Tag Archives: global warming

Charles Eisenstein, Climate: A New Story (Berkeley: North Atlantic Books, 2018)

17/01/2021Book review (editorial review)climate change, environmental ethics, global warmingNatalie Ellen Evans

Glancing at the Table of Contents, I felt a certain unease growing when I saw section titles like ‘The Revolution is Love’ and ‘An Affair of the Heart’. For a book about climate change, I was worried that this would be a hippie-style, get-back-to-nature affair that would avoid the brevity of the science and the urgency of the issue. However, as I started to read, I found myself refreshed and heartened, albeit not without the occasional twinge of cynicism, which is most likely the result of my adherence to many of the narratives Eisenstein criticizes.

I’ve studied and taught environmental ethics and philosophy for many years and believe this book would be a valuable contribution to my course reading lists for students at various undergraduate levels of study, and for those looking to add a different perspective on climate change to their research agenda. Not just for philosophers or environmental studies majors, this book would be helpful for students across disciplines interested in climate change, including media, cultural studies and other humanities and arts courses, especially as it challenges dominant narratives and representations of various aspects of the issue. It is well-researched and supported, while maintaining the clear and focused voice of the author throughout, who demonstrates a breadth of knowledge spanning environmental science, economics and politics. The only surprise to me was that key environmental thinkers, like Arne Naess and other deep ecologists, are not mentioned at all. Some mention of Naess, as his position of self-identification with nature seems to so clearly overlap with what Eisenstein is endorsing, would only strengthen and deepen these claims that we ought to change our way of being in terms of Self and its relation to nature.

The twelve chapters of this book cover a wide range of topics, not all directly related to climate change. This is because for Eisenstein the critical issue related to climate change is our crisis of being, and is based on the “constriction, numbing, and diversion of our capacity to feel empathy and love” (6). The belief systems that underlie our various social and environmental crises are inseparable from the dominant narratives that run through our civilization, with the ‘standard narrative’ of climate change being problematic because of how the issue is framed (7). Rather than focusing on reducing carbon emissions or implementing carbon taxes, we should instead, according to Eisenstein, focus on creating a language and belief system based on healing nature and ourselves, and that implicitly recognizes the interconnectedness of all life. He borrows the term ‘interbeing’ from Thich Nhat Hanh to refer to the idea that our individual self is not individual at all, but rather intertwined with all life so that any harm to nature is experienced as harm to oneself. Instead of being myopically focused on the urgency of climate change, we ought to include other social issues like racism and poverty in the same set of considerations, as “…healing on any level contributes to healing on every level” (28).

After examining the views of climate change deniers and skeptics, along with some good reasons why we might have sympathy for their views given the uncertain nature of climate science and scientific methodology in general, Eisenstein makes what I believe to be his most important point: Even if we are uncertain about where we stand in relation to the climate change narrative and overall debate on its causes and prognosis, we all know that we are in deep trouble. The planet is dying (82). Environmental degradation is obvious and undeniable in our immediate surroundings, and although we may lack agency to directly face the issue on a global scale, we should attend to the protection and restoration of the soil, water and ecosystems on a local level.

Despite the book’s title, it only has two sections entirely devoted to climate change. The first lays out problems with the standard narrative on climate change and emphasizes the mistakes and harms posed by the reduction of this problem to just a single cause, namely carbon emissions. The standard defeatist narrative on carbon emissions causes us to feel helpless, overwhelmed, and paralyzed. Eisenstein’s solution is to focus on the local. We can heal our ecosystems at the local level, and the positive results will reinforce the associated behaviours. However, what we ought not do, according to Eisenstein, is scare people into action as the dominant narrative does.

Another key point of the book is that we need to recognize what we are losing through destruction of the natural environment. By seeing our losses, such as damaged ecosystems and extinct species, and by fully feeling these losses, we can finally acknowledge and move into grief (138), and only then will we change our everyday actions and routines. On this account, climate change is addressed indirectly through the mobilization of individuals, and by changing our general orientation to climate change and nature.

What is refreshing about the book is the author’s open admission that his call for a revolution of love sounds utterly unscientific and romantic. Eisenstein discusses inner conflict and some embarrassment of his seemingly sentimental conclusions about how we ought to address such an urgent issue, and yet Eisenstein maintains that it is only through the direct experience of nature and coming to love it and the earth that we can start to effectively address our environmental problems. Eisenstein further lays out his ideas for healing the various systems of the earth in sections devoted to forms of regeneration of living systems; to challenging dominant notions of ‘development’, capitalism, money, growth, and debt; and to implementing a new ‘ecological economy,’ as more fully explained a previous book, Sacred Economics. He also provides an analysis of our over-reliance on science, claiming that such an over-reliance is problematic because based on underlying beliefs that the earth is an inanimate object rather than a living being of the Gaia variety. Eisenstein rightfully points out that if we believe that nature is ‘dead’, then it seems difficult to find reasons to care for her (253).

The book concludes with suggestions for creating environmental health and planetary healing. A list of principles useful to facilitate local change, the restoration of ecosystems and fairly major economic reforms that do not include carbon taxes or anything that directly addresses climate change is provided. While Eisenstein acknowledges his view can seem idealistic, he does believe real change to be possible on its basis. The book ends by calling on each of us to do what we can, where we can, to bring healing to ourselves, our local ecosystems and our planet (278).

I would have enjoyed seeing more connection to related thinkers and perspectives to draw out and acknowledge the existing conversation on environmental values and climate change, but as it stands this book provides some much-needed passion and honesty about the underlying ideological causes of climate change that need to be addressed beyond the science. Eisenstein has me convinced that we really do need a revolution of love to save our planet, without the need to sacrifice rationality and science.

Harming by degrees the «Anthropocene Millennium»? Environmental terrorism: another pandemic challenge after the Hart’s legacy within the EU legal space

29/12/2020Other contribution (editorial review)Anthropocene Millenium, Bealey, Bennett, COVID-19, Feinberg, Hart's legacy, Honneth., Hussain, Hyperobjects, ICCPR, Jonas, Kyoto Protocol, Morton, Po Valley., competition, conflict, cosmolegal, environmental terrorism, future generations, global warming, jus publicum terrae, pandemic, “Estrangement account”Enrico Arona

To the two female Judges killed in Kabul (01/17/2021).

To my friend Prof.ssa Mariangela Ripoli, in memoriam.

«Water is the principle of all things».

Thales

The Hart’s legacy in the third millennium, between analytical jurisprudence and International Law

H.L.A. Hart’s contribution to analytical jurisprudence is undisputed. His approach to law and the legal system, most comprehensively developed in The Concept of Law[1], has shaped the landscape of legal philosophy in the Anglo-American sphere and beyond. It continues to influence and dominate scholarly discussion, most prominently through the ‘Hart–Dworkin’ debate[2] which revitalizes and fuels the traditional antagonism between legal positivists and natural lawyers[3]. Even lawyers and legal scholars who are not deeply engaged in legal philosophy[4] will regularly be able to attribute keywords like the rule of recognition or the differentiation between primary rules and secondary rules to Hart. One particular aspect of Hart’s legal theory, however, remains noticeably underdeveloped in his own work and underexposed in the reception by lawyers and philosophers: his concept of international law, elaborated in Chapter X of The Concept of Law[5]. Most recently, Jeremy Waldron has characterized Hart’s theory of international law as ‘unhelpful’ and has criticized his ‘carelessness’ and ‘indifference’[6]. At the same time Waldron criticizes the general lack of engagement of analytical jurisprudence with international law, an engagement which, according to Waldron, could at least to some extent be based on Hart’s jurisprudence[7]. In contrast to the significance legal philosophers attribute to Hart’s general theory of law, they largely neglect his concept of international law. The same is true with regard to scholars of international law. While they at times refer to Hart’s distinction between primary and secondary norms[8], mention him as one among other legal positivists[9], or use his concept as a framework for analysis[10], more comprehensive analysis of his theory of international law is rare[11].

1.1. International Law as ‘law’: an academic glass bead game?

The jurisprudence of international law has long been influenced by the command theory, developed by the English legal philosopher John Austin in The Province of Jurisprudence Determined.[12] For Austin law consists of rules issued by a sovereign. Rules are defined as commands, coercive orders, or wishes backed by the threat of imposing an evil in the form of a sanction in the case of non-compliance with the wish.[13] For a rule defined in this way to become law it must be issued by the sovereign.[14] Austin defines a sovereign as habitually obeyed by the bulk of a society and not habitually obeying to another human superior. On the basis of this general command theory Austin does not regard international law as law. According to him international law does not stem from the command of a sovereign but is set by general opinion and enforced by moral sanctions only.[15] International law is therefore not deemed to be positive law – Austin speaks of ‘law improperly so called’[16] – but only international morality.[17]

Austin is generally deemed to be the last influential denier of the legal quality of international law. With the effective repudiation of Austin’s command theory by Hart[18] a major obstacle in recognizing international law as law seems to be abandoned. However, there have always been and still are approaches which do not fully deny the validity of international law but downplay its role for the reality of international politics significantly. Realist approaches, traditionally advanced, for example, by Hans Joachim Morgenthau and Georg Schwarzenberger, take international law into account but emphasize its limited ability to restrict power exercised by states.[19] In Kenneth Waltz’s neo-realist account of international relations, international law does not play any role at all.[20] More recently Jack Goldsmith and Eric Posner have argued in The Limits of International Law that a state’s interests decisively determine compliance with its international obligations.[21] They thereby challenge the ability of international law to influence and control state conduct only by virtue of its normative quality.

These diverse approaches and tendencies towards taking international law less seriously are not decisively steered by the jurisprudential question of whether international law really is law ‘properly so called’. Nevertheless, doubts about the legal quality of international law may endorse and legitimize proponents of more restrictive approaches to the international legal order. Analytical theories of international law, furthermore, not only help one understand the system better; they also influence the methods international lawyers apply when identifying and interpreting the law.[22]

The classical positivist accounts of international law, as they were developed in the late 19th and early 20th centuries, basically were voluntarist theories of international law. Georg Jellinek, for example, saw the basis for obligations under international law in an act of auto-limitation by states.[23] Heinrich Triepel refined this voluntarist theory surrogating the will of the individual states with the common will of states.[24] This voluntarist approach to international law found its expression in the famous Lotus decision of the Permanent Court of Justice in which the court held that ‘international law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law’.[25] Positivism thereby seems to imply not only a strong notion of sovereignty but also a strictly consensual character of international law: no state can be bound by a rule of international law unless it has explicitly or tacitly consented to it.

The traditionally tight relationship between legal positivism and voluntarist conceptions of international law has led many scholars to believe that positivism necessarily implies a voluntarist approach to international law.[26] Such an assessment constitutes a one-sided view of legal positivism which, in its international law dimension, does not have to be equated with voluntarism.[27] The main assertion of legal positivism lies in the perception that all legal facts are determined by social facts alone.[28] Positivists can and do disagree about what those ultimate social facts are. For Jellinek and Triepel it was the will of states, for Kelsen it was the Grundnorm,[29] for Hart the rule of recognition. This concept of law encompasses the potential for a positivist approach to international law which evades the shortcomings and limitations of voluntarism.[30] Hart, however, did not fully develop the potential of such a theory of international law.

1.2. The structure of international legislation

Before we analyse and criticize Hart’s account of international law two grounds for a humble treatment of Hart need to be emphasized. Hart published The Concept of Law for the first time in 1961. At that time Hart was still under the influence of the end of World War II which, with the collapse of the League of Nations and its failure to prevent the war, hardly offered much inducement for a euphoric view on international law. The founding of the United Nations did not brighten the prospects due to the almost immediate paralysis of the system of collective security at the beginning of the Cold War. Hart could not possibly foresee the developments and advancements that international law would experience in the second half of the 20^thcentury. Evaluating Hart’s theory at the benchmark of the current state of international law is therefore less a critique of Hart than an attempt to convey his theory to the contemporary international system.

Hart, furthermore, did not pretend to develop a genuine and comprehensive theory of international law. He concedes that the integration of international law – and other ‘borderline cases’ – into his jurisprudence is of only secondary concern to him. He does not analyse the structure of international law in greater depths, but limits himself to some rather general remarks about the peculiarities of the international system. While this subordinate treatment of international law may by itself be subject to criticism it helps to explain potential shortcomings in Hart’s theory.[31]

Hart considers himself to be, at least in part, an external beholder who views and analyses law. And yet, Hart narrows his perspective and focuses strongly on a specific kind of law, namely the law of the municipal legal order of the modern state.[32]

Hart uses the notion of custom as a contrast to the more flexible and sophisticated process of legislation in a modern municipal legal system. With regard to the contemporary understanding of customary international law, this antagonism has to be relativized. International practice has incrementally softened the two constitutive elements of customary international law: general practice of states and opinio juris. According to the ICJ state practice over a short period of time may be sufficient if the conduct of states is in general consistent.[33] Moreover, when the Court identifies norms of customary international law, it relies heavily on the voting behaviour of states within international organizations as well as directly on decisions and resolutions of international organizations.[34] In the reality of international law the development of customary international law does not constitute a slow and incremental process from conduct first being optional, then habitual, and eventually obligatory. The identification of a norm of customary international law is a highly subjective and often result-oriented process.[35] Customary international law is not the cumbersome law-making mechanism it is deemed to be.

A further development which Hart could hardly have foreseen is the emerging law-making activity of international organizations. Insofar as international organizations are capable of adopting legally binding decisions they can be understood as first occurrences of a centralized international legislature.[36] In the years after the founding of the United Nations the discussion about legislative functions of the organization revolved around the question whether the General Assembly can be understood as a global lawmaker. But although it is generally recognized that the General Assembly contributes to the development of international law in manifold ways, its resolutions are not formally binding.[37] The scholarly focus on the General Assembly has blocked the view of international lawyers on legislative processes which have been taking place within the specialized agencies of the United Nations.[38] More importantly, the UN Security Council has developed ways of exercising legislative functions. Legislative elements can be found in the creation of the ad hoc tribunals for the former Yugoslavia and for Rwanda.[39] In the aftermath of September 11^th the Security Council adopted Resolution 1373 (2001) which characterizes terrorism as a threat to international peace and security and obliges the member states to adopt far-reaching measures in order to prevent future terrorist acts.[40] Similarly, Security Council Resolution 1540 (2004) determines Weapons of Mass Destruction to be a threat to international peace and security and commits member states to take action against their proliferation.[41] With almost all states of the world being members of the United Nations and resolutions of the Security Council being legally binding under Article 25 of the UN Charter, this practice of the Security Council constitutes legislation in the sense of Hart.

According to Hart, the problem of inefficiency is mitigated further by the centralization of social pressure. In a more sophisticated legal system the primary rules prohibit or limit the use of force and self-help by private actors. In exchange the system introduces additional secondary rules of adjudication which specify or limit possible penalties for the violation of primary rules and which direct the application of penalties by public officials.[42] Domestic legal orders thereby establish a centralized system of sanctions.

Among the most important accomplishments of modern international law is the absolute prohibition of the use of force laid down in Article 2(4) of the UN Charter and recognized as customary international law and even part of peremptory international law (jus cogens).[43] Self-defence is allowed only under narrow and exceptional circumstances.[44] International law has until now withstood all attempts undertaken by state representatives and scholars to restrict the scope and content of the prohibition of the use of force.[45]

1.3. The “rule of recognition” in International Law, between primary and secondary rules

Under Austin’s theory legal limitations of the legislator are conceivable only if the sovereign legislator is under the obligation of another legislator. But in that case he would by definition no longer be sovereign because he would habitually obey another sovereign.[46] Thus, law cannot comprehensively be understood as rules issued by a sovereign.[47]

Against the background of this criticism of Austin, Hart develops his concept of law as the union of primary and secondary rules. Austin’s failure to explain the existence and role of power-conferring rules in a legal system leads Hart to introduce the distinction between primary and secondary rules.[48] Primary rules are rules which require people to engage in or or abstain from a certain conduct. They impose duties. Secondary rules, on the other hand, are rules about rules. They provide how primary rules can be established, changed, or identified and control the operation of primary rules. Secondary rules are power-conferring rules.

Hart illustrates the need for secondary rules by considering a primitive society which follows certain customary rules but does not have a legal system.[49] This society comprises basic rules imposing fundamental duties on its members but it does not have any institutions which authoritatively identify or change the rules, or which determine and enforce obligations in a dispute among its members. Hart assumes that such a rule system could work in a small and homogenous community, but under different conditions it would exhibit its defects:[50] doubts about the content of rules could not be settled, leading to uncertainty. Rules could not be changed in a deliberate process in order to react to changes in the social environment, thereby making the rule system static. Disputes about whether the conditions of a rule are fulfilled or not could not be settled authoritatively, the rules would not be uniformly enforced, thereby making the rule system inefficient.

In order to remedy these defects Hart suggests that the primary rules of obligation be supplemented by a set of secondary rules.[51] The problem of uncertainty of primary rules is to be remedied by introducing a rule of recognition for the conclusive and authoritative identification of the primary rules. The static character of a rule system can be overcome by the introduction of rules of change which empower a person or a group of persons to formulate new primary rules. And rules of adjudication which empower individuals to make authoritative determinations of a violation of a primary rule in a specific case remedy the inefficiency of a primitive rule system.

In Hart’s concept of law the rule of recognition is at the heart of the legal system and provides authoritative criteria for identifying primary rules.[52] In a modern legal system the rule of recognition also specifies the relationship and order of precedence between these criteria as well as the supreme criterion.[53] Among the sources of law that are valid within a legal system one source must be supreme and trump law from every other source. The rule of recognition is, furthermore, the ultimate rule of the legal system.[54] While it provides criteria for the validity of other rules and the validity of every other rule can be traced back to the rule of recognition, there is no rule providing criteria for the legal validity of the rule of recognition. The rule of recognition can therefore not be valid or invalid but can only be accepted as the guiding standard in determining the validity of other rules. The rule of recognition simply exists as a matter of social fact.

On the basis of the construction of a legal system as the union of primary and secondary rules, Hart develops the necessary and sufficient conditions for the existence of a legal system.[55] As a necessary minimum condition Hart identifies that the law which imposes obligations, that means the primary rules, generally be obeyed by the citizens. With regard to the secondary rules, Hart rejects the assumption that these rules which are addressed to public officials can be ‘obeyed’. When legislators conform or fail to conform to the rules which confer lawmaking powers on them it does not seem appropriate to say that they ‘obey’ or ‘disobey’ those rules. Neither does it seem an appropriate description to say that a judge ‘obeys’ the rule of recognition when he identifies and applies a statute. Therefore, Hart requires a unified or shared acceptance of the rule of recognition by public officials.[56] Unlike the primary rules, the legal validity of which depends only on general obedience by the citizens, the existence of the rule of recognition as a social rule is dependent upon its acceptance by public officials as a common and general standard of legal validity.[57]

As to the rule of recognition, it lies, in particular, at the core of Hart’s concept of law. Nonetheless, it should be emphasized that Hart understands the rule of recognition as an existing rule. This distinguishes his approach from Kelsen’s Grundnorm which is only a hypothetical or fictional norm[58]. Hart, in particular, develops it as a response to the deficit of a simple society which has a set but not a system of social rules.[59] In such a society there is no ‘common mark’ which would identify these rules, other than the fact that the rules are accepted by the community. Disputes about the rules can therefore not be settled by reference to an authoritative text or a person who could authoritatively declare a rule to be valid. This uncertainty could be solved only by introducing a rule of recognition, a rule which determines which rules are binding.[60] Where a system consists of more than one source of law the rule of recognition also regulates the relationship between these rules, thereby unifying them into a system of rules.

Hart rejects the proposition that international law consists of a unifying rule of recognition.[61] However, the reasons he gives in support of this conclusion are not persuasive. Hart sees a first indication of the lack of an international rule of recognition in the problems international lawyers have in formulating such a rule. The pacta sunt servanda principle could not be the rule of recognition because not all international obligations arise from treaties or agreements.[62] And a rule with the content ‘States should behave as they have customarily behaved’ is deemed to be nothing more than an empty repetition of the fact that states accept certain rules as binding.[63] This criticism has to be seen in light of the ambiguity with which Hart himself endows his conception of the rule of recognition.[64] Throughout The Concept of Law, Hart does not explicitly and comprehensively formulate the rule of recognition for any municipal legal system. Legal scholars have the same problems formulating a rule of recognition for a specific municipal legal system as they have for the international system.[65] These problems seem to be due more to Hart’s failure more clearly to substantiate his concept of the rule of recognition than they are due to the structure of international law.

