International Legal Norms and Their Limitations

The Problem of Ambiguity in the Language of Politics

The first decades of the twenty-first century witnessed a notable rise in war and political violence. After the End of History we entered, at the millennium, a new Age of Anger.¹ The United States was at war a startling two out of every three years between 1989 and 2014. Nevertheless, despite the increase in ethno-religious violence and the rise of revisionist powers contesting the liberal international order imposed, somewhat uncertainly, under American hegemony after 1989, Western liberal faith remains vested in international or regional organisations like the United Nations, the European Union or ASEAN (Association of Southeast Asian Nations). Reflecting and reinforcing this development, again since the end of the Cold War, there has arisen in the political elites of the West a suspicion for the order of the nation state and a preference instead for transnational commitments and human rights regimes across a borderless world. A recent study by Yale Law professors even claims that the New World Order of The Internationalists may be traced back to the Kellogg–Briand Pact (1928) and has, despite a number of hiccups along the way, rendered illegitimate the right to conquest and the recourse to war.²

For the first time in the modern era, Western political elites have become more interested in a cosmopolitan ideal than in sustaining the limited political order of the constitutional state and its statecraft. This is a somewhat surprising development, given that it was the constitutional democracies of the West and the market state order, in particular, that seemingly overcame all ideological alternatives in the late twentieth century. As David Goodhart observes in The Road to Somewhere, “it used to be the case that the educated and the affluent were more nationalistic than the masses because they had a larger stake in the country”. Not anymore. A globalisation-friendly, “anywhere”, cosmopolitan elite in Europe and the United States now share a universalist worldview that embraces “the philosophy and legal practice of human rights almost as a substitute for national identity”. Much of this human rights advocacy is, as Goodhart further observes, “utterly a-historical” and dissolves the idea of citizenship.³

THE IDEA OF NATURAL RIGHT AND NATURAL LAW

At the heart of the problem of contemporary Western thought about international law and order is a dialectical pattern that reflects the ambiguity in Western political language and ambivalence in European political conduct that goes back to the emergence of the modern state from the decaying chrysalis of the medieval Christian realm. In the legal and constitutional frameworks of what became modern states, this dialectic reflects the ambiguous manner in which European monarchies and republics embraced an understanding of Roman law from the end of the fifteenth century. This “Reception”, as Otto Gierke’s classic work on the subject shows, emphasised natural law and its relationship to constitutional or public law that facilitated both sovereignty and a doctrine of natural right.⁴ It took two distinct directions: one that asserted the sovereign right of the state or monarch; and the other, that emphasised the ultimate sovereign right of the people. Moreover the term ius or “right”, from the outset, was beset by a further ambiguity that reflected an already long and complex medieval and late Roman history of usage. Its translation into the German “recht” which also implies law as well as right, the French “raison” and Italian “ragion”, unlike the English “right”, also carried with it an association with reason as well as the supervening right of the state (raison d’état). In other words, the word ius might entail state right as well as, over time, natural right and eventually indefeasible, imprescribable, self- evident rights to property, liberty and the pursuit of happiness.⁵

Thus, although recent human rights advocacy is an a-historical development of recent provenance,⁶ rights talk has a long and distinctive European and Western genealogy, reflecting classical and Christian conceptions of natural law, natural right, sovereignty and constitutional and international order as these evolved over two millennia.

As the conservative English philosopher, Michael Oakeshott observed, “it is true of European legal systems or constitutions that none is pure-bred, ‘each is a miscellany’”.⁷ The habits and institutions which compose our manners of governing are neither rational unities nor fortuitous collections, but historic compounds. It is thus misleading to assume, as many abstract rationalist system thinkers do, that political institutions are instruments designed to serve a specific purpose. Not only are our modern European, and, for that matter, American governments, alloys composed of diverse elements, the language, or the political vocabulary in which we speak of the activity of government and make it intelligible is also a hybrid reflecting a complex historical legacy.⁸

As a consequence our political vocabulary, unlike that of the physical sciences, does not have a fixed, simple and universally recognised meaning, but is a living conversation, at the mercy of both political and legal use as well as the circumstances in which each expression is susceptible of many interpretations, none of which is without force and significance. Our politics, like our morality, is then a complex historical alloy, a mixture of heterogeneous and not always congruous elements.

Moreover, the activity of governing in the West, which enjoys this diverse and complex legacy, is almost always in flux, not necessarily swinging to extremes but undergoing shifts in emphasis in this or that direction reflecting contingent political circumstances and enthusiasms (whether of identity, migration, economic growth, financial debt, or the legitimacy of institutions and state systems).

