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Law and War in Leo Strauss’s Thucydides, Grotius and Kant: Strauss as an International Legal Thinker Forthcoming in Alexandra Kemmerer, ed., Transmigrations: Jewish International Lawyers between Law and Politics. By Robert Howse1 1 Lloyd C. Nelson Professor of International Law and Faculty Co-Director, Institute for International Law and Justice, NYU Law School ; I owe an enormous debt to Ruti Teitel for conversation on many of the themes explored in this essay. Thanks to Peter Berkowitz and Alexandra Kemmerer for comments on earlier drafts; I also benefited from comments by David Jannsens and other participants at the Tilburg Law and Philosophy Workshop, where a version of this paper was presented in 2010. This Columbia workshop version omits most footnotes and draws from a longer work in progress, “Philosophy, Law and Political Violence: War and Peace in the Thought of Leo Strauss” and from the articulation of that project in my Inaugural Lecture for the Lloyd C. Nelson Professorship. A revised version of the lecture has now been published as “Man of Peace: Rehearing the Case Against Leo Strauss” in Burns and Connelly eds., The Legacy of Leo Strauss (Charlottesville, VA: Imprint Academic, 2010). 1 Introduction A range of media commentators and academics have suggested that the Iraq war was prepared and decisively influenced by a perspective on world politics derived from “Straussianism,” a school of thought that developed around the teachings of Leo Strauss, a 20th century German-Jewish philosopher who left Germany shortly before Hitler came to power, and taught at the New School in New York and then the University of Chicago. One dimension of the culpability attributed to Strauss for inspiring the Iraq venture is his alleged contempt for international law and worship of power politics un-moderated by any sense of legal or even moral restraint. In her book Leo Strauss and the Politics of American Empire, Anne Norton claims that Leo Strauss and his disciples are “proponents of war without limits.” James Atlas asserted in the New York Times that Strauss endorsed “the natural right of the stronger.” The natural right of the stronger was precisely the position taken by the Melian generals in the famed dialogue in Thucydides’ Peloponnesian War, an important element of the outlook of Athenian imperialism as presented by Thucydides, on whom Strauss wrote a very long essay in The City and Man. But when one turns to that essay, one observes something quite striking. Strauss prefaces his reading of the Peloponnesian Wars with a statement that “perceptive” contemporary readers of Thucydides note “the presence in his thought of that which transcends “power politics,” of what one may call the human or humane.”(p. 145). Strauss suggests that, contrary to first impressions, Thucydides provides an answer as to how ‘the power political and the humane are reconciled with one another.” International law is central to this reconciliation: This includes treaties and the unwritten sacral law, the latter guaranteeing the principle of pacta sunt servanda itself and aspiring to set an absolute 2 limit on the barbarism and dehumanization of war. There is, I believe, much greater attention to international law in Strauss’s essay than any other comprehensive interpretation of Thucydides by a modern political scientist or political philosopher. What distinguishes Strauss’s account of international law is that his understanding of the important humanizing and civilizing function of international law goes hand in hand with a view of history that rejects, or at least questions, progressivism. Strauss does not see international law as a secure vehicle for perpetual peace or cosmopolitan citizenship, and while he is sympathetic with the humane impulse behind such aspirations, he sees their attainment as well nigh impossible-and the very attempt as likely to unleash forces of fanaticism and human degradation (for him, the lesson of communism). In Strauss’s vision, international law operates within the permanent possibility of war and indeed barbarism—within the shadow of the very inhumanity against which it is a (fragile if necessary) bulwark. Reassessing international law in the light of the experience of 20 th century totalitarianism, Strauss thus avoids the ‘realism’ of Hans Morgenthau as well as the neo-Kantian utopianism of Hans Kelsen, for whom international law points in the direction of a world state or sovereign. Strauss’s unusual perspective is valuable today, where debates about international law seem to be dominated on the one hand by realist skeptics and on the other hand by progressive utopians, who believe that international law is or should be the vehicle of world peace and universal rights, or global constitutionalism. Strauss’s perspective forces us to ask hard questions, which take us not so much above, but rather beyond, the contemporary controversies concerning international law. Strauss’s treatment of international law in his essay on Thucydides is no mere 3 incident of his reading of that one book; in 1964, the same year as The City and Man was published, Strauss taught an entire course on Grotius’s Law of War and Peace at the University of Chicago and from his remarks in that course, it is clear that many of Strauss’s observations about international law in his Thucydides essay are actually quite central to his whole conception of the problem of international relations. A few years later Strauss would return to international law in his discussion of Perpetual Peace in the 1967 Kant seminar at the University of Chicago. International Law and the “Crisis of the West” The “foreground” for Strauss’s consideration of international law in Thucydides is his account of international order during the Cold War in the introduction to the City and Man The introduction begins with one of the most characteristic claims in Strauss’s thought, if not the key claim: the contemporary crisis of the West impels a reconsideration of ancient political thought. However, the longest and culminating chapter of the City and Man is not an interpretation of an ancient political philosopher; it is Strauss’s own philosophical reading or reflection on Thucydides, a political writer and historian who himself was neither a philosopher nor a student of philosophy (even if Strauss claims he was something more or other than what mean today by an “historian” or that he is a “philosophical historian”). The necessity for a supplement to ancient political philosophy becomes clear when Strauss articulates his understanding of the crisis of the West. This crisis is not simply or at its core a crisis of confidence in the internal political and social morality of Western societies; the crisis is linked to the rise of Soviet communism and the division between the West and the communist East, to the external situation of the West. The division shakes the confidence of the West in its ideal of a universal society based on 4 freedom and equality; ironically, perhaps, because the original claim of Marxism was to bring forth such a society. As Strauss showed through invoking Xenophon in his exchange with the Hegelian Marxist philosopher Alexandre Kojeve on the world state, ancient writings could furnish a valuable critical perspective on the modern Western ideal of the universal society-but Xenophon, although an associate of Socrates, was viewed by Strauss more in the manner of Thucydides than of Plato, as a political historian or writer whose preoccupation with war and empire was in contrast with Plato and Aristotle and their focus on the city at peace. But even if a classical political writer like Xenophon can help us discern what was fundamentally defective in the modern Western ideal of the universal society, now that the West’s confidence in such an ideal is already shaken, the question is that of what political and indeed human possibilities remain given the constraints of the Cold War situation. The answer to this question relates to what is the root of the ‘difference’ or conflict between Sovietism and the West, with its shaken or chastised ideal of a universal society. And here Strauss addresses international law, where the ideal of a universal society still, in the hopes for the United Nations for example, lives a kind of half-life. In the modern West’s original ideal conception, as Strauss notes, the universal society would be brought through the eventually global spread of the democratic revolution: “it had come to be believed that the prosperous, free, and just society in a single country or in a few countries is not possible in the long run: to make the world safe for the Western democracies, one must make the whole globe democratic, each country in itself as well as the society of nations. Good order in one country presupposes good order in all countries and among all countries.”69 5 Here the ideal sketched by Strauss seems very similar to that elaborated by Kant in his Perpetual Peace. By transforming itself into the constitutional law of a federation of republican states, international law consecrates the universalization of liberal democracy. While the experience of Communism has taught many people, Strauss suggests, that “for the foreseeable future there cannot be a universal state, unitary or federative. “(p. 5) there are apparently people who see communism as only a temporary obstacle and who take the existing federation-by which Strauss would appear to mean the United Nations—as a “milestone on man’s onward march toward the perfect and hence universal society….’ (p. 5). Today in the post-communist world the position in question has been most prominently advocated by Jurgen Habermas, who sees an evolution of the UN system of international law as the vehicle for the unfulfilled constitutionalist aspiration in Kant’s Perpetual Peace. 2 At one level, Strauss suggests such thinking underestimates the nature of the difficulty that Communism poses for the “onward march toward the perfect and hence universal society.” The problem is not just the division between two political and social systems, but the nature of Communism. The idea of sacred restraint, the notion that some methods of advancing one’s objectives are simply beyond the pale, is antithetical to the very ideology of communism: whatever advances the communists’ goals is sacred and whatever hinders their achievement “devilish.” As Strauss will go on to elaborate in his treatment of Thucydides, international law essentially depends on some conception of “sacred” restraint, at least a minimum sense of decency in dealing with others and fidelity to covenants, if sometimes (and, in the most extreme circumstances, 22 “Does the Constitutionalization of International Law Still have a Chance?” in Habermas, The Divided 6 often) honored only in the breach. But the Communists lack this minimum sense of ‘sacred”3 constraint, and even if their tactics were to shift towards détente or rapprochement, it would be an illusion to believe that the communist world could adhere genuinely to the existing federation of nations: ‘Communism will remain, as long as it lasts in fact and not merely in name, the iron rule of a tyrant which is mitigated or aggravated by his fear of palace revolutions. The only restraint in which the West can put some confidence is the tyrant’s fear of the West’s immense military power.” (p. 5) Yet the impossibility of genuine or good faith participation by the Communists in the postwar system of international law anchored in the United Nations could be only a temporary defect or shortcoming of that system, to be eliminated with the end of Communism. In stressing the specific intractability of the Communist belief system to the minimum sense of constraint required for international law to function, Strauss implies that most societies most of the time do have this minimum sense of constraint, even if it is much tried under conditions of war or empire; this is misunderstood by commentators who take his statements of skepticism concerning arms control treaties with the Soviets, for example, as a demonstration that Strauss’s perspective is one of pure power politics or ‘realism.” Strauss goes on to assert that the postwar system of international law suffers from internal contradictions that, he implies, would not be solved by an end of the Cold War, and perhaps could actually be exasperated by it. In his identification of these West. 3 The idea of the “sacred” here connotes the sense of a constraint that is felt as a force beyond one’s own needs and interests, and thus which cannot be dispensed with in order to serve those needs or interests. As we shall see in his discussion of Thucydides, Strauss explicitly leaves open the extent to which this sense of “sacred restraint’ depends on an actual belief in the divine, or the divine law in the literal sense, and the extent to which it is reinforced or supported by a sense of long-term self interest or prudence-the requirement of living with others under conditions of peace and stability. On the human and religious dimensions of the sacral law in Greece, see Jacqueline de Romilly, La loi dans la pensee grecque des 7 difficulties, Strauss would prove more perspicacious (in the 1960s!) than those observers who, after the fall of the Berlin Wall, thought that finally the United Nations could now be the vehicle of the “march toward the perfect and hence universal society.” But nor can Strauss’s analysis be compared to the alternative “realist” post-Cold War prognosis, as exemplified by John Meersheimer. Strauss’s analysis of the fundamental internal contradictions of the United Nations-based legal system centers on problems of justice not power politics. Let us turn to that analysis without further ado. Strauss begins by observing that a universal ban on wars of aggression assumes the justice of existing national boundaries, for such a ban excludes the possibility of a just war to alter existing boundaries in the name of self-determination. Yet, Strauss asks, how can one defend reasonably the justice of existing national boundaries? “The assumption that all present boundaries are just is a pious fraud of which the fraud is more evident that the piety. In fact, the only changes of present boundaries for which there is any provision are those that are agreeable to the Communists.” (p. 6) Subsequent developments can be seen as vindicating Strauss’s articulation of the difficulty in question. In the wake of the Cold War, the attempt to paper over this difficulty by confining demands for external self-determination by peoples previously under Communist tyranny to those consistent with uti possedetis-the internal boundaries in the Communist world, whether within the former Yugoslavia or the former Soviet Union-has hardly had the effect of preserving the integrity and viability of the approach of the UN legal system to the use of force. Instead, the ensuing conflicts (e.g. Kosovo, origines a Aristote (Paris: Belles Lettres, 2001), pp. 38-57. 8 Chechnya) have stressed that system to the limit.4 Indeed, such a result is already foreshadowed by the weak and failed states and resultant internal/external conflicts characteristic of those parts of the developing world where, in order to avoid reopening the question of boundaries, uti possedetis was used as a basis of decolonization. This brings us to the second contradiction that Strauss identifies in the postwar system of international law. There is a tension between the legal equality of states on which the system is based and the factual inequality of developing nations. To this day, the failure to close this gap-whether through adequate development assistance or a set of additional rules on trade finance and investment that has profound redistributive effectshas made the UN model of the global rule of law ineffective in addressing the problems that a universal society would need to solve, whether climate change or epidemics or terrorism by the discontents of the universal society. (See the scathing critique of the existing international economic order by the liberal moralist Thomas Pogge). Strauss notes, “no bloody or un-bloody change of society can eradicate the evil in man…., and hence there cannot be a society which does not have to employ coercive restraint.”(p. 5). The developing countries’ sense of the injustice of the existing factual inequality makes elusive any full agreement between developed and developing countries on the allocation by law of burdens that must be borne to solve the problems of global society. The legal equality on which the UN system of international law is premised is an inadequate principle of justice. These limits of the postwar UN-based system of international law, judged against the ideal or aspiration of a universal society, do not however settle the question of the See Robert Howse and Ruti Teitel, “Humanity Bound and Unbound: The Regulation of External SelfDetermination under International Law,” Colloquium in Legal, Social and Political Philosophy, NYU Law School, November 10, 2011. 