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Systems Theory and International Legal Legitimacy
Systems theory, Natural law, and International Constitutionalism; an unlikely triangulation
By Zorba J Parer, November 2011
Submitted as satisfaction for MIL Independent Research; Microsoft™ Word Count 9,206
The legitimacy of international law, indeed the very existence of binding international laws, is a recurring theme in international relations, and in domestic discussions of international obligations with regard to domestic executive actions, and legislative behaviour.
This question is at the forefront of international debate due to the ever changing global political situation, and recent actions by coalition forces, in particular as contra points; the US led invasion of Iraq; and the NATO intervention in Kosovo. Other emerging incidents in the Middle East and northern Africa involving domestic uprisings and the various levels and types of international intervention also highlight the question of international law and the legitimacy of international state and non-state actions.
Natural laws have been known by other names, but exist perpetually, due to the fundamental nature of the universe. Whether these are given by God, or are an emergent property of hydrogen after 14 billion years, does not detract from the fact that they exist.
When designing an airplane the engineer does not defy gravity; rather by understanding its properties we use one natural law to overcome the other, in order to change the state of the aircraft to one which appears to defy a natural law. It is only with the effects of gravity that an aircraft can fly, it is indeed the careful observation of the way things are, and how they interact, that gives us all the marvellous gadgets we have in our lives, here at the dawn of the 21st century.
This paper seeks to bring together a broad range of ideas to explore
a single notion; can the international state system be
mathematically modelled, and the role of international law observed
in these models. These ideas are drawn out from readings in
international relations, law, philosophy, mathematics, science, game
theory, graph theory, and network theory. In a world of shifting
sources of authority1, it is critical to ensure that those authorities
are grounded in a reality which is harmonious with humanity, lest
the system become oppressive rather than liberating.
1 “Shifting Boundaries : the Authority of International Law 1”, Mayo Moran, New Perspectives on the Divide between National and International Law, Edited by Janne E. Nijman and Andre Nollkaemper, Oxford Scholarship Online, January 2009.
This essay was seeded by Posner and Goldsmith2; who suggested
that customary international law is simply game theory, where
States’ interests determine the law. Game theory has established a
significant corpus of methods and tools3 which were initially applied
to economic models by the early developers. Legal scholarship on
game theory is primarily focused on tactical implementation in
courts4, disputes5, contract formulation6, or limited decision support
analysis, where there is a small step from the world of business and
economics.
2 “The Limits of International Law”; Chapter 1, A Theory of Customary International Law, Posner and Goldsmith.
3 ‘Algorithmic Game Theory’ Edited by Noam Nisan, Tim Roughgarden, Eva Tardos, and Vijay V. Vazirani,
4 ‘Settlement Negotiations with Two Sided Asymmetric Information: Model Duality, Information Distribution, and Efficiency’, Daughety, Andrew F. and Reinganum, Jennifer F. (1994), International Review of Law and Economics, 283-298.
5 ‘Settlement Bargaining and the Design of Damage Awards’, Spier, Kathryn E. (1994a), Journal ofLaw, Economics, and Organization, 84-95.
6 ‘Incomplete Contracts and Signalling’, Spier, Kathryn E. (1992a), Rand Journal of Economics,432-443. ‘The Dynamics of Pretrial Negotiation’, Spier, Kathryn E. (1992b), Review of Economic Studies, 93-108.
The Posner and Goldsmiths conclusion that customary international
law is simply game theory falls short of understanding the
underpinning metaphysics, philosophy, and theory at work in game
theory and human society, and thus draws them to the false
conclusion that customary international law is not law at all. This
conclusion appears to be based on the fundamental notion of
international law as a positivist act, states giving tacit consent
rather than states recognising the intrinsic nature of the system and
consenting from necessity. Tacit consent is usually written in blood;
the centuries of theory proceeding world war two failed to convince
and bind the League of Nations on the principle of a prohibition on
aggression. It was only after witnessing the deaths of over 50 million
people in an industrialised total war scenario, that the States finally
gave tacit consent to sacrificing some state authority in an attempt
to prevent a repeat of the wholesale slaughter of humans.
This essay begins with an examination of metaphysics and
philosophical basis of modern international relations7. Scientific
Realism is examined here as an underpinning metaphysical and
philosophical basis providing a background of concepts which can
be drawn upon to interpret and defend definitions of natural law.
This approach also allows us to move away from debates on
whether natural law is a religious/moral dictate, or a sociological
construct, and merely examines the “is”.
Rational Choice8 provides a framework within which to construct
why people choose to behave, whether as state agents, or as
individuals within any given society. Understanding the basic
variables for why people choose to act, provides a theoretical basis
for constructing equations which can provide a positive theory which
can be empirically tested.
7 “Scientific Realism and International Relations”; Edited by Jonathan Joseph and Colin Wright
8 “Rational Choice Theory and International Law: Insights and limitations.” Robert O. Keohane, The Journal of Legal Studies, Vol 31, No.S1
Once the theoretical basis of this approach is established, I move
onto examining International Relations concepts of Anarchy and the
relationship to International Legal scholarship notions of Natural law.
Anarchy is proclaimed by many international relations theorists to
be the organising principle of the current international system9.
These theorists use almost the exact words in defining Anarchy as
Hobbes did in defining Natural law. The ancient and enlightenment
philosophers approached law out of anarchy or as they called it
natural law, and postulated that the metaphysics, physics, and
biological imperatives, of reality itself dictated certain universal,
immortal, and irrefutable laws for humans, above the laws of man.
9 ? “Anarchic orders and balances of power” by Kenneth Waltz, American Foreign Policy, Theoretical Essays Fifth Edition, 2005.
Some of the enlightenment philosophers who held this view
included Leibniz and Newtown, who are more famously known as
Natural Philosophers, or in modern terms, Scientists. These two
brilliant polymaths independently discovered and established the
mathematics of calculus. Calculus is the mathematics of things
which change with relationship to other variables. Calculus
encompasses partial differential equations, which model systems
with many different variables, and form the basis of many
algorithmic game theory methods. Partial differential equations
became part of the modern zeitgeist with the emergence of Chaos
Theory. Partial differential equations are shown to offer us the tools
to model the international system, and Chaos Theory provides us
the methods for predicting the future outcomes of the system,
within certain prediction horizons.
International relations and international legal scholars have
increasingly looked at what game theory can tell us about how
states behave. Beginning at the top and performing reductionist
analysis on state decisions, and approaching from the bottom and
performing constructionist analysis based on sociological analysis of
individuals, and group behaviours. Either way it becomes clear that
the future of international law is domestic10, i.e. individuals drive the
body politic interests of any given Nation, and are the ultimate
subjects of any international laws.
10 “The Future of International Law is Domestic” by Anne-Marie Slaughter and William Burke-White from New Perspectives on the Divide between International and National Law, Edited by Andre Nolkaemper and Janne Nijman (2007)
The birth of Algorithmic Game Theory came from the work of
economists who applied the third law of thermodynamics to
economic models, and were also later applied to evolutionary
modelling. What does thermodynamics have to do with people,
nations, or state interactions?