A political language that addresses such complexity is necessarily ambiguous. It reflects two styles of thinking that have evolved over the past five hundred years, about the activity of governing. Oakeshott terms these styles the politics of faith, which favours a rationalist programme that promotes and demands governmental omnicompetence, and the politics of scepticism that expresses nervousness about the extent of government or the increase in its power.⁹ These positive and negative poles, or extremes, of governing reflect responses over time to the heterogeneous and complex activity of rule.

Moreover, these extremes may not only be distinct from each other, allowing space for political manoeuvre, they may even be opposed; the one forbidding what the other prescribes. Yet, at the same time, these poles of understanding while held apart in theory, often embrace each other in practice making our political language of expression equivocal. Such ambiguity can overtake political practice. Furthermore, given that these two styles of politics share a common vocabulary, yet often interpret this common vocabulary in opposite senses, communication is frequently at cross purposes and terms like “natural right” or the “sovereignty of the people” (salus populi) reflect this linguistic ambiguity.

NATURAL LAW, NATURAL RIGHT AND AMBIGUITY

Commenting on the character of natural law thinking from which the faith- based politics of international norms currently stems, and which we could say begins our 500 year odyssey through the poles of gubernatorial experience, Ernest Barker remarked in the 1930s that law and political theory had enjoyed a long association, particularly in European and German thought. As Barker explains, “political science … stands deeply indebted to Roman law” or more precisely the reception of Roman law and its natural law underpinnings through the influence of fifteenth-century civilian lawyers, most notably followers of Bartolus of Sassoferato.¹⁰ The legacy of this reception was multi-faceted, or, more precisely, ambiguous. “All through the history of the school of natural law we can find advocates of the sovereignty of the ruler as well as of the sovereignty of the people – not to mention… the exponents of the mixed constitution that sought to achieve an eirenicon between the two causes.”¹¹ Natural law thinking was primarily concerned with the legal presuppositions upon which the early modern state rested, that is, a legal association based on contract.

Significantly, with the French revolution and the Romantic reaction it inspired, the prevailing conception of universal law and right received a profound and dramatic challenge. Thus, from the nineteenth century the view of the state and a supervening order of universal reason or natural law came into conflict with the Historical Law School which, notably in Germany, reacted against the universalism, rationalism and individualism of natural law thinking and its doctrine of contract and natural rights.¹²

At the start of the twentieth century, we even find exponents of historically minded, legal thinking about the distinctively different English common law tradition like F. W. Maitland and J. N. Figgis, influenced by the German school of law associated with Otto Gierke and the idea of the group or volk mind. In 1900, Maitland contended that, “of late years few writers have had a hearty good word for the Reception (with its natural law and contractual understanding of politics). We have all been nationalists of late.”¹³ “Cosmopolitanism”, Maitland averred, would have to “wait its turn.”

In its German law version, the historicist school rejected, as an “incubus on the growing life of nations”, the conception of supranational rights.¹⁴ The nation revolted against Natura and instead the nation state rejoiced in its distinctive volk identity. As Ernst Troeltsch subsequently explained, “those who believed in an eternal and divine law of nature, and a sense of unity pervading mankind… cannot but regard the German doctrine as a curious mixture of mysticism and brutality”.¹⁵ A mysticism and brutality that culminated in the devastating European and world wars of the twentieth century.

It is against this historical backdrop that after 1945, the subsequent reassertion of natural law doctrine, in the form of international law, the European Court of Justice and the European and international human rights regime must be viewed. However, it only achieved its most energetic expression and comprehensive extension in the aftermath of the fall of the Berlin Wall. Cosmopolitanism had waited its turn for the best part of a century and it returned with the sense of mission that only long repression can imbue. Since 1989 we have seen international and regional tribunals advance, in a secular guise, a version of the Reception of natural law and human rights thinking that would gratify Immanuel Kant and his Enlightenment version of universal moral and legal order brought about by a united nation of ethical republics.¹⁶ The outcome has been less than impressive.

