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Lesson 2
Natural Law and Legal Positivism

Lesson Two: Natural Law & Legal Positivism and their Role in International Law and the International System

Introduction
The first part of this Lesson examines natural law and legal positivism, and how they are expressed in the foundations of international law, pacta sunt servanda and rebus sic stantibus. The second part of the Lesson examines how the nature of the world system shapes international law. Different patterns of state interaction foster different types of international law. Although no categorization is ever absolute, in some systems, natural law dominates, while in other systems, positive law dominates.

Objectives
On successful completion of this lesson, without the aid of your course materials, you should be able to: 1) explain how both idealism and realism are expressed in international law; define pacta sunt servanda and rebus sic stantibus, 2) outline Kaplan and Katzenbachs argument regarding the connection between elements of the world system and international law. 3) identify different forms of the world system. 4) explain how international law plays a role in all world systems; explain how that role differs among world systems.

Lesson Plan
This lesson is to be studied over a two week period. You may determine where you want to halt your studies for this week but you must complete study of this lesson by the end of next week. 1) Read the Lesson Notes below. 2) Read: M. Kaplan and N. Katzenbach, The Patterns of Politics and of International Law, American Political Science Review, Volume LIII, September, 1959, pp. 693-712. (see link under RESOURCES in CLEW 3) Complete the To Do list

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Lesson Notes
Reflecting on our discussion of the Peloponnesian War, we can consider the problems of pursuing such absolute strategies in the real world, and how these issues relate to our field of study, international law. Political Realism, which was discussed in Lesson One, asserts the primacy of power, and the irrelevancy of morality to political decision-making. As the Melian Dialogue and its aftermath, the expedition to Syracuse suggest, however, adhering to a strict realist policy may encourage miscalculation of a political situation. If a state cannot maintain its alliances and behave in a reasonable manner, other states may not wish to enter into alliances with it, or even interact with it.

Second, realism does not distinguish between long term benefits and security. A states brutal use of power may cause brutal reprisals later on. In addition, realisms assumptions envisage a world that is always in conflict, and where power is a zero-sum game; this view assumes the world will always be in conflict (and perhaps also foster that very condition). Finally, in the post-World War II environment, such a view is difficult to justify. There are some political acts (for example, genocide), that cannot be justified. Idealism asserts principles of justice with an eternal and universal validity; its proponents argue that law is found, not made. That is, through reason, human beings can discover the fundamental principles of justice. This perspective is also politically problematic. The first and most important question that emerges when this perspective is applied to the real world is, who decides what natural law or justice is? Is it possible for all states and nations to reach a consensus about morality? Even if one could answer these two questions, a third quickly emerges: in the international system, how can we guarantee that rules will be honoured? Finally, as Machiavelli teaches us, concepts of morality can be used as a screen for realist behaviour. The very concept of natural law itself emerged with the hegemony of the Roman Catholic Church in the European states system, and it has religious overtones. In the 16 and 17 centuries, for example, states were able to impose their will on whomever they chose, using this as a justification. In a modern parallel, the late twentieth and early twenty first centuries saw the United States justify its use of military force in Panama, Grenada, and the Middle East by proclaiming such principles as state sovereignty, justice, and democracy. If realism is ultimately inhumane, and idealism is ultimately doomed, where does international fit? It must account for political realities, but it must also aspire to some definition of justice. International law is intimately connected to politics, as Thucydides makes clear, but at the same time, it must be somehow independent of politics. International law, in its content and its application, is like international relations itself, full of both compromise and contradiction. It embodies the tension inherent in human nature between good and evil, idealism and realism, and morality and power. Indeed, the foundation of international law embodies these two themes in the principles of pacta sunt servanda, and rebus sic stantibus. All international law is based on the principle ofpacta sunt servanda, the idealist notion that agreements made will be honoured. In this assumption, it reflects natural law. At the same time international law also acknowledges as a second major principle the more realist argument of rebus sic stantibus, or as things presently stand. This principle allows that states can terminate treaties
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when they choose to do so. That is, when circumstances change in such a way as the original treaty is no longer worthwhile, a treaty can be terminated. Through these two principles, international law reflects states desires for a peaceful international realm, and their understanding of self-interest. In this way, it embodies both morality and power. Morton Kaplan and Nicholas Katzenbach argue that every instantiation of the international system has its own particular relationship with international law. Some international systems have emphasized ideas of natural law, and others have emphasized positive law. We now turn to examining the structure of the international system, and how it has an impact on the elements of international law that are emphasized at any given time. As Thucydides hints, the state system can be seen as both anarchic (because no final authority exists), and competitive (because there are limited resources that must be shared amongst many actors. At the same time, however, states must occasionally interact cooperatively, and to act cooperatively requires a stable environment. For this reason, some regulation of behaviour organically emerges. In particular, it is important that states are able to anticipate (generally) the actions and reactions of other states and international actors. For this reason, generalized patterns of behaviour among states are useful for the functioning of the state system. In fact, the patterns of interaction among states lay the groundwork for communication and commerce, and eventually, law. The patterns of state interaction eventually create what we call a state system, and the law that then develops is in some way related to the system. The types of patterns that develop depend upon the particular historical situation and the resulting characteristics of state behaviour. To be able to distinguish among systems gives us a powerful tool of analysis to begin to look at the kind of international law that exists during a particular period of time. To get clues to the nature of law, we can therefore examine the historical situation and the characteristics of the international system. Reflect on the differences between the Balance of Power System and the Bipolar System, for example. We can begin to distinguish them by considering the following questions: 1) How large is the system? Are there a large or small number of states or other international actors? 2) What is the level of political and commercial interaction within the system? 3) What is the level of technology within the system? Can states communicate easily? 4) Are most states equal in power, or are there large disparities among actors in the system? We also need to account for the characteristics of states themselves: 1) Are they independent or interdependent? 2) Are they hostile or cooperative? 3) Do they share a particular perspective on the world (for example, prior to the Reformation, European states shared a religious faith)? Answering these questions allow us to distinguish between state systems across history. Politics is not static, however, and no system is perfectly stable. A political system maintains a type of homeostasis; it develops ways to accommodate crises and maintain itself with as little disruption as possible. At the same time, all systems require that states behave in ways that are generally

