I. Introduction
The international system has historically
been defined by State actors. Recently that has no longer been
the case: Non-State actors such as transnational corporations,
subnational regions, and supranational organizations now flank
the State--along with terrorists, mercenaries, drug dealers, and
pirates. When a system becomes dysfunctional and collapses, the
facts force people to re-evaluate their theories. Competing
worldviews, such as fundamentalism versus globalization,
struggle not just over economic outcomes but more importantly
over, and because of, conflicting basic assumptions. If one is
to understand and influence the interactions of entire systems,
such as the Soviet system and U.S. capitalism or Islamic
fundamentalism and Christian fundamentalism, then theory is
necessary. Our basic assumptions are the subject of theory.
Theory questions the global assumptions of the system, allowing
us to work changes on that system. Legal theory is important to
systemic change. If you don't like the game you are playing,
change the rules.
Understanding brings control: Though true
consequences always follow true premises, true consequences also
sometimes seem to follow false premises. We can trace much
confusion in life and law to the fact that we can have right
answers for the wrong reasons.
1 Eventually, however, reality
catches up to our beliefs.
2 If our beliefs and reality
don't correspond,
3 we, and those we love, suffer.
These facts, and natural human
*104 curiosity, justify
theoretical inquiry. Theory questions assumptions to explain
dysfunction.
4 If one is to understand--let
alone influence--the interactions of entire systems, then theory
is necessary.
It is thus essential as lawyers that we start
from correct first principles.
5 At the same time, we must be
open to the idea that our thinking may be flawed. Sceptical
6
certitude is a nice way to summarize what I think is the correct
and scientific attitude towards our basic assumptions. We should
do our best to be certain about what we believe and constantly
search for reasons why we may be wrong.
Even with the right attitude--probing
scepticism, which seeks to make sure that what we believe really
is so--we can still be confused about basic questions. This is
because everything in life can ultimately relate to everything
else if we just get creative.
7 Of course, that leads to
magical thinking.
8 Where do individuals and
groups draw lines?
I present here a theoretical methodology that
I believe cuts through the confusion and uncertainty prevalent
in theorization. We start with a problematique, a question set.
By following the problematique, by answering the questions, we
get to answers--at least for ourselves. But, if our answers are
good enough, we can hope that others might see things as we do.
This is not postmodernism, with its tepid view of truth as
subjective or inter-subjective, nor is it the idea that values
are merely a question of taste. Rather, it is liberalism: the
understanding that my values, if correct, are for that very
reason persuasive. Liberalism is the understanding that I
respect myself and that I respect you, so rather than force my
ideas on you,
*105
I
present them. They are, I think, true. You are welcome to
disagree and correct me. In fact, I appreciate that because the
nature of science is to synthesize the most accurate overall
view from incomplete and inaccurate partial views.
The problematique I present is: What is the
nature of being? (Ontology)
9 What is truth? (Epistemology)
10
What are our fundamental values? (Axiology).
11
I think answers to these three questions determine more or less
where we stand when it comes to law.
12 I did not invent this
problematique,
13 but the answers I present
are mine. I think your answers to these questions will drive
your practice of law. If you believe that life is a fundamental
value, then you will oppose the State killing, for example. If
you think 'the truth is out there,' you will take a
philosophical view of the law. I cannot answer these questions
for you; I can ask you these questions, and I can show you my
answers. I do think that these questions are related. I ask them
in what I think is the correct order. If we know what the nature
of existence is (ontology), then we can determine when something
is true, false, unknown, or unknowable (epistemology). If we
have a correct science of truth (epistemology), then we can
determine whether a correct science of values (axiology) is
possible and what it is.
I think there are objective values, that
these values flow from objective truth, and that this objective
truth is nothing more than a reflection of
*106
material
reality. You are welcome to disagree. You are invited to look at
my thoughts to see whether you disagree and why.
The ontological, epistemological, and
axiological foundations I present here are the base for what I
call a new theory of natural law. The theory explains conflicts
in the international system such as the rise of human rights and
the decline of State sovereignty.
14 The decline of sovereignty
and the rise of non-State actors are key contemporary aspects of
IR. Only an overarching theory can explain and resolve systemic
conflicts. To develop a theory to explain the rise of non-State
actors and the decline of State sovereignty, as well as the
recurrence of war, requires a clear understanding of
ontological, epistemological, and axiological foundations of our
thought.