Indeed and somewhat ironically, the renaissance of these legal understandings as universal axioms subject to international tribunals has increasingly created the nationalist and populist demons they were intended permanently to erase. Ambiguity in the response to international order in terms of both lawfare and warfare over the past 30 years has created the revolt of the masses and the emergence of what is now termed populism, but which clearly channels a postmodern version of nineteenth-century thinking concerning the volk or, in the US where the term originated, the Jacksonian, and subsequent, late nineteenth-century, Midwestern, small farmers revolt against Wall Street and the Washington elites.¹⁷

The American historian Richard Hofstadter perhaps too quickly dismissed populism as a “paranoid” style,¹⁸ and an “arena for angry minds” that, as we have recently witnessed in the UK and the US, does not impede the universalist assertion of the need for more and better enforcement of a cosmopolitan, universal rechstaat administered by a regime of international lawyers and a cosmopolitan elite. Thus, the Australian legal theorist Anthea Roberts asserts that although the prevailing Western pattern of international order appears “set for disruption”, she argues, nevertheless, that “as the world moves past an era of Western dominance and toward greater multi-polarity … it is imperative for international lawyers to understand the perspectives and approaches of those coming from diverse backgrounds”. However, her liberal Olympian attempt to view the world through “the eyes of others” might be “an essential skill in this fast changing world”,¹⁹ but if the perspective of those others does not fit with what is essentially a natural law tradition of international order, how do axiomatic norms and human rights bind universally when they are contested by the likes of Islamic State, Iran, Vladimir Putin or Xi Jinping? This is a question that Roberts conveniently ignores.

However, as Theresa May and Donald Trump recently asserted in speeches to the United Nations General Assembly, international bodies face a “crisis of faith in multilateralism and global cooperation”.²⁰ This is not entirely surprising given that the UN Human Rights Council regularly criticises police brutality and the freedom to protest in the UK. Meanwhile, in a European context, the threat to refer Hungary, Poland and the Czech Republic to the European Court of Justice for their unwillingness to abide by the terms of the Union’s migration programme displays, apart from anything else, a complete failure to understand the world “through the eyes of others”.²¹ How have we arrived at this curious condition of “alarm and fright, where ignorant armies clash by night” and what resources might the Western state system draw upon to reinvent itself? What remedy does our ambiguous political vocabulary, reflecting the polarities of our governing behaviour, afford us in this difficult predicament?

NATIVISM AND PRUDENCE

Evidently the activity of governing in Western democracies needs to draw back from the politics of faith and its axiomatic truths and seek a corrective along more sceptical lines. In this context, it might be worth re-examining not the angry mind whose idealisation of the group “tends to barbarise romance and to romanticise cynicism”, but the prudent mind that promotes the idea of practical reason and statecraft.²² A prudent or situational morality powerfully informed the sceptical approach to government and what Carl Friedrich termed constitutional reason of state from Montesquieu to Burke and later to Hans Morgenthau and Friedrich Meinecke.²³

Unlikely as it may sound, “prudence” is now circulating as a working concept amongst the various factions within the Trump White House. Thus Michael Anton, one of the palace intellectuals, has not only offered a telling critique of what he considers the Washington national security establishment’s unthinking fidelity to the idea of the ”liberal international order” but also stressed that powerful nations had to strike a balance between “contempt” and “prestige”. Being held in contempt damaged a nation’s ability to influence, and the only antidote was to be respected and “even a little bit feared”. Too much could be a problem too, which was why prudence, he argued, should be the handmaid of prestige. “A delicate balance is therefore always required, which means prudence is always required.”²⁴ Might a commitment to prudence as an operating principle offer the coherence many fear Western states currently lack both at home and abroad, and provide the bridge between distant Renaissance Neo-stoic and sceptical modern counsel that have hitherto inhabited different mental worlds?

THE MACHIAVELLIAN MOMENT REVISITED

Prudence assumes no system, schematic or strategic script. Therein lies much of its merit. It has Classical and Christian antecedents but it is by nature ambivalent, historically conditioned, and somewhat elusive. Nor is its exercise something that sits easily with the character of modern democracy. It was Alexis de Tocqueville, in Democracy in America, who noted that the democratic system seemed to grind against the traditional requirements of statecraft. He warned that “foreign politics demand scarcely any of those qualities which a democracy possesses; and they require on the contrary the perfect use of almost all of those faculties in which it is deficient”. When it came to their dealings with other states, democracies “cannot combine measures with secrecy, and it will not await their consequences with patience … [They] obey the impulse of passion rather than the suggestions of prudence and … abandon a mature design for the gratification of a momentary caprice.”²⁵

Interestingly, such concerns about imprudence weighed heavily on the minds of American strategists during the Cold War. One of the greatest challenges faced by the United States was always assumed to be the management of its own passions and purse. Thus Dwight Eisenhower’s “New Look” emphasised strategic patience, cautious containment and long-term sustainability as the best means of outlasting the Soviet Union.