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expected. There are certain boundaries that cannot be crossed, or the system will not survive. The state system does, however, change. Examining history, we can see that there are two primary ways in which the system changes: 1) an event of such magnitude that it completely destabilizes the system (for example, World War II); or 2) a series of events that may occur over time, but cause the system to slowly evolve (for example, the process of decolonization, which created a vast number of new states and in so doing, expanded and diversified the state system). This distinction is not absolute, for huge political events are often the result of the culmination of many smaller events (for example, the demise of the Soviet Union and the collapse of the Warsaw Pact). A state system produces a particular kind of international law, and when the state system changes, so too does international law. Kaplan and Katzenbach suggest that there are four characteristics that we need to consider when examining a state system in the context of international law. First, it is important to identify the kinds of members active within the system. When the actors change, the law will eventually change too. During the twentieth century, for example, supranational actors like the United Nations and the European Union emerged. Law must account for their presence. Second, it is important to consider the function of international actors in the system. Law reflects the actors functions. When the actors functions change, so too will international law. In the late twentieth century, for example, many scholars argued that states were moving from being primarily military and strategic actors to being primarily commercial agents. Third, it is important to assess the conditions under which international actors function. For example, what made the United States invade Iraq? Did it do so for reasons of state security or for economic security? (Perhaps in the current world system both of these factors are equally important elements of security.) Finally, it is important to assess how stability in the system is maintained. In the Balance of Power system, for example, stability was maintained by an elaborate system of checks and balances, while in the mid-twentieth century Bipolar system, balance was maintained by the competition between the United States and the U.S.S.R. While these four measures might seem straightforward, they are, in fact, quite complex. We will begin our analysis of how international law functions by looking briefly at the history of the world system and its relationship to international law.

The Late Enlightenment Consensus (1400-1650) Although western international law has its roots in the politics of ancient Greece and Rome, what we think of as modern law began in the seventeenth century. The term international law itself was first used by Jeremy Bentham in 1780, in his book Introduction to the Principles of Morals and Legislation. International law therefore began as a system of rules that bound states during this time period, and developed to make the state system of this period predictable and therefore stable. There are several general factors that characterized the state system of this period. There were a small number of states; the system was primarily European; the state actors shared a religion (Roman Catholicism) and they had a fairly homogenous cultural background. While other states and state-like entities existed, they were not part of the dominant state system, and therefore not actors in this legal system. (They were too far away to significantly affect the systems functioning and/or sufficiently unlike European states to be regarded as political equals.) The legal principles that developed during this time period reflected this homogenous culture and its normative consensus.