The core function of the rule of recognition in Hart’s concept of law is to identify criteria for the validity of primary rules and to provide criteria for governing the relationship between different sources of law.[66] If viewed in this way, there is no reason to deny the existence of a rule of recognition in international law. Article 38(1) of the ICJ Statute lists, in a declaratory manner, the generally recognized sources of international law: international treaties, customary international law, and general principles of law.[67] The mere fact that international law consists of a variety of sources does not oppose the existence of a rule of recognition. Hart also recognizes that the municipal legal order can consist of multiple sources of law – for example statutes, customary law, and judicial precedents.

The comparable level of uncertainty with regard to criteria for the validity of primary rules becomes even more obvious when the analysis is extended to the interpretation of the primary rules. Martti Koskenniemi has famously argued that the existence of different patterns of argument in international law leads to an incoherence in methodology which challenges the objectivity of international law.[68] If taken seriously, does this criticism not oppose the notion of an international rule of recognition which provides criteria for the validity of a legal rule and thereby overcomes the primitive society’s uncertainty defect? Regardless of how persuasive this criticism against the existence of a rule of recognition is,[69] it would be no less an argument against the existence of a rule of recognition within the municipal legal system. Within the United States, for example, there are no generally recognized rules or modalities of interpreting the Constitution or statutes.[70] Judges and scholars disagree about the significance of the text of a norm, whether the legislative history and the original intent of the legislature or Founding Fathers should play a role, and whether prudential or even moral considerations may legitimately influence the process of interpretation. These uncertainties are no more pressing in international law than they are in municipal legal systems.

The second function of the rule of recognition is to govern the relationship between the different sources of law.[71] And while Hart does not explicitly address the question whether international law contains mechanisms which fulfil this function, his description of international law as a set of primary rules which are not united in a system suggests a negative answer.[72] However, such an assessment would not realistically mirror the state of international law, as it has been analysed recently in a report of the International Law Commission on the Fragmentation of International Law.[73] In light of the incremental development of regional and specialized regimes in international law, the question of the coherence and unity of international law receives increasing attention. However, while the report emphasizes that normative conflicts are endemic to the unhierarchical and decentralized nature of international law,[74] it also highlights the function of interpretative mechanisms in mitigating the consequences of the fragmentation of international law. Although there is no formal hierarchy of the sources of international law,[75] normative order is maintained by conflict rules such as lex specialis derogat legi generali and lex posterior derogat legi priori.[76] And while international law consists of ‘much fewer and much less robust hierarchies’,[77] it nevertheless consists of mechanisms which, like the concept of jus cogens or Article 103 of the UN Charter, establish a hierarchical or quasi-hierarchical relationship between different rules and rule-systems and introduce the notion of normative superiority in international law.[78]

These secondary rules of international law may not be able to prevent or solve every rule conflict in a general way, but they significantly decrease the negative consequences of the diffuse and decentralized nature of international law. And again, it may be emphasized that national law exhibits comparable developments which undermine its internal coherence. Not all questions of the hierarchy between different sources of law are comprehensively determined. In the United States, for example, Article VI, section 2 of the US Constitution appears clearly to establish such a hierarchy. Nevertheless, the status of international treaties within the domestic legal order is open to doubt. While according to the US Supreme Court treaties share the same rank as federal statutes, scholars have argued both for a higher as well as for a lower rank of treaties.[79]

1.4. The shadowy existence of Hart’s legacy after The Concept of Law

In chapter 10 of The Concept of Law, Hart considers whether, as said before, international law is genuinely law or is better seen as international morality, and argues that it is indeed law, though differing in some important respects from municipal law. This chapter is of more than purely historical interest, but has been discussed less than most of Hart’s work. There is, though, a recent excellent article by Mehrdad Payandeh[80]. My conclusions are indeed similar to those of this author, and to those of Jeremy Waldron[81], but there are further issues regarding the details of Hart’s argument and the practical consequences of what he says which I will go into in this essay.

The issue of whether international law is truly law has been discussed by many writers since Hart; and few, if any, deny that international law is law. Even Goldsmith and Posner[82] do not make this claim, but maintain rather that, though it is law, there are considerable limits to what it can accomplish, there is no automatic moral requirement of states to obey it, and in practice, states obey it only when it is in their interest to do so. All these points, if one substitutes “individuals” for “states”, could be, and have been, made with regard to municipal law; which no one denies, is law.

Nevertheless, it remains instructive to consider why the arguments that international law is not law do not succeed, and what the arguments are for asserting that it is law. A critical examination of Hart’s arguments has relevance both for the theoretical understanding of law and for practical political concerns: this is true both of those of his arguments that remain valid and those which on examination prove to be inadequate. It is important to note that Hart’s argument was concerned with international law in its current form. If international law were to become more widely accepted in practice as well as theory, and more enforceable and systematic (as some recent writers on just war theory, such as Rodin[83] and Fabre[84] have argued that it could and should) then some of the considerations that Hart raises might no longer apply. But it will, at best, be some time before this happens.

We need to begin by considering Hart’s account of the methods one should use in order to decide whether something is or is not law. As in his work as a whole, he used ideas found in contemporary work at Oxford and elsewhere, notably J.L. Austin’s ‘ordinary language philosophy’, found particularly in papers such as A plea for excuses[85], and Winch’s The Idea of a Social Science[86]. From Winch, Hart took the view that to understand what people do, you must understand how they themselves see what they are doing. Hence to understand law, you must understand how people living under a legal system view the law. In adapting Winch’s theory to jurisprudence, Hart added the idea that it is of special importance to understand how law is understood by those who administer it, though one must certainly also consider how it is understood by those who live under it.

From Austin, Hart took the analogous but not identical idea that in order to elucidate a concept[87], such as law, one must as a first move understand how the term, or terms, referring to that concept are actually used, i.e. when, according to usage, it is correct to call something ‘law’ and when it is not. Hart followed Austin, rather than Winch, in holding that this is only a first move: one must understand existing usage and the theory that it presupposes, but it may still be possible to improve on it, theoretically or practically. Thus about international law, Hart says that he will not dismiss the doubts about whether it is ‘really’ law with ‘a simple reminder of the existing usage’ (p. 214), i.e. the fact that it is standardly called law, because we have to consider whether this usage ‘is likely to obstruct any practical or theoretical aim’ (ibid.).

Hart also maintains that international law differs from a legal system as described in the earlier part of his book. The book argues that a developed, ‘non-primitive’ legal system consists of the union of primary rules, which require, or forbid, types of behaviour, and secondary rules, which determine how primary rules are to be created, changed and applied. The secondary rules must include an ultimate, or basic, rule of recognition, defining the sources of law in that system, e.g. statute, precedent and custom, and what criteria must be satisfied if a law or rule is to be valid. But Hart says that this is an elucidation rather than a definition of law (p. 213); and it is a further question whether systems, or sets, of rules which do not meet these criteria should still be regarded as law, or indeed, as Hart reminds us on the same page, whether systems which do meet them but are radically unjust should be regarded as valid legal systems. So for Hart we begin by noting that international law is called law; we then have to consider the objections to this, and the force of these objections, and in the light of this to decide whether our practical and theoretical aims are best served by retaining existing usage or by changing it.

Of the two standard objections to calling international law ‘law’, Hart rejects one altogether, and develops the other along lines suggested by his own theory. The objection he rejects is the argument that international states, while being sovereign, cannot be legally bound. This objection can take two different forms, only one of which is fully considered by Hart, though they are both worth at least brief consideration. First, it may be held that it is logically impossible for a sovereign state to be legally bound in any way. This, as Hart notes, though with regard to the less strong version of the theory, which he himself considers (see below), is both unsupported by any argument and also contrary to the observed facts. States clearly do enter into relationships defined by treaties, and consider themselves bound by those treaties. There is a question whether these bonds are legal or moral; but this cannot be settled a priori, with no reason being given as to why they should be moral rather than legal, especially when those who enter into them consider them to be legally binding.

In reply to this, it might be held that whenever a state binds itself, its sovereignty is thereby limited, so that by definition it ceases to be sovereign. This is a possible way of defining sovereignty, but not a useful one. It would have the consequence that in practice there are no sovereign states, since all states do limit themselves in this way by treaties. Also, it would have the consequence that it is better for a state to be non-sovereign than to be sovereign, since many treaties are beneficial for all the parties concerned. Finally, the consequence for international law would be that, admittedly, it does not apply to sovereign states: but it would apply to all actual states, since on this definition none of them are sovereign. So the argument that international law cannot be law, because it is logically impossible for a sovereign state to be legally limited, fails either way. On one definition of sovereignty this assertion is simply false, because sovereign states do limit themselves legally. On another definition it is true, but the consequence is that no actual states are sovereign, so that it does not follow that international law cannot be applied to them as law.

But the version of this objection with which Hart is concerned is that a state can limit itself, but only by self-imposed obligations, e.g. by signing a treaty. This is not at first sight necessarily an objection to the existence of international law, since one might hold, with Kelsen, though, as we shall see, not Hart himself, that the basic norm of international law, i.e. the principle from which its obligations are ultimately deduced, is the principle that treaties should be kept, pacta sunt servanda, a position which Kelsen developed in his account of international law (Kelsen, 1949). But Hart points out that no argument has yet been produced to support the thesis that all a state’s obligations must be self-imposed: «Is there anything to support it besides the fact that it has often been repeated?» (p. 224).

Moreover, there are at least two situations in which it is agreed that a state is bound by international law even though it has signed no treaty. First, (p. 226) «It has never been doubted that when a new, independent state emerges into existence it is bound by the general obligations of international law»; and it does not have the option of refusing to be bound by them. Secondly, a state may change, for example by acquiring territory, in such a way that it automatically comes under new obligations: Hart’s example is of a previously land-locked state acquiring a coastline, and thereby automatically becoming subject to all the rules governing territorial waters. So we may conclude that so far there is no reason to deny that states can be and are legally bound, and not only because they have voluntarily bound themselves: the claim that this is logically impossible has no argument to support it, and requires us to suppose that the whole international body is systematically mistaken about the nature of a state’s obligations without being able to explain why this universal error exists. We should note also that according to Hart these examples of a state acquiring obligations in ways other than by signing a treaty show that the principle that treaties should be kept cannot be a basic principle supporting the whole of international law, but would be one principle out of several (pp. 233-4).

But there is another objection to regarding international law as law, which is seen by Hart as much stronger but still not conclusive. It is the argument that the obligations imposed by international law are largely unenforceable; and are therefore moral rather than legal. International law can be enforced against defeated countries, or weak countries, or countries which happen to be unpopular; even then, its enforcement is often arbitrary and haphazard. Against strong countries, or victors, or countries in which the world is uninterested, even haphazard enforcement may be impossible. So the question is: should unenforceable obligations still be regarded as legal, or is it better to admit the unenforceability and regard them as simply moral?

If Hart’s theory of law is correct, this unenforceability is a direct consequence of the way in which international law currently differs from municipal law. In municipal law, according to Hart’s theory, there are, as was said above, primary rules giving instructions as to what one must do or refrain from doing, and secondary rules which determine how the primary rules are to be created, changed or applied. Under the secondary rules there will be a centralised system of policing and adjudication (though Hart has little if anything to say about policing), with such aims as applying the primary rules correctly, especially with regard to settling disputes, determining when they have been breached, and punishing those breaches in accordance with prescribed penalties. There will be a recognised legislature and a recognised procedure for making new law; and the sources of law, though there may be more than one, (e.g. statute, precedent and custom) will be clearly recognised.

In international law the situation is very different. The enforcement, such as it is, is carried out by individual states or by tribunals set up to deal with a particular set of breaches of international law, such as the Nuremberg tribunal, or the International Criminal Tribunal for the Former Yugoslavia, or the Rwanda tribunal. There has been since 2002 an International Criminal Court (this is of course since Hart’s time); but it can prosecute only if individual states are unable or unwilling to do so. There is no law-making body; and although there is agreement as to the sources of international law (see below), there is not always agreement as to whether a particular decision can be validly derived from these sources.

In particular, it would seem that, while in municipal law there is notoriously a great problem in interpreting the documents that contain the law, in international law there can be a further problem of deciding whether or not a particular document is part of the law at all. To take an example from after Hart’s time, Lord Slynn, in giving judgement in the first case of General Pinochet (W.L.R.1456: H.L.1998), which concerned the question as to whether under international law the charges against the former ruler of Chile were such that he should be extradited from the UK to face trial, refers to ‘movements toward the recognition of crimes against international law’, seen in conventions, such as the Genocide Convention of 1948, charters setting up tribunals, decisions of national courts, the 1946 resolution of the UN General Assembly, reports of the International Law Commission and writings of jurists. He then comments that ‘some of the statements read as aspirations’, which seems to imply that at times, though not always, there is a question, about which courts may disagree, as to what is part of international law and what is still only an aim or an ideal.

It seems, moreover, that this can go in two directions: there can be formal documents, such as UN resolutions, which nevertheless express aspirations rather than establishing law; and there can be informal statements and agreements which create legal precedents. Thus Walzer says (pp. 44-5): «International law arises out of a radically decentralised legal system, cumbrous, unresponsive, and without a parallel judicial system to establish the specific details of the legal code the legal handbooks are not the only place to find the war convention, and its actual existence is demonstrated by the moral arguments that everywhere accompany the practice of war. The common law of combat is developed through a kind of practical casuistry»[88].

We should note that this refers to what currently is the case: it may not be inevitable. But it has the consequence not only that, as Hart points out, international law is not simply often unenforceable, but also that there is a more fundamental problem, of which unenforceability is only part. Hart takes this problem to be that international law does not have secondary rules at all, and especially does not have a basic rule of recognition: ‘the rules which are in fact operative constitute not a system but a set of rules’ (p. 236). This situation might change, Hart suggests, if it became recognised that multilateral treaties could bind states which are not parties to them, and thereby have the force of law. But until that happens, on Hart’s view – and probably, he would say the same if writing today – international law is law, for reasons we will go on to discuss, but is like what he called “primitive law”, consisting of primary rules alone.

In this Hart seems to be wrong. Indeed, many writers, such as Payandeh (op. cit.) have pointed out that there are secondary rules in international law. It would be more correct to say that the secondary rules exist, but are not always clear and not always effective. The sources of international law can be stated (see below), and indeed Lord Slynn gives a list of them. They are varied; but in municipal law, rules of recognition, including the ultimate rule of recognition, may similarly have several clauses and recognise more than one source of law. There can, as we have seen, be problems of determining which documents are agreed to form part of international law, and which are disputed, because it is unclear whether they are intended to determine existing law or to establish future aims: but there is also a large area of agreement. There are a large number of courts and tribunals which can try cases under international law, and there can be disputes as to jurisdiction: but again there is a considerable area of agreement as to which courts and tribunals have this authority and how they should proceed. There are many breaches of international law which go unchallenged; but not all of them do.

Finally, though there is no central law-making body, international law does change, and there are areas of international law where it is very clear to what document appeal should be made: thus the law regulating force at sea is based on eight conventions on naval warfare adopted at the Second International Peace Conference at The Hague in 1907, updated in various sources and then consolidated in the rules issued in 1994 by the San Remo Institute of International Law[89]. As a final point, one might suggest that, pace Hart, there is in any case no such thing as ‘primitive’ law, in his sense: all law necessarily involves rules of recognition, change and adjudication, whether or not these are made explicit. Anthropological work on law in traditional societies, such as Gluckman’s work in the 1950s on the legal process among the Barotse of Northern Rhodesia (now Zambia) seems to confirm this: see, for example, Gluckman[90].

But although Hart may be wrong in saying that international law has no secondary rules, he might still be right in saying that a) it is still a set of rules rather than a system, and b) that it has no ultimate rule of recognition, with the result that ‘we must wait and see whether a rule gets accepted as a rule or not’, whereas if there is ‘a basic rule of recognition’ (even with several clauses), ‘we can say before a rule is actually made, that it will be valid if it conforms to the requirements of the rule of recognition.’ (p. 235). From their very different standpoints, both Lord Slynn and Walzer would seem to agree with Hart, as regards some parts of international law.

However, Hart seems to be wrong in saying there is no basic rule of recognition. For example, Article 38.1 of the Statute of the International Criminal Court lists the sources of international law as treaties; international customs and general principles, giving globally accepted standards of behaviour; judicial decisions and scholarly writings. This shows that the problem is not that a rule of recognition does not exist but that some of its clauses cannot easily be applied with precision. For example, when may scholarly writings be used to determine what the law is, and when should they be seen as simply the scholar’s personal observations? There are analogous problems in municipal law: for example, how does one decide which of a judge’s observations in giving judgement constitute the principle of the decision and set a precedent, and which are general comments? But it remains fair, I think, to say that the problem of determining what the law is in international law, though different probably only in degree from the problem in municipal law, nevertheless continues to present greater difficulties. In comparison with municipal law, international law tends to be more unclear; and not simply because a document is ambiguous, but also because it is sometimes uncertain whether the document has the force of law, even if it is agreed that it may come to do so.

Also, international law is often, though by no means always, ineffective, and lacks any central authority either to make it or to enforce it. Most crucially, perhaps, it lacks any permanent and neutral central authority to settle disputes and adjudicate whether the law has been breached and what the penalty should be. Legislation, enforcement and adjudication all take place, and can all be the work of a recognised authority, international or national, temporary or permanent; but all three are partial, haphazard to some extent, and involving several authorities rather than one. It is true that this is a long way from the state of nature imagined by political theorists, in which either justice does not exist, because there is no authority with the power to adjudicate (a Hobbesian state of nature)[91] or in which individuals have to adjudicate and police for themselves (a Lockean one)[92] . But it is also some way from the typical situation of municipal law, even though municipal law is never perfectly enforceable or perfectly clear.

This is certainly a reason for saying that international law is not ‘really’ law; but is it conclusive? Hart gives three reasons why it is not conclusive, and why we should still regard international law as law rather than morality; to these ideas, two further reasons can be added. The first point is that international law differs in structure from morality: «the appraisal of states’ conduct in terms of morality is recognisably different from the formulation of claims, demands, and the acknowledgements of rights and obligations under the rules of international law» (p. 228). This in itself could be construed as a difference between justice and other moral considerations; but Hart points out later on the same page that what states appeal to in disputed matters of international law are «references to precedents, treaties and juristic writings; often no mention is made of moral right and wrong». That is to say that international law proceeds like other kinds of law, appealing to written documents and to precedents, and not directly to considerations of justice or human welfare. It may well be that, as in municipal law, there is a concern to interpret the documents in a way that accords with justice; but this is not the same as a direct moral appeal.

Moreover, as Hart goes on to say, there are in international law, as in law generally, rules which exist simply because there is a need for a rule, and not because in themselves they have any moral superiority to alternative rules: those who steer ships and pass each other on the right are not on that account better than those who drive cars in the UK and pass on the left. Just as municipal law has to decide such things as how many witnesses are need to make a will valid, international law has to decide such things as the width of territorial waters. Not all legal rules are of this sort, but no moral rules are: «a morality cannot (logically) contain rules which are generally held by those who subscribe to them to be in no way preferable to alternatives. Law, however, though it also contains much that is of moral importance, can and does contain just such rules»(p. 229). Hart does not of course mean that these rules are not regarded as preferable to the absence of rules, or that any decision would be equally good, but merely that there is an arbitrary element in them, so that, though there is a moral obligation to keep to them once they have been formulated, they are not in themselves moral rules, in the way that ‘Do not steal’ is a moral rule. Morally, what is required is only that there be a rule: it is morally essential that there be a rule either that traffic keep to the right or that it keep to the left, but one rule is no better or worse than the other.

Thirdly, legal rules can be, and are, changed, added to and repealed. This is a regular feature of international law, even though there is no central law-making body, and even though repeal is rare, and the main developments are in the direction of addition and consolidation. But, though positive morality changes, it cannot be changed by fiat: racial discrimination has been made illegal in the UK, but, unfortunately, that did not mean that society from then on regarded it as morally wrong. So there are three crucial respects in which international law functions like municipal law, and in a way which is unlike morality: it appeals to documents and precedents; it contains arbitrary, though still necessary, provisions; and it can be altered by decisions of courts or treaty makers. This is probably enough to justify calling it law. But there are two further considerations, not discussed by Hart, but probably points with which he would not disagree.