The predicate basis of Western thought has
long been either an ontological materialism (matter determines
mind) or an ontological idealism (eidetic realism: mind
determines matter). Normally, the materialist view is also
monist (reality is fundamentally unitary); whereas the idealist
view is usually presented as dualist (reality is fundamentally
binary). The association of monism and materialism on the one
hand against dualism and eidetic realism (Platonic formalism) on
the other is not inevitable or necessary. A dualist materialist
view or a monist idealist view is also possible. That is, monism
and dualism may combine with either materialism or
idealism--four possibilities--with no necessary logical
contradiction, abstractly speaking. Usually, monism and
materialism are closely associated with each other. Dualism and
idealism are also usually seen as going hand-in-hand,--though
they do not imply each other as a matter of necessity.
The ontological choice of monism versus
dualism and of materialism versus eidetic realism (Platonic
formalism) habitually entails, respectively, an atomistic
epistemology or an epistemological holism. Atomism argues that
one can only comprehend reality by decomposing it into discrete,
real elements. An atomist key phrase is "the whole is equal to
the sum of its parts." Its opposite, holism, argues that
reality is only comprehensible in its entirety at once. A holist
key phrase is "the whole is greater than the sum of its parts."
However, the association of monism and materialism with atomism
is, like the association of dualism with Platonic formalism and
holism, a merely contingent habitual association. Those linkages
are not necessary implications compelled inductively or
deductively by theoretical logic--though implications among
various basic assumptions may be implied from practical
reasoning (phronesis). In all events, however, there are clear
habitual associations between dualism and idealism; atomism
*107
and
materialism; and idealism and cognitivism. However, those
associations merely are contingent and not necessary.
Axiology, the choice of basic fundamental
values, may be either relativist (values are subjective and
relative) or cognitivist (moral choice is possible and
objective). Moral relativism usually argues that morals are
purely intellectual constructs having no material existence.
Cognitivism usually argues that moral values are expressions of
the intellect and are "real" (intentional) entities. Usually,
cognitivism is associated with dualism and idealism and possibly
holism. Likewise, relativism is usually associated with
materialism, atomism, and monism. Again, theoretical logic does
not compel these associations! They are merely habitual!
Logic, in fact, does not compel the habitual
associations in Western thought of dualism, idealism, and
cognitivism on the one hand versus monism, atomism, and
relativism on the other. The choice of a given ontology does not
necessarily entail any given epistemology, and the choice of an
epistemology does not necessarily entail an axiology--a theory
of values. The contingent nature of the connections between
these views explains why they can be decomposed and
re-associated in ways which will no longer doom the West to
pointless self-destructive conflict.
The greater part of the endemic conflict in
Western thought is due to an erroneous linkage of dualism,
materialism, and atomism: the vision of endemic conflict,
expressed in its most practically effective manner (e.g.,
fascism). Secondarily, grave errors have also resulted from the
linkage of dualism to idealism and cognitivism--the wrong choice
of values to be regarded as moral-- linked to a dualist conflict
of indemonstrable principles (e.g., religious persecution).
However, these habitual and conflict-laden associations are not
logically compelling. The complex of ideas which constitutes
fascism (the combination of atomism, materialism, and dualism)
or religious fanaticism (the combination of idealism, dualism,
and cognitivism) can be decomposed and re-associated in ways
that are more accurate. These re-associations are healthier for
society and its members because they purge social life of
pointless and self-destructive conflicts, which arise out of
basic errors in presumptions about the nature of reality, and
later become expressed in laws.
Proceeding from a materialist ontology, I
expose an epistemology based not on atomism, the dominant
Western paradigm, but rather on holism. I then describe an
axiology based not on relativism but on moral cognitivism,
grounded not on eidetic realism but rather on materialism. Thus,
I rupture from Western thought twice: First, by describing a
monistic materialist reality that must be understood not
analytically but synthetically (Western thought, in contrast, is
usually dualistic and analytic). Second, by describing moral
choice not in relativistic terms but as a real entity based in
the material world, I again break fundamentally from Western
thinking. Most contemporary axiological thinking is relativist
because
*108
contemporary
thinking recognizes correctly that dualist idealists identified
the wrong moral values and that those wrong values were
themselves a source of conflict. But rejecting morals wholesale
due to the erroneous selection of moral values by others goes
too far--it "throws the baby out with the bathwater." The
misidentification of moral values due to dualism and idealism
does not imply that moral values do not exist. Moral values do
exist and are founded on material facts of life. In other words:
Rejection of eidetic dualism does not entail moral relativism,
and adhesion to a materialist viewpoint does not entail atomism.
