Dei, thus staying closer to the official Thomist line of the Church.18 The imago Dei doctrine within early-modern humanism counterbalanced the Renaissance emphasis on the exploration and cultivation of human individuality with an inherent value and dignity shared by all—a shared humanity. Given that all humans are created in imagine Dei, there is an ontological basis for the idea of a universally shared humanity and thus for an anthropology with seemingly more faith in human (spiritual) potential than
14 See also eg B Kingsbury and B Straumann, ‘State of Nature versus Commercial Sociability as the Basis of International Law’ in S Besson and J Tasioulas (eds), Philosophy of International Law (OUP 2010) 31–52.
15 Tuck (n 12) 9.
16 Erasmus’s hostility towards (Parisian) scholasticism and vice versa has been exaggerated—see MA Gillespie, The Theological Origins of Modernity (Chicago UP 2008) 95–96ff. See for Quentin Skinner’s qualification of the opposition of humanism and scholasticism for example Q Skinner, The Foundations of Modern Political Thought, Vol 1 The Renaissance (CUP 1978) 82, 104.
17 See for the nominalist movement, which denied humans the capacity to understand the world through reason—as it is only particulars without universals—as well as the metaphysical telos inherent in their nature, against scholasticism, Gillespie (n 16) 14–15, 92.
18 JE Nijman, ‘Grotius’ Imago Dei Anthropology: Grounding Ius Naturae et Gentium’ in M Koskenniemi, M Garcia-Salmones, and P Amoroso (eds), International Law and Religion (OUP 2017).
its liberal counterpart, which arguably had been informed more by the harsh individualism and Machiavellian opportunism of Italian humanism.19
With Machiavelli and Erasmus, to stage them as protagonists, Italian and northern humanism developed distinctive responses to the challenge of reconciling Christian piety and virtues with Roman ideas about glory and martial virtues.20 Notably, northern humanism focused on the morality and piety of the ruler rather than on his or her martial virtues.
Humanism generally downplayed the effects of the Fall and rather than emphasizing the corruption of human nature, creation in imagine Dei enabled emphasis on human dignity; in the context of Italian humanism this led to a human’s quasidivine status as co-creator of the world.21 Thanks to being imago Dei human’s rational nature—self-examination could contribute to self-creation, self-mastery, moral self-improvement, and therewith to understanding and realizing one’s telos.
For Machiavelli however this telos did not direct ultimately to God, that is, the common good, but to one’s ‘own good, and it is good that is always enjoyed at the expense of others’.22 In Machiavellian humanism, humans are self-interested, and vicious in their pursuit of their own good and glory; the world is ‘governed by sin’ with all the consequences for social and political life and thus for government. Those who govern are virtuous as they are the legislator and make and maintain ‘a well-regulated state’.23 This may require ‘evil’, but this does not affect their virtuous rule (virtu). In short, Machiavellian humanism ‘emphasize[d] martial virtues of the Romans and deemphasize[d] or abandon[ed] both Christian piety and Platonism’.24 ‘Machiavellian humanism is both heroic and tragic [ . . . ] [It] offers a sorry solace to those who seek peace and stability, and only the slightest hope to those who long for glory or hope for wisdom.’25
In northern humanism, human nature is conceived as rational, predisposed to virtue, directed towards the common good, towards God, and assigned to participate inherently in the universal order of love. The classical idea of humanitas as vir humanus is ‘subsume[d] under’ the imago Dei anthropology and therewith the northern humanist political agenda could rest on moral formation and spiritual self-perfection rather than on predatory self-preservation and heroisms.26 Northern humanism is a holistic moral renaissance of humanity (as imago Dei). Compared to Italian humanism, which shows some affinity to medieval nominalism, northern
19 See eg Tuck (n 12); Gillespie (n 16).
20 See eg on the contrast between Machiavelli and Erasmus and the difference in content between Italian and northern humanism, Gillespie (n 16); J IJsewijn, ‘The Coming of Humanism to the Low Countries’ in PO Kristeller, Th Brady, and H Oberman (eds), Itinerarium Italicum. The Profile of the Italian Renaissance in the Mirror of Its European Transformations (Brill 1975), 276; B Bradshaw, ‘Transalpine Humanism’, in JH Burns (ed), The Cambridge History of Political Thought 1450–1700 (CUP 1991); JD Tracy, The Politics of Erasmus: A Pacifist Intellectual and His Political Milieu (University of Toronto Press, 1978); H Lutz, Ragione di stato und christliche Staatsethik im 16. Jahrhundert (Aschendorffsche Verlagsbuchhandlung 1961); RT Adams, The Better Part of Valor: More, Erasmus, Colet, and Vives, on Humanism, War, and Peace, 1496–1535 (University of Washington Press 1962).
