Title
Justice-as-Sovereignty: An Application of David Hume's Philosophical-Politics to the Origins of International Law
Abstract
This essay argues for a transcendence of the positivist bias within international legal theory, a recognition that theory and practice are not dichotomous but dialectically related and suggests a new path for a fuller philosophical understanding of international law. Taking dialectic, non-disciplinary, and logically integrated pre-existing philosophical systems and applying them comprehensively to the characteristics of a specific practical environment, the contention is that a more advantageous methodology, Philosophical Politics, can lead to a more detailed contextual understanding of socio-legal evolution. Specifically, we will examine this method by applying the Philosophical Politics of David Hume, and the core concept of 'justice-as-sovereignty' to the origins of the international legal system. Beginning with Hume's idea of the circumstances of justice that assumes limited generosity rather than a focus on national self-interest, we shall re-examine global collective action as a dynamic coordination game focused on the Westphalian Equilibrium that exists within a context of nested municipal prisoner's dilemmas. Next, the evolution of Humean convention through sanctions including approbation, justice-as-sovereignty, and contract by convention, will be shown to have initiated the rise of the state, treated not as an individual but as a social construction. The international system, from this perspective is characterized by property instability rather than anarchy within a warlike state of nature and produces institutions without the centralization or enforcement mechanisms of municipal government but adequate to the specific requirements of international governance. Lastly, we shall examine Hume's argument for the solution to the dialectic between the positive and normative dimensions of the law and analyze how the concept of justice-as-sovereignty creates a unique definition of natural law while it grants us increased insight into the theoretical and practical idiosyncrasies of custom, treaty, and the 'general principles of law recognized by civilized nations' as sources of international law.
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