It is because a seemingly impossible number of interactions can
have a statistically predictable outcome, if the constituents can be
categorised (a taxonomy of States) and their behaviours modelled.
In thermodynamics these equations relate to atomic and molecular
interactions seeking to exchange and consume free energy, in
evolution it is how plants and animals interact seeking to use free
energy, and in economics and international relations it is how
people and institutions seek to consume free energy. Morals
underpin human behaviour, globally there are many moral
perspectives which are forever changing, and the ultimate teleology
of any human social group is survival. Ultimately survival in the
animal world is defined evolutionarily by a species ability to obtain
energy.
The mathematics of all these systems is governed by partial
differential equations which result in wildly different predictions
based on the smallest changes to the historical conditions of the
equation, even though they are absolutely deterministic. Thus while
it is possible to make predictable outcomes on equilibrium and
optimisation within closed systems (a beaker of chemicals, an island
of animals, a village market), large open systems prove much less
predictable (global weather patterns, flame propagation in a bush
fire, share market prices, human society in 20 years), and many of
these systems were thought to be mathematically impossible to
predict numerically due to the impossibility of measuring and
tracking every input condition. With the advent of Chaos Theory,
hope was born for predictable outcomes for such systems. By
calculating every possible input variable and plotting the outcomes
in a multidimensional space, we begin to see patterns emerge, and
once chaotic, seemingly random, systems begin to reveal deep
sources of information.
METAPHYSICAL AND PHILOSOPHICAL BASIS OF RATIONAL, SCIENTIFIC, INTERNATIONAL LAW
The classic philosophers of law (Cicero, Aristotle, Augustine, et alia)
through to the Enlightenment and Renaissance scholars (Aquinas,
Grotius, Spinoza, Hobbes, Kant, Wolff, Vattel, et alia) have all at
least attempted to clearly define their metaphysical position. These
positions then informed the basic assumptions they used to develop
their philosophies.
Since Hume threw the “naturalistic fallacy” spanner into the works,
and produced his remoulded realism model11, the importance of
maintaining a metaphysical foundation has waned. However I will
start at the beginning in order to obtain a thorough understanding
of the subject.
The very Victorian Sir Traverse Twiss considered international law to
be an obvious merging of natural and positive legal schools, under
the banner of a scientific approach to international law12. It is the
metaphysics of science that guides the modern concepts of truth,
and thus in any current discussion of laws or policy in government
our rational actions are guided by scientific reasoning.
11 “British International thinkers from Hobbes to Namier” edited by Ian Hall and Lisa Hall.
12 “Two introductory lectures on the science of international law”, Twiss, Travers, Sir, London 1856, British International Law
Metaphysics is, by one definition, the study of being qua being, and
in that sense here it is the study of the essence of international law,
or the essential underpinning immutable forms of international law.
Metaphysics provides a canvas upon which to discuss the
epistemology (how we know what we know) of international law. By
examining the basics, we move beyond semantic discussion of
positivism and naturalism, law and rule, and we can see that the
major themes running throughout the legal scholarship derive
quintessentially from their metaphysical assumptions.
Whether this is Kant’s Perpetual Peace, tied to his metaphysical
“Transcendental Idealism” or Hobbes and his version of Realism, we
gain a clearer understand there thoughts and conclusions, if we
understand their metaphysical positions.
This essay examines international law scientifically, which is to say,
from position that it is an a priori condition which becomes evident
with the interaction of n>1 nations of people. International law
exists, whether there are many or no nations of people. However it
remains unseen until such time that two or more groups of people,
having different governing social arrangements13, interact, only then
does the law becomes observable. This then ascribes them a
fundamental potency14 which becomes manifest when the n>1
nations interact.
13 “Between Authority and Interpretation – On the Theory of Law and Practical Reason” By Joseph Raz, Oxford Scholarship Online: May 2009, Chapter 4
14 “Nature’s metaphysics – Laws and Properties” by Alexander Bird; Oxford Scholarship Online: September 2007.
Metaphysically these laws exist without people or nations or any
material form, they simply have no effect. Similarly the laws which
govern the interaction of oxygen and hydrogen exist; however in a
closed system without oxygen and hydrogen they have no effect.
Adding those elements to the closed system enacts the laws of
chemistry which results in a reaction between the two elements,
giving off energy, and resulting in equilibrium with some amount of
water, and some excess of either hydrogen or oxygen.
Claiming that international law is an a priori condition does not give
it any claim to a beneficial teleological purpose. The research and
discussion here centres around what is; in a form that ought to
provide guidance to international legal thinking. Natural
international law from this perspective simply is; what we ought to
do requires us to make choices with regard to that law.
Without a corpus, (a population within which to function) law can
still be said to exist in the abstract (Platonic Form) sense, it simply
has no visible effect on existence15. The positioning of law in this
metaphysical construct rather than any other varied position16,
allows us to distinguish between ‘Good’ and ‘Bad’ international law;
law which is per se authoritative and legitimate. By combining a
constructive approach to defining international legal system within
an deductive mathematical framework, and using a statistical mode
of thinking to examine customary international law, we can seek
evidence of natural international laws.
15 “Between Authority and Interpretation – On the Theory of Law and Practical Reason” By Joseph Raz, Oxford Scholarship Online: May 2009
16 See for example “The Method is the Message” with Steven R. Ratner, 93 American Journal of International Law 410 (1999), The American Society of International Law
PhilosophyThe philosophy of science is firmly entrenched in modernity which
on the international plane has led to the application of scientific
realism17. The philosophy of science is fundamentally inductive, and
so too is the philosophy of international law. Scientific realism
requires inductive reasoning, the repeatable, evidence to validate
perceptions and assertions. The truth of a law of science is a
combination of the inductive (veritatem per demonstrationem18)
demonstrations of science, combined with the deductive logical
reasoning (verum per deductionem19) of mathematics. When these
two elements are combined correctly, we find predictable,
repeatable, patterns in the universe; natural laws.
Realpolitik offers the perspective that international patterns emerge
with the State interest as the motive force behind action, the policy
adopted by the State is based on the necessity of the situation at
hand arising from unregulated interactions. The test of success in
Realpolitik, of a policy is whether it preserves and strengthens the
State.
17 See “Scientific Realism and International Relations” Edited by Jonathan Joseph and Colin Wright, for a treatment on SR and IR.
18 Latin always sounds more convincing!
19 Ibid.
Taken in the literal sense, Realpolitik becomes fascism; the
individual exists to preserve and support the state. The outcome of
fascism has been innumerable shown to undermine the state, and
lead to state extinction.
Born out of Dickensonian experiences, Bentham and Hume
expounded the notion of utility and human happiness as the proper
goal for rulers to focus upon delivering to their people20. This has
been largely successful, although it was tempered in favour of
happiness for the aristocracy and socially enfranchised.