These are the two key ruptures I make from Western thought that
I regard as implying a unique and far-reaching theoretical basis
for legal analysis.
Section II of this article will explore
Ontology, the 'the science of being' of ouisa (to determine
"what is.)" Section III explores Epistemology, the science of
knowledge, the theory of how we know that which we know. Section
IV analyzes Axiology, the science of moral choice, of
fundamental values. Section V argues for a new natural law
theory for international relations. Section VI is a conclusion.
II. Ontology: Materialism v. Philosophical Idealism
Scientific materialism is the idea that the
material world is only understood mediately, through the senses
and mental faculties. According to materialism: (1) objective
reality is outside the observer in "the real world;" (2) facts
are prior to ideas and their source; (3) science is the
comparison of ideas to reality; and (4) the world of thought is
a reflection of the material world.
In contrast, philosophical idealism is the
opposite of scientific materialism. To the philosophical
idealist, ideas are prior to reality and the universe is nothing
but a projection of mind. For the philosophical idealist (Plato
is the best example), ideas can be compared to other ideas, but
not to material reality, because the senses are inherently
limited and prone to error.
The problem with philosophical idealism is
that it is not, strictly speaking, scientific because
philosophical idealism cannot verify its tenets via material
experience. Philosophical idealism does not lead to episteme
(knowledge), but to doxa (opinion).
15 Further, philosophical
idealism also leads to unnecessary multiplication of intentional
objects, against the dictum of Occam,
16 thus risking confusion.
*109
Because
philosophical idealism cannot be objectively verified, this
author rejects it. The source of understanding of the material
world is experience. While it is possible to intentionalize
eidos, such is doxa not episteme because it is incapable of
demonstration.
III. Epistemology: Realism v. Atomism
International Relations ("IR") theory has
been marked by two competing schools of thought: ontological
atomism,
17 and its corollary IR
realism,
18 versus ontological holism,
and its corollary IR transformationism.
19
Understanding these theories allows us to understand
international law generally and international human rights law
particularly.
20 At the broadest and simplest
level, the principle of sovereignty, a consequence of atomism
and realism, is in conflict with the principle of human rights.
Sovereignty and human rights clash because human rights are
essentially founded on the liberal concept of the human being,
i.e. classical Aristotelian liberalism,
21
a holistic theory.
22 Realism, the idea that
states are like
*110
individual
billiard balls, interacting hermetically with each other and
isolated internally from each other, results from the
presupposition that we live in an atomist universe. Sovereignty
in turn is the corrollary legal institution derived from
realism--for the sovereign power is hermetic, isolated unto
itself, independent (not interdependent)--just like an atom. It
is no accident that the atom bomb is the ultimate expression of
the realist view of states as all powerful isolated sovereigns
locked in conflict to the death.
Atomism, the view that we understand the
world best by analyzing its constituent elements, is
diametrically opposed conceptually to holism. Holism looks at
the entire object and seeks synergies and syntheses, which
explain why the whole is greater than the sum of its parts.
A. Atomism
Atomism describes material reality using an
analytical method.
23 Namely, it breaks down all
elements into their constituent parts. This analytical method
ensures that atomism maintains the material connection to
empirical reality needed for scientific thought. By denying the
noetic existence of intentional entities, atomism limits the
objects of its inquiry to both a manageable number and to those
which are necessarily capable of scientific verification. This
partly explains the success of atomism. However, realism, the IR
theory homologue to atomism, no longer corresponds to empirical
reality. Because atomism is an empirical theory, it is
epistemologically biased toward inductive inference and tends to
ignore (with the exception of ampliative induction) deductive
inference. This is not at all to say that scientific materialism
and economy of thought (which
*111 atomism encourages), are
erroneous epistemological and methodological principles
respectively. They clearly have a place in any flexible
description of reality. However, because atomism is an empirical
theory and empirical reality does not correspond to its
propositions, one must either modify or reject that theory.