4 9 limits of international law as such. Rather for Strauss, the critique of the utopianism of postwar international law merely sets the stage for the examination of earlier conceptions of international law, which are not dependent upon adhesion to a belief in unlimited progress towards the universal society. But even less so does Strauss’s critique of international legal utopianism purport to settle the question of the desirability or viability as such of the universal society. As we shall see when we consider the treatment of Perpetual Peace in Strauss’s 1967 seminar on Kant, in engaging with Kant’s idea of a republican federation of states based on the abolition of war, Strauss proceeds from agreement with Kant about why a world state is an undesirable goal. As Strauss’s exchanges with Alexandre Kojeve illustrate, much more is at stake in that question than the limits or possibilities of international law. Kojeve viewed the goal of the universal society as to be pursued, in the wake of what Strauss calls the lessons of the experience of communism, not so through the UN system of international law, but through the deepening and widening of the European model of economic and political integration and at the same time the rebalancing of relations between the developed and the developing countries in the GATT, perhaps with a view to the ultimate possibility of their absorption eventually as full and equal members into an ever-widening EU-style federation. On this understanding, UN-based international law is a sideshow, relative to proto-constitutional transnational legal order exemplified by the EU. According to Kojeve, once there is a universal society, the relations between all its citizens are regulated juridically. 5 There are no longer “states” in the strong Schmittean sense (defined by the possibility of violent existential struggle between 5 A. Kojeve, Outline of a Phenomenology of Right, tr. Frost and Howse; See introductory essay by 10 peoples) and the global reach of the internal law of the universal society renders international law-law of nations-superfluous. In fact, the internal law of the universal society is not modeled on international law, or a gradualist strengthening or deepening of international law; rather it emerges through the mutual recognition by states sharing a common principle of (social democratic) justice of each others’ domestic laws, and the eventual harmonization of those laws, at least in essential respects. International law in its classic meaning-the law of war, peace, and diplomacywill therefore matter most at the limits or the periphery where the true global rule of law remains elusive, i.e. the difficult cases of failed and rogue states and conflict zones where history does not seem to have ended, as it were. And indeed this may explain the main transformative tendency in international law today-in the direction of what Ruti Teitel has called “Humanity Law,” with its emphasis on elaborating or consolidating a minimum threshold of human protection even in the most extreme situations, and, correspondingly, on legal accountability for the worst crimes against “humanity.’ As we shall now see, this orientation or tendency of international law is broadly consistent with the vision Strauss sketches from Thucydides’ history. The Interplay of “Motion” and “Rest”: Reconsidering the Relationship of International Law to Human Progress Strauss’s critique of the progressive utopian view of international law in the Introduction to The City and Man frames his reconsideration of the relationship between international law and human progress in the Thucydides essay. In the Archeology of his book, Thucydides presents an account of the progress of Greek civilization up to the Peloponnesian War: the interplay of “motion” and “rest” produced cities of great wealth, Howse.and Frost. 11 power, and human excellence. But Thucydides also purports to show how this very progress led to the greatest “motion,” the Peloponnesian War itself, and therewith to the ultimate self-destruction of Hellenic civilization. If this kind of account of progress, civilization, and self-destruction were a true account of the human situation, one speculates that it would be possible to understand what happened in Germany and Soviet Russia, not simply in terms of the historical pathologies of German civilization, or of extraordinary “radical evil”, but rather as a particularly horrific example of the paradox or pathos of civilization itself. We would have to reconsider the common view that Strauss places the blame for self-destruction of modern civilization simply on the character of philosophical modernity; modern “progress” and modern “barbarism” may be rooted in the logic of the human situation as such.6 Here we note Strauss’s remarkable statement that “Thucydides’ work enables one to understand not only all past and future wars but the past and future things simply.”(p.156) Is Strauss merely stating what Thucydides claims for himself, or is he also revealing something of his own perspective? According to Strauss, the view of historical progress as the interplay of motion and rest allows us to understand correctly Thucydides’ overall judgment regarding the alternatives represented by Athens and Sparta-Thucydides’ admiration for Athenian daring, progress and imagination and his praise of Spartan moderation are equally authentic components of his estimate of Hellas as a human experiment. Because Thucydides is open to that which is beyond ordinary political life, wisdom and beauty, and he judges Hellas in part from such a perspective, he cannot but view Athens as having attained a human peak unknown to Sparta. But as a historian with open eyes, he also could not but articulate to what extent Athenian daring, the eventual limitlessness of Athenian striving, and the 6 Cf Leszek Kolokowski, Modernity on Endless Trial.; Emile Fackenheim, Between Past and Future. And see generally the final chapter of Strauss, Thoughts on Machiavelli. 12 loosening of all sacred restraints in Athenian society produced the debacle of Hellas’ selfdestruction. Interpreting the Archeology or prefatory section of Thucydides’ work, which sketches the history of Greece up to the time of the Peloponnesian Wars, Strauss observes: “since the development of that antiquity of which we have some direct knowledge to the present is, on the whole, a progress in security, power and wealth, it becomes sufficiently clear that at the beginning there was unlimited insecurity, weakness, and poverty. The reason for this was the unlimited rule in the beginning of unrest, of motion. Very slowly and sporadically man found some rest. During the periods of rest and security—periods which lasted much longer than the periods of motion alternating with them—power and wealth were built up. Power and wealth were built up not in and through motion but in and through rest. . . . The rise from original and universal insecurity, weakness, and poverty to security, power, and wealth became in certain places the rise from original and universal barbarism to what one may call Greekness, the union of freedom and love beauty….Just as humanity divides itself into Greeks and barbarians, Greekness in its turn has two poles, Sparta and Athens. The fundamental opposition of motion and rest returns on the level of Greekness: Sparta cherishes rest whereas Athens cherishes motion. The peak of Sparta and Athens was reached at the outbreak of the Peloponnesian war. In that greatest motion, power, wealth and Greekness, built up during a long rest, are used and used up….The greatest motion weakens, endangers, nay destroys, not only power and wealth but Greekness as well. It leads soon to that unrest within the city, the stasis, which is rebarbarization.” (p. 157) On this account it is rest that is essential to the build up of wealth, power and excellence that in turn leads to the greatest self-destructive motion. But Strauss goes on to 13 qualify this reading of the Archeology by suggesting that “present wealth, power and Greekness” are in fact themselves the product of the interplay of motion and rest (p. 160). Wealth, power and Greekness depend not simply on peace and stability, but on “craft and knowledge,” which are nourished by “motion” and have a positive relation to daring, to expansive striving. Where does international law fit into the drama of Hellas? According to Strauss, the answer is this: “Neither rest and Greekness nor even war is possible without treaties among cities, and the treaties would not be worth keeping if the partners could not be presumed to keep them; this presumption must at least partly be based on past performance, i.e. on the justice of the parties. To that extent fidelity to covenants may be said to be by nature right. But since this bond is for obvious reasons not sufficient men have recourse to divine sanctions.”