Morality and LegitimacyFinnis provides three basic principles of morality which he holds to
be irreducible, to drive a legal structure21, paraphrased here;
(i) Integral Human Fulfilment (Do Good, Love thy neighbour, a
whole of ends in systematic conjunction, greatest
good/happiness of the greatest number)
(ii) Protection of Human Good (Do no Evil, consequentialism,
proportionalist, utilitarian, aggregated moral theory)
(iii) Equality in Treatment (Reciprocity, do unto others as you
would have them do unto you)
20 “The Benthamite Constitution – Decline and Fall?” by Neil MacCormick, Quenstioning Sovereignty – Law, State, and Nation in the European Commonwealth, Oxford Scholarship Online: January 2010.
21 “Natural law: The Classical Tradition” By John Finnis, The Oxford Handbook of Jurisprudence and Philosophy of Law, 2002
This moral structure clearly places the individual as the focus of law,
and what ‘good’ laws should strive to do. This approach requires a
commitment in belief to these morals through abduction; the
observation of truth as a pattern amongst the data, too complex for
the test of constructive deduction, and to obfuscated for repeatable
induction. Abduction as a method for humans to make rapid
decisions is of clear benefit, however if valid they should hold up
under the pain staking scrutiny of deductive (albeit bounded)
proofs, against which to compare the inductive (albeit limited)
evidence.
Keohane on the other hand provides the following Six Specific
Criteria (again requiring a leap of abduction on the basis of liberal
democracies supremacy) for legitimacy of global governance22;
(i) Minimal Moral Acceptability (Respect for human rights; at
least physical security, liberty, subsistence);
(ii) Inclusiveness (Institutions open to all members, although
not equality amongst members);
(iii) Epistemic Quality (Institutional integrity and transparency)
(iv) Accountability (Three elements (1) Standards of measure
(2) Provision of information to compliance agents (3)
Compliance agents ability to impose sanctions)
22 “Global Governance and Legitimacy” by Robert O. Keohane (2011), Review of International Political Economy, 18:1, 99-109.
(v) Compatible with democratic governments (Global rules
must not constrain constituent populations from choosing
their own path)
(vi) Comparative Benefit (Global institution must be better than
no institution, or alternative local arrangements)
From this it is taken that legitimacy of an international organ, in the
liberal democratic sense, is that it receives the popular support of
the body politic. It does not however provide a basis of legitimacy in
the sense of whether the governance structure provides a positive
outcome for the body politic. The liberal democratic test of a
successful policy is the preservation and strengthening of the
individuals within a state, which against the needs of maintaining
the state structure may lead to a failed or weakened state; see
Greece 2011 and maybe the USA 2009 credit crises. Therefore a
global governance structure by these terms, may be legitimate in a
popular support manifesto sense, whilst being ineffective, and
ultimately lead to the inability to support individual citizen interests,
therefore failing in its ultimate teleology.
I suggest that the inductive test for success is that the state
continues with the existing identity; that the executive is not
overthrown (revolution by spin, vote, or gun), and the state
institutions remain intact. This definition then presupposes that the
state continues to be supported by the populous, and remains
sufficiently supportive of the populous to maintain their support.
We have host of current examples of states failing, either through
financial mismanagement, Greece, or through popular uprising and
revolution, Libya, Egypt, Syria, et alia, or through breakaway state
formation, Slovenia, Croatia, et alia. We also have many
contemporary examples of failed states which have not been able to
re-establish, Somalia, Zimbabwe, and the Congo.
There are also plenty of examples today of weakening states, USA,
Russia, and strengthening states, China, Brazil, India. Also many
states emerging from total institutional annihilation, beginning their
journey from day zero; Germany and Japan (post WWII), Cambodia,
Vietnam, Burma (Post cold war), East Timor, Iraq, and hopefully one
day Afghanistan (Global consolidation war), Egypt, Libya, Syria (Arab
Spring).
Are there structural international legal elements which are causing,
or contributing to, the changing condition of these states? Are these
simply the results of poor domestic policy, international relations,
egoistic state behaviour, or individual antagonists? Are they
temporary weaknesses, which are precursors to a strengthening,
based on a necessary cost of fundamental restructuring?
Natural lawFinnis provides this taxonomy of classic natural law forms of order23;
23 “Natural law: The Classical Tradition” By John Finnis, The Oxford Handbook of Jurisprudence and Philosophy of Law, 2002
(i) orders which are what they are, independently of our
thinking, that is, nature, laws of nature, and
correspondingly the natural sciences and metaphysics;
(ii) the order which we can bring into our thinking, and
correspondingly the standards and discipline of logic;
(iii) the order which we can bring into our deliberating,
choosing, and acting in the open horizon of our whole life,
and correspondingly the standards of morality and the
reflective discipline of ethics;
(iv) the order which we can bring into matter (including our
own bodies) subject to our power, as means to relatively
specific purposes, and correspondingly the countless
techniques, crafts, and technologies.
This taxonomy is useful in understanding the central theme of this
particular essay; the international laws of the first order as
described above. The international laws which stand immutable and
unchanging, which if you choose to stand against them will destroy
you, whether you believe in them or not. The other elements go
towards the success of any particular society in recognising the
immutable, and aligning themselves into harmony with the natural
order, the Dao24.
The first form of the above taxonomy reflected in the ‘modern’ law
24 “Law and Morality in Ancient China: the silk manuscripts of Huang-Lao” By Randell P. Peerenboom
of nations, natural law thinking as seen in the work of Christian
Wolff25:
§3. Of what sort the law of nations is originally
Since nations are regarded as individual persons living in a state of nature, moreover, as men in a state of nature use nothing except natural law, nations also originally used none other than natural law; therefore the law of nations is originally nothing except the law of nature applied to nations
§4. Definition of the necessary law of nations
We call that the necessary law of nations which consists in the law of nature applied to nations. It is even called by Grotius and his successors, the internal law of nations, since it evidently binds nations in conscience. It is likewise called by some the natural law of nations.
§5. Of the immutability of this law
Since the necessary law of nations consists in the law of nature applied to nations, furthermore as the law of nature is immutable, the necessary law of nations also is absolutely immutable.
The role of international law within the international relations
realism framework was largely claimed to be non-existent26 (in the
Positive sense of law authoritatively issued through a governing
executive) by the international relations theorists27. Against the
backdrop of the classical definitions above, based on Grotian
definitions of natural law, and thence the Law of Nations, the
international relations scholars seem like they were missing the
point. While it is true that a power can set out any form of rules
within their power to enforce, the cost of enforcement in the face of
25 “Jus Gentium Methodo Scientifica Pertractatum” by Christian Wolff, Translated by Joseph H. Drake Oxford: at the Clarendon Press, 1934
26 “International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship” by Anne-Marie Slaughter; Andrew S. Tulumello; Stephan Wood. The American Journal of International Law, Vol. 92, No.3. (Jul., 1998), pp.367-397.
27 Ibid
underlying prevailing natural orders will imperil the continuance of
the nation28.
Grotius defined two methods for divining international law, which
have been used by international legal scholars since his time; one a
constructionist approach, ascertaining the law by constructing
rational logic from the physio-psycho-sociological attributes of
humans29; the other a reductionist approach by observing the
normative, accepted, behaviours of sophisticated socio-political
groups30. Both of these approaches are fundamentally inductive,
requiring the study of humans as they are, or observing the
behaviour of states. These Grotian definitions mark the departure of
international legal philosophy from notions of God given rights of
the Feudal nobility, and the emergence of the science of
international law viewing the states power flowing from the will and
capabilities of the subjects.
