Preface
The status of sovereignty as a highly ambiguous concept is well established.
Pointing out or deploring, the ambiguity of the idea has itself become a recurring
motif in the literature on sovereignty. As the legal theorist and international
lawyer Alf Ross put it, “there is hardly any domain in which the obscurity and
confusion is as great as here.” 1 The concept of sovereignty is often seen as a
downright obstacle to fruitful conceptual analysis, carried over from its proper
setti…
Read morePreface
The status of sovereignty as a highly ambiguous concept is well established.
Pointing out or deploring, the ambiguity of the idea has itself become a recurring
motif in the literature on sovereignty. As the legal theorist and international
lawyer Alf Ross put it, “there is hardly any domain in which the obscurity and
confusion is as great as here.” 1 The concept of sovereignty is often seen as a
downright obstacle to fruitful conceptual analysis, carried over from its proper
setting in history to “plague and befog contemporary thought.” 2 . . . So contested
is the concept that, rather than pursuing the contestation, many political theorists
think we should give up so protean a notion. Granting that the debate on
the relevance of sovereignty frustratingly oscillates between claims that it will
either continue to exist or that it is about to disappear, forgetting it altogether,
and thereby escaping this seemingly endless argument, can easily appear as the
most urgent task for political theory .
The following argument makes a case that the “urgent task” is not the abandonment
of the concept of sovereignty, but an understanding of its essential
philosophical nature as an integrated and evolving expression of practical
reason. Sovereignty is neither ambiguous nor obscure once its fundamental
presuppositions are laid bare and its many philosophical and historical
manifestations shown to be the product, in actuality, of a single, dialectally
dynamic but integrated set of metaphysical elements.
This is the first of three arguments describing the evolution of international
law as a manifestation of practical reason through an application of
philosophical method to the source , locus , and scope of the concept of sovereignty.
It moves from a dialectic balance favoring utility to a balance dominated
by legal right to a dialectic of duty to humanity and nature. All three
arguments are meant to be a contribution to the new field of International
Legal Philosophy as defined by Phillip Allott. 4
This field combines a sensitivity to legal practice with an effort to understand
the underlying philosophical determinants of empirical choice and
behavior. One purpose of international legal philosophy is to “remove” from
the minds of those who study the law what Diderot defined as “the sophism
of the ephemeral,” and what Allott calls “the disempowering idea that what
xii Preface
happens to exist now is inevitable and permanent.” 5 A core imperative is
to “reunderstand what it is to be a thinking being” 6 and to rediscover the
dialectic between the private and the public as it determines, and is redetermined
by, legal practice. This requires a “revolution in the human mind” 7
so that we may transcend the current dependence on positivist methods
and empirical fact as an end-in-itself, and try to understand the underlying
and more constant and essential ideas and inherent dialectics that constitute
the substructure or “metaphysics” of international law. I will approach this
“revolution” with the use of R. G. Collingwood’s philosophical method 8 and
the philosophy of David Hume, applied to international law as an expression
of practical reason.
The goal of philosophical method is the construction of a comprehensive
policy argument (CPA) for a public policy or legal issue. In addition to the
conventional use of empirical models and their logic of investigation in the
study of policy and law, CPA requires that an underlying philosophical logic
of concepts be deciphered to identify the ideas within the issue, and their
definition, overlap, and systematic interdependence. Philosophical method
is a means with which to interpret and understand competing systematic
and complete conceptual logics, existing at the core of an issue and pertinent
to policy change.
Philosophical method is therefore not meant to be a replacement for the
empirical investigation of a policy or legal issue, or the use of scientific
method in social studies. Rather, it is a complimentary and prerequisite
method that seeks to transcend the limitations of positivism and present a
more complete understanding of the philosophical presuppositions of positivist
ideas like power, interest, or strategic rationality. Philosophical method
is meant to be used with the facts of the policy or legal issue to match an
illuminating logic of concepts with a pertinent logic of investigation . Within
the CPA, the use of philosophical method and the metaphysics of a policy or
legal issue is assumed to be critical to the full understanding of the overlapping
concepts, dialectics, and scale of forms that determine, and are determined
by, the empirical context of the policy or legal topic.