21 Gillespie (n 16), forecasting the seventeenth-century liberal conceptions of dominium.
22 ibid 92 (emphasis ours). 23 ibid 91. 24 ibid 88. 25 ibid 92.
26 Bradshaw (n 20) 103–08; hence the mirror-of-princes literature or wisdom literature more generally.
humanism is still closer to the rational and universal of the Thomist tradition of natural law.27 Be it that northern humanism emphasizes less the imago dei capacities of intellect and will and more the spiritual capacity to care—the Christian virtues of caritas and pietas. 28 Erasmus is celebrated for his reconciliation of Renaissance humanitas and Christian pietas and for his identification of the moral teachings of the Greek and Roman philosophers with Christian charity.29 His humanism absorbed elements of the Netherlands movement of devotio moderna and centred on the humanity of Jesus and Christ’s philosophy, that is, joined together, on the capacity of human beings to imitate Christ in his piety, morality, and justice (the Imitatio Christi). Hence, his humanist educational programme for all—clerics and laypeople, princes and subjects—was tailored to reform, pacifism, and the general promotion of moral action.30 The capacity of language was no guarantee for the promotion of the common good, it could easily be applied to promote self-interest at the expense of the former. (The parallel with international law (as language) is easily made.) So, for Erasmus and other northern humanists, it all came down to (spiritual) self-perfection through the imitation of Christ’s caritas his charity or caring— and the human moral autonomy and responsibility to judge good from bad, virtue from vice. In short, this humanism was a turn inwards rather than an expansionist turn outwards. A turn from which we took inspiration in section 5.
The writings of northern humanists like Erasmus and More were socially and politically progressive; critical of Augustinian voluntarism and anthropological pessimism. Faith in the human capacity for self-perfection could bring to bear political reform or renaissance of both the domestic and ‘international’ sociopolitical order. Their critique of the elites aimed to end the latter’s arbitrary, morally corrupt, and self-serving rule.31 Rather than Ragion di Stato as the basis for a politics of glory and aggrandizement (national and international) and a warrior ethos, the northern humanist agenda aimed to establish a justly governed respublica with self-reflective, wise, and morally responsible rulers, who focus on the public good and public welfare—the commonwealth—and who are peacemakers on the international plane.32 It is a ‘conception of government as directed by reason and virtue to the goal of respublica, the commonwealth’.33 Government is not premised on a pessimistic view of human nature, as merely in need of coercion and punishment. It relies also on moral–political education, ethical rule, social justice, the emancipation of the populus, and constitutional organization to subject power to morality and law.34 Similarly at the international level, northern humanists speculate about a rule of natural reason and virtue in the interest of the commonwealth—‘international relations are conducted on the basis of natural justice, not cynical opportunism’.35 In Education of Christian Prince, Erasmus advocates ‘government by consent and
27 Bradshaw (n 20); Ch Trinkaus, ‘In Our Image and Likeness’, Humanity and Divinity in Italian Humanist Thought (Chicago UP 1970).