28 “The Economics of Lawmaking” by Francesco Parisi and Vincy Fon, Oxford Scholarship Online: January 2009.
29 “arguing from the nature of and circumstances of mankind”
30 “by observing what is generally approved by all nations, at least by all civilised nations.”
In his two introductory lectures on the science of international law
(1856) Sir Travers Twiss points31 to the international legal taxonomy
of Dr Richard Zouch; natural law being founded on the tacit consent
of nations32, and positive law being that which is based on the
express agreement of nations33. This clearly connects the 16th
century Oxford professor’s definition of natural law to the modern
customary international law definition.
Wolff34 provides the following distinction between the species of international law:
§ 22. Voluntary law of nations35
§ 23. Stipulative law of nations36
§ 24. Customary law of nations37
§ 25. Positive law of nations38
31 “Two introductory lectures on the science of international law”, Twiss, Travers, Sir, London 1856, British International Law, page 30.
32 Commonly referred to in modern terms as Customary International Law.
33 Also used in this way today, with the additional note that some positive law, when widely endorsed, may be seen to have achieved a status of customary international law.
34 “Jus Gentium Methodo Scientifica Pertractatum” by Christian Wolff, Translated by Joseph H. Drake Oxford: at the Clarendon Press, 1934
35 “With Grotius we speak of the voluntary law of nations, which is derived from the concept of the supreme state, therefore it is considered to have been laid down by its fictitious ruler and so to have proceeded from the will of nations. The voluntary law of nations is therefore equivalent to the civil law, consequently it is derived in the same manner from the necessary law of nations, as we have shown that the civil law must be derived from the natural law in the fifth chapter of the eighth part of' The Law of Nature'.”36 “There is a stipulative law of nations, which arises from stipulations entered into between different nations. Since stipulations are entered into between two or more nations, as is plain from the meaning of 'pact', since moreover no one can bind another to himself beyond his consent, therefore much less contrary to his consent, nor acquire from him a right which he does not wish to transfer to him; stipulations therefore bind only the nations between whom they are made. Therefore the law of nations, which -arises from stipulations, or the stipulative, is not universal but particular.”37 “The customary law of nations is so called, because it has been brought in by long usage and observed as law. It is also frequently called simply custom, in the native idiom das Herkommen [usage]. Since certain nations use it one with the other, the customary law of nations rests upon the tacit consent of the nations, or, if you prefer, upon a tacit stipulation, and it is evident that it is not universal, but a particular law, just as was the stipulative law”38 “That is called the positive law of nations which takes its origin from the will of nations. Therefore since it is plainly evident that the voluntary, the stipulative, and the customary law of nations take
Vattell’s work39 on the subject (whilst somewhat derivative, he has
independently considered the issue) provides some further
clarification on the “Necessary” law of nations:
Since, therefore, the necessary Law of Nations consists in applying the natural law to States, and since the natural law is not subject to change, being founded on the nature of things and particularly upon the nature of man, it follows that the necessary Law of Nations is not subject to change.Since this law is not subject to change and the obligations which it imposes are necessary and indispensable, Nations can not alter it by agreement, nor individually or mutually release themselves from it. It is by the application of this principle that a distinction can be made between lawful and unlawful treaties or conventions and between customs which are innocent and reasonable and those which are unjust and deserving of condemnation.Things which are just in themselves and permitted by the necessary Law of Nations may form the subject of an agreement by Nations or may be given sacredness and force through practice and custom. Indifferent affairs may be settled either by treaty, if Nations so please, or by the introduction of some suitable custom or usage. But all treaties and customs contrary to the dictates of the necessary Law of Nations are unlawful.
The framework espoused by Waltz40 fundamentally incorporates the
concept of natural law, through his firm positioning of Anarchy as
the organising principle. One of the difficulties is in the common
definitions of ‘Law’ as a positive, authoritative, act, by a legitimate
law making body. Without rulers, parliaments, or other law making
bodies; law still exists.
their origin from the will of nations, all that law is the positive law of nations. And since furthermore it is plain that the voluntary law of nations rests on the presumed consent of nations, the stipulative upon the express consent, the customary upon the tacit consent, since moreover in no other way is it conceived that a certain law can spring from the will of nations, the positive law of nations is either voluntary or stipulative or customary.”39The Law of Nations or the Principles of Natural Law” Emannuel de Vattel, Translated by Charles G. Fenwick 1916
40 “Anarchich Orders and Balances of Power” by Dr Kenneth Waltz; pp.60-83, American Foreign Policy, Theoretical Essays, fifth edition, 2005.
Waltz provides a sound working definition of ‘Law’ in his
introductory text41; “Laws establish relations between variables,
variables being concepts that can take different values”. Organising
principles in this context and laws as rules between variables
suggests that the rules are mutable, whereas the organising
principle is not. The rules in anarchy are the natural laws42, those
laws which are immutable. The states which follow the immutable
laws, within a sufficient degree of tolerance, survive. Those which
flout them, diminish. These ideas suggest a self enforcing
mechanism, with origins in human nature.
Where economics have long studied the effects of the micro on the
macro, Waltz suggests that even if a macro-political theory could be
constructed, nations would not act on them as they are the only
actors capable of affecting the global macro-political situation43, and
effects would still require reversion to the micro-political order.
While dismissive of a mathematical solution to the macro-political
system, in his balance of power theory he offers several useful
lemas.
41 “Theory of International Relations” by Kenneth Neal Waltz, Chapter 1, “Laws and Theories”, published 1979
42 Laws which govern the interactions between the variables.
43 “Anarchic orders and balances of power” by Kenneth Waltz, American Foreign Policy, Theoretical Essays Fifth Edition, 2005.
In taking the first of the Grotian approaches following von Wolff,
Vattel and Kant, down the constructivist approach, beginning with
man in nature. Fundamentally we are governed by our nature and
our choices. From first principles we examine a person alone in the
wild. The first choice the person makes is to survive or die, to die
may seem easy but still the person has a set of rules they will need
to follow in order to achieve this outcome. So too in nations; the
body politic in choosing to work together, self constitute44.
The Balance of Power theory as defined by Waltz has two underlying
notions; States choose to exist; Anarchy organises their actions.
Beyond this initiating principle, states may choose to collaborate,
and in doing so they subject themselves to additional natural laws.
So from this approach we see that the authority of natural law is
driven from the state choice, and back to the ultimate authority of
dissolution as driven by the individuals within the constituent state;
for example the citizens involved in the overthrow of states during
the Arab Spring.
44 “Self-Constitution – Agency, Identity, and Integrity” by Christine M. Korsgaard, Oxford Scholarship Online: September 2009.
In taking the second Grotian approach, we would ask what actions
have states taken which were successful, and why? This reductionist
approach is founded in the inductive method of demonstrated
success or failure. This is taken as a fundamental principle in many
approaches to espousing liberal democratic, and other socio-political
theories. The strength of the approach is that clear examples of
successful international legal tenants can be relied on, the
weakness is that the difference between a successful socio-political
model (even within the same family of structures such as
democracies, state controlled, republics, monarchies) and a failed
one, are subtle and the critical fault line lost in the depths of the
details of cultural tendencies, geographic necessities, external
influences, and other formative socio-political variability.