Thus Hart points out, as said above, the difference between a moral appeal, e.g. to conscience, and a legal appeal to custom or precedent or a particular document. But as well as this formal difference between law and morality there can also be differences of content; not everything which is permitted by international law would be held to be morally right, and not everything which people find morally acceptable is permitted. Two contrasting examples from Walzer (2006) may be given, the cases of von Leeb and Doenitz.

The case of Field Marshal von Leeb is discussed on pp.166-7, and is an example of behaviour which is widely considered morally wrong but is permitted by international law. Von Leeb was in charge of the siege of Leningrad until December, 1941, at a time when many civilians tried to escape from the city through the German lines, which were in places very thin. These escapes, if successful, would have made it harder to starve the city into surrendering, which was the German aim. The German response was to order the prevention of escapes at all costs, including the use of artillery. It is not known how many civilians were killed by artillery or rifle fire because of these orders of September and November, 1941, or how many were deterred from trying to escape and eventually starved as a result: but it is reasonable to assume that there were some in both categories. When at Nuremberg after the war von Leeb was charged with war crimes because of these orders, his defence was that this was customary practice in wartime. The judges consulted the legal handbooks, especially Hyde’s International Law, agreed with him, and acquitted him, saying «We might wish the law were otherwise, but we must administer it as we find it» (p.167).

The case of Admiral Doenitz of the German U-Boat command (pp.148-51) is in a way the reverse of this, a case of something being forbidden by international law but considered necessary by both sides. In the “Laconia order” of 1942 Doenitz instructed submarines to strike without warning and in no way to help the crew members of a sunken ship, whether by picking them out of the water, righting their capsized lifeboats or supplying food and water, even if the ship was a merchant ship, containing non-combatants. The reason for this was that such action would increase the likelihood of detection of the submarine, which might lead to an attack on it by fighting ships in the neighbourhood and so endanger the lives of its crew. In his defence Doenitz brought evidence, including testimony from the US Admiral Nimitz, that American and British policy had been the same, and enemy survivors were not rescued if this involved additional risk. The judges held that this fact did not alter the law, as Doenitz’s counsel argued, but was a ground for not punishing him: they said that «the sentence of Doenitz is not assessed on the ground of his breaches of the international law of submarine warfare» (p.150). Doenitz in fact received the lightest sentence – 10 years imprisonment – of the 19 German leaders convicted in the first set of Nuremberg trials. Again, law and accepted morality are different, but here the law is stricter, though as a result not enforced. So we may say that international law differs at times from morality, in the sense of generally accepted morality, not only in form, as Hart points out, but also in content[93].

A final argument for regarding international law as law is the practical benefit this brings. To regard a code of international behaviour as law gives governments a stronger motivation to adhere to it, to use it to settle disputes and to try to enforce it than would be the case if it were seen simply as a moral ideal: it shifts it, in principle and sometimes in practice, from the sphere of what it would be very desirable to do, into the sphere of what one must do. The result is that the behaviour of states towards each other, in both war and peace, is, however unsatisfactory, not as bad as it would otherwise be. There are many factors that contribute to the limitation of fraud and violence in international relations; and none of them, so far, have had a very great effect. Nevertheless, some progress has been made, and some of that progress is due to the sense that justice between nations, even when they are at war, involves strict legal obligations, for which members of governments and military commanders may be called to account, and is not merely a matter of conscience or lofty ideals. The difference between what can be achieved by appeals to conscience and what can be achieved by appeals to law may not be very large, especially if the enforcement of the law is extremely partial; but it does exist. Hence, we should agree with Hart[94] that the crucial question is whether there are good theoretical or practical grounds for maintaining existing usage, and saying that there is international law, not merely international morality. We may then agree with him further that both for the reasons he gives himself and for the additional ones I have suggested here, there are indeed both sound theoretical and practical reasons for saying that international law, though differing in some respects from municipal law, differs in degree rather than kind, and hence is still law.

That said, one has to concede, as Hart does, that international law is often uncertain and enforced haphazardly and at the moment is always likely to be enforced in a biased rather than a fair way. One question here is whether improvement can be done by degrees and piecemeal, or requires, as some have argued, a radical rethinking of the whole structure of international law – a very important question but outside the scope of this paper. But one can at least consider the theoretical and practical consequences of this uncertainty and haphazard enforcement, which are not quite what Hart thought they were[95].

First of all, given that there is sometimes, perhaps often, uncertainty as to what the law is, one needs to distinguish politically between governmental actions which are very clearly in breach of international law, and actions where this is disputable. One also needs to note that, apart from the problem of determining the law, it is in the area of international law, often particularly difficult to determine the facts. Hence statements that the actions of a particular country are or are not in accordance with international law often need to be treated with great caution. It would be a very good thing if they were made only when there was good evidence for them. The political advantages of claiming legality or illegality are probably sufficient to make this very unlikely: but at least people could learn to treat them with scepticism, and see them as political point-scoring rather than serious statements of the position of the law. Sometimes, though, and in contrast to this, the law is clear, and clearly being violated, so that action needs, if possible, to be taken, but in fact is not. There are thus two contrasting problems: that of members of the international community asserting that there is a clear breach of international law when in fact this is uncertain, and that of a failure to speak out when the breach is very clear[96].

There is in parallel to this a need to remember how haphazard the enforcement of international law often continues to be. This similarly has two contrasting consequences. The first is the need to try to increase enforcement, and make bringing people to justice more normal. The second is not to do this in such a way that the gap between countries which are required to respect international law and countries which are not becomes even wider, with the weak and the unpopular on one side and the strong, the popular and those in which no one is interested on the other. So justice requires both finding ways of proceeding against those who currently are unaffected by the requirements of international law and also not being too ready to proceed when the prima facie case is poor. A very much larger and more powerful International Criminal Court, or set of courts, might be what is needed, with political independence, so that it was not at the mercy of majority political opinion in deciding when prosecutions should and should not be brought, but with wide powers to prosecute as well as to adjudicate (judges and prosecutors would of course be entirely separate). Whether this will ever come into being remains to be seen. Meanwhile, issues will presumably have to be considered case by case by those with the opportunity to prosecute, and those in a position to put pressure on them; and no doubt different countries will act differently.

For international law, though it is law, and, pace Hart, not merely ‘primitive law’, is still largely law in the making: as we have seen, there are important documents which express what is not yet law but given time will become law. The negative side of this has been pointed out above. But there is also a positive side, namely that the form international law takes can still be shaped by majority opinion in the various countries, and by the influence of majority opinion on a country’s rulers and representatives. One needs here to distinguish the general and the particular. Democratic opinion, whether in one country or several, is likely to be a bad way of deciding who should be prosecuted, what charges they should face, how specific disputes should be settled, and in general, individual cases under the law. Such opinion is always likely to be swayed by prejudice, ignorance or political advantage; and such decisions are more likely to be fair and just if in the hands of an independent judicial body[97].

In contrast, general legislation, and the gradual formation of the code itself, may well be made more just if as many countries as possible, and as many citizens of those countries as possible (and this may still be in practice a very small percentage) have had some hand in influencing its content. I should reject the arguments for saying that international law is not law, but point out that, as shown above, parts of it are law in the making rather than established law, so that it is appropriate for citizens anywhere in the world to have and to express opinions as to how it should develop. These points have of course been discussed by many people since Hart; but the concern of this paper has been with the particular contribution made by Hart, and with its implications, this being an area of his thought less discussed than some others but of equal importance and relevance[98]. My conclusions should be that Hart was right to argue that international law is law; that indeed there are further reasons, besides the ones he gives, for saying this; that he was also right to point out the problems with interpreting and enforcing international law; but that these do not make international law ‘primitive law’ (which in any case is an impossibility in practice) but rather law which in parts is still very much in the making.

«A thing is right when it tends to preserve the integrity, stability

and beauty of biotic community. It is wrong when it tends otherwise».

Aldo Leopold, (A Sand County Almanac).

«A person may cause evil to others not only by his action but by his inaction,

and in either case he is justly accountable to them for the injury».

John Stuart Mill

A new challenge for International Law: from competiotin to (wrong) terrorism

Competition plays a big role in structuring and shaping our everyday lives. Many practices regulated by basic social institutions, such as the labor market, the workspace, education, and even leisure are organized – at least in part – competitively.[99] Despite competition’s obvious topicality and importance, it has received relatively little attention in the politico-philosophical debate up until now. While there is some discussion amongst economists and sociologists, a philosophical literature has yet to emerge.[100]

2.1. An introduction to competition: what it is and why it is morally problematic a response to Hussain’s ‘Pitting people against each other’

One of the few explicitly philosophical analyses of competition is Waheed Hussain’s ‘Pitting People Against Each Other’ (2020). Hussain provides an explanation why competitive institutions can be morally permissible and when they become “morally defective” (p. 87). He defends his ‘Estrangement account’ to argue that competition pits people against each other and leads to a failure in solidarity amongst members of a political community. In this response, we aim to summarize his main claims, connect them more extensively to existing work on competition and formulate two types of objections. Then, we first provide a conceptual objection, arguing that Hussain’s definition of competitive institutions is too narrow and, second, offer our own alternative conceptual approach. Lastly, we provide a normative objection and propose a more straight-forward way to identify the moral problems of competition that more easily fits a wider range of different politico-philosophical strands than Hussain’s. More specifically, we will argue that the inevitable and predictable harm inflicted on losers constitutes a pro tanto reason not to distribute goods competitively.

In light of the importance of making ethically informed decisions about how to organize (potentially competitive) practices, we aim to build on Hussain’s insights about what competition is and why it is morally problematic.

2.2. Summary of Hussain’s analysis

Before formulating our objections to Hussain’s analysis, let us first summarize briefly the main points of his argument why – or better: when – competition has a ‘moral defect’.

Hussain starts by saying that contemporary political philosophy mostly revolves around two fundamental principles in thinking about our basic institutions: liberty and equality or fairness. He aims to show that these two principles fail to explain satisfactorily the moral limits of competitive social institutions. He argues that community “is an aspect of institutional morality that transcends these two principles” (p. 79) and defends what he calls the ‘Estrangement Account’ to develop this more fully.

Hussain’s main point is that institutions do not only mistreat people if they violate their fundamental rights and liberties or treating them unfairly and preferentially. Institutions can also ‘pit people against each other’, that is, they “define a framework in which people have to struggle against each other” (Hussain, 2020, p. 80). When this happens, someone who wants to successfully secure some good (such as a decent job) can only do so by interfering with someone else’s ability to do the very same thing.

Hussain is particularly interested in what he calls ‘substantially engulfing institutions’ (2020, pp. 85–86). ‘Substantially engulfing’ means that the rules of these institutions determine the access to important goods that every member of that institution has reasons to have, such as food, shelter, and medicine. They are not ‘just a game’ (like tennis or scrabble) where everyone can exit whenever they like. Hussain argues that when such institutions are organized in a competitive way, each participant who formulates and successfully carries out a plan to satisfy his or her aspirations necessarily interferes with other participants trying to do the same.

According to Hussain, competition can have many advantages: it puts the right people in the right place, encourages the development of talent, and “allocates productive assets to their most socially beneficial uses” (Hussain, 2020, p. 80). While it should definitely not be ruled out altogether, Hussain aims to show that it can be morally defective as well. He explains this by means of his ‘Estrangement Account’. A and B are estranged if “they do not give each other’s successes and failures the appropriate role in their practical reasoning” (Hussain, 2020, p. 96). What is morally problematic about competitive institutions is that they give people strong reasons to act in mutual disregard for one another and to engage in strategic interaction when it comes to obtaining goods. Hussain sees the estrangement amongst members of a (political) community due to competition as a failure of solidarity.

2.3. Conceptual objections

2.3.1 Summarizing Hussain’s conceptual claims

According to Hussain, competitive institutions are a specific type of what he calls a ‘Rivalry-Defining Arrangements’ (RDAs).

A social institution is an RDA when its rules have a structure such that (given normal back-ground conditions and full publicity) an association of rational individuals, respecting the rules in their thought and conduct would find that there are at least two members of the community, A and B, such that A’s formulating and carrying out a plan to realize A’s aspirations within the framework of the rules would interfere with B’s formulating and successfully carrying out a plan to realize B’s aspirations within the framework of the rules. (Hussain, 2020, p. 83)

Competition is the main but not the only type of RDA (p. 83). He takes the example of a game of tennis, where only one person can be the winner. When both players intend to win the game, interfering with each other’s plans to realize their aspiration is necessary and foreseeable side-effect. Another, nastier type of RDA is what he calls a “specifically adversarial” institution (p. 85). The latter “makes securing the valuable status conditional on a participant intentionally doing something undesirable to another participant” (p. 85, emphasis added). Take boxing, where you cannot win a match let alone a champion belt without intentionally harming your opponents.

2.3.2 Criticizing Hussain’s conceptual claims

Besides the fact that Hussain’s typology seems to be incomplete (there might be other types of RDAs besides competitive and specifically adversarial institutions), we take issue with the latter distinction and provide three reasons why it ought to be rejected.

First, we believe that duels and boxing matches are obviously competitive practices and that any plausible definition of competition should include them. Instead of claiming that duelling and boxing are somehow not competitive, it makes much more sense (also in terms of ordinary language) to say that they are more competitive than some other practises.

Second, Hussain’s distinction is vague as there is a grey area with cases somewhere between playing tennis and duelling. Take ice hockey, where a hard body check “to gain a competitive advantage over the opponent should not be penalized as long as it is performed within the rules.”[101] Does this make ice hockey a specifically adversarial or merely competitive institution? Or take tennis, Hussain’s own example of competition, where players arguably need to form the kinds of attitudes that would make it specifically adversarial. After all, “two tennis players actively work at defeating each other” (Kohn 1992, p. 5). In order to secure the valuable status of ‘winner’, the participants have to intentionally do something undesirable to the other, namely, trying to make it as difficult as possible for the opponent to hit the ball back. It may not be as harmful as being punched in the face, but it does involve participants imposing costs on each other, with the rules of the game stimulating them to do exactly that.

Instead of distinguishing competitive from specifically adversarial practices, we propose to put both on a continuum with scrabble and tennis on one end, duelling on the other, and ice hockey and boxing somewhere in between, each characterized by varying degrees of competitiveness but all appropriately called ‘competitive’.

Third, Hussain’s distinction is hard to use in practice, since it requires figuring out (whether obtaining the valued good is conditional on) the intentions of participants. What if a boxer is only in it for the money and happens to have the skills to knock out her opponent in the first ten seconds of the match? She forms no intention to harm her opponent, is not particularly ‘aggressive’ but does what, according to the rules, is needed to win the match. Now, Hussain could argue that this is exactly his point: to win the match, she needs to harm and incapacitate the other. True, but Hussain’s distinction centred around the intention to harm the other, not about the harm itself.

2.3.3 Our own conceptual approach

These three reasons lead us to drop the notion ‘specifically adversarial institution’ and broaden Hussain’s understanding of ‘competitive institution’ so as to encompass a wider range of practices that can plausibly be called competitive. Institutions can be competitive in different ways and degrees and the rules matter, not the intentions of participants. Consequently, we propose to move beyond Hussain’s analysis and employ the following definition.

An institution is competitive when its rules (implicitly or explicitly) stipulate that scarce goods are allocated on the basis of a ranking, which, in turn, is based on its participants’ achievements, as specified by the rules. Crucially, those higher up the ranking (the winners) obtain the scarce goods necessarily at the expense of those who end up lower down the ranking (the losers).

This definition adequately labels all of the above practices – scrabble, tennis, ice hockey, boxing, dueling, but also ranking candidates for a job opening – as competitive and avoids the three worries that Hussain’s definition raised.

The fact that winners gain goods necessarily at the expense of losers implies that the latter inevitably incur harm, which can be understood as a setback of interests (Feinberg, 1990, p. x).[102] Given how all participants have an interest in obtaining the goods at stake, failing to obtain them, usually after having put in time and effort, necessarily means the promotion of one’s interests is thwarted. In addition, the harms imposed by competition on the losers typically involves psychological or emotional costs (feeling sad, ashamed, envious or even a loss of self-esteem). This applies especially to competitions where one cannot easily optout but where the goods to be obtained are of vital importance to life (such as health care). Those who climb the ranks necessarily do so at the detri-ment of those who fall behind.

In sum, we argue that Hussain’s definition of competition is too narrow because it excludes those kinds of practices where one can win by intentionally harming one’s opponent. Hussain misleadingly puts to the side the ‘nastier’ – dixit Hussain (2020, p. 85) himself – and more objectionable practices, where opponents have an active interest in harming each other. This conceptual point has normative ramifications: if we want to understand the normative worries raised by competition, we should include those practices in our analyses as well. This brings us to our second set of objections, the normative ones.

2.3.4 Normative objections: summarizing Hussain’s normative claims

Before detailing our quarrels with Hussain’s normative claims about competitive institutions being ‘morally defective’, let us first summarize the latter. Hussain’s main normative claim is that competitive RDAs can have moral defects if they are substantially engulfing. Take the labour market. If the scarce goods that are distributed here are vital (for example, because getting a job is the only way for people to pay for food and shelter), then organizing competitions for jobs is morally defective.

According to Hussain, standard approaches in contemporary political philosophy do not provide satisfactory explanations why this is morally defective; competitive institutions can still be morally wrong even if they protect fundamental rights and freedoms and even when they distribute advantages in a fair manner.

Hussain argues that competitive institutions can be morally defective because they induce estrangement amongst people, who no longer “give each other’s successes and failures the appropriate role in their practical reasoning” (Hussain, 2020, p. 96). Hussain frames this in terms of a ‘relational ideal’ that goes beyond people’s specific personal projects and includes the abstract project of securing, what Rawls calls Primary Social Goods (PSGs). As citizens of a political community, we are all part of a nonvoluntary solidaristic association where we share this relational ideal of care for each other. I must be concerned not only with my own failures and successes in securing the goods I need to form and pursue my own conception of the good, but also with the failures and successes of my fellow members in that respect.[103] Hussain’s objection that competitive RDAs create reasons for estrangement boils down to a worry about competitions undermining the kind of solidarity that members of a society owe to each other.

2.3.5 Criticizing Hussain’s normative claims

We agree with Hussain that standard liberal approaches fail to capture what is wrong with competitions. That said, we think (1) that his view is too demanding and (2) that his view fails to identify competition’s distinctive ‘moral defect’.

Regarding (1), in our view, the kind of civic solidarity that Hussain requires is overly demanding and will therefore be (rightly) contended by quite a few liberal philosophers. According to Hussain (2020, p. 100), “citizens must share in one another’s successes and failures” with respect to securing PSGs. When a minority struggles to secure basic liberties, for example, you – as a fellow citizen – should be as moved by this (both in terms of attitudes and actions) as you would be if this would happen to you. You should worry about it, help that minority secure liberties and feel relieved when they succeed.

We believe that such an ‘attitudinal’ conception of solidarity overstates what fellow citizens owe to each other. While a political community should guarantee each member access to PSGs and while each member has an obligation to contribute to upholding the basic institutions that secure this access, such a ‘material’ understanding of solidarity does not obligate people to develop specific attitudes towards or be concerned about their fellow citizens (not even when they fail to secure PSGs).[104]

Regarding (2), we claim that competition can actually lead to less estrangement than non-competitive institutions. Take Hussain’s example of college admissions to a prestigious university but now imagine these decisions being made on the basis of some completely arbitrary characteristic of candidates, such as the color of their hair. Surely, this non-competitive procedure will be perceived to be unfair and thus lead to resentment, which fits Hussain’s notion of estrangement, as it inhibits people from sharing in each other’s failures and successes (in obtaining college admission). When (perceived) fairness requires that we provide benefits to the most deserving of all candidates, refusing to install a competition can actually give reasons for estrangement. The deserving who are not selected will likely resent the less deserving who were admitted and the whole system will likely cause upheaval, antagonism, jealousy and divisiveness.[105] Installing a competition to assess the candidates merits can thus avoid resentment and foster the kind of social cohesion needed to support the solidarity Hussain is ultimately after. Since competition does not necessarily gives people reasons for and can even reduce estrangement, Hussain fails to isolate what is objectionable about competition. Competition’s ‘distinctive moral defect’ should lie elsewhere.

