In the discussion that ensued in the comments section of a recent posting, I made a pretty big blunder in the heat of debate regarding a particular aspect of international law (similar to one I made in haste in a different debate a year back).
As in that previous case, being in error got me thinking about the issue under discussion, notably international law (or, more particularly, BDSers insistence that Israeli settlements, “The Occupation,” and possibly the state itself all exist in violation of it).
Their case is pretty straightforward, being built in rulings from international bodies (such as the UN) that Israel is in violation of various accords (including UN resolutions, the Geneva Accords, etc.).
In previous postings, I’ve written about how BDS supporters would like to turn the Middle East conflict from a political dispute to a legal one since political disputes can only be solved via compromise (which they’re not interested in) while legal ones require no such compromise but simply demand anyone acting illegally stop doing so.
But to get beyond the politics to the core of the matter, we must look first not at international law, but at law itself. And the first thing we need to recognize is that rule of law rests on two critical principles: consent and enforcement.
As Hobbes pointed out centuries ago in his Leviathan, agreeing to live under the rule of law requires one to give up a certain amount of freedom in exchange for important benefits (such as the ability to live free from anarchy). And given the anarchy of the religious wars in Europe that Hobbes was living through, he felt it necessary to give up nearly all individual freedoms to live under a state that could keep the law of the jungle at bay.
We seem to have reached a point in history when the freedoms we must relinquish to live at peace are not so all-encompassing. But they are our freedoms, which is why members of a society must consent to live together under a set of rules (laws) for a law-based society to function. Now one can make the case that a child born into a society of laws doesn’t get the chance to make such a choice him or herself. But the pact described above is a multi-generational one in which citizens agree not just to live by certain laws but to raise their children believing that living under these laws is the right thing to do.
Enforcement is the other requirement for the rule of law to function, specifically the existence of an entity with a monopoly on the right to use violence to enforce the law as well as sufficient power to exercise this monopoly. Absent an entity to take on this role as sole enforcer of the law, you end up back with the aforementioned anarchy (or, at best, a society where the blood feud becomes the means of seeking legal redress).
Despite various historical attempts to prove otherwise, one cannot have a law-based society based solely on consent without an enforcing power. Attempts at creating such consent-based societies (such as various communal experiments) either degenerated into violent struggles for power (i.e., the law of the jungle), petered out over time, or existed (and may even continue to exist) as novelty sub-cultures under the protective umbrella of the state.
Interestingly, one can have a law-based society based only on enforcement (not on consent). But these tend to be tyrannies where the rules that are harshly enforced originate from the caprice of the rulers (be they kings or Politburo members), rather than by consent of members of the state.
I mentioned states in the last two paragraphs since, in our modern age, the only institutions that have been able to effectively implement the rule of law are nation states. In democratic societies, both consent and enforcement exist together, while in totalitarian states the rule of law is implemented by enforcement alone. But outside of a cohesive political entity within defined borders and a citizenry that understands themselves to be members of a society within those borders, how one defines the rule of law becomes much less clear.
This becomes particularly apparent when you start to discuss international law which neither emerges from the consent of the governed nor exercises (or even possesses) the kind of enforcement mechanism needed to implement its judgments.
So in an era when nation states are still the primary political actors on the world stage, what are the origins and what is the significance of what we call international law?
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