Ultimately for international institutions, organs, and laws, the
legislative acknowledgement and support, by state sponsors, is
secondary to their primary existence. Most, if not all, successful
international institutions, regimes, and frameworks constituted
themselves out of necessity through a variety of international
actors, prior to any state acknowledging or creating a congress,
conference, regime, or other institutional embodiment.
In this very brief dip into philosophy, I have taken a direction of
analysis to international law requiring an inductive approach based
on examining past behaviours of states to find the behaviours which
are successful, and those which end with state failure, without a
resort to leaps of moral faith. Our global community necessarily
bridges significant differences in fundamental moral and ethical
assertions requiring an objective approach to the topic.
To develop true ‘philosophy of science’ laws, they must be
combined with deductive methods of mathematics, and so requires
also a commitment to the philosophy of mathematics. All physical
behaviours can be observed and reduced to mathematical formulae;
using mathematical methods these can be manipulated to provide
useful information about the behaviour of the system. Mathematics
can be used to find optimal solutions, which can be related back to
the physical system.
The BeginningNations can choose to survive, and they choose to interact with
other nations; history shows that nations which interact with each
other are more successful (as measured in the Realpolitik sense) as
they gain access to resources and capabilities unavailable in their
own domains. This comes at some cost of national identity and
ethnic homogeneity45, in some cases (colonial interactions) this
means the total subsuming of the nation under a much more
powerful nation, with the subsumed culture changing the social and
cultural fabric of the conqueror.
In other cases this has resulted in some agents (tribes, individuals,
corporations, etc) within the nation benefiting, at the expense of
others. Once nations learn how to effectively benefit from the
transactions between nations, they have tended towards empires
with external nations forced to inclusion and benefit, or seeking
inclusion and benefit. Although eventually all empires to date have
contracted as the various elements seek to control the central
power structure, veiled as making remedy on their claim as
conquered, their moral superiority, outright coups by force, or other
manifestations of revolution46.
45 The USA occupation of Germany and Japan, through the personal interactions of soldiers with citizens, to relationships, both intimate and platonic, which resulted in an increase in German language, and an adoption of Kaisan management systems in the USA. The conqueror in exposing its citizenry, absorbs a degree of the conquered.
46 “The Government of Self and Others; Lectures at the College de France” Michael Foucault, edited by Frederic Gros, English translation published in 2010 by Palgrave Macmillan.
The international legal system is self constituting47. From this
perspective, International Law does not exist where nations either
have no knowledge of the existence of other nations, other nations
do not exist (n = 1), no nations exist (n=0), or the nations have no
ability to interact. Where more than 1 nation exists, and they have
knowledge of another nation, the rules which govern the behaviour
between those two variables begin to act, and the international
system self constitutes.
As an aside this leads to a conclusion that if international law were
truly monist, it would not exist. That is to say, if everyone enshrined
international law into their domestic law automatically, then we
would be a global nation, and international law would cease to exist.
Waltz asserts48, this would not eradicate conflict it would merely
change all wars into civil wars. Waltz also predicts49 that a single
global governmental authority solution would not be sufficiently
diverse to accommodate the vast array of cultural, ethnic, and
social conditions required to enfranchise all individuals within the
system, leading to increased violence as different factions vied for
control of the centralised authority. This prediction may in fact be
playing out in the form of Islamic transnational terrorism.
Legitimacy, Normative Behaviour, Authority
47 “Self-Constitution – Agency, Identity, and Integrity” by Christine M. Korsgaard, Oxford Scholarship Online: September 2009.48 “Anarchic orders and balances of power” by Kenneth Waltz, American Foreign Policy, Theoretical Essays Fifth Edition, 2005.
49 Ibid
There are many definitions and theories of legitimacy. In the context
of this research I am looking at the legitimacy of international law.
This is the legitimacy of the previously discussed a priori rules which
exist between variables under particular circumstances. How do we
recognise them as legitimate? One of the ways legal scholars have
recognised legitimacy is based on consistent state behaviour. If all
nations which continue to prevail follow a set of rules, then these
could be claimed as legitimate. This falls down when we see
revolution leading to an overturn of long held consistent state
behaviour, in favour of new sets of consistent state behaviour.
For the purposes of discussing the legitimacy of international law I
will take it to mean that people all agree that the laws are binding,
and if they disagree, the law prevails irrespective of their belief. This
high threshold is set to examine there exist any international laws
which can be demonstrably binding. From these we can then
examine what other rules ought to flow out of the basic principles.
In keeping with the philosophy of science, a law is only legitimate if
it coincides with reality. As an absurd example; a law which
prohibits people from obeying gravity, while authoritative (penalties
for all), has no legitimacy. As a less absurd example; a speed limit of
100 around a corner which can only be taken by a sports car at 35,
is excessive. That is to say it permits a speed which will ultimately
lead to tragedy, and a per se penalty not only for the individual
injury, but also to society in cleanup costs. In the other extreme a
law which unreasonably prohibits the individual from achieving
reasonable ends is also not legitimate; a speed limit of 2 on a
perfectly straight road, with no obstacles or traffic.
A legitimate law in this sense is a fountain of wisdom from which the
unfamiliar stranger may drink and know they will be safely slaked of
thirst. An illegitimate law is one born from excess, restriction, or
discord.
A legitimate law must also be coherent, and internally defensible. I
will use here a clear definition from Nomics50.
Nomic Preservation (NP) … m is a law if and only if m would still have held under any counterfactual (or subjunctive) supposition p that is logically consistent with all of the laws (taken together).
NP … m is a law if and only if in any context , p-> m holds for any p that is logically consistent with all of the n’s (taken together) where it is a law that n (that is to say, for any p that is logically consistent with the first-order laws).
In the law against gravity example, it is not coherent with the nature of the system.
All humans live on earth, gravity applies everywhere on earth, all legitimate laws
50 “Laws and Lawmakers Science, Metaphysics, and the Laws of Nature” Marc Lange, Oxford Scholarship Online; September 2009.
accept that the law of gravity is a necessary law with supreme jurisdiction not
subject to negotiation.
Customary law forms through spontaneous adherence by members of the
community51. So it is with customary international law; sometimes these customs
emerge slowly, and others emerge rapidly after dramatic global shocks.
Customary international law, in this context changes with the
circumstances of the environment, and the capabilities of the state
members. As technology advances, new challenges are presented
which require the formation or adaptation of customs. So how can it
be considered immutable? In this sense the natural law is a maze
where the hedges change over time; customary international law is
the map which must align itself to the changed map, if it is to
remain useful.
The spontaneous selection of strategies demonstrated by long
usage of agreed principles in international law, suggests that these
laws follow the natural (most efficient) course of action. The river
does not flow uphill. By examining customary laws which have long
been held as valid, it ought to be possible to deduce the underlying
mathematical principles in play on the international plane.