28 Bradshaw (n 20); Trinkaus (n 27).
29 Gillespie (n 16) 95, 99; Bradshaw (n 20); Trinkaus (n 27).
30 Gillespie (n 16) 96–98. 31 Bradshaw (n 20) 118. 32 ibid 104–06, 118, 127.
33 ibid 115. 34 ibid 125–31 35 ibid 119–24, 109–13.
under the law; political liberty based on a common humanity; the heinousness of political corruption and tyranny’.36 Erasmus argues good government should come from a spiritually and morally well-educated prince, who cultivates virtue and thus is able to make morally responsible and caring (benevolent) judgements—deciding on behalf of the people. A wise ruler never digresses into oppression, yet aims to serve the communal good. Nor is he after territorial expansion. Wise rulers maintain peaceful relations with their neighbours, so as to prevent their people from being subjected to the burdens of war.37
Factoring in this softer, northern, or Erasmian humanism is particularly relevant to understanding the international thought of early-modern jurists such as Budé, Grotius, and Leibniz.38 Part I thus presents interpretations of for example Vitoria, Grotius, and Selden that differ from the interpretations found in liberal international legal history. Taking into consideration northern humanism is moreover crucial in the context of the intercultural dialogue we envisage in this volume. It brings common ground because of a traditionally similar appreciation in the East of the cultivation of moral virtue, the desire to do good (benevolent or charitable) and right to others, over military or martial virtues with its focus on glory and (territorial) expansion.
While a reductionist reading of humanism supports an account of the development of a ‘thin’ international—moral and legal—order in the context of European expansion and emerging capitalism and therewith a conceptual history of the liberal international rule of law idea, it glosses over alternative understandings of international order, such as inter alia Grotius’s or Leibniz’s, in which ius as objective law and justice is foundational. It contributes moreover to closing off alternative histories of rule of law thinking in which a rule of ius gentium does not purport primarily or exclusively to ground individual liberty and natural rights. Instead—as it draws on early-modern natural law thinking that deals with universal natural justice, virtues, and the (moral) responsibility of rulers—it purports to a morally ‘thicker’ conception of international order. It is a rule of law that draws on the communal and intersubjective dimensions of society and human nature rather than on an everpresent fear of the other, corrupting judgement.
2.2 Episodes of an intellectual history: turning to ius gentium et naturae as a moral standard for critique and contestation
The history of international legal thought as developed in Part I is narrated largely as an intellectual history centred around individual jurists and their context; together the episodes provide, however, a European history of ius gentium et naturae in general
36 ibid 126.
37 Erasmus: The Education of a Christian Prince with the Panegyric for Archduke Philip of Austria (L Jardine ed, CUP 1997) vi–xxiv.
38 JE Nijman, ‘Images of Grotius, or the International Rule of Law beyond Historiographical Oscillation’ (2015) 17(1) Journal of the History of International Law 83–137; JE Nijman, ‘Grotius’ Imago Dei Anthropology: Grounding Ius Naturae et Gentium’ in M Koskennimi, M Garcia-Salmones, and P Amoroso (eds), International Law and Religion (OUP 2017) 87–110.
and of the idea of a ‘rule of law as justice’ in particular, spanning the fourteenth to the early eighteenth century. Going back beyond the liberal rule of law means we pick up the history of ‘rule of law for world order’ thinking in Renaissance Italy with its debate on universal and territorial sovereignty and its frictions between wellestablished vertical and emerging horizontal power relations. In short, the transition from the medieval to the (early) modern.39
In Chapter 1 of Part I, Joseph Canning argues carefully that late medieval jurisprudence of Roman and canon law has ‘provided the origins of European notions of a universal rule of law in two senses: a legal order of universal extent and a structure of objective higher legal norms of universal application’ (p 00). Obviously—Canning stresses—Italian late medieval jurists did not have a concept of inter-national law yet, ‘[t]he foundational presupposition . . . was that there was a universal rule of law, in that there were two universal authorities in one legal world with generally accepted norms—the Roman emperor and the pope’ (p 00). That is, Italian late medieval jurists worked to develop a rule of law established by actual universal authorities and drawing on many different legal sources. Canning examines this ‘foundational presupposition’ in four areas of medieval jurisprudence (universal and territorial sovereignty in public law, private international law, general principles, and just war theory). The emerging Italian sovereigns met the emperor’s claim to universal sovereignty increasingly with ‘non-recognition’ and challenged the old, medieval, ‘universal rule of law’.