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Within this state system, three legal principles emerged: 1) The principle of military necessity; it asserted that states were to use only the degree of force necessary to obtain their goals, with the least cost of human life and military resources 2) The principle of humanity; it asserted that human life should be respected. 3) The principle of chivalry; it asserted that a nation could not use dishonourable means in combat. During this time period, war was limited in scope; its combatants were distinct from civilians (they were members of the elite); statecraft was an activity undertaken by the political and social elite; and it was conducted as a gentlemens game. A helpful practical example of this system can be found in Shakespeares play Henry V. If you have time, watch Kenneth Branaghs excellent 1989 film of this play. It provides many examples of the legal codes that dominated the earliest of European state systems. See, for example, the arrival of the French Envoy at Henrys Castle: http://www.youtube.com/watch?v=NHAAH8PCnMo& feature=related and events immediately following the Battle of Agincourt: (starting at 3:58) http://www.youtube.com/watch?v=ktzGn0GvWVA This state system produced two important legal principles that remain part of the international system today. The first is jus ad bellum, the law of going to war. It is rooted in natural law. This principle asks whether or not a war is being fought for just reasons, for it questions the moral character of the employment of force. Its principles assert whether or not a war is a just war. The second principle is jus in bello, the law of war. This is rooted in positive law. Jus in bello provides a set of rules for the conduct of war. In every age, these two types of law exist, but their content may differ. Also, the level of their pre-eminence in the international system differs in every state system. During the Late Enlightenment Consensus, both of these types of law existed, but jus ad bellum dominated. Before entering into war, states considered whether or not the particular military endeavour was just. If (for whatever reason) the war was considered just, then jus in bello came into play. Outside Europe During the Late Enlightenment Consensus, there were, as noted above, states and state-like entities outside the European system. The European states had a common ideological background they were Christian and if conflicts among them arose, they were still united by their religious faith. In addition, they had a similar level of economic and political development (most were experiencing the growth of capitalism and the initial movement from absolutism to democracy). Non-European, non-Christian states were marginalized by this culture. They were outside the system, and somewhat irrelevant to its development. For a period of about three hundred years between 1500 and the end of the 1700s, a few state entities in Asia (including Persia, Burma, and Siam), had social dealings with the Europeans and were considered equals in many respects. The industrial revolution of the 1700s, however, created a huge gap between European and nonEuropean powers, so that by the1800s, they were gradually conquered or fell under the domination of European states. Some states, for example, Japan and Turkey, were in contact with Europe and the United States, but did not understand themselves as forming part of a common world, and therefore no stable bonds of cooperation or shared institutions emerged. There are three points respecting this issue that are important to recognize, and which are generally

