An Evolutionary Paradigm for International Law

Philosophical Method, David Hume, and the Essence of Sovereignty

J. Gillroy

• Publisher: Palgrave Macmillan
• Year: 2013
• ISBN:
  9781137376657
• Topic: Philosophy
• Subtopic: Political Philosophy

The book transcends conventional social scientific method, political theory and its understanding of global governance to make the study of the philosophical essence of the international legal system fully accessible.

1

Philosophical Method, Hume’s Philosophical-Policy, and Legal Design

Abstract

To conceptualize international law as an expression of practical reason, I adopt a procedure that applies philosophical-policy through legal design and has six steps: (1) A policy or legal issue is chosen (international law); (2) A philosophical system is selected to illuminate the issue (Hume’s, because of its focus on social convention as the source of law); (3) The philosophical system is then sorted through the categories of Collingwood’s philosophical method allowing one to identify the core dialectic, a scale of forms and the essential metaphysical structure of the philosophical system; (4) The fundamental assumptions for making policy and legal choices are then segregated transforming the philosophical system into a philosophical-policy paradigm; (5) The policy paradigm is then applied to international law as legal design and tested in the light of legal practice, linking the superstructure of codified law to the substructure of philosophical precepts that created it; (6) A feedback loop allows the comprehensive policy argument (CPA) and its interpretation of international law to be evaluated in terms of its utility.

Superficially, Hume does not appear to be concerned with the philosophical concept of reason but with human passions.¹ However, upon closer examination, Hume’s concept of human nature treats the persons, their understanding, character, and social context, within a comprehensive argument about the power of social convention. For Hume, convention is rooted in the practical application of human rationality, both conscious and unconscious, to action, given one’s circumstances, to generate collective practice.² Hume’s perspective attempts both to understand the employment of theoretical reasoning to one’s physical surroundings and to apply “practical” reasoning to the creation, stability, and persistence of human social ideas and institutions.³

The dialectical essence of Hume’s “practical reason” is the tension between reason and passions. Passions, because of their role in moving human action toward social interaction and stability, are the root of social convention and therefore the necessary point of focus for his argument. However, for our purposes, what is of interest is not that the passions dominate reason in Hume’s consideration of the human approach to the practical world, but that both reason and passion are dialectic agents in the persistence of human nature. This renders Hume’s effort one we can classify as an application of practical reason.

Hume not only identifies the origins of society in human passions, but uses them to trace the evolution of social convention, which acts as a base for progressively codified legal rules. These rules assure the stability of social order, while collective action increases in size and complexity. Overall, Hume offers a complete and systematized philosophical argument about the genesis or creation of law from the evolution of social convention. Within Hume’s philosophy, international law is a logical entailment of a general evolution of law from practical reason. International law and its established definition of Justice-As-Sovereignty can thus be viewed in a systematic and developmental way.

Recognition of the application of Hume’s philosophy for such practical matters as international law can be traced to Duncan Forbes. He describes the philosophy of David Hume as an applied philosophy, or a “Philosophical-Politics.”⁴ I propose to employ Hume’s logic of concepts, supporting the rise and maintenance of social convention in society, as a basis for the genesis of “sovereignty” in international legal practice. My goal is to understand how the nexus of philosophy, public policy, and law, represented in Hume’s argument for social convention, is useful in illuminating the origins of international law. This will provide the study of international legal practice, as a logic of investigation, with an underlying philosophical logic of concepts. In this way, we shall transcend and enhance traditional positivism and empirical or scientific method and be able to proffer a different, more complete, flexible, and comprehensive understanding of the roots of sovereignty in law.⁵

Here Collingwood’s⁶ philosophical method can be used to provide a foundation of standards and categories for the application of philosophy to law. This method assumes a dialectic between theory and practice where the understanding of a policy or legal issue requires that the philosophical systems that provide the logic of concepts both for the existing law, and for competitive policy arguments, be deciphered. These newly identified systems can then be used for a deeper understanding of a superficial practice that includes the underlying reasons for such a practice. The use of philosophical method, in this way, transforms the systematic and whole philosophical systems under examination into philosophical-policy paradigms, which then can be applied to legal practice. Consequently, both the substructure of the status quo legal practice, its strengths and weaknesses, and the dynamic parameters of change in the evolution of the concept under study are revealed.

Figure 1.1 Philosophical-policy and legal design: The creation of a comprehensive policy argument (CPA).

To use philosophical methodology, (Figure 1.1) one itemizes the characteristics of the policy or law under scrutiny, then matches a preexisting philosophical system to those characteristics in order to provide a theoretical substructure for legal practice.⁷ Next one takes the tenets of this philosophical system and examines them through the lens of philosophical method to decipher the core dialectic(s), the overlap of concepts defining the subject and its scale of forms. From these, the absolute and relative presuppositions of its metaphysics can be deciphered. Next, the system, understood through the philosophical lens, is turned into a philosophical-policy paradigm by segregating its fundamental assumptions, operating principle, material conditions, and shorthand decision-making procedure. Philosophical method, like its scientific counterpart, provides a set of categories and procedures, a particular point of view from within which the cross-section of social matter, viewed through any number of conceptual logics (i.e., philosophical systems) can be uniformly studied.