B. Critique of Atomism and, by Extension, Realism
There are several critiques of atomism.
First, atomism's analytical method condemns realists to reject
the existence of collective entities. Therefore, the realist's
worldview is ultimately stunted and he cannot conceive that
events above or below the State level can be truly important.
Further, realism continues to apply a false analogy
24
from Newtonian physics to IR, essentially seeing states as
isolated atoms, like billiard balls, reacting mutually according
to scientific laws akin to those of classical physics.
25
This occurs despite the fact that Newton's Principia
26
has since been modified by general and special theories of
relativity:
27 States are no longer
hermetic atoms, separate from each other. Rather, they are part
of a continuum of interaction ranging from individuals to
trans-national entities. The relevant analogy or model from
natural science would be quantum mechanics--sub-atomic particle
physics, wave/particle theories of light--not Newtonian
mechanics.
Another critique of atomist theory is that
atomism cannot, in its own terms, synthesize parts into greater
wholes. Thus, atomism stunts the realists' worldview by limiting
realists to a one-dimensional worldview where they see only
material objects, e.g. physical power, as having any existence
or relevance. This leads, in turn, to realists fixating on
physical power as the key determinant of interstate relations,
which distorts realist descriptions and as a consequence
distorts realists' predictions and prescriptions as well. Even
within realist assumptions of zero-sum conflict and power
maximization, economic power is still more important than
military force: Without economic power, there can be no military
power. It has long
*112 been a maxim that "gold is
the sinews of war."
28 Thus, a consistent
atomist/realist IR theory must collapse into economic theory.
Such a theory is possible: Just as the realists posit a "balance
of power" to synthesize discrete atoms into an orderly system
(which by the way is completely a-historical) Adam Smith's
posits "an invisible hand"
29 implicitly reaching down
from the heavens to direct the affairs of humanity. Smith
clearly was not engaging in noesis, however.
30
Though realists are materialists (and rightly so in my opinion),
some of the other basic assumptions realists make are flawed.
Another critique of realist IR theory is
empirical. Realist IR theory begins with flawed assumptions.
Realists assume (1) Military force is the key element of power
and (2) Conflict is essentially zero-sum. However, life does not
work that way. Economic power is clearly more important than
military power: Japan is powerful, yet has a very small
military. Conflicts are usually positive sum, as at the World
Trade Organization. Since realism begins with flawed
assumptions, the consequences that flow from them are also
likely erroneous. Empirically speaking, the realist description
of reality does not correspond to observations of the real
world.
To some extent, the failure of realism was
due to a misapplication of atomist methods; namely, ignoring
synthesis in the name of materialism and fixating on analysis.
However, it seems inevitable that atomism must ignore dialectics
and synergies because it cannot conceive of a whole that is
somehow greater than the sum of its parts. Yet, a glance at
basic economic processes such as standardization of parts and
assembly-line production,
31 shows that specialization
increases economic productivity--a group of people working
together can accomplish far more than the same number of
individuals working in isolation. The fact of economies of scale
also contradict atomist presumptions. The whole really is
greater than its parts as Adam Smith and Ricardo so aptly
demonstrate.
*113
We
can also criticize atomism because its analytical method ignores
dialectics. Dialectical materialism may have been made famous by
Marx
32
and Marxists,
33 who used it alongside
historical materialism,
34 but dialectics have been
found as early as Aristotle
35 and even earlier with
Heraclitus.
36 However, the Aristotelian
dialectic is an intellectual process, a dialog, whereas the
Marxist dialectic is a collective and historical process.
Atomism ignores dialectics because it focuses on the constituent
elements, not the relations between them and whether those
relations resolve into a greater whole. Atomism does go far,
however: Dispelling needless entities
37 and breaking down objects
into their constituent parts are valid scientific methods. But
atomism does not go far enough because it cannot synthesize
those elements into greater entities, nor does it consider their
relations inter se, i.e. dialectical processes. Of course, one
can combine the analytic/synthetic and inductive/deductive
methods--but, unfortunately, few do.