ConstitutionalismThe above discussion indicates that International Law self constitutes under these conditions:
A – the existence of nations52; people constituted under a set of homogeneous governing laws (rules, norms, or otherwise); i.e. a 51 “The Economics of Lawmaking” by Francesco Parisi and Vincy Fon, Oxford Online, January 2009.
group of people harmonise and choose to become a coherent nation.
AND
B – The existence of n>1 nations
AND
C – The interaction of n>1 nations
If we take it for given that the world we live in now (2011) is made
up of many states, with executive powers granted through some
mechanism to a central state authority; then what power should
they give to a central authority? What head of power should reside
in the central global government, such that the states have
sufficient power without needing to wrest it from the central
authority? Indeed is the current trend toward conglomeration a
stable configuration for large groups of humans?
Constitutionalism as a project can be seem as the study and
analysis of fundamental norms, the type of actors, and the
institutions and procedures through which legal and political
decisions are made53. So here I will approach the constitutionalism
project, via algorithmic methods grounded in an inductive/deductive
philosophy of science/mathematics, based on a concept of
52 I use the term nation rather than state as many non-state actors which meet the definition of nation, but are not, or can not be, a recognised state need to be considered in the analysis of the global governance structure. These nations have internal rules governing behaviour and come in many forms; religious, ideological, and commercial.
53 “Global constitutionalism: Mapping an Emerging Field” Antje Wiener, self published background for conference, Constitutionalism in a New Key? Cosmopolitan, Pluralist and Public Reason-Oriented Berlin, Jan 2011
legitimacy grounded in coherent and consistent reasoning, with the
ultimate authority the individual’s choice in participation.
Game Theory and AGTModern game theory was the brain child of John Von Neumann, in
his examination of zero-sum games and the non-existence of
blended-strategy equilibria. This initial proof rapidly expanded into a
wide range of primarily economic models of expected utility and
decision making analysis. It has been extensively applied in variety
of fields, and importantly for this essay; international relations and
biology.
The application of game theory to international relations has varied
in its application; indeed where it has been applied, the scope tends
to be limited and does not consider all the complexities of the open
form extensive nature of the international system or the variations
in payoff ratios54. The typical approach is to use the Prisoners
Dilemma, or other relatively simple game model to extrapolate
conclusions in limited circumstances with regard to international
legal or international relations cases, based on analogies. These
simple form games do not provide sufficient variables to accurately
capture the complexity of options open to the various state and
non-state actors, and tend to be used as supporting rhetoric.
54 See for example “The Economics of Lawmaking” by Francesco Parisi and Vincy Fon, Oxford Online, January 2009, “The Limits of International Law; Chapter 1, A Theory of Customary International Law”, Posner and Goldsmith.
Others have taken the approach that assumes the validity of
customary international law, and examined the conditions which
make it possible55. The second approach used in examining lex
mercatoria posits the following game rule conditions necessary for
the formation of lex mercatoria [paraphrased]:
(i) Voluntary reciprocal duty (Players choose to participate with each other)
(ii) Reciprocity must be equitable (Payoff ratios are equivalent)
(iii) Ongoing relationship (Multi-shot game)In a multi-shot game the agents participating learn from the
previous games. Reputation of past choices is retained, such that a
consistent inequitable payoff will result in the disadvantaged agent
disengaging, trading inequitably, or following some other non-
optimal strategy. The technological and sociological conditions of
various nations gave rise to the international merchant, which
constituted the international trade cosmopolis. Unconstrained by
formal positive laws, or external enforcement mechanisms, the
successful merchants were those that followed the natural rules of
the game. These rules were then, over time, codified into the lex
mercatoria.
55 “Customary Law as a Social Contract: International Commercial Law” By Bruce Benson, Constitutional Political Economy, Vol. 3, No. 1, 1992.
One form of evolutionary game theory is the application of game
theory in the study of animal populations. Success and failure
depends on the energy available to different species dependent on
their unique capabilities derived from random mutations of their
genome. These methods can be recast to look at any system which
can be seen as having multiple species (entities with unique
inherent capabilities), interacting in the same system (closed or
open, but necessarily connecting the species), over a period of time.
It is a fairly small leap to see the international system of states in
this light.
The application of game theory, and evolutionary game theory, has
met with some success, but has so far failed to provide a set of
concise tools to explain the normative behaviours seen on the
international plane. The complexity of trades (economic, reputation,
military, et alia) at the international level make defining a universal
utility variable difficult. Additionally, by observing the system from a
particular perspective (defining in the context of socially
preconceived variables) we find ourselves trapped by “Hume’s
fallacy” of inferring an ought-statement from a conjunction of is-
statements56, which in many cases results in a use of game theory
to bolster the foregone position of the writer. One promising
theory57 suggests that Entropy can be used as the utility function,
which ‘ought’ to rid us of “Hume’s fallacy”.
Algorithmic Game Theory (AGT) is a useful tool in examining
strategic behaviour by abstracting rational decisions and deducing
the payoffs, which has emerged from game theory applied to
computer networks58 and other systems of greater complexity.
There is a significant body of knowledge on the subject59 which
provide a great number of tools for analysing many different
problems. Based on the previous discussions here, there are a
number of AGT methods which appear to be applicable.
56 Plato.stanford.edu/entries/game-evolutionary/
57 “Natural Games” By Jani Anttila and Arto Annila, Physics Letters A, Volume 375, Issue 43, p. 3755-3761, Elsevier, 8 September 2011
58 “An Algorithmic Game Theory Primer” Tim Roughgarden, June 21, 2008
59 “Algotithmic Game Theory” Edited by Noam Nisan, Tim Roughgarden, Eva Tardos, Vijay V. Vazirani.
The various types of algorithmic models depend on the system
under inquiry. So what kind of system is the international system?
Defining the International System
Classical Natural Law
Let us begin by listing what a set of ‘constructive’ variables might
look like using the classic natural law taxonomy:
(i) orders which are what they are, independently of our
thinking, that is, nature, laws of nature, and
correspondingly the natural sciences and metaphysics;
There are 193 members of the United Nations.
There are 153 members of the World Trade Organisation.
Nations of the world choose to interact with each other. The
international system is “constituted” by a series of interactions on
multiple levels, in multiple dimensions, by a variety of nation types;
states, corporations, ideologues, et alia.
(ii) the order which we can bring into our thinking, and
correspondingly the standards and discipline of logic;
The international system orders it’s “Thinking” through treaty
making, in accordance with the standards of the Vienna Convention
on treaty interpretation, and application of rational state behaviour.
Nations have unique socio-political thinking based on historically
defined and evolving standards and discipline of logic. Despite this
diversity of national thinking, the order of thought of states in the
international system is based on the rules of international diplomacy
and discourse.
(iii) the order which we can bring into our deliberating,
choosing, and acting in the open horizon of our whole life,
and correspondingly the standards of morality and the
reflective discipline of ethics;
The international system order for deliberation, choosing, and acting
happens in many different forums, and is based on a diverse range
of morals and ethics. Within the international system there is a
formative notion of common morality around the idea of jus cogens.
However the international system currently recognises that each
state must choose its own path.