Canning shows how late mediaeval jurists such as Bartolus and Baldus turn to ius gentium that is, the law that is the product of natural reason—to argue the de facto independence of kingdoms and city-republics,40 while Neapolitan jurists like Caramanico and Oldradus used ius gentium to justify their de jure independence from the emperor. Through this turn to ius gentium the jurists gained access to another source of law—ie natural law or reason. They could thus derive from ius gentium a people’s right to self-government and argue the need for territorial sovereignty. Ius gentium here is the body of law used to contest the emperor’s universal sovereignty. Understanding ius gentium to guarantee the de facto and/or de jure independence of emerging States vis à vis the emperor amounts to understanding ius gentium as a structure of objective higher legal norms derived from natural reason. Sovereign rulers were breaking free from the old rule of law—the medieval system of emperor and pope—and a new rule of law announced itself: by the end of the Middle Ages, European rulers were understood to be subjected to, and thus had to govern in accordance with, the higher legal norms and principles of ius divine, ius naturale and ius gentium. The latter are all non-derogable by human law. In Canning’s words:
39 eg R Lesaffer, European Legal History: A Cultural and Political Perspective (CUP 2009); Skinner (n 16) vol I.
40 Aristotelian political thought grounded Baldus’s development of the de facto thesis, Canning explains: ‘these city-republics attained sovereignty because they were composed of citizens understood as natural, political men’ (see Chapter 1, p 58).
There is no doubt that these jurists made fundamental contributions to the growth of ideas of the universal rule of law [ . . ] They accorded an elaborate treatment to universally applicable higher legal norms of which the ius gentium was the most important in their own works and for later jurists who referred back to their thought. In this respect, the late medieval jurists were setting forth limits on the exercise of power by governments and rulers. They operated with the concept of positive law but saw it as human law limited by divine Law, natural law and the ius gentium, itself conceived on two levels—that of a universally valid law produced by natural reason and that of the sum of laws made by mankind.41
Canning’s chapter on late medieval legal thought also provides grounding to Part I as a whole. Most notably thanks to his discussion of late medieval Roman and canon law in general (see eg Simpson) and of just war theory in particular (see eg Pagden, Stumpf). His short discussion of the concepts of the good (bonum) and the equitable (aequum) in late medieval thought foreshadows Susan Karr’s argument in Chapter 2 on early-modern humanist jurists. Canning briefly explains that medieval scholastic jurists, such as Accursius, Bartolus, and Baldus, distinguished between what is good (defined in terms of civil law) and what is equitable (defined by natural reason) when dealing with ‘law as the art of the good and the equitable’. Due to this distinction, justice was not an integrated part of ius in the way of civil law. Hence, the move to ius gentium conceived of as law produced by natural reason and thus law of which justice did constitute an integral part.
By the early sixteenth century, humanist jurists such as Budé (France), Zasius (Freiburg, Holy Roman Empire), and Alciati (Milan, Italy) found the law in need of thorough reform. In their view, the medieval scholastic tradition had mishandled Roman law to such an extent that civil law and jurisprudence were judged to be in crisis. In a reflection that seems to relate as much to our own project as to the project of these early sixteenth-century humanists, Susan Longfield Karr states:
In moments when the [(international)] law and justice appear out of joint, when it no longer seems as if everyone (persons and states) is equal before the law, or that the laws themselves are no longer predictable, calls for reform take on a particularly urgent tone. In the early sixteenth century, such a call was made by humanist jurists who held that the rule of law had not simply been replaced by a rule of men, but worse, by a rule by law and lawyers.42
These humanist jurists held that this ‘rule by law and lawyers’ resulting from the scholastic tradition had brought ‘endemic corruption’, a lack of accountability of political and legal authorities, and unjust laws. In their view, lawyers were ‘abus[ing]’ the law, ‘bend[ing] it to mean whatever suited best their interests or ‘the will of their patron’ without concern for the common good and justice. They critiqued a rule of law that was a rule of law detached from justice and thus empty and meaningless in the face of the legal and political authorities that needed to be kept in check. They called for reform of both civil law and the legal profession itself for both to be brought back into concord with universal justice. To remedy this crisis and to purge the law from errors and scholastic ‘faulty’ interpretations, they set out to restore the corpus of Roman law, to rediscover the universal moral principles underlying all law,
41 See Chapter 1, p 72. 42 See Chapter 2, p 75.
and thus to reconnect civil and universal jurisprudence. Their work was a work of critique and contestation, their methods historical and comparative.