A final critique of atomist theorists is that
atomism compels us to eventually believe in fictions such as the
"the social contract," the "invisible hand," and the "balance
of power." Those fictions somehow accomplish the syntheses
which atomistic method ignores. These metaphors supposedly
resolve constituent atoms (whether market actors or states) into
a harmonious whole. However, the exact process by which that
resolution occurs is a mystery. The inability of atomism to
explain this act of synthesis via some exact method is a serious
flaw, for science must explain reality. In fact, by this conceit
atomism reproduces the very noesis and blind faith
*114
which
it claims to surmount by materialism and analytical method!
While integration of elements into a whole is certainly
possible, it should not rely on a modern version of a mystery of
faith; rather, models of integration should expose their
presumptions in order to reveal and resolve any possible flaws
in the theory.
C. Holism
Epistemologically, holism is the opposite of
atomism.
38 Holism argues that any
entity cannot be entirely understood by reference to its
constituent elements alone because those constituent elements
work together dialectically to produce a new result which they
would not produce separately. Thus, rather than analysis, holism
seeks synthesis; holism seeks to integrate different elements
and to explain that integration comprehensively. This is much
more ambitious. It is also more complex, both as method and as
to its object of study. However, if the holistic explanation is
accurate it allows the holist to make a quantum leap which the
atomist could never make within the presumptions of atomism.
Holistic theory, unlike atomistic theory,
necessarily
39 comprehends that analysis is
only one method of scientific inquiry, and while it does reveal
truth, only reveals part of the truth. The fact that the holism
that I propose is materialist explains how synthesis can occur,
because grounding theory in the material permits verification of
hypotheses, even intuitive
40 hypotheses, whether by
analysis or synthesis. These hypotheses, once verified, can
integrate into theorems about the entity in toto, which may be
more explanatory than the individual propositions from which
they are formed. A holistic theory grounded in materialism will
necessarily become more accurate than any purely analytical
theory because empirical verification occurs at both macro and
micro levels. Purely analytical theories like realism usually
correctly reject philosophical idealism, the idea that
intentional entities are real and that the world is a reflection
of ideas. However, purely analytical theories are heuristically
sterile in that they cannot formulate or test hypotheses about
collective objects because analytical theories such as realism
and atomism conflate groups with ideas about groups.
D. Critiques of Holism
Holist theory often links holism to
philosophical idealism. Philosophical idealism asserts that
ideas (eidos) have a "real" character and are a
*115
priori
to material experience.
41 It is basically the opposite
of materialism.
42 Philosophical idealism is
incorrect: The world is not a reflection of our ideas, otherwise
yogic levitation would be possible. While holism is often linked
to idealism, that linkage is contingent, not necessary. It is
possible to have a holist materialist theory which is the
theoretical combination that this author recommends and applies.
Holist theory is criticized because it tends to ignore
analytical methods by looking at the whole and not the parts
thereof. However, analytical methods can be applied within a
holistic theory, particularly where that theory is materialist.
While some holists could be criticized for ignoring analysis,
which does not mean that analysis is impossible within holism.
Thus, the critique is only valid when applied to certain
holists. It is not a valid critique of holism itself.
Philosophical idealism and ignoring analytics
explain the failure of idealist-holist political theories such
as Plato's. Yet, though holism and idealism are often linked
(just as realism and materialism are usually linked), there is
nothing necessary about that linkage. I specifically de-link
holism from idealism and remap it to materialism. From that
perspective IR can only be understood (to the extent that
understanding is possible) by examining the world as an
interconnected whole. The validity of that theory is verified by
comparing the correspondence of the holist model to material
reality.
43
E. Is It Possible to Synthesize Holist and Atomist Methods?
To some extent, the conflict between
atomism/analysis and holism/synthesis is illusory. Analysis, a
classic atomist method, and synthesis, a classic holist method,
are both valid scientific instruments, which good scientists
have at their disposal. They can and should be used
complementarily to study the same object of inquiry--Hobbes does
exactly this.