Prudence was seen as the antidote to unwieldy idealism or democratic excitability, and thus was assumed to be the handmaiden of realism writ large. In foreign policy terms, therefore, it came to connote never exceeding the pragmatic bounds set by the national interest. This was how it lived on in much academic literature on realism thereafter, notably in the work of Hans Morgenthau. In The Tragedy of Great Power Politics, John Mearsheimer wrote that “prudence dictates that they behave according to realist logic”.²⁶ Prudence certainly has a significant role to play in the realist story. And yet the point of prudence is that it rarely dictates.

Indeed, the theologian Reinhold Niebuhr objected to what he saw as an attenuated understanding of prudence, as some sort of “procedural standard”’ for foreign policy decisions in the work of Morgenthau and George Kennan. As a virtue, with elements of classical and Christian code, prudence could never be reduced to some sort of aide-mémoire to keep the national interest paramount at all times. The real work of prudence was not simply to check democratic excitability, but to “safeguard against both sentimentality and moral cynicism”.²⁷

The point here is that prudence is a contingent and situational ethic. It evolves experientially rather than by decree or axiomatically. Most of all, it offers a pre- scientific and anti-rationalist guide to reason. This comes from the fact that prudence enjoys a rich heritage, with deep Classical and Christian antecedents, that long pre-date Enlightenment rationalism.

The origins of prudence can be traced to the Athenian understanding of politics, as it developed in the aftermath of defeat in the Peloponnesian Wars. As Aristotle explained in the Nicomachean Ethics, phronesis (prudence) derived from experience. It was “concerned with particulars as well as universals, and particulars become known from experience”. Its main business was “to determine not ends but means to ends, i.e. what is most useful to do”.²⁸ More than that, however, phronesis also demanded powers of persuasion and rhetorical skill to persuade citizens of the most expedient course of action.

However, it was in the hands of Christian ethicists that prudence was deemed to be a virtue in itself, precisely because it provided an assessment of both ends and means. For St Thomas Aquinas, “rightness of choice necessarily involves two factors, namely a due end and something suitably ordained to that end… consequently, an intellectual virtue is needed in reason to complement it and make it well adjusted to these things. This virtue is prudence.”²⁹ Aquinas’s Secunda Secundae of the Summa Theologica was in part devoted to finding a synthesis of classical and Christian thinking on prudence. Following Aristotle, he considered prudence a form of practical reason, based on experience and shrewdness. Yet, even a cloistered thinker like Aquinas understood that political prudence also implied scenarios in which “even as the false is found with the true, so is evil mingled with good”.³⁰

It was partly in response to the excesses of 16th- and 17th-century religious enthusiasm that prudence moved from the domain of individual ethics to assuming a greater role in the affairs of the early modern state. It was this that encouraged the emergence of the practice of prudent counsel. A wise Prince would make use of experienced counsellors promising insight into how the maxims of practical reasoning might apply to the contingent circumstances of the present. Sceptical raison d’état writers and counsellors as various as Niccolo Machiavelli, Jean Bodin and the Dutch humanist Justus Lipsius sought to offer more than abstract moral injunctions when it came to questions of war and governance. Instead they offered a distinctive counsel of prudence, or practical morality. This was based on their reading of historical, usually classical precedents, informed by a neo-Stoic ataraxia that valued calmness of mind as the antidote to zealotry.


Tiziano Vecelli: Allegory of Time Governed by Prudence, 1565

Tiziano Vecelli’s (Titian) Allegory of Time Governed by Prudence (1565) graphically captured this evolving understanding of political wisdom. The painting depicts a man with three faces: a mature adult faces the viewer, flanked on one side by the wizened profile of an old man and on the other by the callow features of a youth. Beneath the three-faced figure sits a three-faced beast, a lion facing the viewer, profiled by a wolf on one side and a dog on the other. Across the top of the painting runs the maxim EX PRAETERITO PRAESENS PRUDENTER AGIT, IN FUTURAM ACTIONEM DETURPET: “From the experience of the past, the present acts prudently, lest it spoil future action.” The painting may be read both as a depiction of the three ages of man and, symbolically, of a wolf devouring the memory of the past, a lion depicting the fortitude necessary in the present and a dog bounding into the future.

In recognising the many-sided faces of knowledge and experience, early modern prudence and scepticism confronted and, over time, lost out to the rationalism associated with the later Enlightenment, that applied abstract universal rules and scientific methods to the political domain. Contra ideological rationalism and the politics of faith, prudential scepticism stressed the role of experience, custom and tradition. It also demanded a deeper appreciation of contingency and circumstance and the importance of self-understanding as a guide to decision-making.

