Description
Hegel’s provocative critique of Law and International Law is that it is based on a flawed premise, i.e., that a formalistic, abstract rationalism can legislate and thereby regulate human behaviour across space and time. At the root of this flawed premise is a belief that legal conditions that hold in one era necessarily pertain in another. This fundamental error is masked by legal formalism in which adherence to formal principles is more important than the analysis of ethical and political problems that face parties in conflict. Formalism disrupts the capacity to perceive social, political, and ethical actuality, thereby reducing the legal theorisation to a series of one-sided, superficial appearances based on abstract scenarios from which elements that do not conform have been leached.
For Hegel, social relations between peoples cannot be understood in such a one-sided manner. The relations of peoples to other peoples are twofold, not singular: there is a positive bearing ‘the calm and even co-existence of both side by side in peace’ and a negative bearing ‘exclusion of one by the other,’ and Hegel insists that ‘both are absolutely necessary’ (Natural Law, 93). By prioritising one bearing – the positive - to the exclusion of the negative, legal thought goes astray. Legal thought compounds this error by seeking to apply legal solutions developed in contract law to international law. Hegel argues that such an approach is ‘inherently a self-contradiction’ (NL, 124) as the finite nature of contracts do not translate well to the conditions of international politics: appropriate legal arrangements of 1648 may no longer apply in 1999 or 2020. The content of international law therefore comes into contradiction with the form in which it is expressed. Although laws conceived in a one-sided manner may have some applicability, they remain finite expressions of particular wills at specific times in what is an infinite social sphere. A law that is no longer in harmony with the ‘living present’ is one that ‘lacks understanding and meaning, even though it still may have power and force on the strength of the form of the law’ (NL p. 130). The continued power of obsolete laws creates confusion and ultimately conflict as a new ethos contests its authority and the legitimacy of its continued use.