44
The atomists, as materialists, are not
entirely wrong. However, their analyses are distorted, because
of dualism, the analytic method, or possibly both, which block
them from grasping the essentially unitary character of
experience. Consequently, the atomists over-emphasize the
importance of military force and zero-sum conflict. Many,
probably most, atomists are
*116 hampered by dualism, like so
much in Western thought. Synthetic sterility and, at times,
dualist manicheanism, explain the failure of atomism. These
failings are seen most clearly in the work of realist IR theory
leading to dualistic wars fought by individuals isolated from
each other and society as a whole.
IV. Axiology: Relativism (Post-modernism and Neo-liberals)
v. Cognitivism (Classical Liberals)
Post-modern thought argues that there are no
universal narratives, no universal values, that value judgements
are subjective. Consequently, postmodernists find themselves
trapped by their inability to use concepts that they must
necessarily reject such as "truth," "beauty," and "the good."
For example, Nigel Purvis, who correctly criticizes Platonic
idealism, also adopts subjectivism consequent to a rejection of
philosophical idealism. But simply because pre-modern thought
sometimes adopted the wrong values does not mean there are no
values. Rather, the failure of earlier generations to resolve
correctly difficult social problems demonstrates that values can
only be truly known through practical experience in the material
world and that values develop with economic progress. Purvis
mixes his rejection of Plato's epistemology (philosophical
idealism, eidos)
45 --with post-modern axiology
and thus reaches an incorrect conclusion. Axiology is not
necessarily formalist or idealist. A materialist axiology is
possible (and is my position).
V. A New Natural Law Theory of International Relations
The atomist/realist paradigm--which guided
the world from one global war to another--was simplistic in
theory and unworkable in practice. This was because of a failed
synthesis due to rampant dualism, both epistemological and
legal. A categorical break from dualism via a monist-materialist
holist epistemology could permit the internationalist system
from repeating the same errors that led to the world wars.
Combining holism and materialism in order to
understand and explain the world might at first seem
counterintuitive. But even pragmatic Americans, who would
question the use of theory because of their scepticism, would
admit that understanding is necessary before control is possible
- and that the alternative to a radical break from the past, a
lawless world of rogue states and terror, is all too
unthinkable. Though it is true that holism and idealism were
historically often linked (just as realism and
*117
materialism
are usually linked), there is nothing necessary about that
linkage. I specifically de-link holism from idealism and remap
it to materialism. IR can only be understood by observing the
world as an interconnected whole and comparing one's hypotheses
with the observed material reality.
46 Once this step is taken,
reconceptualising the world in order to explain why and how
conflicts arise out of nowhere and suddenly engulf the world in
flames becomes possible. And with that understanding, perhaps
preventing or remedying such conflicts at their root causes
becomes possible.
The clash of competing ideas within theories
of ontology, epistemology, and axiology--and historical and
legal observations--leads to three conclusions from which the
contemporary international system can be described. The utter
failure of the proponents of the Project for a New American
Century to comprehend the existence and significance of two of
these three intellectual trends explains the mire within which
U.S. foreign policy is trapped.
A. Transformationism
Transformationalists argue that economic,
and not military, power is the decisive indicator of State
influence in a nuclear-armed world.
47 In a world mad with
"terrorism," this might seem counterintuitive: Until one sees
that just as the State cannot stop terrorists, terrorists
generally do not stop states.
B. Neo-functionalism
Neo-functionalists
48
argue that State institutions must be shaped piece by piece in
manageable areas over the long term where international accords
are possible, rather than vainly seeking overly ambitious
unachievable goals in the immediate present.
49
"Mere governance" may seem quaint in a mad world. But the
failure of the old mechanism of governance, force, explains why
governance is a key contemporary issue. The
*118
rise
and success of functionalism in the post-war era, largely
ignored and almost never exploited by U.S. foreign policy, is
one of the salient features of the post-Westphalian system. The
European Union is the most well-known and most successful
example of functionalism.
50 It is not the only one. The
U.N. Human Rights Convention system is not as successful, but is
another example of functionalism. MERCOSUR, NAFTA, and the
African Union may also prove to be functionalist success
stories.
