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KOSKENNIEMI, Martti.The Politics of International Law (1990) - Coggle…

- - - - Subjectivity of value: “(…) criticism of relying upon natural principles to justify political authority. Appealing to principles which would pre-exist man and be discoverable only through faith or recta ratio was to appeal to abstract and unverifiable maximums which only camouflaged the subjective preferences of the speaker. It was premised on utopian ideals which were constantly used as apologies for tyranny.”
        
        “From the simple denial of the existence of principles of natural justice — or at least of our capacity to know them — follow three liberal principles of social organization: freedom, equality and the Rule of Law. If man is not born to a world of pre-existing norms, then he is born free; if there are no antecedent principles establishing the relative worths of individuals, the individuals must be assumed equal. And finally, freedom and equality are guaranteed only if social constraint is governed by public, verifiable and determining rules (…)”.
        
        “The fight for an international Rule of Law is a fight against politics, understood as a matter of furthering subjective desires and leading into an international anarchy.”
        
        “The diplomatic history of the 19th century is a history of such a fight. Since the Vienna Congress of 1814-15 and the defeat of Napoleon, the relations between European powers were no longer built on one power's search for primacy but on a general pursuit of the maintenance of the balance of power, guaranteed by complicated legal procedures and alliances. As contemporaries increasingly saw Europe as a 'system' of independent and equal political communities (instead of a respublica Christiana) they began to assume that the governing principles needed to become neutral and objective — that is, legal.”
        
        Legal Positivism: The 19th-century approach to international law was largely positivist. It focused on codifying existing practices (diplomatic) into formal legal rules without necessarily delving into their moral or ethical underpinnings.
        
        Procedural Law: The emphasis was on the how of international relations, rather than the why. The rules governed diplomatic interactions, treaties, and war, but they didn't dictate the substantive goals or justifications for these actions.
        
        Sovereignty: The system upheld state sovereignty, allowing states significant freedom to pursue their interests.
        
        Absence of Substantive Justice: While lawyers discussed "justice" in the conduct of sovereign affairs, they didn't ground it in concrete moral principles. The focus was on procedural correctness rather than ethical outcomes.
        
        20th century: reconstructive (post-war) doctrines
        
        Implications of the 19th century's International Rule of Law
        
        Limited Scope: The 19th-century approach to international law was limited in its ability to establish a robust rule of law. While it brought order to international relations, it did not effectively constrain power or ensure justice.
        
        Focus on Process Over Substance: The emphasis on procedural law over substantive justice created a system where states could act within legal boundaries while still pursuing morally questionable goals.
        
        Challenge to Legitimacy: The absence of strong moral foundations for international law could undermine its legitimacy in the long run.
        
        :pushpin: In essence, the fragment highlights a period when international law was more a tool for managing state relations than a framework for upholding justice and human rights. This perspective contrasts sharply with contemporary notions of the rule of law, which emphasize accountability, human rights, and the protection of vulnerable populations.
        
        :pushpin: In essence, the fragment suggests that establishing and maintaining a robust international rule of law requires overcoming the challenges posed by the often self-serving nature of politics.
        
        Politics, in this context, is seen as a realm of subjective interests, power plays, and short-term gains, often at the expense of the broader legal order.
      - Enlightenment (17th & 18th Centuries): Thinkers like John Locke and Thomas Hobbes challenged the Divine Right. They argued for a "Social Contract" where people give up some freedoms to a government that protects their natural rights (life, liberty, property).
      - Idealism: This view reflects an optimistic and idealistic perspective on the possibility of creating a just and orderly international society based on rational principles.
      - Enlightenment Ideals: The 18th-century Enlightenment period was a time of intellectual and philosophical ferment, marked by a shift from tradition to reason. Key ideas included individual rights, limited government, and the importance of law.
      - Domestic Rule of Law to the International Sphere: Jurists of this era believed that the principles underlying the domestic rule of law—such as equality, predictability, and accountability—could be applied to the international realm.
      - :pushpin: In essence, the fragment points to a long-standing desire to establish a legal framework for international relations that is as just and predictable as domestic law.