(p. 178-179) This is a critically important statement of the strength and limits of international law in light of the view of history that Strauss draws from Thucydides’ Archeology. Civilization would not be possible without the security afforded by treaties. Unrestrained power politics cannot product stability; a mere balance of power unsupported by legal constraints and guarantees is not a genuine peace, affording the rest that is required for civilization. But this very rest allows cities to build up the power and wealth that are discharged in (ever greater) empires and wars. This is the meaning of Strauss’s extraordinary remark that ‘even war” is not possible without treaties. International law contains within itself the pathos of civilization. But as Strauss further notes, the civilizational function of treaty law could not be performed except for some degree of trust. This requires the principle of fidelity to convenants-pacta sunt servanda that itself cannot, without tautology, be derived from a 14 covenant between cities. Pacta sunt servanda must be an unwritten law not dependent on convention or volitional agreement; Strauss suggests that it is a matter of natural right. Natural right captures the idea that performance of treaties is to the benefit of civilized mankind, indeed necessary for civilized mankind. Unwritten international law-sacral or customary law- comprises the necessary foundation of justice required for treaty law to be effective; since however natural right as a sense of long-term civilizational self-interest is insufficient in practice to ensure that bargains are kept in the heat of international political struggle, trust in one’s rivals performance of covenants is thought to depend on a belief-or at least their belief-in “divine sanctions.” At a minimum, even if not connected to a literal belief that divine punishment will follow from treaty-breaking (the apparent view of some Spartans), a certain sense of “sacred” constraint would be needed. This will not always prevent the breaking of treaties, but should serve to limit such violations to cases where the necessities of power are overwhelming; and even here legalistic arguments will generally be given for the conduct in question, so as not to appear contemptuous of the principle of pacta sunt servanda itself. Thucydides’ statement that the rise of Athenian power was the truest cause of the war, whereas the cause most spoken of was violation of the treaty between Sparta and Athens is usually taken by realists or international law skeptics to mean that law is simply a pretext for actions determined by power political considerations. One of the most brilliant strokes in Strauss’s interpretation of Thucydides is to argue, contrary to this view, that : “ . . . when one studies [Thucydides’] account of these avowed causes, one observes that they are as “true” as the truest cause and in fact a part, even the decisive part, of the latter.” When a military conflict ensued between Corcyra and Corinth (the latter a Spartan ally), Athens came to Corcyra’s defense, pursuant to the Athens-Corcyra treaty. As Strauss pointedly notes, Thucydides suggests that the treaty with Corcyrea “compelled the 15 Athenians and the Corinthians to come to blows.”(p. 175) If Athens is right and the “thirty-year” peace treaty between Athens and Sparta permitted Athens to enter into its treaty of alliance with Corcyrea because it could be considered previously unaligned (although claimed as a colony by Sparta), then Athens was faced with a genuine conflict of obligations.7 According to Strauss: “If it is impossible to decide whether the later treaty conflicted with the stipulations of the earlier treaty, the earlier treaty might have been broken without either side having been guilty of a breach of the treaty.”(p. 175) The notion that Sparta was compelled to go to war because of the growth of Athenian power is vastly inadequate, in and of itself, as an explanation of the course of the war: Athenian power had been growing for a long time and yet during this period of time Sparta had not been “compelled” sufficiently that it bothered to act, even despite the alarm of some its allies and the concern of some quarters within Sparta itself. The alliance of Athens with Corcyrea, and the resulting incident with Corinth, displayed to Sparta not merely the growth of Athenian power, but that the growth of this power now threatened the coherence and stability of the treaty on which the peace was based. This was not because the Athenians were necessarily guilty of a technical violation of the treaty but rather because the Athenians were actually exploiting an ambiguity—or more pejoratively, a loophole—in the Athens-Sparta treaty to continue to expand their power. In other words Sparta was only “compelled” to go to war as a response to the growth in Athenian power because of an evident limitation in the capacity of the treaty regime to maintain a stable balance of power between the allies. Sparta’s illegal action in starting the war could be seen as morally legitimate not merely because it 7 The treaty sought to manage the balance of power between the two imperial cities through prohibiting the colonies of each from changing allegiance. But fatefully it left unresolved situations where a colony asserted its independent or previously unaligned status against one of the imperial cities and then entered 16 was “compelled,” but it because was “compelled” by a reasonable perception that legality as represented by the treaty regime was facing a breakdown. Thus, according to Strauss’s reading of Thucydides, far from “compulsion” excluding considerations of “right,” “compulsion” cannot be understood except in relationship to “right.” Revisiting the Melian Dialogue Strauss’s understanding of international law in light of view of human history in the Archeology of Thuycdides prepares us to grasp the essential differences between his interpretation of the Melian Dialogue and the power-political interpretations. In the Dialogue, the Melians claim that Athens’ forced colonization of them would be an injustice, they assert the principle of self-determination. The Athenian generals reply that there is no justice between the weak and the strong: the strong take what they can and the weak bear what they must. This is an iron law of politics. Therefore, the Athenian generals insist, the discussions with the Melians should be confined to considerations of power and interest. The Melians defer to this demand, and so their approach is to question whether the Athenians do in fact have the strength to prevail that they claim. Thus, the Melians suggest, variously, that outcomes in war are unpredictable and the apparently stronger side does not always prevail; that the Spartans can be summoned to their aid; and finally, and perhaps most desperately that the gods will take their side, because “we stand innocent against men unjust.”(104) Here the generals dare to suggest that even the gods, the divine, support the right of the strong to aggress and to dominate. The Melians fail to yield to the Athenian demands, and in the result the male population is killed and the women and children are enslaved. into an alliance and then entered into an alliance with theother. 17 Strauss observes that Thucydides’ silence concerning his own judgment of the Athenian position on Melos can no more be read as an endorsement of that position than as a rejection of it. (p. 145) Nevertheless, Strauss does accept the conventional view of the centrality of the Melian Dialogue in Thucydides’ narrative; in various ways, according to Strauss, Thucydides himself indicates the “unique importance” of the dialogue. (p. 184). Strauss articulates the complexity of Thucydides’ judgment on the Melian Dialogue in the following manner: Thucydides presents the decision of the Melian elite not to yield to the Athenians as a foolish act. It is a foolish act in the sense that it would be unreasonablecontrary to common sense moral judgment-to choose “death and extinction” rather than the “overlordship” by another city. Strauss thus implies that the principle of selfpreservation is a more compelling principle than self-determination or self-rule. And this is important to the moral perspective of international law itself. But of course the Melians would only clearly be choosing “death and extinction” if in fact they do not have a reasonable chance of prevailing against the Athenians, i.e. resistance is only foolish if the Melians are wrong about the gods. Thus, it would appear that Thucydides endorses the position of the Athenians to the extent that he does not believe in a divine law according to which imperial domination is an injustice that is punished by the gods taking the side of the dominated. But does this mean that Thucydides endorses the full radicalism of the Athenian Generals’ position? Strauss makes the remarkable observation that “the principle most forcefully stated by the Athenians on Melos” is “perfectly compatible” with “fidelity to covenants”: “it is only incompatible with covenants that would limit a city’s aspirations for all future times; but such were not the covenants with which Thucydides had seriously to be concerned.” (P. 191) This statement echoes Strauss’s rejection of the ambition of 18 post World War II international law to outlaw war forever, a rejection clearly stated, as we have seen, in the Introduction to the City and Man. International law does not have a solution to the factual inequality, the relative power of states—the Athenians on Melos are correct to that extent. At one level, this is a reminder of the obvious, which is however neglected in the purely power-political interpretation of the Melian Dialogue: the principle that there is no justice between the weak and strong implies not the complete absence of right from international politics but rather that right is only significant in relations between more or less equal powers. Thus the radicalism of the Athenian generals that gives the Melian Dialogue its unique importance does not consist in the denial of right altogether in international relations. Further, as Strauss suggests, the natural right of the stronger—arguably the “most forcefully” stated principle of the Athenian generals in that it is stated as a necessity of nature that binds the gods as well as men—need not imply limitless expansionism. A strong power’s “natural” impulse to rule can know some limits or bounds (p. 191). It is not the natural right of the stronger but the assertion of the right to take more without limit that constitutes the real radicalism of the Athenian generals on Melos (p. 193). Strauss asks rhetorically: “Can one encourage, as even Pericles and precisely Pericles does, the city’s desire for “having more” than other cities without in the long run encouraging the individual’s desire for “having more” than his fellow citizens?” (p. 193) Strauss goes on to indicate how the radicalism expressed by the Athenian generals, the rejection of any limit to having or taking more if one can, is crucial to Thucydides’ narrative of the internal decline of Athenian society. Yet, at the same time Strauss points out that Thucydides does not simply identify the Athenian project with this ultimately self-destructive radicalism. Strauss notes that the Athenian 19 generals on Melos assert that the strong take whatever they can, earlier on, the Athenian ambassadors at Sparta make a claim for the superior justice, or at least humanity, of the Athenian empire, given the compulsion to rule. While Athens is compelled to rule, “she exercises her imperial rule in a juster (sic), more restrained, less greedy manner than her power would permit her to do and the same power will lead others in her place in fact to do.”(p. 211) That such choices are possible constitutes an admission that the realities of power politics, however immediate and compelling, do not and cannot justify or excuse any and every departure from humanity, any and every form of barbarism. International law as Humanity Law (in Teitel’s phrase)8 does not lose its normative significance in the presence of power politics; on the contrary it is a reminder of the possibility of choosing good over bad even in the most extreme circumstances, under the harshest power-political constraints and where the darkest impulse have the greatest force. For this reason alone, international law’s significance or lack of significance cannot be judged by the extent of “compliance” in the crudest sense; one of international law’s most important roles is to teach this possibility even where the breakdown of legality is most probable, and where the universal standard of human conduct more likely becomes evident, not through conformity but through ex post accountability for the breach. Strauss’s Grotius: Humanity and the Right of Nations 9 The major themes in Strauss’s treatment of international law in The City and Man pervade his 1964 lectures on Hugo Grotius’ The Law of War and Peace. In his Ruti Teitel, Humanity’s Law (New York: Oxford University Press, 2011). I am grateful to Strauss’s literary executor for providing me with the transcript of Strauss’s Grotius course. The transcript is unedited and there are obvious transcription mistakes. No actual tape apparently exists. For this reason, this transcript would not be a sound self-standing basis for an interpretation of Strauss’s view of international law. The discussion that follows is really in the manner of an elaboration of the themes and interpretations in The City and Man, bringing to the fore the sensibility behind those themes and interpretations. This use of the transcript is reinforced by the fact that this course was more or less contemporaneous with the publication of The City and Man. 8 9 20 introductory lecture, Strauss discusses the extent to which Grotius’ work is primarily concerned with international law as a specialized field and the extent to which Grotius’ intent in giving a “comprehensive and methodical treatment of international law” is of a broader character. As Strauss notes, among the purposes of providing such a treatment is to address those who “deny there is international law at all.” Strauss observes that the denial of international law is connected to the denial of right or justice as such, according to Grotius If law is simply the command, the will of the sovereign, “he who decides” to use the expression of Carl Schmitt, then there cannot be strictly speaking an international law (to the extent that there is no sovereign in command of all the nations.) except perhaps as the law of an imperial or dominant power or powers disguised as universalism(I:5) We are then left with “the variety of legal orders according to the variety of mores and utilities of the various societies. There is not natural right.”(I:5) Conversely, if there can be a genuine functional system of international law, there must be some notion of right that is not simply reducible to “the variety of mores and utilities of the various societies.” Grotius is above all concerned, according to Strauss, with the vindication of natural right, and the alignment within the limits of the possible, of the practices of states with natural right. This explains why, although international law is central to Grotius’s work, the work is by no means limited to international law. (I:9) In the world of Thucydides, the “divine law” is the necessary foundation for international legality, but properly understanding the problem of the “divine law” brings one to the question of the law of nature and what if anything is “right” by nature. In the world of Grotius, divided between conflicting faiths, international law must be a law “binding not only Christians, but Muslims and pagans” and thus can only be 21 “approached on the basis of what human reason tells everyone, and therefore there is a close connection between international law and natural law. In the intra-national things, you can say there you have the positive law, which is usually specific enough for most purposes, but in relations between different states or entirely different cultures, what common ground can there be, except man’s common humanity, and this common humanity expressing itself in man’s common reason.”(II: 14) An explicit separation of natural right from theology is required to ground international law. In some ways, this explicit separation anticipates Hobbes’ initiation of the modern natural right teaching; however, according to Strauss, Grotius remains in the tradition of Aristotle, in asserting there is a natural human sociability—a basis for society and for peace other than selfish calculation. 10 “The greatest obstacle to natural law is war. If right is possible only in peace, peace cannot be established by lawful means in contradistinction to unlawful means — Machiavelli’s argument.”(I:16-17). A lawful peace is one that does not simply consecrate the gains of the victors in the war, leaving grievances or disputes about t he rightfulness of the war and its conduct unaddressed and therefore as open or festering wounds that can lead to new conflict. As with Thucydides, international law’s core task and rationale is connected to the preservation of the human or the reminding of the human in the face of widespread dehumanization. This point is made by Strauss throughout his course on Grotius, but is perhaps most eloquently illustrated by a passage from Grotius that he cites in the final lecture: “…violence is most manifest in See B. Kingsbury and B. Straumann, “State of Nature Versus Commercial Sociability as the Basis of International Law: Reflections on the Roman Foundations and Current Interpretations of the International Political and Legal Thought of Grotius, Hobbes and Pufendorf,” in Besson and Tasioulas eds., The Philosophy of International Law, p. 40: “In Grotius’s elaborate system of natural law and natural rights, the influence of ancient political and legal thought, particularly the influence of Roman Law, is of central importance.”(p. 40) 10 22 war, wherefore the more diligently effort should be put forth that it be tempered with humanity, lest by imitating wild beasts too much we forget to be human” (XIV: 19, quoting Grotius, Ch 23, section 3, paragraph 2). Strauss articulates Grotius’s distinctive approach to remembering the human in international law by posing a paradox in Grotius’s teaching: Grotius’s ius gentium is extremely permissive of what is allowed in war, extending even to practices whose inhumanity is contrary to Grotius’s own concept of natural law, according to Strauss, “Grotius is a very humane man and if he had is way, there would be no more wars.” (X:17). Why then would he have espoused a law of nations—ius gentium—below the minimum threshold of humanity demanded by the natural law? According to Strauss, in order to understand the complicated relationship of natural law to the ius gentium in Grotius, we must first of all appreciate the ambiguity of the ius gentium, or dual sense in which Grotius uses the expression. While today ius gentium is used to refer exclusively to international law, Grotius employs ius gentium sometimes in this sense but also in the older sense derivative from Roman law, of a law that is somehow common to different peoples, i.e. applicable across diffe rent cultures and regardless of the obligations undertaken by different states; a kind of minimum positive legal normativity recognized by all peoples, or at least all civilized peoples. The ius gentium can therefore in addition to and apart from obligations between states “create a relation of right among all men, at least among all civilized men.”(VI: 2) The ius gentium, in this respect, “does not require a formal agreement by the individual state that they will abide by international law” in order to bind all men, or at least all civilized men. Because the ius gentium is a binding positive law it must follow that violations 23 of this law are punishable. It is important to have such positivity, to provide a clear sense of some absolute constraint-a line that cannot be crossed, something equivalent to the notion of sacred constraint evoked by the sacral law in Thucydides. But there is a problem with making punishable acts other than those clearly and unambiguously unacceptable to all men in all circumstances: in international law, there is usually no superior judge independent of the interests and values of the various peoples, the various parties to the conflict. Punishment on the basis of self-judging can lead to new grievances and new conflicts. Strauss explains that Grotius refrains from taking the approach of his positivist successors to the problem of self-judging, ultimately derived from the notion of Hobbes that the natural law cannot have effective positivity at all where there is no higher sovereign —Grotius still wants to have some directly effective constraint that binds all men in all circumstances, a “positive right that is accepted by the whole human race”.(IV: 21) Strauss opines: “Grotius, as it were, is grateful for every line drawn somewhere because it is at least some desire for some law and limit…. Is not the fundamental calculation this? I am glad about any limitation to savagery which people acknowledge.”(XI: 19) Strauss suggests: “[On Grotius’s view] we permit all these terrible things in war in order to have some flooring, however low.”(XIII:7). But Grotius also has a strategy for raising the floor over time. Once has the principle of an absolute floor of what is acceptable even in war , a binding constraint not just on states but on individual human beings, if there is progress in humanity, there may be future universal agreement on setting the floor higher. And this goes to the other dimension or sense of the ius gentium: just as we have seen it does not prohibit everything that is against natural law, it also prohibits some things that are permitted 24 under natural law but considered universally dishonorable among sovereigns, such as assassinations by poison. Grotius, according to Strauss, sought to make natural law effective not only through a low floor of ius gentium, but also through counsels of humanity and prudence to sovereigns. As counsels of humanity and prudence, natural law principles concerning constraint in warfare are not punishable in the breach. Here, unlike the “floor” of the ius gentium, one relies not on some sense of absolute taboo, what is simply forbidden to humans if they are to remain recognizably human, but on the enlightened self-interest of sovereigns. This idea of the coincidence of humanity in the natural law, or natural right, with enlightened or long-term self interest reminds Strauss of Thucydides (XIV: 12) Grotius stays closer to the ancients than to Hobbes and Locke, who want to build the whole natural law teaching on utility and dispense with humanity as an independent, if fragile, ground. Central to the divide between the modern and the earlier approaches to natural right is the significance of the “realist “ insight common to both that where humanity and utility diverge, humanity is very likely to yield to utility. The approach of modern natural right is to build the doctrine around the problem of this divergence; one cannot rely on humanity, because it gives out in extreme circumstances, therefore one should forget about it. The older perspective, more congenial to Grotius, is something like this: yes, it is true that when humanity and utility diverge, utility generally prevails in the behavior of states, but in many relevant cases, and even sometimes in extreme circumstances, humanity and utility do not diverge entirely; and in those cases, if statesmen and generals act reasonably, not blinded by passion and prejudice, humanity can indeed be a real force. Grotius’s tactic of emphasizing those situations where the counsels of humanity 25 converge with interests of state is thus of considerable importance to the effectiveness of his natural right teaching. But according to Strauss, Grotius’s rational appeal to sovereigns did much less in practice to humanize war than Rousseau’s appeal to pity or compassion, although we owe Grotius “gratitude surely” that the treatment of prisoners and civilians improved (In the late 18th and 19th centuries and to some extent during the first World War.)”(XII: 7) Strauss’s ultimate judgment on the international law project of Grotius takes us back to the themes that predominate in The City and Man, in the Introduction as well as the essay on Thucydides. While admirable and desirable, the humanization of the waging of war (especially the treatment of civilians and prisoners) does not represent secure, irreversible human progress. The humanization in question was dependant not just on the thought and rhetoric of jurists such as Grotius and philosophers like Rousseau but certain changes in military technology that made it feasible to distinguish soldiers-combatants-from civilians and to use weaponry capable of targeting combatants with some precision. But there are now further changes in military technology—aerial bombardment and poison gas among them—that destabilize the distinction between civilians and combatants as a basis for limiting the barbarity of war. (XII:8) Strauss here anticipates the inherent difficulty of applying humanitarian law today, whether illustrated by the controversy over the NATO bombings of Kosovo and Belgrade (civilian deaths might have been avoided had NATO pilots bombed from lower altitudes that put the pilots themselves at more risk from air defenses) or the questions raised more recently by the use of certain weapons and techniques by Israeli soldiers in Gaza. 26 But there is something deeper reflected in Strauss’s observations—we are back to the trope of the pathos of civilization, which we saw in Strauss’s explication of the Archeology in Thucydides. Progress in civilization can be identified with peace, with greater gentleness and humanity-but it also provides for the evolution of new and potentially even greater forces of human destruction and self-destruction. Whatever ultimate hopes for international law may exist under this account, it has certainly had a humanizing and civilizing function at various historical periods. Strauss’s final word in his course on Grotius is sobering. Consistent with his account of the Archeology in Thucydides, Strauss doubts whether war will ever permanently lose its appeal to a certain side of human nature: “it is a great question whether… there is something deeper in man which leads [to war]… the element of danger… and sacrifice, and the kind of enthusiasm that mean have more for this kind of thing than for others. I mean say the war against poverty does not arouse the kind of enthusiasm as a war against Japan does.”(XIV: 22) Yet Strauss does not endorse a la Schmitt this outlook; indeed, in a clear swipe at Schmitt he speaks of the “delusions” of “critics of modern democracy” based on nostalgia for aristocratic wars that are imagined to have been noble and gentlemanly in their conduct. As for the immediate present (we recall that he gave this class in 1964), Strauss is unremittingly bleak: “today… international law is, I believe, the least safe support for any man today who wishes to hope” (XII:8). This reminds us of what Strauss said about the Communists in the Introduction to The City and Man: the Communist ideology simply is incompatible with any legal constraint whatever in international relations. In these particular circumstances, during the Cold War, “The only restraint in which the West can put some confidence is the tyrant’s fear of the West’s immense military might (City and Man, p. 5).” 27 There is a further theme present in the Introduction to The City and Man that is also very important to Strauss’s judgment on Grotius’s international law project. In the Introduction to the City and Man, Strauss had elaborated the difficulty for justice created by the abolition of aggressive war in the UN-based postwar framework for international law: the implicit consecration of existing boundaries, often themselves based on injustices, by the outlawing of a just war based on the principle of selfdetermination. (VIII: 23) As Strauss notes, Grotius, unlike his successors, does not simply dispense with the concept of “just war” but narrows it considerably, such that the criteria of justice become formal (proper declaration of war, etc.) rather than substantive. The ancients, Strauss suggests, were permissive of wars of “intervention”, to prevent or punish atrocities. And to the extent that such atrocities are contrary to natural right, one cannot simply dismiss the argument that such interventions have an element of justice to them. But there were understandable and weighty considerations that led Grotius to narrow the concept of “just war” according to Strauss, above all “The older view is … one which lends itself easily to gross abuse. You can say it’s a service to humanity but it is obvious … in most cases the conquerors are very little concerned with improving the morals of the conquered but with exploiting them.” (IX: 17) Heightening the concern of “abuse” is the absence again of any impartial judge to decide claims of “just war.” Nevertheless, despite these important and understandable considerations, Strauss suggests that an international legal system that leaves no place whatever for the possibility of intervention as a response to the most horrible atrocities would strain the very intuitions about humanity and justice on which any system of international law must ultimately be founded. The debate over the gap between legality and legitimacy 28 in the NATO intervention in Kosovo to prevent genocide and the emergence of the Responsibility to Protect as a concept in international law are reflections of the difficulty that Strauss identifies, just as the problem of “abuse” that he also recognizes is reflected in the controversy about the invocation by some of human rights and humanitarian considerations in the justification of the Iraq War. International Law and Perpetual Peace: Strauss’s reading of Kant Using Grotius as his point of departure, Strauss takes up the theme of “just war” again in his 1967 Kant seminar. 11 He suggests that there are two quite different sources of the modern rejection of “just war.” The first, and older source, is the concern about abuse, which arose in response to the horrors perpetuated by the Spanish in the name of Christianizing the indigenous peoples of the Americas. This led the Spanish writers such as Vittoria to put in question whether divine right should be invoked as a basis for a “just war.” “This was then integrated into doctrines of entirely different origin that asserted the sovereignty and autonomy of states,” doctrines developed by Bodin and Hobbes. The full modern doctrine holds that there cannot be justice or injustice between parties who are not subject to a single sovereign. Strauss then goes on to note that the demise of the modern doctrine can be seen with the Nuremberg trials and even to some extent prior to that with the affirmation of German war guilt in the Treaty of Versailles. Once the possibility of a standard of judgment concerning the injustice of war is admitted to be possible even in the absence of a common sovereign, then the early modern rejection of “just wars” fought to prevent or stop atrocities 11 The following is based on audio recordings of the seminar available on the website of the Strauss Center at the University of Chicago. A transcript will eventually be available and is being edited by Professor Susan Shell of Boston College. 29 becomes questionable. Yet what prevents the cynical interpretation of Nuremberg as merely “victor’s justice”, given that the court in question was constituted by allied powers, by one party in the conflict? Posing this question gives us a window into the distinctiveness of Strauss’s overall reading of Perpetual Peace. Unlike some contemporary theorists of “liberal peace” or “democratic peace” Strauss largely dismisses the dimension of Kant’s argument that suggests that the ordinary people are the natural party of peace and that this is why republican government is the necessary precondition to perpetual peace. On this view, the essential feature of republican government is that it represents the interests of the people, who stand to be the biggest losers from war, whereas the leaders, who benefit from its glory, are able to stay safely away from the battlefield. Strauss suggests that Kant was limited by his own experience of the peaceful artisans and peasants he saw around him, and he did not know, and could not have known, the more modern experience of the mobilization of mass populations in support of war. But as Strauss observes, political thinkers of Kant’s epoch (he mentions the Federalist Papers) surely did know the experience of democratic ancient Athens, where the citizenry was often war-like, even if they and their own children