2.3.6 Our own normative approach

The alternative normative approach we offer is not only conceptually clearer, it is also normatively more appealing. Our objection to competition is more fundamental and more closely related to what exactly competition is. Remember that it is definitional to competition that winners can only win at the expense of losers. The interests of the latter are inevitably set back and this constitutes a harm (Brink, 2018), which is something we have reason to avoid.[106] The harm inevitably incurred is at the conceptual core of competition and provides, we will argue, a pro tanto normative reason not to distribute goods competitively.

What is worrisome about competition – and this applies to a competitive labor markets, elections, registration schemes, et cetera – thus revolves around the fact that competitions involve inevitable harm to losers. Winners can only win if – and even because of the fact that – losers lose and thus experience a setback in interests. The idea that harm is morally problematic is endorsed by dif-ferent ethical approaches, such as utilitarianism (John Stuart Mill’s ‘harm principle’; see: Driver, 2014), deontology (W.D. Ross’s prima facie[107] duty not to harm others; see: Skelton, 2012), virtue ethics (its idea that understanding what is beneficial and harmful to others is part of practical wis dom or phronesis; see: Hursthouse & Pettigrove, 2018) and feminist ethics (its criticism of oppressive practices that harm marginalized groups; see: Norlock, 2019).

Given that competitions, and in particular social institutions that distribute PSGs competitively, necessarily impose harms, there is a pro tanto reason to avoid them. Having pro tanto reasons to avoid X means that X is “impermissible if and only if it lacks special justification; in other words, it requires special justifications in order to be permissible” (see: Kushner, 2019, p. 461).[108] Competitions are impermissible, not per se (or simpliciter), but only in the absence of strong justificatory reasons. The harm necessarily inflicted on the losers can be overridden by other justificatory reasons, given the particular circumstances (Richardson, 2018). In this framework, whether a given competition is morally desirable, overall speaking, is not an all or nothing matter, nor will it depend on some aggregation of pluses (advantages) and minuses (disadvantages). Instead, given that there is a pro tanto reason to avoid competitions, the question is which justifications are strong enough to allow for specific competitions under specific circumstances. For example, the reasons to organize the labor market competitively may be stronger than our reasons for avoiding the necessary harms inflicted on the losers of that competition.

«When we hear the crow’s cry we are not just listening to a bird’s song.

He is the symbol of our untamable past, of that incredible sweep of millennia,

which underlines the daily affairs of birds and men»

Aldo Leopolod, (A Sand County Almanac)

What conflict is and why it is inevitable in the actual society

3.1. Introduction: defining conflict

Surprisingly, a clear definition of conflict seems to be lacking in political theory. A survey of the literature shows that, while this concept frequently comes up when issues like struggle, violence, pluralism, disagreement and war are discussed, it is rarely defined and explicitly addressed. We claim that conflict is a crucial notion for political philosophy, one that is not entirely reducible to either of these other similar concepts.

The definition we propose combines together the widespread intuition in political and social sciences that conflict expresses some kind of incompatibility (‘Conflict not only relates to physical interaction; but also to any form of disagreement about ends to be pursued’ Bealey, 1999, p. 79; ‘A conflict exists when two people wish to carry out acts which are mutually inconsistent’ Nicholson, 1992, p. 11), with the Weberian insight that we have conflict ‘insofar as an action is oriented intentionally to carrying out the actor’s own will against the resistance of the other party’ (Weber, 1978, p. 38).

We define thus conflict as a situation characterized by (1) two or more actors (be they institutions, individuals or groups) that have incompatible wills (due to their interests, values, identities…) and (2) at least one of them intends to carry out his will[109] at the expenses of others (he prefers the situation in which his will is realized against the resistance of others).

3.2. Conflict and its fellow concepts

Adopting such a definition would allow one to distinguish conflict from other concepts among which it is sometimes confused: pluralism, disagreement, violent struggle, and war. Let’s see how conflict is different and why this definition captures a crucial element of politics.

Although in some literature they figure as synonymous, conflict is not the same as pluralism. While we observe that – empirically – cases of pluralism seem to end in conflict, this is not always the case. Indeed our observation may be influenced by a selection bias, as we often notice only the kind of pluralism, which is about to turn into conflict. Such observations are still not enough to warrant the conceptual collapse of pluralism with the notion of conflict, as two significant theoretical differences remains. First of all, pluralism restricts the sources of conflict to values and, sometimes, to identities. Conflict, on the contrary, is agnostic about the roots of the contrast of wills. Contrary to pluralism, the notion of conflict also captures cases where interests are incompatible. Secondly, and more importantly, pluralism only captures the first element of conflict, the contrast of will, but it needs not entail the second one: the will to prevail. Rawls, for example, numbers among the fact of politics ‘reasonable pluralism’ (Rawls, 1993, p. 24), which is the kind of pluralism experienced by reasonable people. Reasonable people, for Rawls, certainly would not try to prevail on one other. Thus, reasonable pluralism is pluralism without conflict. Challenging Rawls, some political philosophers employ a more radical conception of pluralism (Gray, 2002). This is closer to the definition of conflict I have given, but it is still unsatisfactory as it is mainly defined negatively from Rawls’s position. Radical pluralism is pluralism among unreasonable individuals. While the will to prevail is definitively part of unreasonable individuals, my definition spells out more precisely what feature of unreasonableness results in conflict. Any conflict of interests within the same value system could serve as an example of a conflict not reducible to pluralism. The incompatible interests between firms and unions, for instance, may prove to be such an example when they try to impose on one another.

Conflict, as a political concept, also eludes the notion of disagreement, to which it is sometimes reduced. A disagreement involves an incompatibility of wills as well, but disagreeing actors are not trying to prevail on one another, they are instead trying to figure out what the truth of the matter is or at least to find an agreement. Actors here care more about which of the contrasting wills truly ought to prevail, than to impose their own. A conflict, on the contrary, is hardly swayed by the force of reasons. Although that might happen, more often than not arguments are ineffective. Consider the concept of class struggle (Marx & Mandel, 1992); this is a classic example of conflict not reducible to disagreement, as each side wants to prevail on the other, and is not going to be swayed by arguments.

Conflict is sometimes conceived as violent struggle (Mouffe, 2005; Schmitt, Strong, & Strauss, 2007) but this notion, I believe, is too restrictive. While it is true, that violent conflicts are the most destructive kind of conflicts, they are not the only ones. There are different reasons why conflicts may not turn violent. In some instances, the actor’s will to prevail might not be fiery enough to incline them to the use of violence. In other cases, violence might simply be too costly for them, as they could be at a disadvantage against the other party or they could both be subjected to another arbitrating power. Both actors may also share some moral beliefs, that classify violence as a non permissible means to conflict. Conflict could thus take many forms, even non-violent ones. An institutional conflict, for example, is a kind of conflict which is non violent, and yet one that can threaten the order upon which a society is built[110]. In case of conflict, the agent who strives to prevail need not only act through violence. However, as long as one of the contenders wills to prevail, a contrast would still be a case of conflict even when there is no violence. As the will to prevail is still the focal point, conflicts always carry the risk of potentially turning violent, as soon as the variables that keep them peaceful change. If the conflict is kept non-violent by an arbitrating institution, for example, it may become violent as soon as said institution is weakened. If a conflict is not violent because only the weakest party exhibit the will to prevail, a change in the balance of power might prompt a turn to violence.

On a similar note, conflict is also different from war – ‘deadly quarrels’ (Richardson, 1960) – although it sometimes is used in this sense. Traditionally, war counts as a very specific kind of conflict: one that restricts our definition to a specific kind of actor (sovereign institutions) and modus operandi (organized violence). Reducing the concept of conflict to war, would thus extremely impoverish it.

As I have tried to show, this more general and neutral definition of conflict distinguish two dimensions along which other similar concepts could be classified, thus it allows to better grasp political reality. It is agnostic about who the agents are (individuals, groups, institutions…), about why their points of view are incompatible (interests, values, identities), and about what modes of action they engage in. What matters is only that they hold incompatible positions and that one of them is willing to carry out his will at the expenses of others. Conflict seems intuitively different from pluralism, disagreement, violent struggles and wars and by using this definition we can see exactly how they differ.

3.3. Features of conflict

This definition allows us to distinguish several interesting features of conflicting situations. First, not all conflicts are political[111]. Indeed, not all values or interests make a claim on public coercion, not all conflicting agents choose to try to enforce their will through the state’s apparatus. While doing so might be a viable strategy for trying to impose our will on others, without using violence ourselves, one might pursue other ways to do it. Trade unions, for example, may ask for new labour laws but often decide to organize a strike to make businesses conform to their will. A religious institution may lobby for laws against abortion, or it might try to persuade actual doctors to use their right of conscientious objection. It is important to remark this point, because it is sometimes uncritically assumed that conflicts are only dangerous if they turn to politics. However, political realists emphatically stress that all conflict may potentially turn violent if left politically unchecked, and thus all conflict are dangerous in virtue of their involving ‘a real possibility’ of violence (Schmitt et al., 2007, p. 33).

According to the definition I have given, the use of violence is only an accidental property of conflict. One that – it is true – is always potentially there, but one that does not encompass the whole realm of this concept. It could be observed (Nicholson, 1992, pp. 239–240) that while violence is usually considered bad, conflict need not be referred to as negative. Economic competitions and courts of justice are two examples of positive conflicts, which one could cite. One might probably add that these two kinds of conflicts are only good insofar as they follow precise rules, which are laid down and enforced by the public authority. If I were to use corruptions, blackmails or threats in either of these, one would not keep considering them good. They are good insofar as they can be contained in such a way. Indeed economics defines rather rigidly under what conditions we have good perfect competition and laws establish clearly what conducts fall outside the legalized conflict of the courts of law.

Another important feature of this definition of conflict is its content-neutrality. It does not really matter why a conflict emerges, according to which opposing values, interests or identities. We cannot resolve the conflict by referring to truth or rightness, because the actors care more about imposing their will than about questioning it to see if they are really justified in doing so. As Hampshire recalls ‘Machiavelli and Hobbes famously insisted that political conflicts are not finally and reliably resolved on a rational level by adversary argument, because they normally also bring with them a struggle for power in the state or in the society, which often overwhelms rational procedures’ (Hampshire, 2001, p. 66). It is thus a crucial mistake, political realists claim, to overstate the importance of reasons in conflict resolution. Indeed, one might go as far as saying that all considerations of content misinterpret the nature of conflict, because conflict is not about the fact of the matter, but about the clash of wills. Somewhat similarly, Schmitt defines his famous ‘friend-enemy’ opposition as being irreducible to other distinctions, like good or bad, right or wrong. Once we enter a relation of conflict, we know –by definition – that the will to prevail is weighted more than the will to truth. One cannot resolve a conflict by proving his enemy wrong. If it truly is a conflict, and not a simple matter of pluralism or disagreement, others would not be swayed by considerations of content. As Nozick puts it there are two different possible dispositions: either both judge ‘wrong decision worst than conflict with those on the other side’ or at least one of them believes that ‘conflict is better than loosing the issue’ (Nozick, 1974, p. 98).

Another important feature of this definition of conflicts is its unilateralism. While the opposition of wills requires two or more actors to have different opinions, only one of them needs to exhibit the will to prevail in order for a situation of conflict to arise. You may get caught in a situation of conflict even without having the will to prevail yourself. You may prefer to resolve the contrast by debating the matter to find out who is actually right or by bargaining a mutually agreeable solution. Your disposition is mistaken, insofar as it misinterprets the intention of the person you are conflicting with. Indeed he needs to have the same will to find the truth or to seek an agreement, in order for content-related reasons to be effective. Whether or not you want to be in a situation of conflict is irrelevant, if a person with different ideas wants to impose them on you.

A final consideration regards the role of politics. One might even argue that conflict is a crucial element of politics, because otherwise there would not be any need for politics to neutralize conflicts by arbitrating our divergent wills. We would not need a system to keep conflicts contained if there weren’t any conflicts in the first place. Indeed the very aim of politics might be conceived as an attempt to reduce conflict to something else. Minimally, politics can be conceived as the attempt to minimize the private use of violence by conceding its monopoly to an arbitrating institution. Or more extensively, one can consider politics as the explicit attempt to reduce conflicts to disagreements, to make us prefer reasons-giving to context-neutral expedients.

3.4. The inevitability of conflict

If our definition is sensible, we can argue that conflict is inevitable by showing that the elements from which it arises are.

Let us start with the first feature of our definition. There is in the literature extensive evidence for the contrast of will. Just in the field of political philosophy, the discussion of pluralism and disagreement presents ample consensus on the fact that values diverge dramatically inside any society. Also a brief survey of the literature in social and political sciences tells us that the interplay between contrasting interests is also widespread and bound to raise conflicts. History, finally, tells us that both values and interests were subjected to a lot of variability among societies, both geographically and diachronically.

Is the contrast of will necessary and inevitable, though? Rawls, when he discusses the fact of pluralism, mentions that such contrasts of wills are a permanent feature, which cannot be eliminated without recourse to an intolerable amount of force (Rawls, 1993). We could push the argument further and claim that even dramatic amounts of force would not actually enforce a single value system, but only the appearance of it. Locke’s observation (Locke, 2011) that it is pointless to impose a religion, because faith cannot be enforced, could be extended to prove this point. First, it is not possible to consciously choose to believe something or to like something (Elster, 1985), not even in order to avoid punishment. Moreover, even if it were possible, since pure matters of conscience always escape surveillance, repression can only intervene on our actions, not on our wants or beliefs, which remain beyond what can be observed by the state. Thus the differences in interests, values and identities, which generate the contrast of will, cannot be eliminated by coercion and its threat. One can modify how people express their wills, by banning actions associated to them from the public sphere and employing constant surveillance. The contrast of will, however, would still be present, if only unexpressed. Thus, once the ‘intolerable use of force’ is relaxed, contrasts of wills are going to reemerge again, since they were never truly eliminated but only locked away. It is true that there are psychological mechanisms that operate at the level of conscience, like adaptive preference forming or psychological conditioning. Even if extreme coercion were to generate adaptive preference formation, this would hardly be the case for all the citizens. Another way in which one might try to dispose of dissonant ideas is through high social pressure, which is arguably how communities did (Tönnies, 2001). However, here too is hard to see how it could be universally successful in rooting out all kinds of deviances, as opposed to just hiding them from sight.

The second element of conflict, the willingness to impose one’s will, is not as ubiquitously acknowledged in the literature. Can the fact that some people have a disposition to impose on others be preventable? Conflicts would not be inevitable otherwise, only pluralism or disagreement would, because we have shown that we need both element (1) and (2) conjunctly to attest the inevitability of conflict. Is there a way that allows us to change the historical tendency of having some people willing to impose their will on others? I believe that this question deserves a negative answer, although one would be hard pressed to show conclusive evidence about it. One can easily provide sanctions and incentives not to instantiate the will to prevail, but it is harder to root it out from human psychology completely.

Indeed liberal authors usually downplay this element, by emphasizing moral progress and the potential for reform and education in the nature of men. Authors like Thucydides, Machiavelli, Hobbes, Nietzsche, Marx and many other realists all emphasize this unchangeable dimension of human nature. The emphasis on the acquisition of power in realist literature comes precisely from admitting that our dealings with others always conceal a potential for prevarication. This negative anthropology is not assumed to be universal, only present in some, even few, of the relevant actors. Given the unilateralism of conflict, prudence is enough to induce preparations against conflict. As Hobbes puts it: ‘that men are evill by nature, followes not from this principle; for though the wicked were fewer than the righteous, yet because we cannot distinguish them, there is a necessity of suspecting, heeding, anticipating, subjugating, self-defending, ever incident to the most honest, and fairest condition’d’ (Hobbes, 1991, p. 5). Once circumscribed in such a way, it seems implausible to deny that there will always be someone trying to enforce his will against the resistance of others.

Thus, if we accept that (1) and (2) can never be completely eliminated, we must conclude that conflicts cannot be ‘displaced’ (Honig, 1993) either. This does not mean that they cannot be controlled or contained, only that their existence is bound to persist. And politics along with them.

3.5. The relations between conflict and institutional changes

The aim of this part of paper is to define the engine feeding the evolution of the institutional environment characterizing a specific state and political system. Here, the concept of institutions is considered following a comprehensive definition, able to include both their legal and formal aspects, and also their substantial and informal nature. This permits to consider them like the living and transforming forces constituting the social contract, able to adapt to the conditions of the social environment. The source of this mechanism of change is identified in the conflicting and interactive relations between the excluded and included groups. These relations are able to shape the structures and contents of the institutions and social contracts. In particular, the pressure on the elite to change the system structure provokes their counter-action, characterized by the alternation between competition, cooptation and cooperation. In this framework, the concept of relative power assumes absolute relevance, because it represents the relative and interactive capacity of each group in respect to the others. To better specify this relation, it is initially relevant to define the environment where does the interactions between actors and factors happen.

In particular, two different frameworks – represented by the complexity and panarchy theory – are used. These are very useful to understand the evolutions and accumulation of hierarchies and social structures, thanks to the concepts of chaos, non-linearity and adaptive capacity. Secondly, the agency capacity of the actors is analyzed, particularly in its interactions with the external and internal factors characterizing the system.

Thanks to this framework, we can contextualize the conflicting and interactional behaviors of the actors inside the frames of feedback mechanisms and emergent patterns. Both these perspective – defining the environment and the agency capacity of actors – are meaningful to understand the relation between conflict and institutional changes.

3.6. The role of conflict – and its threat – on the evolution of institutional structure

This paper analyses the relation between the structure of social relations, the conflict and the institutional evolution. The goal is to understand the role of conflict – and its threat – on the evolution of institutional structure. These institutions are norms and rules coming from the consolidation of practices, habits and values acted by the social actors[112]. They regulate the life in common of individuals, groups and organizations, defining their opportunities in the social, political, economic and judicial spheres (March and Olsen, 2006, Binmore, 2005). Binmore (2010) underlines that “these rules of the game are to be understood as including, not only formal legal rules, but the informal social norms that govern individual behaviour and structure social interaction within the institution“. Hence, the institutions are not characterized only by a legal conceptualization, but also by a substantial and informal components. They grow from the reciprocal games played by the people and social groups in the effort to coordinate their behaviours, and to successfully consolidate the common structures of society (Binmore, 2005). It is possible to consider the system of rules like living and transforming, shacked by adaptation, renewal and subversion. It is also possible to identify these living institutions with the basis of the social contract, its substantial, procedural, formal and informal concretization, reflecting the character of a society, in a specific time and place (Binmore, 2010, Schmitt, 1972). Following this approach, the institutions – formal and informal – and the social contract have a living and unstable nature. They have to adapt to the changes of the social, economic, political, technological and cultural conditions characterizing the system, evolving inside a specific historical – but not mechanical – framework. Here, the concepts of violence, conflict threat and power redistribution play a relevant role[113].

I think this approach could be very interesting. Firstly, this perspective could help us understanding the socio-political clashes exploded – recently – in different places around the world. Therefore, this perspective could be central in the European and Italian debate: the polarization between hegemonic and excluded actors; the problems characterizing the states capacity – both for the political and administrative spheres -; the strong and negative incidence of the economic crisis; all these factors have enlarged the distance and distrust between the citizens and the democratic institutions. This distance is not an empty space, but it contains strong conflicting impulses, charged by a relative incommunicability between the citizens and political spheres. The same is almost true for other countries – like Egypt, Turkey and Brazil – where the changing forces of the development and growth have recently produced relevant social troubles and imbalances. The structural presence of uneven redistribution of resources, goods and services between the different levels and groups of the society – but also the spread of new political and economic interests and ideas – are pushing and fostering violent confrontation. Taking the forms of riots, social conflicts or civil wars, these dynamics are calling for the redefinition of the social, political and economic relations existing in these societies.

Secondly, the analysis of the role of conflict in the institutional change[114] could help to coherently criticize the attempt – promoted by the neo-liberal theory – to neutralize the political relevance of the differences in thinking, acting and living. In the last thirty years, the elite – politicians, academic scholars, financial actors and so on – have proposed to the citizens several social, economic, political and financial reforms in institutions. These reforms have been described and defined as neutral, natural and depoliticized (Mastropaolo, 2011; Hay, 2007; Pettit, 2004; Belligni, 2005). The attempts to create a smooth world – and the concrete instruments, techniques and practices used to realize it – have been presented as technical[115], natural and unavoidable, through the denial of their specific political origin. To be effective, all these transformations have required the elimination of the concepts of differences and conflict, considered by Schmitt (1972) as the main sources of politics. More, their nature has been defined as absolutely undisputable. In the name of necessity, this process has been imposed on the agenda of several countries, like the only technical way to promote the business activity, the competitiveness of the system and the social wellbeing. This dynamic has been particularly based on several key words: reforms, governance, good government, accountability, austerity, efficiency of public administration, transformation of citizens in consumers, impersonality and formality of the democratic procedures, flexibility of labour market.

