“Where there is no Common Power, there is no Law….”
Thomas Hobbes, Leviathan, Chapter XIII
The “State of Nature” as “State of War”
From its modern beginnings in the seventeenth century – more precisely, since the Peace of Westphalia in 1648 – international law has presumed firm distinctions between “national interest” and “world interest.” Rather than recognize the organic wholeness and interdependence of all peoples, this false presumption has prodded nation-states to embrace “everyone for himself” orientations to foreign policy. The cumulative result of all such misdirected thinking has been grievously injurious and mercilessly lethal. In more expressly jurisprudential terms, this bitter result has made itself manifest in war, terrorism and genocide.
What has been America’s particular place in fashioning such manifest incoherence? Most recently and plainly, the calculable cost of former President Donald J. Trump’s “America First” has been a severely debilitated nation and world. This debility, still ongoing, can be assessed not only in usual political and geostrategic terms, but also from equally critical standpoints of national and international law. Though generally disregarded, these complementary jurisprudential perspectives are urgently important to enhancing the overall security and well-being of post-Trump America and of world security in toto.
Particulars matter. There are variously relevant themes and details that warrant immediate mention. From its modern Westphalian beginnings, world law has been based upon the “egocentric” dynamic of Realpolitik or “power politics.” Although such thinking has normally been taken as “realistic,” that view must ultimately prove shortsighted and perilous. Among other things, any incumbent American president would be well-advised to finally acknowledge the inherent limitations of our planet’s traditional threat system, and to identify more durable configurations of international relations and international law.
In this daunting process, history will deserve some evident pride of place. What might first have seemed promising to “realists” about national security in the “State of Nature” (the condition of global anarchy dating back to the Peace of Westphalia in 1648) is apt to prove distressingly futile for longer-term world survival. For the United States especially, this futility could sometime be experienced not just as some casual debit in the country’s complex national security calculus, but as an explosive and potentially irreversible combination of existential costs.
The Ultimate Human Imperative: Harmonizing National Interest with Global Interest
It is high time for all states to understand that their own national interests ought never be placed at odds with world system interests. Prima facie, the United States, in the fashion of every other state, represents one intersecting part of a much larger and many-sided world legal order. As was already foreseen by Thomas Hobbes back in the seventeenth-century, this comprehensive system of law reveals steadily diminishing chances for success within absolutely any patterns of global anarchy. Incontestably, “Westphalian” decentralization is both markedly corrosive and irremediably broken.
“What is the good of passing from one untenable position to another,” asks philosopher/writer Samuel Beckett provocatively in Endgame, “…of seeking justification always on the same plane?” Thought the celebrated Irish playwright was assuredly not thinking about world politics or international law, his generalizable query remains perfectly well-suited to the global “State of Nature.” As fiercely competitive power-politics has never been propitious for human security at any tangible level, why ought any national leader still insist upon maintaining it as the core doctrine of national interest and survival?
In these conspicuously serious matters, truth is necessary and exculpatory. Pertinent facts about such urgent matters can never be overridden by visceral chants at mind-canceling political rallies or by substitutions of shallow political witticism for verifiable analyses. Retained as the structural context for world legal order, the State of Nature could never preserve national or human security for any sustained intervals. Moreover, looking still further ahead, this unsteady condition could suddenly be exacerbated by certain systemic failures, by multiple losses that would become mutually reinforcing or even fully “synergistic.” Over time, these plausibly unavoidable failures could sometime involve weapons of mass destruction.
Most portentous, in this regard, would be the use of nuclear weapons.
But there is still more to consider. By definition, any prospective failure of nuclear Realpolitik in the State of Nations could represent not “only” catastrophic forms of aggression, but also negative forms that are literally unprecedented (sui generis). This sobering conclusion would hold true as long as the tangible failures were eventually judged within the full scope of their relevant (national and international) declensions.
Beyond Westphalia: Identifying Alternative Systems of World Order
What next? All states that depend upon some form of nuclear deterrence – and this means especially the United States – must prepare to think more self-consciously and imaginatively about alternative systems of world politics and world law. This means, inter alia, contemplating prospectively viable legal configurations that are simultaneously war-averse and cooperation-centered. Although any discernible hints of interest in such patterns of expanding global integration (of what the Jesuit philosopher Pierre Teilhard de Chardin would call “planetization“) could first sound utopian to “realists,” a distinctly opposite interpretation would prove far more sensible.
