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Roundtable: 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.1
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...