In this framework, it is important to give a new centrality to the conflict, confrontation and production of differences. This permits to better disclose the myths and mythology of this narrative, opening new opportunities for the theoretical and philosophical reflection.

3.7. Complexity, panarchy and institutions

To understand the dynamics acting on the institutional evolution, it is firstly necessary to define the environment where do the different actors and factors interact. So, it is basic to quickly analyse the issue of complexity within the social systems. This subject has been drawn from the hard science – physics, biology and ecology -, but it has shown a great adaptability to other fields of study, such as the social science and the international relations. Here, also the institutional evolution is characterized by complexity, framed by the concepts of non-linearity, chaos and order (Byrne, 1998). The chaos is identified as a not-order status (and not a randomness status) preceding the creation or the rewriting of the order in a specific space-time continuum. Byrne (1998, pag 16) – describing the relation between chaos and order – underlines that “whilst ‘chaos’ in its popular usage is to be understood as a description of anti-order, to all intents and purposes as a synonym for randomness, the scientific usage is far more equivalent to not-order, and indeed sees chaos as containing and/or preceding order”. Consequentially, the complex interconnections between the different factors – both internal and external – and the alternation between order and chaos produce infinite bifurcations of the history, leading the system through further equilibrium, between the several that are available[116].

This theoretical ground could be further deepened. Biggs et al. (2010), Holling (2001) and Allen and Holling (2010) have considered concepts as hierarchy, sustainability, resilience, rigidity, non-linearity, equilibrium, disequilibrium and adaptive cycles. In this analytical background, the ecological and social system – and their hierarchies – are not closed to changes, but they evolve following the panarchy theory. Holling (2001, pag 396) defines the concept of panarchy as “the representation of a hierarchy as a nested set of adaptive cycles“. In particular, the process of dynamic transformation of hierarchies – both internal (adaptive cycles) and external (accumulation of adaptive cycles) – is central. The internal dynamic is characterized by four phases: exploitation, conservation, release and reorganization. Holling (2001) tell us “the trajectory alternates between long periods of slow accumulation and transformation of resources (from exploitation to conservation), with shorter periods that create opportunities for innovation (from release to reorganization)“. During the exploitation, the potential of the system – represented by wealth, social relations, culture, technology and so on – increases, paralleling the growth of efficiency and rigidity.

This moves the system to the conservation, where the vulnerability of the system (lower resilience) is higher. A threat, an accident or a spark can trigger the release of accumulated potential, creating the space for innovation and recombination of the relations which characterize the reorganization phase. Then, the innovation are tested, some fail and others survive in relation to their adaptive capacity.

The adaptive component of the system arises during the disequilibrium and innovation phases, when the system can switch to a different equilibrium, closer to its new conditions. The nature of this process – peaceful or radical – is determined by the rate of resilience and rigidity, the first supporting the incremental and the second the radical innovations. So, during an historical juncture[117] and bifurcation, a rigid institutional system could dramatically collapse through an implosive process, while a resilient system is more able to evolve, also moving throughout troubles and clashes[118]. In the first case, the chaotic disequilibrium will provoke the demolition of the old order and the promotion of a new one, characterized by a new set of institutions and social norms. In the second case, a resilient system have an higher capacity to progressively solve the social problems accumulating in the society, coping with them thanks to a conflicting but not destructive process. The alternation of the above mentioned phases, and the accumulation of radical or reforming evolutions, permit the progressive accumulation of hierarchies, characterizing the external dynamic. I think this model is really interesting, because combines both an elliptical dynamic – closer to the concept of historical circularity of the realistic though -, and an accumulative and evolutionary process, more in tune with the historical linearity characterizing the liberal though. Contemporary, this model and the complexity theory offer us an exceptional framework where contextualize the actions and interactions of the game actors.

3.8. Actors agency, feedback and emergent patterns

In these environment, the summa of different factors – social, political, cultural, economic, ecological or technological – interacts with the actors’ agency. This relation produces a non-linear effect on the society and institutional evolution. To better understand it, we have to consider the action opportunities handled by the social, political and economic actors, such as groups, organizations, associations and governmental networks. Two concepts are particularly relevant: feedback mechanisms and emergent patterns.

De Landa (2000), Homer-Dixon (2002) and Klijn (2008) define as positive feedback (deviation-amplifying) the mechanisms leading to an exponential growth of the effects, and negative feedback (deviation-counteracting) those reducing or nullifying the factor’s effects. The emergent patterns surface from this process of positive or negative interactions, driven by the concrete actions of resistance or acceleration operated by the social actors. These actions are characterized by a set of strategies that are more or less clear, through repertories of performances more or less conflicting and capacity of alliances more or less defined (Tilly and Tarrow, 2008). They can be implemented by different actors, going from the groups and associations inside the civil society to the individuals, organizations, parties and corporations operating in the political and economic spheres. The second are particularly forced to act to protect the interest of their social groups, corporation or financial networks, trust and legitimacy circles and patronage affiliations. Inside these emergent patterns, new ways of political conceptualization – between conflict and cooperation -, socio-economic direction and technical and legislative solutions arise.

As mentioned before, the actions, behaviours and agency capacity of the political and social actors interact with several internal and external factors. These factors regard numerous fields, but we can consider – for example – the interference of the regional and international context; the issue of trust (Tilly, 2005; Klijn et al, 2010); the dynamics characterizing the explosion of social problems inside the communication and political arenas (Hiltgartner and Bosk, 1988); or the satisfaction of the group voracity (Lane and Tornell, 1999). But it is also particularly important to underline the results of this interaction between social, economic or governmental actors: the definition of new social practices (Bevir and Rhodes, 2005); the reduction or increase of the willingness to cooperate (Mulder et al, 2006); the transformation of the designed public policies (Klijn, 2008); or the evolution of conflicting repertories (Tilly and Tarrow, 2009). These dynamics are frequent, covering different fields of the social life. We can consider – for example – the opposition against the realization of strategic infrastructures (incinerators, TAV, highways and so on); the actions of the guilds to block the process of economic liberalization; the process of emergence and disappearance of corruption, where several actors – like judicial power, media, fractionalized political sphere, social groups, bureaucratic body – follow alternative feedback strategies.

This continue “dialogue and clash” dynamic dominates the relations between existing institutions, innovative thinking, public policies implementation and actor agency. It makes the creation and consolidation of the institutions – from the ideas to the institutions – similar to the process of amalgam and transformation of the sedimentary rocks (De Landa, 2001). Further and heterogeneous levels of “new materials” – cultural, technological, political, economic or social – are socially created. They progressively deposit, cement and stratify, interacting both with the existent material and the internal and external factors of complexity. To consolidate this picture, we can think to the millennial evolutions of the energetic sectors (Smil, 2010), of the languages and meanings (Focault, 1998) or of the shapes and contents of political, economic and social rights (Oestreich, 2007). They represent a perennial process of rewriting the past institutions, where the imagine – explicit or implicit – of the future institutions is shaped by the coexistence and strong interaction between the old and the new structures. In the next paragraph, I try to quickly stylize this dynamical process, which lead to the evolution of ideas into institutions.

3.9. The social concretization of institutions

In a simplified way, I identify this “new materials” – which could be compared to the magma spilling out from the oceanic ridge – with the ideas, theories and technological solutions, which are characterized by a political but fluid nature. These are created and elaborated inside the universities, the academic world, the think thank organizations, labour associations, labs, private or public research centres and so on[119]. The evolutionary process is characterized by the diffusion of these ideas into the society, and their interaction with the tradition (Bevir and Rhodes, 2005), the socio-economic conditions and the social problems. This interaction leads to their transformation in social, economic, technological, productive and political practices, informal rules and specific behaviours. These intellectual and practical materials – thanks to their capacity for problem-solving and attractiveness – are then absorbed by specific groups, entering into their porous borders of values and toolboxes. More powerful are these groups, more higher is the probability that these values and solutions will become socially, technically and economically hegemonic. Once these semi-consolidated materials have conquered the political arena, the agenda setting and the problem-solving realm, they could become efficiently institutionalized. The formal institutionalization moves through the implementation of official structures, constitutions, laws, codes, norms and statutes; and also through the creation of agencies, administrative bodies or specific offices to regulate and manage an issue[120]. This dynamic – finally – produces the consolidated structure of institutions, characterizing a specific social, political and economic contest. Evidently, the consolidation of social norms and institutions could be operated through a non-planned action – as during a radical and break-down process -, or following a designed project. But in every case, it is important to consider the opportunity for the actors to operate their agency capacity, which could deeply modify the design of the reform, protecting interests, rents of power or also established rights (Tilly and Tarrow, 2008; Polany, 2010).

3.10. Institutions between conflict and cooperation

The relation between included and excluded groups produces evolutionary and emergent patterns, strongly acting on institutional shape[121]. These institutions are strongly linked to the social, political and economic balance of power between groups characterizing a society and its productive structure[122]. Considering the analysis of the second paragraph, the institutions define who can exploit the resources of the system, and who is excluded from this exploitation. Therefore, they signal the different opportunities owned by the groups in respect to the activities of taking, dividing and elaborating the factors of production (Schmitt, 1972).

I think the division between central and peripheral groups is basic on the institutional change, because the continue confrontation between their interests is the fuel feeding the evolutionary process. Historically, these dynamics produce alternation between conditions favourable to the financial and economic interests – like during the golden age of haute finance (Polany, 2010) or the neo-liberal age (Crouch, 2012; Mastropaolo, 2011) – or more favourable to a larger set of citizens and social groups – as during the Keynesian age –[123]. Acemoglu and Robinson (2012) – contextualizing this confrontation – use the concept of inclusive and exclusive institutions. Weirich (2011) adds another detail to this framework, underling “a society’s social contract may be disadvantageous for some of its members. Their lacking bargaining power may prevent their blocking adoption of that contract“. As we can note, the concept of relative bargaining power is basic: the insider and outsider groups are differently characterized for the relative bargaining power, and consequentially for conflicting capacity.

Firstly, I quickly define the concept of relative power. We can consider it as the capacity and the force that every group has relatively to its opponents. Higher is this relative power, higher will be the group capacity to defeat the opponents, through a conflict or an electoral competition. Basically, the relative power of the different socio-economic groups depends by four principal factors: a) income of the group, and its role in the productive processes and economic structures; b) capacity of organization, leadership and alliance; c) ideological and identity consistency; d) hegemonic and problem-solving capacity. Moving by this concept, we can identify the different conflicting strategies. We can imagine the outsiders acting to open the political and economic arena, to gain voice in the agenda setting. This attempt is intrinsically characterized by conflict, because the goal is to increase their pay-off, reducing that of insiders and elites. The same is true for the action of the elites, characterizing the attempt to increase their wellbeing, political control and economic power. Then, the conflicting strategies – civil war or electoral competition, social disorders or popular referendum, only to quote some opportunities – are strongly related to the general context, to the structure of the opportunities, and to the nature of the political regime (autocracy or democracy, kleptocracy or military regime).

We begin with the conflict promoted by the outsider groups. Coping with these first-stage actions, the elites react considering the relative power of the outsiders. This interactive model could have three different outcomes: competition, cooptation and cooperation[124]. First, the elites and the insider groups could consider not so dangerous the threat coming from the outsiders – because their relative power is considered very low -, so maintaining a closed and extractive institutional structure. This situation is almost typical of rigid systems, where the ruling groups are not able to adapt the institutions to the necessary changes emerged from the social, economic and political environment. The conservation of the unfair balance of power could lead the outsiders on a path of violent confrontation (competition phase), which is faced by the elite through the repression. If the earl repression fails, the competition between groups could totally explode, opening the opportunities for civil conflict, secessionist impulses, coupe d’état, violent social disorders and zero summa games[125]. The result of this violent confrontation is strongly related to the effective actor’s capacity to mobilize resources, opportunities and alliances, and it ranges from the victory of the insiders (status quo conservation) to the success of the outsiders (radical change of institutional structures). Second, the elites could differently consider the threat coming from the outsiders, perceiving their intrinsic dangerousness. To prevent the total changes and openness of the institutional environment – limiting the transformations of the status quo -, the elite and the insiders can co-opt (cooptation phase) some fragments, groups or individuals (like big man) belonging to the outsider groups, integrating them in the ruling structure. This process immediately reduces the opportunity of violent contraposition, but it produces only a little change on the weak structure of institutions, maintaining almost unchanged the causes for the conflict. Third, the elites and the insider groups could be absolutely aware of the relative power of the outsiders, considering credible their threat and being afraid to totally lose their income and wellbeing. Now, the reaction proposed by the elite will be totally different from the other two cases, pushing the communication and cooperation between the opposite groups and supporting the “sweet” transformation of the institutional structures (cooperation phase). At the limit, the same elites and insiders can anticipate the actions of the outsiders – hence, anticipating the explosion of conflict – promoting the openness of the institutional structure and relaxing the pressure accumulated in the system (North et al, 2012).

Alongside the conflicting action of the outsiders, there is also the institutional evolution led by the insider groups and elites[126]. After the exhaustion of the complex contextual condition which have promoted and sustained a balanced inclusion of the peripheral groups in the social, economic and political system, the elite and the insider groups can try to reaffirm their power and control on the structures of society. The consolidation of the neo-liberal theory is a meaningful example of this dynamic: the reduction of the working class role following the process of deindustrialization in the Western economies; the increase of the weight of the financial markets; the persistence of structural problems in operating capacity of the administrative and bureaucratic bodies of the states and governments; and – more recently – the growth of international economic competitiveness lead by the giant economies of China, India, Brazil and others; all these factors have contributed to open relevant opportunities for the reorganization of Western societies, more in tune with the request of powerful insider groups. Their strategy is different from that of outsiders, due to their superiority in power, resources and capabilities. It could involve the strong usage of the repressive and military structures of the state to recover or enlarge the power of the elites. But it could also involve a more subtle and underhand set of actions, based on the elites’ capacity to define powerful narratives, meanings and symbols. This perspective is absolutely relevant considering the success of the neoliberal theory, which has been able to radically transform the theoretical and practical pillars of the previous order. Consider for example the redefinition of the vectorial meaning of the term “reform”: from an instrument to promote the wellbeing of citizens, it has been transformed in something that reduce it, increasing the wellbeing of elites and ruling groups[127]14. Despite that – and despite their strong political charge -, the reforms have been ever presented to the citizens as technical, apolitical, necessary and unavoidable instruments. Spoiled by their specific political origin, they are narrated as natural and given law of economy and markets. The same has happened – and it is strongly happening – for the concepts of governance, accountability, administrative efficiency and so on.

These concepts are able to strongly shape the implementation of public and fiscal policies characterizing the governmental actions, coercing the opportunities of these policies inside specific paths. In this perspective, these narratives have strong effects on the concrete production of public policies, so transferring their effects on the social wellbeing and balance of power between groups. I think that it is essential to break the veil of ignorance covering the political nature of this relation, so opening new opportunities for the definition of alternative solutions to the problem we are facing in these time. In the complex world I have described the neutrality doesn’t exist, and the difference are to evaluate and not to negate.

3.11 (In)justice as (mis)recognition: remedying the wrong of terrorism

The phenomenon of terrorism has not faded out from the political scene for decades. Although just war theory and transitional justice theories may provide some insights, terrorism misfits in these theories and the topic of “justice after terrorism” remains a lacuna in the normative political theory literature. In this paper, I investigate what conceptual framework should lie at the heart of providing just peace after terrorism.

In each act of terrorism, there are several victims not only in numbers but also in kinds. My definition brings along a tripartite victimization. Terrorists have the direct targets to inflict harm, the indirect targets to spread fear among, and the political authority to coerce. All these targets are wronged, however, each particular wrongdoing differs.

I suggest a theory that approaches the wronging of terrorism from the spectacles of the theory recognition. By doing so, I conclude that terrorism misrecognizes the direct victims’ human status and disrespects the indirect victims’ political agency.

As literature on recognition defends, an ideal society is where social agents can establish relations of mutual recognition. Once terrorism humiliates its targets by disregarding their human status, it conveys the message of moral insignificance which constitutes a serious moral injury. The victims have sound physical, psychological and moral reasons to feel humiliated. Due recognition or re-recognition is something we owe to these victims because of the moral reason. A re-recognition model as a restorative ritual should deliver the necessary validation of victims’ moral worth.

3.12. Terrorism: supreme emergency or distributive justice?

Terrorism may be the scourge of the modern age[128], but for those who commit such acts of violence, terrorism is justified. This essay will examine the two best known arguments that attempt to provide a moral justification for terrorism, that of the supreme emergency (SE) case of Michael Walzer, and the distributive justice (DJ) case of Virginia Held. After examining and ultimately rejecting both arguments, I will propose a third case, original and ancient, that both theoretically and historically provides an argument that terrorism can be morally justifiable under specific and narrow conditions.

As such, I will analyze the following assumptions and positions:

Terrorism is almost always, though as shall be argued not absolutely always, immoral and wrong.
There exists an objective right-wrong morality. The moral position I write from is that of natural law and human rights and the tradition that such innate natural morality is universal.
Violence is not always immoral and can be of what I below call “moral necessity”, as in cases of self-defense and just war.
Between political and legal usage, and other linguistic and cultural framing issues, I agree that, “The struggle to define terrorism is…as hard as the struggle against terrorism itself”[129]. The aforementioned positions collectively oppose the claim that one man’s terrorist is another’s freedom fighter, as this ventures into moral relativism[130]. This essay agrees with Held[131] that, “terrorism is political violence that usually involves sudden attacks to spread fear to a wider group than those attacked, often by targeting civilians,” and that some attacks against military personnel, such as the 9/11 attack on the Pentagon, qualifies as terrorism. Furthermore, I follow international law that “state qua state” violence is not terrorism, as this would constitute an act of war ad bellum or a war crime in bellum, but that there can be state-sponsored terrorism[132]. Similarly, state violence against its own citizens is a violation of human rights, murder, and genocide, but also is not terrorism.

I will not engage with the consequentialist argument beyond its relevance to the SE and DJ cases, as the rationale for rejecting consequentialism specific to those cases can be applied to the consequentialist argument more generally. The only addition I will make is that the argument that terrorism can be morally justified requires a definite understanding of morality, and like many I find little basis for morality only using mathematical ratios. However, consequentialism is a relevant and important factor for decisions, especially in matters of killing. Proportionality and reasonable chance of success are necessary criteria. Therefore, the final assumed position of the argument is a reserved belief in the Doctrine of Double Effect (DDE).

As these positions are popularly known and well argued for elsewhere, I will not spend further time in their defense. Perhaps the best known argument that terrorism can be morally justified, and certainly the most intuitive, is the SE case. That the killing of innocents is still immoral is not denied, but the severe necessity of the act justifies this immorality. A common term for those attracted to this line of thinking is “threshold deontologists”[133]. Walzer[134] presents the SE argument, though not in the context of terrorism, in Just and Unjust Wars under the recurring subtitle, “The Nature of Necessity”, which encapsulates the essence of the argument and its criteria, that of imminence of danger and the danger’s supreme nature. Walzer makes it clear that both must apply, and throughout his discussion he readily acknowledges the argument’s risks and his own hesitations in presenting what could easily become a slippery slope. Walzer’s discussion limits the subject of the danger to a political entity, as his examples are about past interstate wars. John Rawls’[135] argument in favor of the SE justification for terror bombing has the same limitations. Nevertheless, it seems no stretch of the SE logic to expand the possible subjects to include “situations where there is a clear danger to a group’s very existence or the mass extermination of noncombatants”[136]. This expanded definition describes genocide, the imminent threat of which Walzer says would justify humanitarian intervention and the supersession of the principle of sovereignty. If “acts that shock the moral conscience of mankind”[137] are enough to break the ultimate political principle of the current world order, are such acts or the imminent threat of such acts enough to justify terrorist activity?