Why keep repeating the same lethal mistakes? At this point in national and world history, after all, it is more realistic to acknowledge that the “every one for himself” ethos in world politics is endlessly degrading and sorely unpromising. Just to challenge such an acknowledgment would be unsupportable prima facie.
Again and again – and at some point, irretrievably – “Westphalian” world systemic failures could become relentlessly dire and potentially irreversible. In the final analysis, it will not help the United States or any other country to brazenly assert “national interest” as a presumptively self-confirming national objective. Indeed, clinging stubbornly to variously vitriolic notions of “us versus them,” maintaining belligerent postures between states or (as “hybridized” actors) between states and surrogate or sub-state organizations, would quickly prove a misconceived posture.
Going forward, the only sort of legal realism that could make any sense for America and the other “powerful” states in Westphalian world politics would be a courageous embrace of global “oneness.”
In its fully optimized expression, such an indispensable awareness – an opposite awareness of former US President Donald J. Trump’s “America First” – would resemble what the ancients called “cosmopolis” or “world city” focused. For the moment, the insightful prophets of a more collaboratively legal world civilization must still remain “out of sight,” still subject to false charges of “idealism,” few and far between. But this consequential absence is not due to any intrinsic lack of need or witting intellectual forfeiture. Instead, it reflects a progressively imperiled species’ retrograde unwillingness to take itself seriously – that is, to recognize that the only sort of law-based loyalties that can finally rescue nation-states from war, terrorism and genocide must embrace a redirected individual and national commitment to humankind as a whole.
The only reasonable mantra to guide the United States on such primary security matters should be “World First.” Only with such a mind-based orientation could US leaders ever hope to make America “First.”
There is more. This is not really a bewildering idea. It is hardly a medical or biological secret that the core factors and behaviors common to all human beings greatly outnumber those that differentiate one person from another.
Unless the leaders of all major states on Planet Earth can finally understand that the survival of any one state must always be contingent upon the survival of all, true national security will continue to elude absolutely every nation. This references even the purportedly “most powerful” states, including those that so fitfully declare themselves “first.”
To Understand the Planet as an Organic “One”: Finally
The bottom line? The most immediate security task in any law-based state of nations must remain collaboratively self-centered, including the traditional remedies of collective self-defense and collective security. Simultaneously, however, leaders of all pertinent countries, especially the United States, must learn to understand that our planet inevitably represents an organic whole, a fragile but variously intersecting legal “unity” that now exhibits only diminishing options for successful war avoidance.
Thinkers deserve their proper place. To seize rapidly disappearing opportunities for longer-term survival, national leaders should learn to build upon the critical foundational insights of Francis Bacon, Galileo and Isaac Newton, and also on the more contemporary observation of Lewis Mumford: “Civilization,” says the distinguished social philosopher, “is the never ending process of creating one world and one humanity.”
These names will signify nothing to unthinking adherents of belligerent nationalism in the United States or elsewhere, but there may remain some capable advisors who can still remember the purposeful dignities of intellect or “mind.”
There is more. Whenever scholars and policy-makers speak of civilization, they should also speak of law. No particular national leadership has any special or primary obligations in this regard, nor could such a group reasonably afford to build any immediate security policies upon seemingly vague hopes. Nonetheless, the United States remains a key part of the “legal community of nations,” and an incumbent president (now Joseph Biden) should always do everything possible to detach the State of Nations from the State of Nature. It’s a tall order, to be sure, but anything less is destined to fail.
Things must finally be seen in broader perspective. Any willful detachment from our ill-fated global State of Nature should be expressed as part of a wider vision for durable and justice-centered world politics. Over the longer term, in order to preserve the United States, Washington will have to do its part to preserve the global system as a whole. “America First” should never again be allowed to define and defile this country’s national security objective.
For the moment, at least, there is no need to further detail analytic or intellectual particulars. There are bound to be many, of course, but for now, only a more evident and dedicated awareness of this basic civilizational obligation should be accepted. Once the basic vision is properly and more widely understood, pertinent details could follow.