Hume’s philosophy requires adaptation before its full application to international law can be undertaken and analyzed. To do this, I shall examine Hume’s philosophical system or logic of concepts through the lens of Collingwood’s philosophical method. Simultaneously, I will decipher its “philosophical-policy paradigm”⁸ by defining its fundamental assumptions about the individual, collective action and the role of the state. The resulting paradigm, with its foundation of philosophical method, can then be used to describe the genesis of the international legal system, mapping theory onto practice as an expression of practical reason.

But why Hume? Hume provides a logic of philosophical concepts that fulfills the requirements for a fuller understanding of the origin and evolution of law from social convention. Specifically, 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 (i.e., principle, process, practice, rule, power, interest). He also provides an understanding of the essential dialectics at the core of a conceptualization of the law with both unconscious and conscious human participation (i.e., passion

reason; process

principle). A Humean perspective establishes an evolutionary scale of forms based on these dialectics that conceptualizes law as applied practical reason. It creates both a two-stage legal system and a fuller and more systematic explanation of the presuppositions of the concept of sovereignty, than positivist models, alone, can provide. Most importantly, Hume’s idea of science makes his argument ideally suited for examination through philosophical method, philosophical-policy, and legal design.

Hume’s Idea of Science as Philosophical-Practical Reason

Although coopted by positivists⁹ to support a modern social-scientific method, Hume’s specific definition of philosophy-as-science was based on a more comprehensive understanding of its interdependent application to the empirical and philosophical dimensions of both nature and human nature. The more comprehensive character of Hume’s approach to humanity, which employs what Collingwood enumerated as the characteristics of philosophical method, is a result of the definition of “science” that was prevalent in his era. The Enlightenment approach to “science” included concern for the application of reason to both humanity and nature and was founded on a recognition of the dialectic and interdependent makeup of life. For Hume and his contemporaries, approaching the world “scientifically” entailed combining philosophical and scientific method.

Many social arguments have been written since the mid-nineteenth century and, all are, in one way or another, and to a greater or lesser extent, derived from positivism with its roots in scientific method alone. Even those who criticize positivism still buy into its empirical presuppositions and produce noncomprehensive “normative” critiques of specific applications of positivist argument using components of, rather than integrated, philosophical systems. Others collapse into nihilistic “post-structural-modernism,” giving up on the possibility of truth altogether. In either case, the dichotomies and assumptions of scientific method remain the foundation of contemporary research.

Nihilistic modernism demonstrates the most profound power of positivist method in forcing critics to reject the idea of “enlightenment” itself. By wrongly accepting that scientific method was the sole legacy of Enlightenment thinking, critical theory, for example, sentenced its descendants to follow the maxim that those wishing to depart from the dominance of the material, the efficient, the instrumental value, or quantitative reductionism, should reject the entire Enlightenment project. This is aptly reflected in a seminal argument for modernism made by Horkheimer and Adorno.

For the Enlightenment, anything which cannot be resolved into numbers, and ultimately into one, is illusion; modern positivism consigns it to poetry. Utility remains the watchword from Parmenides to Russell. All gods and qualities must be destroyed.¹⁰

But the comprehensive idea of philosophy-as-science also arose during the Enlightenment and is a cornerstone of Hume’s argument.¹¹ Hume’s “science” of society is indeed a descriptive account of the origin of social cooperation. But it is simultaneously a prescriptive account of the normative obligations created by this human interaction that define just relations in the persistence of social organization that gain salience through levels of sanction seeking to assure certain expectations and acts. Hume was not writing in an era dominated by a dichotomizing positive methodology, but one where philosophical logics of concepts and empirical logics of investigation were assumed to be interdependent. Social presuppositions were assumed to have a dynamic context more akin to the dialectic idea of positive

normative.

Two strains of thought emerged from the Enlightenment. The first was the application of theoretical reason, or reason-in-nature, to classify empirical objects. Here the scientific method of Galileo and Newton was perfected in a quantitative logic and a classification system based on observation and induction that responded to a universal set of presuppositions relating to our cumulative experience, up to that time, with the world of causality. Meanwhile, a second parallel effort refined our application of practical reason to the individual as moral agent, to political organization in general, and to the universal and necessary roots of human social evolution. This effort aimed at freeing human studies from the dominance of theistic explanation, and law from determination by revelation. In response to the Reformation, a core imperative of the Enlightenment was the refinement of a universal and secular standard of practical reason as a basis for the study of society, as well as its inherent concepts and institutions.

This imperative of the Enlightenment responds to the perception that humanity and nature are related dialectically but require different sets of methodological presuppositions. Rousseau, Kant, and Hegel, among others, worked to develop this method for the application of practical reason to human affairs, but they were not as successful as the natural scientists in establishing a unified and practically-reasoned basis for their systems of thought. Perhaps this is because the superficial examination of social life suggests a pluralism of thought that defeats a common essential method of an...

Table of contents

• Cover
• Title
• Prologue: Sovereignty and Practical Reason
• 1  Philosophical Method, Hume’s Philosophical-Policy, and Legal Design
• 2  “Effectiveness”: A “Local” Rule of Recognition and the Foundation for Justice-As-Sovereignty
• 3  “Progressive Codification”: A Rule of Adjudication and the Evolution of Justice-As-Sovereignty
• 4  “Peaceful Cooperation”: A Universal Rule of Recognition and the Strategic Context of Justice-As-Sovereignty
• 5  “Non-Intervention”: A Rule of Change Protecting “Process” from “Principle”
• 6  Conclusion: The Metaphysical Elements of Sovereignty
• Notes
• Bibliography
• Index