There are several problems with this line of thought beyond the slippery slope risk. First, for the historical genocides that the SE argument may have applied to, it is unlikely that terrorism would have altered the result, except to further provoke the killers[138]. Second, the argument’s reliance on consequentialist reasoning weakens it, for the SE case seems to be justified only if the terrorism successfully turns back the danger, which is unknowable in advance. Another issue is the problem of last resort and legitimate authority that expose the argument to exploitation: for substate groups, who has the power to make such a decision, and which groups qualify? Also, nothing in the SE argument limits its application to moral actors. If Hitler had possessed the atomic bomb in 1945, Walzer’s argument seems to allow its usage to prevent the imminent destruction of the Nazi Regime. Finally, the SE argument goes against the just war tradition, directly contravening both the secular rights tradition and the Christian moral tradition’s prohibition against the intentional shedding of innocent blood[139]. Yet to deny the SE argument would seem to force an endangered group to accept extermination, and therein lies the rub. To break moral principles to survive in order to later institute a government upon those same principles is hypocritical, but, to be intentionally crass, upheld moral principles aren’t worth a damn if everyone is dead.

This paradox is the essence of Walzer’s[140] argument, that, “communities in emergencies have different and larger prerogatives”, and is what Nagel has called a moral blind alley, where both actions are immoral. Coady correctly points out that the SE case exhibits a pro-state bias, specifically concerning legitimate authority. As my definition of terrorism excludes states, this would eliminate the possibility of the SE argument being used to morally justify terrorism. However, this overly complicates the question, which Walzer and other proponents of the SE justification have already implicitly answered. The SE justification is one of necessity trumping morality, not necessity as a form of morality. It does not deny the immorality of intentionally killing innocents. Therefore, an immoral rationale cannot logically be used to turn an immoral act of terrorism into a moral one.

The other attempt to morally justify terrorism is Held’s deontological argument for distributive justice (DJ), which is fundamentally different from the SE case because for Held the killing of innocents is justified[141]. This justification rests on the fairness principle for victims of oppressed groups that are denied rights, where although using terrorism would violate the rights of even more victims, over time the oppressed group will experience a reduction in the violation of their own rights. Rekha Nath[142] describes the DJ reasoning in her rebuttal of Held’s argument as “a choice between two morally bad outcomes”, and that Held “finds it better to equalize rights violations” than to allow the status quo to persist. This idea of equalizing violations strikes me as a bit childish, like the kid who breaks his sister’s toy because if he can’t have one then neither should she. It may be cliche, but life is not fair and attempts to make it fair, especially through indiscriminate killing, sounds outrageously unrealistic, even if it is theoretically intriguing. Admittedly, Held offers three criteria for DJ terrorism: “it aims for a fairer distribution of rights violations is a last-resort measure, and is likely to bring about greater rights enjoyment for all”[143], but these criteria share many problems with the SE argument. By removing the legitimate authority requirement, Held discards a key just war tenet, heightens the difficulty of deciding what constitutes a last-resort, and, as even Miller[144], a supporter, acknowledges, seriously limits the ability of governments to condemn any terrorist attack. Her inclusion of a probable success standard fails to avoid the consequentialist pitfall of not fully knowing what will happen and is severely undermined by her vagueness on how long DJ terrorism can be perpetrated to achieve the desired rights equality. There is no break point beyond which terrorism should stop because it does not produce the desired results, opening the door for a cascade of escalating violence between the oppressors and victims. Another issue is her expanding the list of violated rights that justify terrorism from human or natural rights to legal rights. This implies that if a group is legally barred from the cinema, bombing the cinema might be a justified response. Finally, her focus on fairness ignores other principles of deontology such as desert and responsibility, thereby creating issues of guilt by association. As Coady[145] points out, babies of the oppressors are viable targets under Held’s argument. Even without the other serious issues, this intentional escalation of violence to include the most innocent is a bridge too far. Held’s argument removes too many discriminatory norms for her brand of terrorism to ever be deemed moral.

One possibility for morally justified terrorism has been overlooked, and is summed up by the immortal words of Brutus, Sic semper tyrannis. Tyrannicide, unlike the reactive and responsive SE and DJ cases, is often proactive and preventive, and has long been considered a moral necessity. Tyrannicide alone is assassination, but a conceivable variant of Caesar’s assassination offers a narrow possibility for moral terrorism. Despite the surprising failure of its ultimate goal, the murder of Caesar to save the Roman Republic has long stood as a rallying cry of democracy and freedom, as tyranny has been understood as a violation of divine or natural law since ancient times around the world, from Confucius to Cicero[146] to Grotius[147]. The strict criteria in Aquinas’s defense of tyrannicide mirror his criteria for just war and the DDE[148].

The scenario I imagine is identical to the historical case except in one respect: Caesar has a large family of powerful civilians that has enabled his rise. In this scenario, which could exist both to prevent or stop tyranny, Caesar is physically unreachable. However, his family and political sycophants are not. So, the Senators kill a family member or a military or political sycophant who has enabled Caesar’s tyranny, and threaten to kill daily until Caesar submits to exile or trial. This is undoubtedly terrorism, albeit a highly focused version. If possible, innocent family members would be spared, but in some circumstances under the DDE innocent life may be taken as collateral. For example and to mirror the classic bombing raid DDE scenario, if during a meeting of guilty collaborators Brutus burns the house and the hostess dies too, this is acceptable. It is terrorism as spiritual sacrifice and violence as moral necessity, with the onus on the good citizen to act.

The question of determining true tyranny plus the problems of legitimate authority and last-resort from the former arguments all apply, but Caesar’s death shows that they are surmountable. The Senate constituted legitimate authority, lacked better options, and had a reasonable chance of success, a just cause, noble intent, and used proportional violence. So long as the terrorism was sufficiently focused, for tyrannicide, terrorism can be morally justified. Realistically, modern terrorism is clearly immoral. Terrorism may almost never be morally justifiable, however, history does prove that moral terrorism is technically possible.

3.13. Wrong of terrorism

I define an act of terrorism as the use of political violence or the credible threat of its use on disengaged civilians in order to spread fear among society to coerce political authorities in pursuit of a political objective. In relation to the definition of the act, terrorism stands for the repetitive and continual employment of terroristic violence over time as a strategy to achieve the political objective. Since terrorism employs violence on some people to scare a wider group in order to coerce political authorities, terrorists have the direct targets to inflict harm, the indirect targets to spread fear among, and the political authority to coerce in pursuit of the political objective. All these targets are wronged. However, the nature of the wrongdoing and the relation the victims are being put with the terrorist are various due to the features of the particular wrongdoing.

By inflicting lethal harm on the direct targets in order to spread fear among the indirect targets, terrorist degrades them into means. “They [direct victims] are treated as a means to an end of treating the secondary [indirect] victims as a means to an end.”[149] They are degraded to subhuman status, i.e. dehumanization, instrumentalization, and objectification. Their human status is misrecognized.

The indirect targets are terrorized. By being terrorized, the indirect victims are left bereft of practising the capacity of exercising their political agency. Fear creates an environment which is so destabilizing that it renders political life infertile. Samuel Scheffler takes continual fear as a factor which deprives human beings of functioning politically and socially since their rational decision process is sabotaged.[150] Considering that spreading fear among society is an intended means of terrorism, a consequential and political wrongness, following the deontological wrongness of the aim of spreading fear, appears to be manipulating people by depriving them of exercising their political capacity of deliberation and taking advantage of the situation. Therefore, the political agency of indirect victims is disrespected.

Political authority is coerced. Since Robert Nozick’s work, coercion is considered as a motivational conditional threat for an agent to take an action or omit from undertaking it.[151] In the case of terrorism, terrorist inflicts certain harm and threatens the political authority with inflicting further harms if they do not comply with the terrorists’ demands.

Terroristic coercion is characterized by prior use of violence and the threat of further use of violence against disengaged civilians:

In the case of terrorism we are talking about a mode of coercion that already imposes at least some of the costs that the coercer is supposed to be threatening (or costs of the kind that the coercer is supposed to be threatening). The terrorist does not say: “Comply with my demand or I will impose harm H.” Instead the terrorist imposes harm H1, and then he says: “Comply with my demand or I will continue to impose harms (H2, H3,…) of the kind I have already im-posed.” By imposing H1 in advance, he demonstrates that he already has the ability and the will to impose harms of the kind he is threatening to impose in the event of non-compliance. But also, by imposing H1 at the same time as (or before) he makes his demands, the terrorist already expects the recipient of his demands to be in something like a state of shock or injury from this initial demonstration of the terrorist’s will and ability.[152]

The credibility of the terrorist’s threat is high because the terrorist primarily imposes certain harm. The more credible the threat is, the more the freedom of the political authority is obstructed, and consequently, the more wronged she is. Yet, I believe the quintessential problem in coercing the political authority is not a wrongdoing against the political authority qua political authority. Terrorism, by means of coercion, diminishes the freedom of the political authority to take decisions and actions which would have been taken in the absence of terroristic threat. In other words, the freedom of the political authority − regardless of how wide it is in the pre-terrorism period − is circumscribed. The coercion of the democratic political authority results in the preclusion of the function-ing of the political life as it is supposed to function without terrorism. In the presence of terrorism, the political authority is not able − or at least not as much as before − to perform the act for which she was delegated by the electorate. In this sense, terrorism targets the right to self-determination of the entire people. As in the terrorization of the indirect targets, the political agency of the people is disrespected.

Justice after terrorism should be conceptualized in a way to be responsive to these wrongdoings. This is why justice after terrorism ought to combine a stable peace, that is a situation in which people do not include the possibility of war to their calculations because it is a negligible possibility, and a particular conception of justice which relies upon remedying wrongdoings of terrorism.

3.14. Misrecognition and disrespect

Primary wronging of terrorism is misrecognizing the human status of the direct targets by degrading them to a subhuman status. This degradation manifests itself in rights violations. However, the wrong of misrecognition is not equal to the wrong in the violation of these rights. Human rights violations paradigmatically occur in cases of misrecognition. Yet, misrecognition is, at least partially, the result of the message it conveys about the status of the person, regardless of her rights.[153] By denying the most fundamental human rights of the direct target for the sake of a political objective, the terrorist expresses that she puts the direct target in a subhuman status. Therefore, the problem in misrecognition is not solely the violation of rights, it is rather a conscious denial of acknowledging the direct target’s human status which leaves the target in a position in which she is not able to demand rights. She is rejected from the human commonwealth. She is dehumanized or objectified.

One might argue that the difference between misrecognizing the human status and disrespecting political and moral agency lies in the distinction between treating the victim as subhuman and treating them as if subhuman. The direct targets are treated as subhuman whereas the indirect targets as if subhuman. Treating someone as if they are subhuman presupposes their humanity as Hegel’s famous master-slave dialectic demonstrates.[154] The master is in search of the acknowledgement of her absolute power over the slave. However, such search for acknowledgement is in conflict with the claim of absolute power since it looks for the acknowledgement coming from the slave, i.e. the object of the absolute power. Similar to the master-slave dialectic, the misrecognizing act which aims at identifying the victim as subhuman presumes her human status. The act for the rejection of human status presupposes that who is denied is a person. Taking this presumption into consideration, one can conclude that the wrongdoer can only treat her victim as if they are subhuman.[155] One might further argue that, contrary to the previous case, when the terrorist uses violence on the direct target, she is not in search of any response or reaction from the direct target as the master asks for the acknowledgement of her absolute power over the slave. Instead, the terrorist harms the direct target in order to terrorize the indirect targets. Hence, if the terrorist makes any claims at all, she wants this claim to be responded by other people and not by her direct target.

I believe this is a wrong reading of the case. Focussing on the master-slave dialectic and over-looking the differences between this case and the case of terrorism leads to certain confusions. The argument in the previous paragraph assumes that the terrorist searches for the acknowledgement of her superiority claim by the indirect target although it harms the direct target. This assumption imports the rather complex targeting-structure of terrorism to the search for the acknowledgement claim. That is why it fails to differentiate the master-slave dialectic from the case of terrorism. As I have argued earlier, the presumption of the humanness of the victim is inherent to the act of misrecognition. Therefore, I agree with the argument in the previous paragraph to the extent that the wrongdoer can only treat her victim as if they are subhuman. Nonetheless, this does not mean that it is necessarily related to a claim of acknowledgement of superiority. Genocide constitutes a similar example. The wrongdoer is not in search of acknowledgement which will be granted by the victim or others. The relationship between the wrongdoer and the victim does not allow certain types of interaction in terrorism and in genocide because of the nature of these acts. Therefore, we cannot argue on the occurrence of such a search for the acknowledgement of superiority. It simply does not occur. This does not mean that misrecognizing act does not presume the humanness of the victim.

If both misrecognition and disrespect means treating the victim as if subhuman, then what is the difference between misrecognizing the direct victims and disrespecting the indirect victims’ agency? They are both cases of humiliation, i.e. an injury to self-respect. They are not different in kind but only in degree. They occur in different degrees of comprehensiveness. The direct victim is humiliated/misrecognized in all aspects by being denied the most fundamental human rights whereas the indirect target is humiliated/misrecognized by being denied the capacity to use agential powers.

Axel Honneth constructs a theory of recognition which distinguishes three forms of recognition under the aegis of love, legal rights, and solidarity.[156] Firstly, self-confidence which can be described as one’s having a good opinion of oneself, is facilitated by the feeling that one’s needs and desires are of unique value to another person. Hence, self-confidence is recognized by the unconditional concern and the emotional support of the others with whom one has affectionate relations.[157] Secondly, self-respect stands for one’s sense of having the capacity of being morally autonomous and responsible. One is recognized in this sense when she is ascribed to the same moral accountability with others. Therefore, it essentially is related to the Kantian idea of taking people as ends in themselves and seeing them morally responsible and equal rational agents. Self-respect should be enabled by a just legal system which protects agents’ status of the bearers of rights.[158] Finally, self-esteem considers one’s sense of being capable of contributing to the common good of the society. Recognizing one in the sense of being socially worthwhile is generated by solidarity.[159]

Under this rubric of morally injurious disrespect and corresponding harms, terrorism’s direct targets are misrecognized in terms of self-confidence by being denied physical well-being or physical integrity. On the other hand, the indirect targets are targeted in terms of self-respect, i.e. the acknowledgement of the value of their judgements disrespected. From the Honnethesque framework[160], it is not easy to say that the indirect victims of terrorism are misrecognized in the strictest sense. Because misrecognition regarding self-respect involves structural and systematic exclusion from certain rights whilst the indirect targets are only interrupted from exercising their political personhood for a limited time.[161]

This fine-grained perspective allows us to see the difference between the misrecognition of the direct targets’ self-confidence and disrespecting the indirect targets’ exercise of their political agency.

Despite these harms might be directed to different forms of self-relation − and one of them might even be an attack on recognition rather than misrecognition −, they are still acts of misrecognition and the relevant remedy should rely on grounding justice after terrorism in re-recognition of the victims.[162]

3.15. Remedying misrecognition

As concluded previously, the victims have sound physical, psychological and moral reasons to feel humiliated. Re-recognition is something we owe to these victims because of the moral reason. I believe the easiest way to ground the moral claim is inserting Margalit’s negative justification for non-humiliation. The negative justification lies in the fact that “human beings are creatures capable of feeling pain and suffering not only as a result of physically painful acts but also as a result of acts with symbolic meanings.”[163] Misrecognition, an injury to self-respect, is a human suffering in the psychological realm. No one should be exposed to mental cruelty and the negative justification on non-humiliation suffices to justify this claim.

Frank Haldemann suggests a responsive, direct, and interpersonal model for re-recognizing the victims of misrecognition. Recognition, in this model, relies on a mode of communication that is expressive of approval and affirmative attitude towards the victims. The criterion of responsiveness lies in the affirmative communicative process of truth-telling. First, it values the narrative of the victim and hearkens her sufferings. Second, the wrongdoer acknowledges the moral injury she caused and grants acknowledgement to victim’s reality. On the other hand, the criteria of directness and personal interaction focus on the direct and special relations which the wrongdoing puts the victim and the wrongdoer. The former refers to the wrongdoer’s acceptance of responsibility and lack of justification for the act of misrecognition and to her direct offer of recognition to the victim. The latter indicates that the wrongdoer should address the victim in an interpersonal and reactional vein since the act of misrecognition is a relational wrongdoing.[164]

[Re-]recognition is best described as a verbal act in which the speaker expresses that he morally regrets doing what he did. In recognizing his wrongdoing, the offender takes the victim’s side, accepts responsibility, and admits the absence of good reasons for his harmful acts. The model of [re-]recognition proposed here involves the performance of a behavior that can be reasonably interpreted as expressing moral regret, regardless of whether the actor is really motivated by sentiments of guilt, remorse, or shame. Therefore, it is not necessary for the offender to be emotionally engaged to complete the process. Although it might be better (for the victims and for the goal of reconciliation) if the offender is sincerely repentant, the mere doing of certain “performative” acts or rituals brings about recognition.[165]

Yet, this simplistic model is suitable to only few cases which appear in isolation such as a criminal offense in a small community. Political wrongdoings are characterized with many complexities. In response to this criticism, Haldemann reiterates the interpersonal nature of crime and stresses individual agency. He also maintains the relational dimension of his simplistic model while theorizing a recognition model for the resolution of political and public crimes.[166] This dyadic relation between the wrongdoer and the victim transforms into a triadic one with the addition of the state as the representative of society. Through the intervention of the state, re-recognizing model emerges as an event in the public domain. Authoritative and empowering role of the state signifies the importance that is granted to the victim in order to testify on the injustice she experienced and confront the wrongdoer. The wrongdoer initially acknowledges the wronging she perpetrated on the victim and consecutively performs public statements of moral regret and responsibility. Once again, the act is a formalized performative ritual, i.e. the emotional sincerity of the wrongdoer is not required. The intervention by the state which appears as the legal embodiment of the society brings along “a communal, authoritative condemnation of the offender’s crime that serves to recall and reaffirm the victim’s moral and civic worth.”[167]

In light of the discussion so far, we can conclude that the re-recognition model is grounded in the following principles:

a) vindication,
b) victim-centredness,
c) truth-revealing,
d) confrontation,
e) moral censure and
f) act-based procedure.

Which institutional structure should be embraced in order to functionalize the model of re-recognition? The difference between trials and truth commissions seems to be in degree and not in kind. The victim-centred trials and the truth commissions without blanket impunities are both able to grant re-recognition to the victim. They fare differently for each principles, and therefore, there might be relevant reasons to choose one of them with respect to the particular circumstances of each case.

«Nature is not natural and can never be naturalized».

Graham Harman

«Language is important: deaths arising from pollution are quaintly referred to as ‘deaths brought forward. Where large numbers of people are killed in a single incident it is referred to as a disaster, suggesting some sudden misfortune for which no one is responsible. Yet, the disaster may have been far from sudden. It may have been totally predictable»!

(Hillyard et al 2005; 59-60; 16-8)

“Harming by degrees”? Justifying pre-emptive action against global warming through treating imminent harms as actual harms

Although the actions which exacerbate anthropogenic global warming are not executed with the direct intent of harming human security, in this paper I argue that the widespread consensus and recognition of the consequences should render the causal actor as culpable as if they had taken direct and deliberate action. A case is constructed for these future environmental harms to be recognised as actual harms, and thus treated with the same practices of protection, liability, responsibility and accountability. Given that environmental harm is accumulative and indirect, it proves a complex threat which raises questions relating to the distinctions and transformative points between a risk, a threat and a harm, the justification of pre-emptive action on behalf of indeterminate victims, and the notion of assigning intent in relation to imminence versus probability.

Taking a moderate cosmopolitan stance on both harm and human security, coupled with an English school approach to an international society of States imbued with sovereign responsibilities, this paper outlines the imminence of environmental harms as equating to actual harms, and as being parallel to gross harms, humanitarian disasters and crimes against humanity. An argument for pre-emptively treating actors as liable, accountable and responsible for harmful-conduct is also presented, to construct a clear and rational case for treating predicted environmental threats and risks as harms pre-emptively, in order to protect the human security of future victims from imminent harm, on both ethical and humanitarian grounds.

Due to their accumulative, delayed, and indirect nature, the predicted environmental harms consequent to global warming do not, despite their imminence, pre-emptively invoke the protective action which either an instantaneous or deliberate causing of the same harms would elicit. In addition to the indirect nature of the causal actions and subsequent harms of global warming[168], the lack of protective action is also partially due to the definition that a threat or risk becomes a harm only when it has begun or occurred. However, as will be illustrated in the following argument, if the harm is in fact imminent, pre-emptive enforceable action against liable and accountable causal-actors (the same action and recourse as though the harm had already occurred) is not only permissible, but obligatory[169].

