Wednesday, July 24, 2002


I've been thinking a little more about Steven Den Beste's argument that international "law" doesn't really exist because there is no "consent of the governed." I absolutely agree, but I think there is a paradox lurking under there that I only hinted at in my earlier post.

Consent of the governed is important when deciding whether the legal system in general is legitimate. But only then. Consent of the governed (in the sense of unanimity) is pretty much irrelevant when deciding whether any particular law is legitimate. In fact, the only point of law is to coerce behavior that otherwise wouldn't occur, or to prevent behavior that otherwise would occur. We don't need laws requiring breathing; we all do that anyway, and a law would be superfluous. A law banning faster-than-light travel would be similarly superfluous. The only reason to have a law is that it requires behavior by persons who in all likelihood do not "consent" to that particular law. In other words, in order for there to be any point to a "law," there must be some entity that has the right and power to use force on unconsenting persons.

This ties in with Max Weber's famous definition of the "state": "[W]e have to say that a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory."

I'm actually not that familiar with Weber or his followers, so I don't know if any of them have extended this concept to "international law" as well. Nonetheless, I'll do it here: A "law" is a command issued by an entity that has a monopoly on the legitimate use of physical force. But there is no such entity on the world stage -- not even the United Nations can claim to be the sole legitimate user of force as between nations. Because there is no entity that legitimately use force on each and every nation that dissents from a given international "law," there can be no true international "law" in the first place. The only way ultimately to force behavior on a dissenting nation would be war.

That's what I think at present, although I will freely admit that the philosophy of international law is somewhat new to me and my opinions are subject to modification.


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