Hobbes on the International Rule of Law

Perhaps the most influential passage on the rule of law in international law comes from chapter 13 of Thomas Hobbes’s Leviathan. In the course of describing the miserable condition of mankind in the state of nature, Hobbes remarks to readers who might be skeptical that such a state ever existed that they need only look to international relations—the relations between independent states—to observe one:

But though there had never been any time, wherein particular men were in a condition of warre one against another; yet in all times, Kings, and Persons of Soveraigne authority, because of their Independency, are in continuall jealousies, and in the state and posture of Gladiators; having their weapons pointing, and their eyes fixed on one another; that is, their Forts, Garrisons, and Guns upon the Frontiers of their Kingdomes; and continuall Spyes upon their neighbours; which is a posture of War.

The passage is influential because realists take Hobbes not only to be describing international relations but also making a statement about what international relations should be—an arena in which individual states relentlessly pursue goals that they take to serve their particular interests. It has to be that way, on the view traditionally attributed to Hobbes, because the conditions that make the rule of law possible within a state—namely, an absolute sovereign with a monopoly on the power to make, enforce, and interpret the law—are so conspicuously lacking in the international arena.

Hobbes’s view that these three functions have to be united in one person or body to avoid chaos has been rejected for some time. But even if one supposes that an effective rule of law requires a separation of powers between the legislature, the executive, and the judiciary, that separation occurs within a unified state in which there is some ultimate locus for each function; and no plausible equivalent exists and is likely ever to come into existence in the international arena. And yet international law exists, and critics of realism can point to examples of compliance by states with international law where such compliance seems plausibly to be against state interest. Hence, these critics argue, since international law constrains the power of sovereign states, there is an international rule of law, even though the international legal order lacks the institutional framework that we consider essential for the rule of law within states.

However, this argument from actual examples is problematic because the practice of state compliance with international law is not that easily demonstrated to be the product of legal constraint. Indeed, the problem goes beyond international law since the practice whereby a state generally complies with its own domestic law is hardly different in this respect, as I will show in the next section. But, as I will also try to show, this phenomenon does not so much demonstrate the truth of realism as that the ultimate questions in debates between realists and their critics are normative questions about how best to construct practice, and not only questions about how best to describe it. To think that Hobbes, to take just one prominent example, was providing only a description of state practice in the quotation above is to misunderstand what question he was asking when he inquired into whether the rule of law is possible, in domestic affairs or on the international level.

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