4.1. “When a harm is imminent, as opposed to probable, is pre-emptive action to protect indeterminate future victims justified?”

In order to construct a convincing case for the imminent consequences of global warming to be considered and approached as actual harms[170], thus requiring of pre-emptive action being directed at their causal actors, two claims will be made. Firstly, the anthropogenic consequential harms predicted to arise from current practices which effect global warming will be equated as actual harms to human security[171] requiring pre-emptive action, as they present a recognised and irreversible risk[172]. Secondly, despite a lack of intent on the part of the actor(s) engaging in the causal harmful-conduct, their awareness of the consequences will be paralleled with intent and deliberateness, framing the causal-actor(s) as a subject against whom pre-emptive action can be taken (or duties ascribed to) in order to protect human security. Moreover, (potentially additional) parties must also be identifiable as being responsible for providing such protection to future human security, and thus for implementing the pre-emptive interventional action required to ensure and enforce this protection, where necessary.

This paper will initially demonstrate the synonymy between the imminent and irreversible predicted harms, and actual eco-crimes and severe harms, using the case study of the Po Valley in North Italy as an example. Following the illustration that the causal harmful-conduct can be considered be akin to actual harms, a defence for pre-emptively assigning liability, accountability and responsibility to guilty parties will also be outlined in order to justify pre-emptive intervention.

4.2. Irreversibility and the imminence of eco-harms

While equating an anthropogenic environmental harm to a humanitarian crime or act of aggression can be aptly demonstrated, as in the following section, defining precisely when an environmental harm occurs is a contentious issue, even before any questions regarding the justice of pre-emptive recognition enter the equation. Joel Feinberg, for example, defines harm to be the ‘invasion of an interest’ (1980; 31)[173] and claims that although a threat can be made towards a subject’s interests, a harm is not occurring until interest-levels fall below a tolerable minimum threshold[174] (1980; 33). However as the irreversibility threshold of the predicted eco-harms would occur prior to the actual levels falling below minimum tolerable thresholds, it may be argued that any change (physical, biological or chemical) rendering a resource base permanently or temporarily unsuitable to support human life[175] which has previously – prior to anthropogenic environmental consequences – supported a population, constitutes a gross harm.

In order to deflect either parallels with the notion of taking action based on eugenic pre-emption, or accusations of injustice arising from the potential margins of error in presumption, the unique point of harmful environmental conduct and the consequences which justify pre-emptive action must be explicitly outlined. Environmental conduct which, at some future point, will cause severe and gross harms to human security (via environmental and ecological problems) is unique in the certainty with which it can be predicted (and thus treated pre-emptively) in regard to protection, prevention, and assignation of liability, accountability, and responsibility. In cases not involving an insentient but malleable third party – that being, in this case, the environment[176] – the human capacity for free-will and self-discipline prevents pre-emptive action being justly taken, on the basis that any threatened harms cannot be pre-emptively considered or treated as actual because they are only probable or possible, never imminent. Therefore, even if an actor (or a State) verbally or implicitly threatens another party (directly or indirectly), until the threatened action is actually carried out, the harm caused by that action cannot be pre-emptively considered or treated as actual due to the presence of reversibility – hence, no actor can be held liable or accountable until the harm actually befalls a victim[177].

For example, X may threaten Y explicitly through saying “I will fatally shoot you in 10 minutes”, or implicitly through brandishing a gun or simply revealing its presence in a way that is perceived by Y as threatening, making him feel at risk of being shot. However X cannot be considered to have pulled the trigger and committed the harm before he actually does it, as within those 10 minutes he may change his course of action. Even in the highly improbable case that an insentient malleable actor – say a robot (pre-programmed by X) – was due to shoot Y in 10 minutes time, X (or another actor) could still disable the programming, so the harm could not be considered actual until its occurrence, despite its seeming imminence. Only in the case that the robot could not be re-programmed (or indeed unplugged!) and the victim could not move or be rescued, then, and only then, could X be held accountable and pre-emptive action taken against him based on the harm he caused in advance of the harm actually occurring. This presence of potential reversal renders the harm only probable, meaning X cannot – legally or morally – be considered (or treated as such) to have committed the harm before it transpires. However, in the case of predicted environmental harms, the environment does not possess the free-will or self-discipline to act independently and mitigate the threat of its own behaviour once irreversible threshold levels have been surpassed. In this sense, climate change, being anthropogenic, is akin to using (albeit unintentionally) the environment as a harmful instrument.

The imminent harms consequential to global warming represent gross breaches of human rights and human security, and should be judged no less seriously than the crimes against humanity or breaches of global justice they would become upon occurrence (Westra 2006). If the harmful-conduct continues unimpeded, and the predicted harms transpire, they would be categorised as serious harms, including as threats to human security and humanitarian catastrophes, as will be illustrated through the Po Valley example below. Furthermore, if the same effects were carried out with direct intent and instantaneous manifestation, as either a deliberate act of aggression or crime against humanity, the agents would be held accountable – both morally and legally – for their harmful actions.

4.3. Eco-harms as human security harms. A case study: the Po Valley

Defining and recognising a harm is, in itself, contentious, and a ‘harm’ may be perceived or considered differently depending on the perspectives of ‘victims’, ‘perpetrators’ or ‘observers’ (for extensive deliberations on this see Foucault 1988; Cavarero 2007). In addition to possible discrepancies in defining what constitutes a harm and when exactly it occurs, assuming duty or responsibility to pre-emptively protect indeterminate victims of environmental harms also requires recognising that a subject, in imminent cases, must be considered as being harmed despite the fact that they are not yet suffering. While not rejecting the contentious nature of harm per se, the eco-harms considered herein which will create disastrous consequences on a humanitarian level, are clearly identifiable as harms, being that they imminently create intolerable physical circumstances for victims and their stability, as the Po Valley case study can illustrate.

The Po Valley is identified as one of the most at-risk areas from global warming[178] (IPCC 1990). It comprises 24% of Italy’s overall territory and accounts for 36% of Italy’s overall agricultural production. It is also an essential and strategic region for Italian economic stability – 42% of the national workforce is employed within it, generating 38% of the national GDP (UNESCO 2009: 51-54). The continued human security of its citizens is highly dependent, directly and indirectly, on the sustainability of the river basin. Climate change projections (European Commission Joint Research Committee) based on the SRES A2 emissions scenario (IPCC 2000) predict, by 2100, an increase in the river’s flood levels of more than 40% as well as increased extremities in average temperatures, and rising sea levels (both permanently or with increased frequency). Any permanent submersion due to flooding or raised sea levels may be construed as a territorial threat to land and its uses, including habitation, while the increased flood risks also threaten human life and livelihoods. Flooding has a severe economic impact on the region’s inhabitants and their ability to maintain a secure way-of-life, as well as having the potential for each flood to become a humanitarian-disaster – as with the floods of 1951, 1994 or 2000 – (see Hardenberg; Marchi et al 1995:23-24; Carroll 2000) resulting in widespread loss of life or disease. Additionally, data collated over 130 years (up to 1996) has shown that maximum temperatures increased in the region by nearly 0.6°C, and minimum temperatures by 0.4°C. An increase in temperature such as this also poses severe harms to human security, for example the 2003 European heat wave correlated with a 36% drop in the region’s crop yields (threatening food security) and was linked to high increases in death rates (Conti, Meli et al 2005).

As the above data illustrates, such environmental consequences manifest as threats to human security[179], and thus equate to imminent severe harms including as crimes against humanity (in its broader definition as being an inhumane act carried out on a large scale upon a specific population) and humanitarian disasters. If these consequences occurred instantly, directly or intentionally they would warrant sanctioned intervention under the auspices of, for example, humanitarian assistance, jus ad bellum self-defence, or the Responsibility to Protect doctrine (ICISS 2001).

4.4. (Un)Intentionality (in)directness and accountability

Prior knowledge of the harmfulness of an action, such as the causal actions of the consequences outlined above, should justly be considered akin to intent in regard to assigning liability, accountability and responsibility. As such, inaction to protect the future victims of these harms should view – and invoke action towards – both the responsible and accountable[180] actors as if they were presently and deliberately causing (or facilitating) those harms. Furthermore, due to the cumulative nature of environmentally harmful-conduct, it is admissible that all correspondent actions (or the actors who execute them) which accumulate to cause a harm – such as climate change – must be considered responsible for that harm. This cumulative nature of the accountability, responsibility and liability for causing harm is outlined by J.J Thomson (1986) in her hypothetical case of poisoning a fish pond; if the pond is poisoned in three stages, but only the third and final cup of poison raises the poison to the level which actually kills the fish, she claims that “Each act in the series causes a harm: the last act causes a far more serious harm than the preceding members, but would not have caused the far more serious harm if it had not been preceded by the earlier” (1986; 173-174 emphasis added).

To demonstrate the justification for both pre-emptive action against imminent harms, and assignation of liability, despite the indeterminacy of victims, the difference between probable and imminent harm must once again be highlighted. So supposing X illegally[181] buries a harmful substance, which is unearthed 20 years later by Y and her 5 year old grandchild (Z), both of whom are then harmed; X is liable for that harm. However in such a case, the harm is only probable as opposed to imminent, as for the harm to occur an indeterminate (at the time of the harmful-conduct) someone – who turned out to be Y – had to unearth the substance. Conversely, say X instead releases pollutants into the water supply, wherein the water which is polluted is the only water supply available to Y and Z, thus ingestion and use is out of the indeterminate victims’ control. If the harmful effects are accumulative, so do not occur for 50 years, but will then harm Y and Z, the harm would be considered imminent and therefore X could pre-emptively be held liable for the harm (presuming the pollution was irreversible, use of the water was unavoidable, and no alternative water source was available).

These scenarios, with their accumulative and time-delayed harmful effects, are comparable to the environmental harms I am asserting as warranting pre-emptive action, such as those outlined by the case study. Given the bio-regional transience of environmental causal-factors and harms, pre-emptive intervention on behalf of the citizens of an area identified as being imminently harmed in one place (such as the Po Valley), would occur to prevent a causal action in another place[182].

From an environmental perspective[183], analysing an actor’s behaviour pre-harm can also provide evidence of intent, as the availability of reliable and consensual predictions (as outlined in the introductory section) discounts any exemption of responsibility due to claims of unawareness. In the case of an actor who releases emissions, who intends to harm no–one in particular but is nonetheless aware that the consequences and effects of his acts are predicted to harm some-one at some point, he is not absolved from accountability due to lack of direct intent as awareness of the act harming an indistinct ‘some-one’ at a future point exists – and once ‘someone’ is harmed that victim becomes someone ‘in particular’ (Reiman 1998 as cited in Hillyard 2005;10). Despite the imminent victim(s) being indeterminate, the recognition that there will be a victim justifies the call for pre-emptive intervention to protect them.

Based on the evidence and circumstances briefly outlined throughout this paper, the imminence of environmental harms, and their demonstrated parallels with gross harms, humanitarian disasters and crimes against humanity, coupled with the awareness of consequence accepted by the causal actors (or facilitators) – rendering them liable and responsible – presents a clear and rational case for treating these threats and risks as harms pre-emptively, in order to protect the human security of future victims.

For example, we saw that, in particular, in his essay Philosophy at the End of the Century, Hans Jonas describes the crisis he sees arising from the threat we pose to the planet’s ecology”, one that forces us to look anew at “one of the oldest philosophical questions, that of the relationship between human being and nature, between mind and matter: in other words, the age-old question of dualism. Jonas sees the ecological crisis originating in unrestrained scientific and technological development occurrung without an objective ethical framework to serve as a guide. Ethics lags behind action and consists of weaks attempts to circumscribe the potentially negative consequences of action already set in motion[184].

Furthermore, although the scope of this paper does not allow for specific extension into non-overlapping intergenerational theorising, the claims and framework of the argument for treating imminent harms as actual harms despite the indeterminacy of the victims, is equally applicable to future generations[185], including those not-yet-born[186].

«The notion of intent presupposes, and then consolidates, a moral hierarchy which, once examined, negates common sense, certainly from the viewpoint of social harm.

Reiman effectively illustrates this point by contrasting the motives (and moral culpability) of most acts recognised as intentional murder with what he calls the indirect harms on the part of absentee killers».

(Hillyard et al 2005; 9; 28-35)

From ‘classic terrorism’ to Environmental Terrorism. An unprecedented pandemic crime against the Earth’s humanity

The world is currently facing one of its most severe public health crises. At the time of this paper, there are more than 3 million confirmed cases of COVID-19 worldwide,[187] those numbers being far below the reality of the spreading since in various countries, only symptomatic persons are actually tested.

In Europe, the European Commission took the initiative to support short-time work and announced an investment of 37 billion euros to help small companies and the healthcare sector.[188] However, voices have been critical of the lack of action of the European Union (EU) and denounced the lack of European solidarity. It is worth recalling, nonetheless, that the member states did not confer a competence to the EU in public health. The EU has only a supporting competence in the field, which excludes the adoption of laws. According to the treaty on the functioning of the EU, it can only ‘support, coordinate or supplement the actions of the Member States’,[189] in order to achieve common objectives. Therefore, in pandemics such as COVID-19, states remain the first authorities to take administrative and financial measures, and the EU can complement such policies.

This leads to a disparity of national strategies. Italy or France imposed a strict confinement in order to limit the spreading of the virus, going until curfews in a few municipalities. Denmark, with its smaller population and lower rate of confirmed cases, was able to adopt a softer version of confinement and social distancing after an early closing of the borders. None of those countries currently realizes massive testing like in Germany though, which fatality rate is lower than the other European states.[190]

Lack of masks and equipment continue to be a challenge and generate discourses on state sovereignty and practices of national priority despite collaborative initiatives. There will be a time to discuss the teachings of this crisis and to enhance a social Europe alongside the common market. Before that, this time of emergency also questions the protection of fundamental rights.

The 27 EU member states are also members, together with 20 other European states, of the Council of Europe, a regional organization based on the European Convention on Human Rights (ECHR). The European Court of Human Rights qualified this founding text as an ‘instrument of European public order’.[191] The Convention contains a list of rights, most of which can be limited for valid purposes including public health. Providing that they are ‘necessary in a democratic society’, those limitations are acceptable in normal times.[192] However, the COVID-19 crisis is not normal times.

In the rhetoric of French President Emmanuel Macron, ‘we are at war’.[193] In those particular circumstances, the Convention holds a specific provision authorizing to derogate unilaterally to conventional rights. Article 15, entitled ‘derogation in time of emergency’, permits states ‘in time of war or other public emergency threatening the life of the Nation to take measures derogating from its obligations . . . ’.[194] Similar provisions can be found in Article 4(1) of the International Covenant on Civil and Political Rights (ICCPR), Article 27(1) of the American Convention on Human Rights (ACHR), or Article 4 of the Arab Charter on Human Rights. Singularly, the African Charter does not contain any provision on derogation, and the African Commission deduced that no derogation was possible.[195] The possibility to derogate in times of emergency does not substitute itself to permissible limitations of human rights, and if states can attain their public policy objectives without using derogatory measures, they should do it.[196]

Emilie Hafner-Burton et al. defined derogations as ‘a rational response to the uncertainty, enabling governments to buy time and legal breathing space from voters, courts, and interest groups to combat crises by temporarily restricting civil and political liberties’.[197] Derogation clauses do not, according to Gerald L. Neuman, contradict the notion human right butmay on the contrary contribute to their effective protection.[198] Indeed, states have positive obligations toprotect the right to life,[199] which might justify derogations to some other human rights.

In this regard, the Human Rights Committee published a statement on April 24 2020, calling on state parties that have taken emergency measures ‘to comply without delay with their duty to provide immediate notification to the Secretary General of the UN’.[200] To this date, neither the UK nor Germany notifies the Council of Europe of their intent to derogate in this COVID-19 context. France, who had made such notifications between 2015 and 2017 in the context of terrorist attacks, did not do it either, despite the declaration of state of health emergency, the severity, and generality of the measures already taken.[201]

Similarly, the USA, which ratified the ICCPR in 1992, did not make a notification to the Covenant.[202] In normal times, the exercise of fundamental rights can conflict with each other or with collective interests. States are entitled to balance such interests and limit some of those rights if necessary. In exceptional circumstances, more severe restrictions and derogations can be admitted.

However, in the following sections, even if under international human rights law, States can limit the exercise of most human rights if it is necessary to protect the rights of others or collective interests, we will not discuss the applicability of the derogatory regime to human rights in the context of COVID-19.[203]

Rather, our attention will be focused on the fact that, with the increasing environmental degradation in spaces most affected by climate change such as the Arctic, and the extension of human-caused environmental problems even into the Earth’s orbit, international law is battling with some unprecedented challenges.

From a legal perspective, the law must address the legal consequences of unprecedented environmental impacts of human activities on a planetary scale. One aspect of this new phenomenon is the question of how to account for processes such as greenhouse gases and increased orbital debris and their agency beyond human control. Anything that makes a difference to other actors is an agent. Much of the scholarly discussion surrounding this question is taking place in the abstract, such that there are no exact proposals for methodological and practical applications in lawmaking.

In this final part of the present article, I argue that current governance relevant to the Arctic and outer space precedes a full understanding of these spaces. I propose a new approach and method of lawmaking under a broad term of “cosmolegal.” The cosmolegal proposal challenges distinctions between scientific and social laws and it questions the foundational determination of both. The cosmolegal method would serve to recognize the capacity of the non-human, including objects such as gases or rocks, to have agency. The framework I suggest in this Article, therefore, requires accuracy in lawmaking, which could be achieved by greater transdisciplinarity and acceptance of other ontologies, such as indigenous peoples’ knowledge.

5.1. International Law and his battle against an unprecedented challenge: the “cosmolegal” dimension

The Arctic is one of the fastest warming places on the planet. As temperatures rise, the frozen layer of soil, called permafrost, begins to thaw, releasing methane (CH4) and other greenhouse gases (GHGs) into the atmosphere. These emissions accelerate future warming, and the extent of these effects requires ongoing measurements of the emissions and related environmental factors.[204]

In July 2020, an explosion in the Yamal Peninsula above the Arctic Circle caused by subterranean gases opened up a massive hole. Russian scientists found the 50-meter crater on an expedition.[205] They named it Crater 17, as 16 similar objects have been discovered in Siberia’s extreme northwest since the phenomenon was first observed in 2014.[206] Yevgeny Chuvilin, a Moscow-based geologist with the Skolkovo Institute of Science and Technology, told the New York Times that “it was making noises. It was like something alive.”[207] The inaccessibility of the Arctic region has limited various types of ground-based observations to places with existing infrastructure, which can delay understanding of phenomena such as the methane craters. This is where outer space technology has been crucial. Satellite observation has been one of the ways to monitor such phenomena.[208] Ability to identify the likely causes of the distribution of CH4 hotspots, for example, will help to more accurately calculate GHGs emissions and forecast the region’s impact on global climate and global climate change impacts on the Arctic.[209]

The above-described study demonstrates how various disciplines span across different domains in order to address climate change on Earth. This Article identifies two planetary environmental challenges: (1) the effects of climate change on the Arctic, a focus on the greenhouse gas (GHG) emissions in the Arctic resulting from the melting permafrost and ice, as well as direct human activities; and (2) orbital debris, or human-made objects polluting the Earth’s orbit, and other forms of interplanetary pollution.[210] Orbital debris poses a risk to functional space objects in orbit. It hinders observation of the complex variables involved in climate change, such as the melting permafrost and ice in the Arctic. International law lags behind these developments and lacks effective regimes for the regulation of climate change or orbital debris mitigation.

New forms of access to remote areas of the Earth and outer space are increasingly facilitated by technological and scientific advances now combined with growing privatization. This includes the many firms launching mega-constellations and planning future microgravity platforms.[211] Space technology also delivers data crucial for monitoring climate change in remote regions of the Earth such as the Arctic. The theoretical premise of this Article is that the non-human phenomena, like GHGs and orbital debris, are unpredictable and disruptive agents. They are unintended results of human activities and, in turn, have the capacity to affect all planetary life, both human and non-human.