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agreed upon among scholars. First, although the world has always included both European states and non-European states, and there was always some degree of communication between them, many factors, including geographical distance, made communication difficult. Second, the European powers set the tone for international law from the beginning, and subsequently, they were able to play a dominant role in its development. Third, Western jurists and legal scholars consistently theorized and buttressed the idea of European superiority. As non-European states eventually bowed to European military strength, they eventually submitted to the rules established by Western powers. Western European powers established two classes of legal relations with outside states depending on whether the entity under consideration was a formal state on their terms (for example, the Ottoman Empire, China, and Japan), or a community that lacked a central authority (for example, tribal communities or those dominated by local rulers). For states with legitimate central authority, the Europeans developed the Capitulatry Regime; communities with no such central authority were considered to be appropriate objects for conquest and appropriation (that is, they were colonized). The Capitulatry Regime gives us some insight into the way international law functioned outside the European system, so we will look at it briefly. Capitulations were agreements between Western leaders and a number of Arab states, and with Persia, China, and Japan, from the sixteenth century onwards. The name Capitulation is derived from the capitula, or chapters, into which these agreements were divided. This legal regime was consolidated in the 17 and 18 centuries.
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Capitulations regulated the conditions of Europeans on the territory of non-Europeans. They tended to include several basic provisions, including: 1) Europeans of a nationality party to such an agreement could not be expelled without the consent of their consul; 2) they had the right to public Christian worship and could erect churches, and their own graveyards; 3) they had the right to freedom of trade, and were exempt from certain import and export duties; 4) reprisals against them were prohibited; and 5) disputes between Europeans were decided by their countrys consul, and in cases of disputes between Europeans and nationals of the territorial state, judges of the territorial state ruled. These regimes are striking for a number of reasons. First, they suggest that Europeans came to make up a legal community separate from the local one, and were subject to their own authorities, rather than national authorities. This is an effective extension of sovereignty beyond ones own territory. Second, this regime was not based on reciprocity. Citizens of the non-European territory did not enjoy these rights in Europe. Finally, it is clear that certain non-European states did not see these agreements as limiting their sovereignty. Japans leaders, for example, asserted that Japanese laws were sacred, and foreigners were not worthy of them. By the 19 Century, however, other states had come to view this extra territoriality as an encroachment on their power. Countries without a state-like structure fell victim to Western encroachment, and they were subjected to colonial domination; that history is well-known. What part did international law play in the process of colonization? It can be argued that international law facilitated colonization because it offered a large number of legal instruments that facilitated it. The doctrine of terra nullius, for example, authorized states to acquire those territories by down grading them to the status of terrae nullius, that is, territories belonging to no one. Effective occupation of a territory was sufficient for defacto control over it, and acquisition of sovereign rights to it. Local leaders had the options of waging a war, or attempting to conclude a treaty, a situation that has clear parallels to the Melians situation
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with respect to the Athenians arrival on their territory. Although the Late Enlightenment Consensus and its institutions were well-entrenched, the state system was eventually transformed, and so too was the international legal environment. Among the factors that contributed to this change were the disappearance of the European cultural consensus, the rise of nationalism, and the growth in the scale of war. Two major conflicts are illustrative of these changes. The French Revolution initiated the potential for wars of ideology. Up until this point, war had been a policy instrument, used to achieve specific ends. The French Revolution was fuelled by ideology, and wars of ideology typically are not restrained in their tactics and goals. The American Civil War (1859-65), was the first large scale war of mass conscription. It was extremely violent, much worse than the European conflicts that preceded it, and led military leaders to develop formal, written rules of combat. In earlier European conflicts, the combatants had been of the upper classes, and well aware of the rules limiting behaviour in war. Conscripts did not have that education. The United States Army asked Francis Lieber (a professor at Columbia University) to write down the rules of war for this new kind of combatant. The American field manual written by Lieber became known as the Lieber Rules, and it became a model for other nations. The Balance of Power System (mid-1600s mid-1900s) While Late Enlightenment Consensus conflicts were ritualized, as that state system declined, war therefore became more formalized (rather than assuming everyone knew the rules, the rules of combat were written down) and wars increased in scope. From these changes, the more formalized Balance of Power system emerged. The Balance of Power system was one in which equilibrium amongst states was maintained by a constant give and take among them. This equilibrium is maintained by treaty alliances that ensure that no one single nation can become powerful enough to take over the entire system. Kaplan and Katzenbachs article in todays readings outlines the major components of the Balance of Power system, which for our purposes include: 1) The principle of divide and conquer saw alliances split and re-form with relative frequency. This worked to diminish stronger powers. 2) The creation of neutral buffer states gave the system flexibility. 3) The principle of neutrality of alignment ensured flexible alliances. This system worked best when it was least institutionalized, and it relied on the flexibility of alliances to maintain equilibrium. The move from the Late Enlightenment Consensus to the full Balance of Power system was also a move from an emphasis on natural law to positive law. War was no longer fought in the name of justice, but instead, for political expediency. In this way, law became an instrument of policy. The foundation of the Balance of Power system is the nation state and the maintenance of sovereignty. The Balance of Power system began to break down in the late 1800s. Kaplan and Katzenbach suggest several reasons why this occurred: 1) The continuing rise of nationalism saw alliances move from being based on convenience to instead being based on ideology (for example, France and Germany were increasingly hostile after the Franco-Prussian War, and this made them less flexible) Sentiment intervened with practicality. 2) The Balance of Power system usually requires one great power to oversee the balancing act. Britain traditionally filled this role, but it had become militarily overextended through