Edmund Burke’s political writings, in particular, demonstrate the challenges of adapting prudential reasoning to a revolutionary age that was pregnant with danger as well as possibility. In his 1790 Reflections on the Revolution in France, Burke considered Jacobinism and scientific theories of government an affront to the practice of prudence. “Political reasoning is a computing principle; adding, subcontracting, multiplying and dividing, more and not metaphysically or mathematically, true moral denominations.”³¹

Burke went so far as to advocate a counter-revolutionary war to restore Bourbon government in France. In 1796, he bemoaned what he saw as a British desperation for peace that came from a “false reptile prudence, the result not of caution but of fear”, the result of “abject distrust of ourselves” and “an extravagant admiration of the enemy”.³²

For Burke, like Michael Anton, there were no set rules in international politics. Decisions had to be made on the basis of the situation at hand. “Matters of prudence are under the dominion of circumstances, and not of logical analogies”, he argued, it was “absurd to take it otherwise”.

Among the contingent circumstances that states had to consider when choosing between peace and war was that of their existing status and prestige among their peers and competitors. Burke appreciated that small states would often be forced to compromise when presented with superior force. But a great state had a reputation to maintain, and an array of different enemies, which meant that over-cautiousness could damage its long-term security. In other words, prudence demanded self-awareness about how others saw you, rather than simply a checking on one’s own passions. As he explained,

I do not deny that in small truckling states a timely compromise with power has often been the means, and the only means, of drawling out their puny existence. But a great state is too much envied, too much dreaded, to find safety in humiliation. To be secure, it must be respected. Power, and eminence, and consideration, are things not to be begged. They must be commanded: and they who supplicate for mercy from others can never hope for justice thro’ themselves.³³

Rationalist calculations would stress the costs of war and the dangers therein. A truly prudent council, so he argued, should not enfeeble pre-existing power. After Burke, those who emphasised the importance of prudence in nineteenth- century statecraft sought to use it to mediate between sentimentalism and emotionalism in international affairs and a hyper-rationalist calculation that stressed the paramountcy of self-interest. Henry Temple, Viscount Palmerston, argued that the policy of Britain – “apart from questions which involve her own particular interests, political or commercial” – should be “the champion of justice and right”. But his counsel was that it was necessary to pursue that course “with moderation and prudence, not becoming the Quixote of the world”. It was, of course, the virtue of this “sceptical manner of diplomacy” that “to lead a moral crusade against a foreign country is as much out of character in this style as to lead a moral crusade against any of its subjects”.³⁴

Virtues such as prudence – as well as “honour” and “justice” – are best understood as “historic compounds” rather than time-bound absolutes.³⁵ More recently, Robert Hariman has distinguished between lower and higher constructions of prudence in a way that has some pertinence today. In the realm of statecraft, writes Hariman, “lower prudence focuses on modest goals, such as limited order, tranquillity and accommodation. Its inward logic is an instrumental conception of international morality coupled with scepticism toward any radical transformational designs of world politics.”³⁶ This is captured in Hans Morgenthau’s observation that, “[t]here can be no political morality without prudence; that is, without consideration of the political consequences of seemingly moral action”.³⁷ In this version, prudence is primarily about restraint, and checking ideological excess.

Set against this, however, is something Hariman, following Burke, terms higher prudence, “more willing to take risks for the sake of exploring possibilities open to ethical actions”.³⁸ This too has an important heritage. As Machiavelli put it in The Prince, “[a]ll courses of action are risky, so prudence is not in avoiding danger (it’s impossible), but calculating risk and acting decisively”. Politicians animated by virtu do not attend on “the benefits of time” or strategic patience. When they make mistakes, they are of ambition and not of sloth. “Develop the strength to do bold things, not the strength to suffer.”³⁹

Ultimately, those looking for prudence in the Trump administration are probably better served not by looking to the Prince himself but those whose job it is to offer counsel. The history of prudence suggests that the challenges posed by such a role are both practical and ethical. As the Anglo-Australian political philosopher Kenneth Minogue once observed, “reflection on prudence reveals that all virtues do not constitute a single coherent system of the moral life, but rather exhibiting some virtues can be incompatible with acting on others”. The man of honour, for instance, cannot always be prudent. “Prudence is a joker in the moral pack and its business on occasions, is to trump its fellow virtues.”⁴⁰

In the Obama administration, it was the president who set the intellectual tone of his administration’s foreign policy. The role of Ben Rhodes and others was to add rhetorical shine but the terms of trade were set from on high. The revived use of prudence by the two wings of President Trump’s national security advisory team suggests that the impetus for self-definition lies elsewhere. The battle for twenty- first century prudence has already commenced.

Notes: