Download The Fragility of Humanity: International Law in Leo Strauss`s

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).
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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
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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
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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
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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,
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“Does the Constitutionalization of International Law Still have a Chance?” in Habermas, The Divided
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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
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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.
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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.
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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
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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.
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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.
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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
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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
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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
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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
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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.
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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.
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35