Before the Instruments: How a Ruler Was Bound

The early modern account is where the international order actually begins, because it detaches natural law from theology. Grotius argued that the law of nature would have force even on the impossible supposition that there is no God, which made it available as a common standard between States that had just spent a century at war over religion.

That move is why this chapter is in a paper about international order. A standard that depends on a shared faith cannot bind States of different faiths. A standard derived from reason can, and the law between nations was built on it.

Two objections, and where they lead

The positivist objection. There is no law but enacted law; talk of rights before enactment is, in the phrase, nonsense upon stilts. The answer this book gives is historical rather than philosophical: the claims were made, they were conceded, and they were then enacted, which is the sequence every chapter in Module I traces.

The relativist objection. A standard above the ruler is a standard somebody has to state, and whoever states it is somebody in particular. That objection is real, and it is answered by the convergence above and by the drafting record in [Drafting the Universal Declaration], not by assertion.

From a standard above the ruler to an order between rulers

The step this module traces, in four moves.

One: the standard binds the ruler at home. Magna Carta in 1215, the Bill of Rights in 1689.

Two: the standard is said to bind all rulers. 1776 and 1789, where the claim stops being about Englishmen and becomes a claim about human beings.

Three: rulers agree with each other about how they will treat people. Abolition, the laws of war, the minorities treaties: the subject of [Abolition, and the First International Concern] and [The Laws of War, and the Individual as a Protected Person].

Four: an organisation is created to hold them to it. The League, and then the United Nations.

Move three is the one that makes an international order possible, because it is the first time States accept that how they treat people is a matter for other States. Everything in Modules II and III depends on it.

Worked example

A question asks: "Trace the development of the concept of human rights before the Charter of 1945."

Open with the proposition, not with a date: the development begins with the claim that a standard exists above the ruler, and every later stage is that claim being widened.

Give the convergence across traditions, and immediately give the limit: none of them supplied a right in the person and all of them tolerated slavery.

Give the natural law line through the classical, medieval and early modern accounts, and identify Grotius's move as the one that made a common standard between differently believing States possible.

Give the four moves: the ruler bound at home, the claim universalised, States agreeing with each other, and an organisation created.

Close on what was still missing in 1945, which is a list of rights and a way for a person to invoke one, and which is what [The Charter of the United Nations, and the Pledge] and [Drafting the Universal Declaration] supply.

What it does NOT mean

It does not mean the ancient traditions had human rights. They had a standard above the ruler, which is the first of two propositions and not the second.

It does not mean natural law is the only ground. [What a Bill of Rights Is] and the positivist material show a claim can be grounded in enactment alone.

And it does not mean the development was continuous. It was interrupted repeatedly, and the interruptions matter as much as the advances.

Quick revision

• The founding proposition: a standard exists above the ruler, which the ruler did not make. Without it a sovereign's treatment of its own people cannot be unlawful and there is nothing for an international order to be about.
• It is not yet a right in the person. A standard above the ruler says the ruler may be wrong; it does not give the subject a claim.
• Convergence across traditions: the Greek unwritten law, the Roman ius gentium, dharma, sharia, and the Stoic and Christian natural law. Every one of those societies held slaves.
• Grotius detached natural law from theology, so it could bind States of different faiths, which is why the law between nations could be built on it.
• Four moves to an order: the ruler bound at home; the claim universalised in 1776 and 1789; States agreeing with each other about how they treat people; and an organisation created to hold them to it.

Test yourself

1. Why does the development of the concept begin with a standard above the ruler? Because without that proposition there is nothing for an international order to be about. If law is simply what the sovereign commands, then a sovereign's treatment of its own population is by definition lawful, no external standard can be applied to it, and the question this paper asks cannot arise. The proposition is that a rule exists which the ruler is measured against and did not create, so that the ruler can be said to have done wrong without denying that they are the ruler. It appears independently in several traditions: the unwritten law of the Greek tragedians, the Roman ius gentium as the part of law common to all peoples, dharma as an order the Indian king enforces and is bound by, the sharia as a law the ruler administers and cannot alter, and the natural law of the Stoic and Christian writers. The honest qualification belongs in the same answer: none of those societies extended the standard to everyone, none gave the subject a claim against the ruler, and every one of them held slaves.

2. Why does Grotius matter to a paper about international order? Because he detached the standard from theology and thereby made it available between States that did not share a faith. His argument that the law of nature would have force even on the impossible supposition that there is no God is the move that converts natural law from a doctrine internal to one religious tradition into a common standard usable across the European States that had just spent a century at war over religion. That matters here for a specific reason: a standard resting on shared belief cannot bind States of different beliefs, so an international order built on it would extend no further than the belief. A standard derived from reason can be asserted between any States, and the law of nations was in fact built on it. The same structural point returns in 1948, when a proposal to found the Universal Declaration on a religious premise was rejected precisely so that the instrument would not rest on one tradition.

3. Set out the four moves from a standard above the ruler to an international order. First, the standard binds the ruler at home: Magna Carta in 1215 conceding that even the king acts against a free man only by lawful judgment or by the law of the land, and the Bill of Rights of 1689 making the rights of subjects a condition of holding the Crown. Second, the claim is universalised: the American Declaration of 1776 and the French Declaration of 1789 stop speaking of Englishmen or subjects and speak of human beings, so the standard is asserted for everyone rather than for a status. Third, rulers agree with each other about how they will treat people: the abolition treaties, the laws of war from 1864, and the minorities treaties after 1919, which is the decisive move because it is the first time States accept that how they treat people is a matter for other States. Fourth, an organisation is created to hold them to it, first the League and then the United Nations. Everything in the regional and machinery modules of this paper depends on the third move having been made.

4. How should the positivist and relativist objections be handled at this stage? Both should be stated fairly and answered from the history rather than from philosophy, because that is what this module is for. The positivist objection is that there is no law but enacted law, so a right asserted before enactment is not a right at all. The answer this book gives is a sequence rather than an argument: the claims were made politically, they were conceded, and they were then enacted in the Charter, the Declaration and the Covenants, so the objection describes the starting position accurately and does not describe the finishing one. The relativist objection is that a standard above the ruler has to be stated by somebody, and whoever states it is somebody in particular with a particular history. That objection is serious, and the answers to it are evidential: the convergence of independent traditions on the same structural proposition, and the drafting record of 1948, in which the officers were American, Lebanese and Chinese and a religious foundation was rejected so that no single tradition would be privileged.