Nations have unique standards of morality and ethics which define
which treaties, conventions, congresses, regimes, and institutions
where they participate. The choice nations make is primarily based
on the species of nation to which they belong.
(iv) the order which we can bring into matter (including our
own bodies) subject to our power, as means to relatively
specific purposes, and correspondingly the countless
techniques, crafts, and technologies.
The international system functions at this level with little required
central influence required.
Nations have unique natural (mineral and biological) resources
allocated by virtue of their geography. These are the raw, unformed,
resources which no man may claim as the produce of his labour, in
the John Locke sense.
Nations have human potential; the potential identified by Rousseau
as the core of a nations being, supreme in sovereignty. While we
might say that two individuals are equal, very few individuals are
equally capable. Just as a wheel chair bound Hawkins is capable of
amazing insights, he is not capable of winning an Olympic medal.
Nations have unique human capacities (scientific, technological,
craft, art, physical, et alia) dependent on historically defined, and
evolving education and potency maintenance standards. What a
nation makes of its human potential.
The international system itself is in a physical sense closed. It
currently cannot obtain physical resources from outside the earth,
although it potentially could. However it is open in a pure resource
sense; new technologies can always be created, enabling a more
efficient method of energy acquisition and utilisation, the raw
resources of earth are still being discovered, and new means of re-
using waste is constantly emerging.
Variables and Constraints of the International System
Given the above conditions, variables, and constraints, any model
needs to be representative under the following conditions:
Multiplayer, > 1000 individual agents (defined as nations;
groups of individuals working together using an internally
established set of rules/laws)
Multi Shot; Reputation informs decisions, behaviours change
over time
Agents base decisions on deontological structures; utility
sought is highly dependent on national cultural beliefs
Information is incomplete; agents know the rules of their own
nations, but have only imperfect, to no, knowledge of others
Information is not symmetrical; different nations have
different levels of knowledge of the world
Energy is measurable; GDP, investment, ownership (physical
and intellectual), natural resources (raw materials), capability
resources (ability to transform raw materials), IP generation
(ability to create more efficient capabilities)
System is open; new energy is always discoverable
System is survivalist; nations can feed off other nations if it is
a more efficient access to energy, and starve another nation
Natural resources are unequally distributed; trades are
necessary to maximise available resources
Capabilities are unequally distributed; trades are necessary to
maximise productive efficiency
System is dependent on many variables which change over
time and with relation to each other; non-linear system
Nations are highly interconnected; overlaying decision
networks
System is stoichiometric; law of big numbers applies and
statistical properties exist.
Graph Theory
Graph theory is part of the basic “language” of algorithmic game
theory. Graphs represent the nodes and connections within a given
system. The global network of states can be represented by 192+
nodes with an edge connecting each state with an embassy,
commercial or other connection. Further, national nodes
(cooperative groups of individuals using a uniform and unique set of
rules for interaction) can be represented with this model, allowing
for visibility of non-state international agents.
Different flows can occur between the different nodes; resources,
products, capital, people, information, et alia. Different dimensions
can be attributed to each of the nodes, symbolising their
participation in exclusive networks which may influence their
decision on any given matter. These dimensional networks can be
historical, ideological, religious, political, cultural, or any other
national aspect.
The use of graph theory representation has been used to consider
issues as broadly separated as certification as a general model of
governance60, to the fundamental metaphysical structure of the
world61. The use of graphs allows us to capture many dimensions of
a given node, and the multitude of transactions between the nodes.
The global system of today is highly defined by the UN institution of
state recognition; however there are also a multitude of other
transnational actors which affect the overall state of play. The UN
recognition could be represented as an exclusive network, which
alters the behaviour of nodes connected to the exclusive network.
Non-government organisations can create social momentum over
particular issues, religious groups can mobilise their constituents,
and corporations can freeze regulations. While individuals can have
an influence, it is only seen on the international level when they are
magnified through an institution. A person standing on a sidewalk
yelling is unlikely to have an enduring effect on Aboriginal
traditional land ownership. However a person, given access to the
courts, and quietly demurring to international law, may make a
difference.
60 “Structuring Transnational Fields of Governance: Network Evolution and Boundary Setting in the World of Standards” By Tim Bartley and Shawna Smith.
61 “The Mathematical Structure of the World: the World as Graph”by Randall R. Dipert, The Journal of Philosophy, Vol.94, No. 7 (Jul 1997), pp. 329-358
Each of the edges (connecting lines) has a weighting factor applied
which represents a transaction cost associated with the particular
transfer. Laws as rules between variables sit as weighting factors on
the connections. Heavy trade tariffs between nodes will increase the
cost, and hence the weighting factor, associated with transacting
between the two nodes. The literature on routing algorithms is
extensive62, as this has been a major driver in computer networking.
Indeed the complexity of information routing in the computing world
far exceeds the complexity of the international socio-political-
economic system.
In constructing the international state model we need to account for
every type of transaction which occurs. This model would need to
include individual relationships, corporate associations, non-
government organisations, treaty regimes, diplomatic notes, et alia.
These transactions create a bias between nodes, which over long
periods of time increases or diminish the transaction costs
associated with particular types of connections. Due to the difficulty
in calculating outcomes with huge numbers of inputs, an initial look
would tend to use statistical data to sum up inputs from minor
variables.
62 “Algorithmic Game Theory” Edited by Noam Nisan, Tim Roughgarden, Eva Tardos, Vijay V. Vazirani, Cambridge University Press
In mapping out the history of the world as a series of transactions,
we can see that certain behaviours at the state level result in a
lowering of transaction costs between nodes. The nodes with the
most connections, and the lowest transaction costs, will ultimately
dominate. The amount of capital a particular nation has can be
compared to trade, knowledge, or social flows which it can generate
through connection increases.
A national node’s behaviour can impact the weighting of a particular
variable. The aggression of a nation upon another nation is likely to
result in a diminishing of trade between the two nations, and with
other nations in general. The reduction in trade is based on the
nature of trade, i.e. stability is required to safely transfer goods
between ports. An increased risk due to warfare will reduce the
amount of individuals willing to transact. Even warfare can be seen
as a transaction between two nodes; in peace the cost of the
transaction is zero, in war it goes up.
Transactions do not only involve financial consequences, they also
transfer information, ideas, culture, ethics, morals, social
behaviours, product preferences, and more. The interaction of
nations transfers people, genetic lines, and creates familial bonds.
The different varieties of connections come with different legal
identity depending on the nations that are interacting.
Graph theory is a great tool for gaining insight into the system. For
the purposes of identifying natural laws from a data set of
customary international law, we are looking at the multi-shot game
over very long periods of time. A nation, or group of nations, could
potentially work against the prevailing winds of natural law for a
very long time before they exhaust their energy reserves.
Non-Linear Equations applied to the International System
Non-linear mathematics is the foundation of modern engineering
control theory, used in everything from aircraft63 to automobiles. In
examining the international system as a system64, we can examine
international laws as the control inputs to the system. Before we can
do that, we need to understand how the system functions without
any control inputs.