C. Liberalism
Classical liberal theory
51
also provides guidance to determine the limits of individual and
business liabilities in post-Westphalian trans-national law. One
of the great failings of the Westphalian system in the
industrial era was the fact that trade and territory were
direct1y linked, such that trade conflicts and territorial
conflicts were mutually reinforcing and zero-sum. The
post-Westphalian order used, and will continue to use, the
Breton Woods
52 institutions--The
International Monetary Fund (IMF),
53 the International Bank for
Reconstruction and Development (World Bank),
54
and the General Agreement on Tariffs and Trade (GATT - now
*119
the
WTO)
55--to
consciously promote free trade,
56 not only to increase
economic productivity,
57 but also to de-link trade
and territory, both of which work to prevent wars
58
for market shares
59 and ensure peace,
60
all eroding the idea of sovereignty. The Breton Woods
institutions seek to create prosperity in order to insure peace.
If realism posits "peace through order," one can contrast
liberalism
61 as positing that "prosperity
62
will cause
63 both justice
64
and peace."
65 Though the U.S. has not yet
understood functionalism, governance, or transformationism due
to a failure to comprehend theory, it has, thanks largely to its
British heritage, at least been able to implement some of the
features of liberalism.
*120
VI.
Conclusion
In conclusion, a combination of liberalism,
functionalism, and transformationism developed out of
materialist presumptions but expressed within a holist worldview
will better explain and guide the international system than that
of the failed presumptions of realists and atomists. By
liberalism, I must make clear that I refer to classical
liberalism and not pseudo "neo-liberalism." Classical
liberalism finds its champion in Aristotle. Aristotle describes
right action as the median between extremes. He proposes
liberality, being generous to the right person to the correct
extent and for the right reasons, as the median between the
vices of greed and miserliness. Later liberal theorists of note
are Rousseau, John Locke (Two Treatises of Government), Adam
Smith (The Nature and Causes of the Wealth of Nations), and
(inter alia) David Ricardo.
66 For classical liberals like
Aristotle the State exists to ensure a good life for its
members.
67 While later liberals such as
Smith
68
or Locke
69 may be individualists, it is
clear that Aristotle certainly, and probably Rousseau and even
Hobbes, were collectivists,
70 i.e. holists (though whether
Hobbes is a liberal
71 can be debated).
*121
This
is very different from the atomist and neo-liberal position
which denies the existence, let alone primacy, of any
collective.
My liberalism must be qualified, however,
because many liberals (not Aristotle) are also social-contract
theorists. I reject social contract theory because it does not
correspond to empirical reality. On this point, I split from
Locke,
72
Rousseau, and Hobbes
73 (and Rawls,
74
Dworkin,
75 and Nozick
76
for that matter). Despite their disagreements on the origins of
the state and the role of the individual vis a vis the
collective, Locke and Aristotle agree that objective moral
values do exist and can be the object of choice and rational
inquiry.
In contrast, modern neo-liberal theory
asserts that moral values are subjective and relative.
77
When modern neo-liberal theory claims to be liberal and claims
that values are subjective, it betrays its ignorance. Liberality
means the art (not science) of generosity, of making the moral
choice of when and to what extent and to whom one should or
should not be generous, of what the virtuous mean is between two
extremes. It is a value choice. Normative axiology is inherent
in the classic notion of liberality, as in all of classical
thought. Modern neo-liberalism, divorced from any theory of
objective value or morality, eventually finds itself in the same
morass of ambiguity and sterility that plagues postmodern
thought.
78
*122 To close, the world can
still escape from the incorrect presumptions, which drove it
into two world wars and continue to threaten it with a third.
The correct lesson of September 11 is not the continuing
relevancy of military force, but rather its irrelevance. As the
destructive power of weaponry continues to grow, states become
increasingly vulnerable to non-State actors. The correct lesson
of September 11 is counterintuitive, however. The realist
presumption that force is the sine qua non of statecraft and
that political relations are fundamentally zero-sum power plays
are as wrong in 2008 as they were in 1938 and 1918. By
comprehending past failures through theory, it is possible to
avoid repeating them.
1. Kenyon Bunch, If Racial
Desegregation, Then Same-Sex Marriage? Originalism and the Supreme
Court's Fourteenth Amendment, 28 Harv. J.L. & Pub. Policy 781,
840-841 (2005) (quoting Michael J. Perry, We the People: The
Fourteenth Amendment and the Supreme Court 91 (Oxford U. Press
1999).
2. Francis J. Mootz, III, Nietzschean Critique and Philosophical
Hermeneutics, 24 Cardozo L. Rev. 967, 1036 (2003).