as citizen-soldiers bore the most direct and devastating costs of war. To understand therefore the more fundamental basis for Kant’s insistence on the relationship of republicanism to peace one must appreciate a key difference between ancient and modern republicanism. For Kant, according to Strauss, what constitutes republicanism even more fundamentally than popular representation is the separation of judgment from legislation or political action as such. As Strauss indicates, he and Kant have as a common ground the rejection of a “world state” on the basis that it would be a “soulless despotism”, 30 destructive of human diversity. But this objection to the “world state”, while indicating the undesirability of the political project of subjecting all peoples to the commands of a single sovereign, may not necessarily apply to the subjection of all states to a world court or judicial instance that will arbitrate conflicts between them. It is in this precise sense, in suggesting that judgment is separate from or independent of other elements of sovereignty, that republican constitutionalism evokes the possibility of a republican federation of states premised on the willingness of states to submit their disputes to a higher judicial authority. Yet no such authority now exists and yet until it does exist one would expect a continuation of the state of war, and in such circumstances a continuing unwillingness of states to create an institution in whose hands they place the solution of conflicts affecting vital security interests. Strauss’s differences with Kant and with views of international law that depend upon progressive philosophy of history emerge when Strauss considers Kant’s position that there is an inner necessity not just a possibility that the republican federation will be brought into existence. Strauss expresses what seems like qualified or tentative agreement with Kant that the hope for an end to war is a moral requirement, determined by the idea of humanity being subject to Right. He also tends to agree with Kant that belief in moral progress-the notion that human beings would eventually cease to be subject to violent or antisocial impulses-is philosophically unjustifiable. However, as Strauss observes, Kant thinks that progress in legality is possible without moral progress. This is because history will eventually teach man through war itself, that war is incompatible with self-interest: only instrumental reason is needed for this conclusion to be accepted by mankind as a whole. Thus, the famous line in Perpetual Peace that the problem of 31 politics could be solved by a community of devils. While there is an inner necessity by which, according to Kant, learning from the experience of war itself will bring about perpetual peace, Strauss also observes that Kant views progress toward perpetual peace as “infinite.” In other words, recognition of the necessity in question does not allow us to predict when or after what events the lesson required for perpetual peace will be learned. As Strauss hints, only a catastrophic war that destroys humanity as such would be enough to ensure that human beings recognize the imperative to end all wars. And then it would be too late. On the other hand, can we really be sure that decades or centuries of peace would not result in human beings (who we must remember according to Kant are not morally more perfect than they ever were) unlearning the rational lesson from the experience of war? Thus the notion of infinite progress toward perpetual peace conceals and at the same time reveals a difficulty. The gradualism implied by this notion entails steps that on their own might reasonably contribute to a more just world, making war more humane, making it rarer (through acceptance of the provisional articles of perpetual peace and through increasingly subjecting disputes to international arbitration -but how do we know that these steps might not be reversed or eliminated by some set of unpredictable events? Thus getting sovereigns to move away gradually from Machiavellian Realpolitik requires that they take a sort of leap of faith-trusting that other sovereigns will not merely exploit their willingness to be subject to legality for their own wicked purposes. Strauss suggests that such acts of trust may not be reasonable in the circumstances of the Cold War. Indeed he indicates here explicitly that this is what divides him from the view that is common to the liberals, or liberal pacifists, of his time. 32 But Strauss does not believe that the trust upon which conventional international law normally depends (above all in matters of peace and security) is always or usually unreasonable given the nature of power politics (recall his discussion of treaties in Thucydides). This sets him apart, we again note, from certain kinds of conservative “realist” critics or skeptics concerning international law. Indeed, Strauss considers the most powerful aspect of Kant’s argument in Perpetual Peace to be the antideterministic aspect that he deploys in addressing the cynics or skeptics: there is no intrinsic reason that human possibility is exhausted or limited by the empirical evidence about human society and human conflict hitherto, by the social facts of the past and present. Ultimately the determinist stance of the cynic reposes on a dogma that there can be nothing new under the sun, and Kant exposes this dogmatism. Where Kant strays according to Strauss is in offering an opposite determinist narrative, which is itself vulnerable to the objection of dogmatism. Moreover (and this is an issue that goes beyond the scope of this paper) Strauss observes that the philosophy of history that supports the hope of perpetual peace is connected to Kant’s moral theory but has a very complex relation to it, and especially the central idea of freedom. In any case, Kant is persuasive in showing that it is not per se unreasonable, or that the skeptic cannot demonstrate it is per se unreasonable, to hope for gradualist progress toward perpetual peace, and to take the intermediate steps of strengthening international law. What is not reasonable according to Strauss is for political leaders today to take immediate risks based on a sense of certainty or conviction that they are contributing to necessary and irreversible progress toward perpetual peace. Conclusion Especially in America in recent years, being “for” international law has often 33 been considered a liberal position, and skepticism concerning or hostility to international law a conservative one. Some scholars have gone so far as to suggest that proposals to strengthen international law, and that its constraints on state behavior be taken seriously, are little more than progressive rhetoric, the abuse of the language of law to permit a vision of a universal egalitarian society that liberals favor out of ideological prejudice. Strauss, and some of the thinkers with whom he was preoccupied, especially Thucydides, are often taken by the right and the left as the deep intellectual sources of conservative resistance to “progressive” international law. Strauss was indeed a conservative to the extent that he questioned the narrative of historical progress through enlightenment that has been central to the vision of liberals and other progressives since the 18 th century, and he had fundamental doubts about the desirability and possibility of a political and social order that would be secular, egalitarian and neutral among conceptions of the good. By and large, I do not share his conservatism, thus understood. Yet the human and humane sensibility that emerges in Strauss’s engagement with international law, and his account of its constructive and preservative role in civilization, reveals another side of Strauss, which is open to liberalism, or at least the original liberal concern with making human society less cruel, severe, and fanatical. While Strauss’s vision was deeply marked, and darkened, by the 20th century experiences of fascism and communism, and he was often inclined to view liberal hopes as reckless and dangerous illusions, Strauss’s encounters with Thucydides, Grotius and Kant display his persistent concern with finding a support for humanity in a world shaken by fanaticism, catastrophe and atrocity on an unprecedented scale. Within the limits of the possible, international law holds the promise of being one such support, fragile but essential. 34 35