Non-linear equations model systems with multiple variables which
change with relation to each other. One compelling argument
provides an amoral mathematical model based on restating
thermodynamic equations65;
(1)
This equation shows a change over time (dt) of entropy (S) using
Bayesian probability (P) due to energetic exchanges in kB (energy -
> assets, money, IP, labour, et alia) over time (dt) between two
asset pools Nj and kB. For any particular nation we can equate to
national asset pools, kB, and the asset pool available from the
international system. So any connection to the outside world adds
available assets to drive the potential difference, it can also bi-
directional and scalar (non-dimensional form of cash or assets or IP 63 “Derivation and Definition of a Linear Aircraft Model” NASA Reference Publication 1207, August 1988
64 “Systems Thinking, Systems Practice” Peter Checkland, John Wiley, 1981
65 “Natural Games” By Jani Anttila and Arto Annila, Physics Letters A, Volume 375, Issue 43, p. 3755-3761, Elsevier, 8 September 2011
into energy units). Each edge represents an additional connection to
a source of energy and is summed in equation (1) to represent the
total energy reserve available to a nation.
Intellectual
Economic
Social
Et Alia
The international system is an open energy system, on the basis
that we have not exhausted out natural resources, and discovery
and innovation always allow new sources of energy to be added. In
an open system Ajk [equation 1] is the free energy available to the
system and is determined by multiplying the number of assets by
their value in energy units. This could be monetised by making
energy equal to currency, but floated currency itself is a form of
energy with variability in this model. Also the value of the asset is
defined in the exporting nation, a greater value in the importing
nation provides a driving function for the transaction to occur, so
long as the increase in value exceeds the transaction costs.
This way of looking at international transactions sits neatly with the
remedies the World Trade Organisation provides in disputes. It is
also demonstrable in the way executive governments negotiate
terms in Free Trade Agreements, and other cooperative
agreements, exchanging one form of asset or assistance (military
agreements, cultural exchanges, intellectual exchanges, et alia) for
a different form of perceived equal value. It also allows for
information as knowledge and due to the statistical nature of the
model, the form of the knowledge becomes largely irrelevant
(whether it is strategic knowledge, technological, medical, or other).
So long as there are statistically diverse forms of a particular asset
type, they can be modelled as a single form; energy.
In working through these equations it is shown that the international
system represents a non-Hamiltonian system with three or more
degrees of freedom, where the driving forces and the energy flows
are inseparable66. This also leads to the conclusion that if this model
is correct a Linear model could be derived and control theory
methods used to show control inputs.
In looking at the international legal system we should see that
customary laws statistically follow natural laws, and represent the
rules within the system context which provide the optimal approach
to achieving the maximum entropy within the international system.
Further work in natural networks67 shows that networks themselves
have a tendency to drive towards the maximum entropy. Therefore
networks of states and nations would have a tendency to form
connections which maximise energy gains from the system. While
there may be connections which do not lead to optimal energy
consumption, over a statistically relevant set of actions (500 years
of international interactions), the emergent rules should provide the
paths which lead to optimal energy gains.
66 “Natural Games” By Jani Anttila and Arto Annila, Physics Letters A, Volume 375, Issue 43, p. 3755-3761, Elsevier, 8 September 2011
67 “Natural Networks” by Tuomo Hartonen and Arto Annila, Not yet published [arXiv.org > physics > arXiv:1106.4127]
The current macro-economic models used to handle our global
economy are based on the idea that the system is stoichiometric,
that it is statistically defined due to the law of large numbers
interacting in complex ways, what systems theorists call
‘unorganised complexity’. However as we drive towards a goal of
defining more and more international laws, the system may become
‘organised complexity’. Still a non-linear complex system, but with
emergent properties which are no longer stoichiometric.
Systems theorists working in computer science have found that
classical electro-mechanical stoichiometric failure models and
methods cease to work in complex computer systems, because
there is too much structure while the systems remain non-linear68.
68 “STAMP a new approach to accident analysis” by Nancy Leveson, MIT Press, 2011
Random
Discrete
ComplexSimple
Unorganised Complexity Stoichiometric – Macro-economic
Organised Complexity – Global government
Organised –Simple
Conclusions
Classical natural law theory provides us with a view of the law which
is immutable and eternal; as valid today as it was two thousand
years ago, based on intellectual consideration of historical
observations. Using modern analytical methods and mathematical
tools we can examine the international laws naturally emerging
from international interactions. This method allows us to examine
the rules in play which are unrelated to our moral or ethical
perspective, or particular teleological purposes.
These rules require ratification through positive international, only
for the purpose of not having to re-discover them continually. This
way of defining Natural law is significant, not because it proves here
what is or isn’t a legitimate law, but that it provides a method for
weighing the legitimacy of international law without presuppose the
rightness of any one ethical or moral deontology.
The use of deductive methods to examine the international system
as a network allows us to construct a framework to which we can
apply scientific laws of thermodynamics. This coupled with the
inductive process of examining past international behaviours
provides us a method by which to determine the rules (laws) which
result in the optimal access to free energy within the system.
Further survey efforts looking at customary international laws and
networks, using entropy as the driving utility function is required to
demonstrate this method.
This view of the international system suggests that customary laws
emerge only after a statistically relevant passage of time, which has
resulted in the agents within the system learning the natural laws
which result in maximum payoff. The authority of these rules
prevails so long as the system remains stoichiometric, over a
statistically relevant time frame. Movement away from the natural
laws by any one nation will result in inefficiencies and losses for that
nation and with other agents access the energy sources more
efficiently, will lead to degradation and potential collapse of that
nation.
The legitimacy of an international law can be determined by
understanding the interactions of the international system as a
network with a natural tendency towards maximum entropy.
International laws which disrupt the statistical nature of particular
interactions will cause a breakdown in the ability of the system to
move towards maximum entropy, and will be rejected by the
system.
This breakdown and rejection process, when viewed the first person
perspective can be deadly. Breakdowns occur as national scale
breakdowns in economy, social structure, or pacific stability. An
international legal system constituted on the principles of natural
law, enshrining only those laws which are clearly definable as
optimal interactions for achieving maximum entropy while
maintaining a level of randomness necessary for stoichiometric
process, would be per se legitimate, and ought rightly be enshrined
in a formal international constitution providing a head of power
above the nation state.
My prediction would be that very few, if any, new additions to the
international treaty system would be required. Based on this
research I would also predict that continued pressure from the
global community to build additional transnational laws to foster
ethical, moral, or social movements related to specific national
preferences will ultimate undermine the global governance system
leading to organised complexity and a need to totally rework the
fundamentals of the global system. Nations should be wary in
seeking to develop transnational laws unrelated to the necessary
functions between them.
In closing, this paper has shown that the international system can
be mathematically modelled (albeit imperfectly), and that natural
international laws can be observed through historical statistical
analysis. It also suggests that rather than there being any limit to
what nation states can enact as international law, that there are
limits on what they ‘ought’ to enact as international law. The
modelling of the international system shows that laws defying
natural law, are as doomed to failure as laws defying gravity.
Enshrining natural law as a legitimate set of constitutional limits in
international law will limit excursions in national, and transnational,
behaviour which courts catastrophe.