Specifically, instead of utilizing bits and pieces of various theoretical arguments
to address narrowly focused empirical questions, as positivism prescribes,
I will address the evolution of international law as practical reason
in three phases. Each will be approached through a single integrated logic
of philosophical concepts from a particular philosopher (i.e., David Hume,
G. W. F. Hegel, Immanuel Kant). This philosophically holistic approach to
the law is based on the assumption that only through the use of a single
integrated argument in legal analysis can sovereignty, or any concept, be
understood as a truly systematic and logical whole. A complete philosophical
paradigm has a dialectic integrity and systematic logic that can more
adequately describe the evolving essence of a concept like sovereignty. This
approach also has the advantage of generating a number of distinct holistic
descriptions of the law through the application of different philosophical
systems, one at a time, to its factual structure. 9 Positivism does not seek
Preface xiii
holism, and rejects the idea that “theory” has such a characteristic. The
essential or comprehensive substructure of any idea is therefore ignored in
a method that recommends the observation of empirical problems through
the use of whatever hodgepodge of theoretical elements is seen fit to frame
its superstructure. This failure to deal with metaphysics has retarded both
an essential understanding of international law as a species of legal system,
and any holistic and dialectical conceptualization of its inherent concepts,
like sovereignty.
A second positivist convention expects modern theorists to create new
theory rather than to refine and apply that of existing philosophy. This predisposition
is driven by the positivist goal of discovery that ignores refinement
as a possible purpose of philosophical analysis. Collingwood argues
that philosophy must take that set of ideas already known and utilize existing
systematic philosophical arguments to refine them so that they evolve
closer to their essence as concepts. Considering this imperative, the idea
of sovereignty can be assumed to have had valid usage for hundreds of
years, over which time, the concept has evolved to mean different things,
each a refinement of the definition that preceded it. Transcending positivism
means that the scholar’s search is not for “new” material, but to decipher
the metaphysical essence of a concept as it has been made manifest over time
and context. These manifestations are rooted, and refined from, the known
terms of that concept’s inherent idea(s).
Rather than depending exclusively on positivism and its conventions, my
work utilizes, in addition to Collingwood, the intact philosophical systems
of Hume, Hegel, and Kant to trace the refinement of international law as a
product of human practical reason. These paradigms, or integrated systems
of logical concepts, will be applied to legal practice individually, so that
each CPA can be deciphered separately. This provides a set of integrated and
logically intact paradigms for the evolutionary stages of practical reason in
international law. Because each argument is applied systematically, a deeper
understanding of the source, locus, and scope in the development of law in
general, and international law in particular, is possible where it is not with
the application of various disconnected components of many theories. Each
CPA based on Hume, Hegel, or Kant can then be used to describe a distinct
context that its logic of concepts best illuminates; specifically, the (1) genesis,
(2) contemporary dilemmas, and (3) future of the international legal system.
By widening the perspective of international lawyers and policymakers,
they can more easily perceive the dialectic of ideas that has created, and is
refined by, the legal practice in which they participate. We also move toward
Allott’s goal of “human self-perfecting.” 10 And, in addition, by providing a
more complete knowledge of the origins of legal practice and its evolution,
we illuminate the practical possibilities for what we might “choose to be” 11
in the future.
To achieve this, the essential metaphysical elements of state sovereignty
and its inherent evolutionary scale of forms will be deciphered and described.
This will transform what appears to be a multitude of definitions and
xiv Preface
practical realizations of the concept of sovereignty into a set of interdependent
manifestations of a single substructure, made of a single set of dialectic
elements. The interpretation of international law through practical reason
sorts and integrates a diverse and discordant literature and defines state
sovereignty as a single concept evolving on a scale of forms that allows it
to exhibit diverse character traits, all arising from different combinations of
common and essential metaphysical elements. This approach, compared to
positivist methods and legal realism, allows one to transcend current agreement
that sovereignty is, at best, a narrowly focused set of empirical characteristics
or, at worst, “organized hypocrisy.” 12 This method also encourages
the scholar and practitioner to understand the predispositions and pitfalls
of the concept of sovereignty, as well as its potential future paths, more
effectively.
The use of philosophical method to create policy paradigms out of preexisting
philosophical systems and apply these to international law will be
called Philosophical-Policy & Legal Design . This approach allows the use of
preexisting and complete philosophical arguments that provide an adequate
logic of concepts to chart the evolution of the idea of sovereignty along its
scale of forms. An examination of the source of practical reason in human
social convention with the employment of a philosophical-policy drawn
from Hume’s logic of concepts about human nature will demonstrate this
new approach.
Why Hume? Because, up to now, without an adequate substructure we
have arguments, like Brunne é’ s and Troope’s, 13 that may correctly identify
international law as an “interactional” system, but cannot present any argument
as to why it is, where this empirical reality comes from, or what its
implications are for the future.
Comparatively, Hume provides a logic of philosophical concepts that
answers these concerns. First, he fulfills the requirements for a fuller understanding
of the origin and evolution of law from social convention and
the dependence of social convention on the human imperative for society.
Second, he offers a more adequate delineation of the overlapping concepts
of the law in terms of the ideas and institutions that deal with norms and
justice (e.g., principle, process, practice, rule, power, interest). Third, he provides
a fundamental understanding of the essential dialectics at the core
of a conceptualization of the law with both unconscious and conscious
human participation (i.e., passion