The humanist jurists that Karr discusses set out to reinterpret both ius and ius gentium and therewith to reattach law and (natural) justice. To start with, they restored ius to its objective meaning as captured by the Digest, ‘ius [law] is the art of goodness and fairness’, that is, conjoined, not split as the scholastics had maintained. They redefined ius in its subjective meaning as inherently human, a universal characteristic of human qua human being endowed with dignity, reason, and will.43 And, subsequently, they gave ius the highest moral authority and came to link natural law to ius gentium directly.
While medieval (Christian) scholastic jurists had distanced civil and universal jurisprudence and changed the Roman law hierarchy of laws by demoting civil law and ius gentium and by promoting natural law (reason), these humanist jurists grounded ius gentium in a redefined ius and therewith gave it the highest moral authority as an expression of both ius and natural law. In their view, ius gentium ‘provided the moral foundation of all laws’. Being the source of government and of universal rights and obligations of both ruler and subjects, ius gentium came to set the standard for good and just government internally and externally; for holding ‘civil laws, institutions and authorities accountable to a universal rule of law’. The transformation of ius gentium as the highest source of law within the overall legal order secured a ‘symbiotic relation’ between civil and universal jurisprudence thus creating space for using the latter to critique and reform the former. As a law common to all humankind and binding upon sovereign rulers, it was applicable to their internal and external relations.
These early sixteenth-century humanist jurists moved ius gentium to the centre of early-modern political thought and very high up in the hierarchy of laws. They reinterpreted ius gentium as directly linked to natural reason and as a source of universal rights and obligations well before Vitoria and Grotius. They did so by the need to confront what Karr captures as a rule of law crisis. Their reinterpretation aimed to replace the rule by law and lawyers with a true and universal ‘rule of law and justice’, which could assist in holding legal and political authorities to account and reform unjust laws. ‘Prior to, within, and between civil societies, ius gentium stands as an expression of a universal rule of law precisely because it is an expression of natural law, and thereby, justice’ (p 88). The turn to ius gentium was also a turn to natural law and justice out of what we have termed a rule of law sensibility.
An exploration of legal arguments of sixteenth-century Scottish humanist jurists, John Leslie and David Chalmers, concerning the laws of royal succession to defend the claim of Mary Queen of Scots to the throne of England yields another example of a turn to Roman law and notably to ius gentium et naturae in search for universal legal authority and truth higher than statutory law. The former could set out ‘legal frameworks according to which monarchs were expected to govern’ and thus also to
43 See on the importance of imago Dei thinking in early humanist thought, Ch Trinkaus, ‘In Our Image and Likeness’, Humanity and Divinity in Italian Humanist Thought (Chicago UP 1970); Gillespie (n 16); Nijman (n 18).
exercise their statutory powers justly. Chapter 3 by Andrew Simpson points to a rule of law sensibility behind these Scottish humanist lawyers’ turn to ius gentium and to natural law as sources of learned authority on universal justice and truth to guide the interpretation of the laws (of royal succession). Simpson discerns the fundamental idea that the ruler should rule in accordance with justice and legal truth; and this rule of law extends beyond domestic relations into the external realm—albeit only in the case of a Scottish claim to the English throne.
For Leslie, Simpson points out, the higher, binding legal standards of universal justice and legal truth demand the interpretation of statute to subscribe to the standards of reason and equity (this means, Henry’s interpretation of statutory powers is judged as irrational, unnatural, and arbitrary, in short, unjust and excessive). If interpretation was not in conformity with the learned law, the statute should be considered void.
For Chalmers, the study of universal history revealed the universal natural order to be infused with the (Aristotelian) end of seeking the divine—Perfection. He explained the successfulness of political rulers and societies by the conformity of their laws, policies and actions to this natural order and therewith by their ‘cultivat[ion of] contemplative virtue’ which contributed to ‘the path to happiness’. History shows, Chalmers argues, that female rule is in full conformity with this universal natural order; many women ‘had governed successfully, with great political virtue’ (p 108). The droit de regner given by the people (modelled on Roman law lex Regia) was the legal basis for the ruler to govern. The people’s right to self-government was derived from ius gentium, the same ius gentium that prescribed according to Chalmers the cultivation of the virtuous self in order to produce virtuous rule. Chalmers returns moreover to late medieval jurists interpreting Roman law, such as Oldradus da Ponte,44 to argue that from ius gentium the dictates of right reason—flows the right to arrange for their own governance; this leads arguably to Queen Mary’s legitimated claim of succession to the English throne.