In The Plague, Albert Camus instructs: “At the beginning of the pestilence and when it ends, there’s always a propensity for rhetoric. It is in the thick of a calamity that one gets hardened to the truth – in other words – to silence.” As long as the states in world politics continue to operate in narrowly zero-sum terms of engagement, they will be unable to stop the next wave of terror attacks, genocides and catastrophic wars. Nowadays, of course, we will need to add “plague” in its original biological iteration to this fearful list. Moreover, scholars and policy-makers will have to look even more closely and specifically at all possible intersections/synergies between world political hazards and disease pandemic.
These will be intellectual tasks, not political ones.
Understanding “Everyone for Himself” as Prescription for Universal Despair
Until now, the traditional legal expectations of Realpolitik may have appeared generally sensible. Accordingly, there will appear no good reasons for expressing any retrospective regrets. Nevertheless, from the always-overriding standpoint of improving humankind’s longer-term security prospects, the American president and other leaders must substantially expand their visionary imagination to include more seriously promising forms of “world order” understanding. By ignoring the complex interrelatedness of all peoples and all states, these leaders would allow crudely competitive visions of Realpolitik or Power Politics to prevail.
This outcome would represent the very opposite of what is required.
Now more than ever, affirming the extremity of “everyone for himself” in world politics offers a prescription not for realism and global law-enforcement, but for recurrent conflict and far-reaching existential despair. If this perilous prescription should stubbornly be permitted to stay in place, the various costs could sometime become nuclear. At that conceivably hard-to-imagine but still plausible point, it will already be too late to discover that “competitive national interest” had once been a deceptively contrived political slogan.
Thomas Hobbes, whose comment from Leviathan introduces this paper, was essentially correct. In whatever fashion scholars and decision-makers might choose to tinker round the edges of a still-malleable State of Nature, that State would necessarily remain in a corrosive condition of lawlessness or “war.” To progress and to survive, international law must finally be rendered compatible with more expressly cosmopolitan and centralized visions of global human society. Instead of harshly retrograde notions of “us versus them,” what we now require is a substantially expanded awareness of civilizational interdependence or “oneness.”
The seventeenth-century political philosopher Hobbes has been enhanced by 20th century psychiatrist Sigmund Freud. Says the latter in his classic essay, Civilization and its Discontents: “The replacement of the power of the individual by the power of the community constitutes the decisive step of civilization.” Though Freud was certainly thinking here of individual human beings within nations, and not of diverse nation-states in world law, the same intellectual argument applies.
There can never be any meaningful legal order amid anarchy in either setting, domestic or global. It is high time, therefore, to enhance the “power of the community” in world politics. No such complicated objective could ever be realized by childish political phrasemaking (e.g., “Make America Great Again”) or by anti-democratic leadership fiat (“Only I can fix it”). At this late stage, the intersecting processes of transformation are indispensable; derivatively, they must finally assume “center-stage.”
In closing, there is the related matter of “will,” whether personal, national or global. By definition, no pertinent task of will could ever prove more vital to American or planetary survival than a properly committed dedication to planetary “oneness.” French thinker Pierre Teilhard De Chardin’s The Phenomenon of Man (1955) can point us in a genuinely productive direction: “The egocentric ideal of a future reserved for those who have managed to attain egoistically the extremity of ‘everyone for himself’ is false and against nature. No element can move and grow except with and by all the others with itself.”
This directional imperative pretty much says it all.
Louis René Beres was educated at Princeton (Ph.D., 1971) and is the author of twelve major books and several hundred articles dealing with world politics and international law. Professor Beres was an original member of the World Order Models Project at Princeton and Yale during the 1960s. Some of his pertinent writings can be found at The New York Times; The Atlantic; The Bulletin of the Atomic Scientists; Yale Global Online (Yale); JURIST; The Hudson Review; Harvard National Security Journal (Harvard Law School); The American Political Science Review; World Politics (Princeton); The Princetonian (Princeton); Oxford Annual Yearbook of International Law and Jurisprudence ((Oxford University Press); International Security (Harvard); Parameters: Journal of the US Army War College (Pentagon); The War Room (Pentagon); Modern War Institute (West Point); The Hill; The National Interest; Horasis (Zurich) and the International Journal of Intelligence and Counterintelligence.
Suggested citation: Louis René Beres, International Law in the “State of Nature”: A Contradiction in Terms, JURIST – Academic Commentary, January 26, 2022, https://www.jurist.org/commentary/2022/01/louis-beres-international-law-state-of-nature/.
This article was prepared for publication by Sambhav Sharma, a JURIST Staff Editor. Please direct any questions or comments to him at email@example.com