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colonialism and overseas military commitments. 3) Peripheral powers such as the United States emerged. It had no immediate role, but it was potentially destabilizing. 4) The system had anti-technological bias; it depended on moderate war, and by the mid-1800s, the capacity for total war (mass conscription, transport, technology) existed. In particular, the rise of the industrial economy gave wealthier nations the capacity to develop a sudden advantage, which was tremendously destabilizing. Combat was no longer a game of honour and bravery for the aristocracy. Technology further destabilized the system because it permitted the masses to participate in war and by giving them the early weapons of mass destruction (for example, machine guns). Mass participation in war democratized conflict and changed the European social structure. It was increasingly difficult to contain nationalism and limit war. Indeed, this final development was particularly important for international law. Later in the course we will examine the Geneva and Hague Conventions in detail, two documents that codified the customary laws of war. The Balance of Power system was shattered by WWI and the settlement that was imposed following that conflict. The Balance required flexile treaties/alliances based on expediency and the maintenance of sovereignty. WWI left Germany defeated and with reduced sovereign power; these two forces fostered German resentment and nationalism. To review, the Late Enlightenment Consensus had emphasized natural law and, in terms of war, the legal doctrine of jus ad bellum. In the Balance of Power system, with its need for flexible alliances and emphasis on sovereignty, the emphasis was on positive law, and the legal doctrines of rebus sic stantibus and jus in bello. States had to be prepared to break treaties and engage in war when the situation demanded it. The Loose Bi-Polar System (mid- to late Twentieth Century) Where the Balance of Power system required flexibility in alliances, stability in what came to be known as the Bi-Polar system required stability in state alliances. As Kaplan and Katzenbach point out, in the Cold War world, political blocs were more than just convenient allegiances. Political alignment in this system was on the basis of long-term interest, and alliances had some supranational characteristics. The systems superpowers the United States (USA) and the Union of Soviet Socialist Republics (USSR) -- were clearly the worlds superpowers. They dominated the world system, and could, to some degree, intervene in their allies affairs, and direct their allies behaviour.

The operational principles of the Bi-Polar system therefore included: 1) 2) 3) 4) the need for a minimum of five major nations to maintain stability; the two major system blocs in direct competition; a direct rivalry kept in check by the threat of nuclear war; and alignment that is not neutral, but is instead politically charged and longstanding.

Kaplan and Katzenbach also point out that in this system, the United Nations is not used to keep the peace (the nuclear threat plays this role), but instead, it is more effectively used as a mediator and a forum for the expression of political interest.

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Notably, the principles of sovereignty and non-intervention, which dominated the Balance of Power system, are of limited importance in the Bi-Polar system. Instead, the superpowers self-interest sees them intervene in areas where they see fit. As a result, the use of international law does not reflect an emphasis on these principles. The law is instead used to support intervention. While the Balance of Power system emphasized positive law, alliances in the Bi-Polar System therefore emphasized their own versions of natural law. Allies of the USSR justified their politics with reference to a greater socialist good, while allies of the USA justified their politics with reference to a greater good of freedom and democracy. In the process, both alliances committed atrocities and undertook wars, and did so in the name of a higher law. While it may be tempting to identify positive law as an expression of self-interest, it is also the case that states may use natural law in that way as well. Kaplan and Katzenbachs article therefore reiterates the argument that Thucydides makes in The Peloponnesian War. Politics and Law are not independent spheres. The politics of a community affect the laws it produces and supports. This is particularly true in international relations, where there is no universally recognized final authority to create, police and judge the law, and no recognized police force to punish infractions of the law. For this reason, the power structure of the international community will always influence international law.

To Do
1. 2.
Ensure you can meet the objectives outlines at the beginning of the lesson. If you have any questions or difficulties, first post them to your Study and Discussion Group Forum area to see if your classmates can help you. While you are there, see if you can help them. If they can not help or you require more assistance, please feel free to contact your instructor using the Email Instructor link.

3. Reflect upon and answer the questions in the Lesson Notes. 4. Complete Assignment 2 (in Assignments Tab) and submit as directed by Monday, January 27, 2014 at 11:59 am.(extended lesson)
5. Proceed to the next lesson.

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