The chapter on these two Scottish jurists focuses on their arguments on the Scottish claim to the English crown and compared to the other chapters moves less into the development of ius gentium with respect to external relations more generally.45 Nonetheless, it seems to confirm a more general turn to ius gentium for norms higher than the sovereign ruler. For both Leslie and Chalmers, the (strategic) turn to ius gentium consisted in a turn to the dictates of right reason established in ius gentium. Neither Leslie nor Chalmers subscribed to Jean Bodin’s position that all law depends on sovereign will; rather, they work with a universal natural order and an idea of a ‘rule of learned law’, that is, an idea of the rule of justice and equity. Ultimately, these conceptions draw on wisdom and prudence, on virtue.
44 See Chapter 1, p 62.
45 The true impact of ambassador John Leslie on ius gentium may have come only with the case that made him write English diplomatic history: when he was prosecuted as a Scottish ambassador to the English court for having conspired against Queen Elisabeth (1558–1603). Vattel mentions the case in his magnum opus.
In light of our objective to bring out the diversity of early-modern humanism and the relevance of it to international thought, this volume includes one chapter entirely on Desiderius Erasmus, influential contemporary of the legal humanists discussed here (see Chapter 4). Erasmus too attacked scholastic theologians and jurists for corrupting the law, misinterpreting the Bible, propagating a false doctrine of war, and neglecting the common good and justice. He too called for reform, a call that reached beyond the legal profession and the European elites of political and legal advisers busy justifying often unjustifiable acts of European Rulers. His call extended to the reform of some of the Rulers themselves. They, he argued, were in dire need of moral, spiritual, and political (re)education. Xavier Tubau points to Erasmus’s profound discomfort with chivalric culture and the cultivation of martial virtues in the contemporary education of the princes. While Erasmus worked with the language of (the pedagogical tradition of) Italian humanism, in substance he produced a particular—Erasmian or northern—humanism.
Erasmus’s work is radically political, as both he and Thomas More wrote ‘scathing indictment[s] of the political elites of Northern Europe’.46 He criticizes (European) politics for being based on dynastic interests and quests for glory, while neglecting the common good, understood to include the concerns of the people. He holds ‘the philosophy of Christ’ as a mirror in front of the Princely faces.47 As a humanist, Erasmus argues for a historical and contextual reading of the Bible. Such reading is an important element of his attack on the so-called just war theory. The use of force and violence in the Old and New Testaments cannot be read, he finds, as casuistic argument for what is permitted. The philosophy of Christ that emerges from a historical and contextual reading surely ‘argues against war’. War may be part of life, but surely it cannot be justified by what Erasmus understood as the philosophy of Christ—no matter what twisted legal basis the scholastic theologians and jurists may argue or construct. To mould theology and universal jurisprudence to justify and even command rather than prohibit and constrain the use of force was utterly unacceptable to Erasmus. War cannot be a means to administrate justice. Natural law and universal jurisprudence should be reinterpreted in Christian philosophical terms. Hence, rather than formulating his critique on the basis of existing (scholastic) natural law theory, he also called for the reform of the latter, on the basis of the Philosophy of Christ. Tubau explains:
[t]he whole of Erasmus’s intellectual project is defined by an unshakeable faith in the possibility of radically transforming contemporary society—both the Christian and the nonChristian—by recuperating the original message of Christ.48
Erasmus rejects the just war theory as the appropriate ‘international’ framework for rulers to use and argues that the ‘philosophy of Christ, is the framework within which rulers should be educated and within which they should exercise their power’.49
46 Bradshaw (n 20).
47 See the Italian mirror-of-princes literature but adapted to the virtues he considered in need of cultivation.
48 See Chapter 4, p 124. 49 ibid p 118.