3. Ronald J. Krotoszynski, Jr.,
The New Legal Process: Games People Play and
the Quest for Legitimate Judicial Decision Making, 77 Wash. U.
L.Q. 993, 996 n. 11 (1999) (referencing Tom R. Tyler, Why
People Obey the Law, 104-12, 135-57, 170-78 (California-Princeton
Fulfillment Services 2006); Daryl J. Bem, Beliefs, Attitudes, and
Human Affairs 27-39, 54-69 (Brooks/Cole 1969)).
4. "Critical Race Theory scholars
question the traditional assumptions of both liberals and
conservatives with respect to the goals and means of traditional
civil rights reforms." Harvey Gee, Some Thoughts and Truths about
Immigration Myths: The "Huddled Masses" Myth: Immigration and
Civil Rights, 39 Val. U. L. Rev. 939, 940 (2005); "An
important contribution of feminist moral theory has been to
question the firmly embedded assumption..." Kimberly M.
Mutcherson, Whose Body Is It Anyway? An Updated Model
of Healthcare Decision-Making Rights for Adolescents, 14 Cornell
J.L. & Pub. Policy 251, 273 n. 82 (2005).
5. See e.g., Rene DesCartes,
Meditations on First Philosophy. While I am no Cartesian (he is a
dualist, I am a monist), DesCartes radical skepticism, questioning
basic presumptions to be certain they are true, is
methodologically sound.
6. Skepticism in western theory
can be traced back at least to William of Occam (Ockham's razor:
'Essentia non sunt multiplicanda praeter necessitatem.' - don't
multiply entities beyond what is necessary to explain, author's
translation). See The Cambridge Companion to Ockham ch. 5 (Paul
Vincent Spade ed., Cambridge U. Press 1999). DesCartes too was a
skeptic. Louise Harmon, Wild Dreamers: Meditations on the
Admissibility of Dream Talk, 79 Wash. L. Rev. 575, 634-635
(2004).
7. Donald T. Bogan, ERISA: State
Regulation of Insured Plans after Davila, 38 John Marshall L. Rev.
693, 704 n. 40 (2005).
8. '[M]agical thinking is a
uniquely childlike inability to approach situations with an adult
decision-making process. The child's wishes become his/her
reality.' Donna Sheen, Professional Responsibilities Toward
Children in Trouble with the Law, 5 Wyo. L. Rev. 483, 490 n. 38
(2005).
9. "Ontology is, 'the study of
what is'" Scott DeVito, The Ontology of Copyright Infringement:
Puzzles, Parts, and Pieces, 35 Conn. L. Rev. 817 (2003). In
computer science the word has a particularized meaning of a
certain domain: 'An ontology is a shared and common understanding
of some domain that can be communicated across people and
computers.' Thomas F. McInerney, Implications of High Performance
Production and Work Practices for Theory of the Firm and
Corporate Governance, 2004 Colum. Bus. L. Rev. 135, 176 (2004).
10. Epistemology is the science
of truth; it is 'the branch of knowledge concerned with how
knowledge is derived.' Jeffrey M. Lipshaw, Contingency and Contracts: A Philosophy
of Complex Business Transactions, 54 DePaul L. Rev. 1077, 1102
n. 110 (2005) (citing Anthony Flew, A Dictionary of
Philosophy 109 (2d ed., 1999)).
11. Axiology is:
[D]erived from the Greek, axios
meaning 'worthy" and logos meaning 'science." As a general
philosophical theory, it involves a study of 'goodness, or
value, in the widest sense of these terms. Its significance lies
(1) in the considerable expansion that it has given to the
meaning of the term value and (2) in the unification it has
provided for the study of a variety of questions-economic,
moral, aesthetic, and even logical-that had often been
considered in relative isolation. 1
Ency. Brit. Axiology §
764-47 (1986).
12. Ontology could be described
as 'the science of being' of ouisa: The object of ontology is to
determine what is. Epistemology is the science of knowledge, which
is the theory of how we know that which we know. Epistemology is
by nature recursive. Axiology is the science of moral choice, of
fundamental values.
13. I wish to thank Prof.
Christophe Grzegorczyk of the University of Paris X for presenting
this probl