This Article proposes a concept to encompass the process of learning and lawmaking through which the law would recognize the unpredictability of human and non-human relations, or the cosmolegal. It responds to the need for a new ontological understanding of the global politico-juridical space. What are the implications of recognizing that everything – including rocks, polluted air, the oceans – is alive? Cosmo-legality emerges from theories on posthuman legalities that argue for a move beyond the centrality, for law, of the human subject that acts upon the world, the cosmos, as its object. It proposes that anything that makes a difference to other actors is an agent. Instead of giving the complete picture of world dynamics, cosmolegality would have to leave a free parameter or some disjunction for future contingencies and uncertainties on Earth and in outer space. The main hypothesis of this Article is that the international legal response to climate change on Earth, atmospheric pollution, and pollution caused by human activities in orbital space requires a new approach to the law itself at the ontological level. Beyond its scope, however, is the very discussion of the internal human split of its biological and subjective agency, and by default, the capacity to any complete understanding of consequences of human activities, including scientific and technological advances.

The “resource rush” in the Arctic and outer space reveals the short-sightedness of attempts to instrumentalize and colonize these spaces while sidestepping environmental problems. The new space race is leading to a saturation of orbital carrying capacity unless we holistically understand and can predict the behaviors of the anthropogenic space object population, both dead and alive. The cases of the Arctic and outer space are both subject to the current state-extractive industry promotion of a “rush” for resources in newly accessible spaces, while both are governed by international regimes that do not directly respond to the magnitude of the ongoing environmental degradation. The orbital space also has capacity limits, which are not only determined by the number of anthropogenic space objects in a specific orbital neighborhood, but also the uncertainty in how these objects will behave in the future.[212]

The dominant debates in international law as related to ongoing and future human activities in outer space have focused recently on the military and commercial uses of outer space, with international lawyers participating in the delineation of what the public-private, state-commerce nexus of relations should become.[213] The recent Executive Order on Encouraging International Support for the Recovery and Use of Space Resources signed by President Trump[214] encourages international support for the public and private recovery and use of resources in outer space. SpaceX launches continue to pose some questions regarding their impact on the environment.[215] The discussion and proposal for the bilateral Artemis Accords has intensified in recent months, arguing that:

“International space agencies that join NASA in the Artemis program will do so by executing bilateral Artemis Accords agreements, which will describe a shared vision for principles, grounded in the Outer Space Treaty of 1967, to create a safe and transparent environment which facilitates exploration, science, and commercial activities for all of humanity to enjoy”.[216]

However, the space environment question requires a consideration of its existence beyond potential utility for the human species. What evades human law is that much of the Earth system and the extraterrestrial space beyond Earth are operating under the laws of physics, chemistry, biology, and so on. This includes human bodies. Viruses, gases, or rocks do not in any way, shape, or form bend themselves to public policy. This has become evident in the current pandemic but has been a long-term issue for humanity’s mainstream legal theory, study, and practice. The current legal systems addressing climate change and outer space are not driven by the realities of their environments, but by the formalistic and human-focused structure of international law. There is much discussion on international environmental law, climate regime, and at the moment, outer space law, which is again on the agenda in interstate relations. There is, as of yet, no encompassing “bird’s-eye” normative view that addresses the core problem of international legal form and practice.

The cosmolegal proposal builds on the hypothesis of profound interrelatedness in the Earth system.[217] Earth System Science (ESS) is the application of systems science to Earth sciences and approaches the Earth as a self-enclosed system, which includes interacting physical, chemical, and biological processes. The Earth system approach also allows us to understand the Earth on a planetary scale.[218] Human-caused environmental problems are not only contained on Earth. For this reason, we need to connect how human activities affect the environment beyond the uppermost layers of atmosphere, in the Earth’s orbit, and into the more “cosmic” realm.

The applied definitions in this Article are as follows. Outer space refers to the region beyond the earth’s atmosphere that begins at an altitude of 100 kilometers above Earth’s sea level.[219] An orbit is defined as a regular, repeating path that one object in space takes around another one. An object in an orbit is called a satellite. A satellite can be natural like the earth or the moon. A satellite can also be man-made, like the International Space Station. The Arctic region is understood as encompassing the Arctic Circle and Iceland’s northern maritime zones.[220] I derive the term cosmolegal partially in reference to the term cosmovision in order to recognize the plurality of cosmovisions. The term cosmolegal merges cosmology, a branch of astronomy that involves the scientific study of the large-scale properties of the universe as a whole, with law, due to the need for a different understanding of the Earth and human-centric, global, politico-juridical space. It allows for a shift in the imagination and understanding of the cosmos, which would not see the human and its laws as a central actor of the Earth system and beyond, or as the apex owner and manager of its environment. Rather, the human is only one of the actors of the cosmos, known and unknown.

This Article will be divided as follows. The first section focuses on the CH4 craters in the Arctic and orbital debris in the context of applicable current legal regimes. It demonstrates how current regimes are insufficient to address the volumetric nature of greenhouse gases. The second contains the outlines for the cosmolegal proposal. There is no strange teleology here that suggests that rocks, CH4, or orbital debris, for example, have intentional goals and aims. Rather, agency is the manner in which they modify the action of other entities or are directed by laws of gravity, thermodynamics, and so on. The hubris of the current dominant conceptualization of law lies in its determinism that humanity has an endless capacity to adapt and thrive through scientific and technological inventions, even in the context of environmental degradation. However, in extreme spaces which are not inherently friendly to human life such as outer space, the deep seas, parts of the polar regions, and so on, the outcome is not determined. For this reason, cosmolegality is meant to provide a non-foundational and very broad space for a rethinking of lawmaking that would account for this indeterminacy.

5.2. Methane craters in the Arctic and orbital debris

Capacities or agencies of the non-human is not meant to become a version of human subjectivity. Rather, they are meant to be understood as much as possible on their own terms. This means that human laws would need to recognize that phenomena such as deglaciation, the atmospheric unknowns of climate change, and orbital debris are indeterminate yet relevant for human survival and global governance. The non-human world does not see the human as the human sees itself. The Earth system includes human influences and is influenced by it, or is indifferent to the needs of human survival. The outer space environment and the deep sea are not friendly to human survival and will not change to accommodate it. Rather, the human is able to access them with human-made technologies and, sometimes, with unpredictable consequences.

Despite its implications for all lawmaking, the cosmolegal proposal focuses on international law because climate change and orbital debris are planetary challenges. Both climate change and technological developments have contributed to the changing human interests in the non-human-dominated and still not fully understood realm of outer space: Extraterrestrial environment is now an opportunity for further commercial expansion such as proposed space tourism or asteroid mining[221] and even the search for the planet B solution.[222] In addition, the fluidity and extraterritoriality of aggregate states beyond matter solidity[223] have been a challenge for jus publicum terrae since the question of what law could the law among nations apply to the air or in the “free sea.”[224] As a wealth of relatively recent scholarship on the history of international law has demonstrated, sixteenth and seventeenth century authors were charting out a law that would secure the right of free commerce.[225] They did so, however, by applying the Christian theological notion of imago Dei, or that the human is created in the image of God and as such is different from other animals.[226]

These origins stand at the core of our current international legal architecture and are also visible in the UN Convention on the Law of the Sea (UNCLOS)[227] and Outer Space Treaty (OST). Both regulate certain collective utility and moral decisions, which are humancentric, and more precisely, state- and commerce-centric in the decision-making processes. The cases of the Arctic and outer space are both subject to the current state-extractive industry promotion of a rush for resources in newly accessible spaces, while both are governed by international regimes that do not directly respond to the magnitude of the ongoing environmental degradation.[228] What follows this section focuses on two “test-labs” of the contemporary international legal regime: Climate change in the Arctic and orbital debris.

5.3. Climate change in the Arctic

The Arctic region is warming two times faster than the rest of the globe, and this may influence natural sources of GHGs such as CH4, most of them being temperature dependent. Scientists hypothesize that the large craters embedded within CH4-leaking subglacial sediments in the Barents Sea and Siberia were likely widespread across past glaciated petroleum zones. They also provide an analogue for the potential future destabilization of sub-glacial gas hydrate reservoirs beneath contemporary ice sheets.[229] If CH4 is allowed to leak into the air before being used, it rapidly absorbs the sun’s heat, warming the atmosphere and contributing to the positive feedback loop of climate change in the Arctic and the rest of the Earth system due to global warming.[230]

In the Arctic, CH4 is the major component of natural gas and is anthropogenically released into the atmosphere from a variety of sources and activities including coal mining, leaking natural gas pipelines, ruminant livestock such as cows, rice paddies, and solid waste facilities.[231] CH4 emissions in these industries could be the result of leaks from compressors, pumps, and pipelines, or vented from oil and gas wells and petroleum storage tanks.[232] Like CO2, complex metabolic heat production and CH4 emissions need to be translated into the language of the law. Annex A to the Kyoto Protocol lists the six different greenhouse gases covered by the Protocol: Carbon dioxide (CO2); methane (CH4); nitrous oxide (N20); hydrofluorocarbons (HFCs); perfluorocarbons (PFCs); and sulphur hexafluoride (SF6).[233] Different greenhouse gasses all have their own properties, characteristics, and lifetimes or periods of potency. In accordance with the Kyoto Protocol, they are represented in standardized terms of one ton of carbon dioxide equivalent (1tCO2e). 1tCO2e is already “standardisable, exchangeable and commodifiable and ultimately tradable” under international law.[234] This model has also led to the well-documented problem of carbon leakage, which refers to the situation that may occur if, for reasons of costs related to climate policies, businesses were to transfer production to other countries with laxer emission constraints. CO2 pricing and trading could lead to an increase in total emissions.[235] The carbon pricing instruments such as ETSs, carbon taxes, offsets, and hybrid instruments, such as variations of results-based climate finance, have been identified as essential in leveraging these financial transfers and enabling cooperation to mitigate climate change.[236]

The regimes governing the Arctic at present do not necessarily fully accommodate the emergent climate-change-induced problem. In addition, global warming has been met with somewhat dubious reactions from the international community of states. Scientists suggest that the Paris agreement goals should be more aggressive if, as it states in its Article 2, we are to avoid reaching the 2°C temperature rise threshold relative to preindustrial times set therein. Scientists suggest this despite having the United Nations (UN) Climate Change Conferences organized every year since 1995,[237] the 1997 Kyoto Protocol,[238] and nearly all UN member states signed the Paris Agreement (COP21). [239]

The central aim of climate governance has been to strengthen the global response to the threat of climate change, increase the ability of countries to deal with the impacts of climate change, and to make finance flows consistent with a low greenhouse gas emissions and climate-resilient pathway. Part of this strategy has been to establish international carbon markets as a dominant climate mitigation strategy.[240] To reach these goals, appropriate mobilization and provision of financial resources, a new technology framework, and enhanced capacity-building are to be put in place, thus supporting action by developing countries and the most vulnerable countries in line with their own national objectives. As climate governance coexists within the rest of the international law’s multiple and overlapping regimes[241] – that is to say, a space fragmentation and many normproducing sites, which often function in parallel, conflicting, or overlapping ways – the globality of its aims is continuously mitigated by those plural interests.

The existing regimes governing the Arctic,[242] remain fragmented and, in fact, complicit in the facilitation of interests of individual state-commercial-territorial nexus.[243] Earth systems governance scholarship is relevant for novel understandings of global governance through processes that include reformulations of notions of responsibility and agency.[244] However, the fragmentary nature of global governance includes asymmetries that are deeply rooted in the historical, philosophical, political origins of the “law among nations.” As such, these asymmetries require more than just a reordering of governance structures, but an “ontological turn” in how humans self-position in the Earth system.[245] This, as is here argued, becomes even more evident if we understand the planetary implications of human activity.

5.4. The UNCLOS Regime in the Arctic

In the case of the Arctic, in the Ilulissat Declaration,[246] the coastal states of the Arctic Ocean have codified the legal regime in the Arctic on the basis of the law of the sea rather than UNCLOS specifically, because the United States is not a party. However, as most of the law of the sea is codified in UNCLOS, it is significant as it forms the core framework of Arctic governance; especially significant is the question of Exclusive Economic Zones (EEZs). With deglaciation, approximately forty percent of the Arctic high seas is now open during the summer months, presenting commercial and industrial opportunities. It also alters the dynamics of the Earth system altogether, including ocean currents and ocean salinity. The area is defined in Article 1(1) of UNCLOS as “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction.” Global warming has immediate consequences for the ongoing debates regarding, among others, regime fragmentation and interactions, and it also can serve as a test for the possibilities of future forms of supranational governance, transnational governance, and treaty making.[247] The Arctic high seas are the 2.8 million square kilometers that lie beyond the combined EEZ of the coastal states of the Arctic. The legal distinction between state jurisdiction and the area does not correspond to the current blurring of the lines which determine what we define as territory, or the EEZ, as determined by novel geological and other changes in the Earth system.

The structure of the Arctic governance is influenced by the combination of the UNCLOS framework of treaties, institutions, and implementing agreements as well as by the interests of sovereign nation-states. UNCLOS “lays down a comprehensive regime of law and order in the world’s oceans and seas, establishing rules governing all uses of the oceans and their resources.”[248] The treaty was modified in 1994 by an agreement relating to the implementation of Part XI of the treaty, which relates to the seabed and ocean floor and subsoil that are beyond the limits of national jurisdiction.

The UNCLOS grants the Arctic state on whose continental shelf they are located the exclusive rights to exploit any resources potentially existing there.[249] As most of the Arctic is under the jurisdiction of one of the Arctic states, the international legal response to climate change as well as the extraction of resources in the Arctic has been mostly connected to individual state interests: Potential “grabs in the Arctic,” questions of territorial sovereignty, access to the deep extractive industries, and other forms of natural resource exploitation.[250] An extended continental shelf could mean access to profitable resources in the near future.[251] Climate change has particular implications for UNCLOS provisions reliant upon water depth, contained in Article 76(5) on continental shelf delimitation. The potential sea-level rise also influences the definition of land under Article 121(3). Article 7(2) has a special rule designed for such conditions: “Where because of the presence of a delta and other natural conditions the coastline is highly unstable notwithstanding subsequent regression of the low water line, the straight baselines shall remain established.” This provision emphasizes legal certainty over geological and geophysical changes. The task of regulating GHG emissions is outside the scope of UNCLOS, which can only address the effects of climate change and not its root cause in terms of the source of GHG emissions.

Under UNCLOS, extractive activities in the area are to be carried out in such a manner as to foster healthy development of the world economy and balanced growth of international trade, and to promote international cooperation for the overall development of all countries, especially developing states, per Article 150. If a corporation extracts the resources, the title to the resources shall pass upon recovery in accordance with UNCLOS Annex III, Article 1. Annex III of the Implementation Agreement of 1994 was added in response to the lack of support by a number of industrialized states for the 1982 outcome of UNCLOS negotiations.[252] In the Preamble, it refers to “the political and economic changes, including market-oriented approaches, affecting the implementation of Part XI” and its overall purpose to “facilitate universal participation in the Convention.”[253] The Agreement emphasizes the role of individual states and the globalized values of market economics.

Different regimes that overlap in the Arctic include the deep seabed mining law as laid down in Part XI on the area, Part XII on Protection and Preservation of the Marine Environment of UNCLOS, the relevant Annexes, the 1994 Implementation Agreement, and secondary law adopted by the ISA. They function in the context of other norms of international law that may complement the norms on responsibility and eventually subject deep seabed miners to strict liability obligations. For instance, UNCLOS Article 304 states that the provisions “regarding responsibility and liability for damage are without prejudice to the application of existing rules and the development of further rules regarding responsibility and liability under international law.”

However, the UNCLOS regime does not provide for strict liability, but responsibility for wrongful conduct. Other international legal instruments that do provide for liability in the sense of liability for damage resulting from hazardous activities include the Outer Space Treaty (OST),[254] the Convention on International Liability for Damage Caused by Space Objects, the Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA), which never entered into force, or the Convention on Civil Liability for Oil Pollution Damage. For example, CRAMRA or the OST did not seek to promote commercial mining activities.[255] Instead, these regimes prioritized ecosystem protection, prohibited mining in the absence of adequate information, and provided for strict liability of operators.[256] Notwithstanding this approach, as the following section shows, it is these gaps present in the OST regime that have allowed for individual state legislation that promotes outer space mining without clear provisions for environmental protection.

The process initiated by the UN General Assembly (UNGA) Resolution 69/292 to develop the elements of an internationally legally binding instrument (ILBI) for conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction has contributed to a discussion regarding a more integrated and cross-sectoral system of oceans governance at a global and regional scale.[257] Centering only on areas beyond national jurisdiction does not take into account the fluid nature of the effects of climate change on the seas, ice, and the atmosphere. It is not clear how the sectoral- and boundary-defined approach would coordinate with broader climate change concerns and consequences.

The Arctic Council itself has called for the use of what it refers to as Ecosystems-Based Management (EBM). The EBM system articulated nine constituent principles, some of which recognize, inter alia, “that ecosystems and human activities are dynamic, that the Arctic is undergoing rapid changes, and that our understanding of these systems is constantly evolving, successful EBM efforts are flexible and adaptive.”[258] The EBM recognizes the need to reconcile a plurality of interests in the region. There is no single responsible institution whereby assessments would be coordinated in a central way, nor do the scientific understandings of the approaches to use converge. Indeed, this is necessary due to the expertise-based diversity of all the involved sectors. The EBM approach emerges from concerns over the protection of endangered species.[259] It can recognize the position of a particular species in the ecosystem context, which includes humans. However, as discussed in the previous sections, the CH4 release into the atmosphere requires a step beyond the environmental protection approaches and also needs to recognize the not easily controlled “unintended consequences” of climate change. The latter is much more global in scale than the proposed EBM approach.

Instruments such as the UNCLOS and OST confer on states the role to ensure the compliance of private actors in relation to potential environmental harm resulting from resource extraction. However, the current authorization of extractive activities under UNCLOS or the increasing promotion of outer space activities under the OST have also widened the gap that allows for further “resource rush” for private industries and beyond national jurisdiction. This brief and non-exclusive discussion of legal regimes applicable in the Arctic demonstrates the ongoing limitations posed by the inherent state-centric and human-centric approach to global governance. The language of various instruments may reorient the focus of regulation and governance on conservation and protection. However, these have emerged without a coordinated effort to position the Arctic within the all-encompassing problem of global warming. Nor is there an attempt to fundamentally challenge the global political paradigm that is, in fact, internally self-limiting in any serious attempts to address global warming. Namely, the anthropocentric and state-centric foundation of international law has not allowed for the recognition of the full impact of climate change on the Earth system as a whole, or now more visible challenges of orbital debris.

5.5. Orbital debris

There are two ongoing issues in outer space governance that have intensified with advancements in technology and increased human access: Orbital debris in the low Earth orbit (LEO) and the governing of resource extraction in outer space. First, the current liability for damage resulting from hazardous activities does not specifically address private actors, as all activities in outer space are “national activities.” Second, the private extension of human activity into outer space requires more monitoring because the existing international instruments focus on state-level responsibility.[260]

The Committee on the Peaceful Uses of Outer Space (COPUOS) has been the forum for the development of international space law. It has concluded five international treaties and five sets of principles on space-related activities.[261] These five treaties deal with issues such as the non-appropriation of outer space by any one country, arms control, the freedom of exploration, liability for damage caused by space objects, the safety and rescue of spacecraft and astronauts, the prevention of harmful interference with space activities and the environment, the notification and registration of space activities, scientific investigation and the exploitation of natural resources in outer space, and the settlement of disputes. Each of the treaties stresses the notion that outer space, the activities carried out in outer space, and whatever benefits might be accrued from outer space should be devoted to enhancing the well-being of all countries and humankind, with an emphasis on promoting international cooperation.

Environmental impact of activities in space unfolds on multiple scales: local and stratospheric emissions from space launches, the placement of outer space related infrastructure in so called peripheral places, and the role of power in determining whether the use of such infrastructure aids socio-environmentally constructive or destructive practices.

To understand how serious the problem of space debris is, we need to first understand that LEO acts like highways for resident space objects. In other words, LEO contains limited lanes where satellites most naturally fall into orbit. As objects are continually launched into space, things are beginning to interfere with these paths, putting working satellites in danger.[262] These satellites are used for critical services such as telecommunications and national security, but we also rely on them to gather information for important decisionmaking about agriculture, meteorology, climatology, and more. It is also important to recognize that most things put into space never come back or remain in orbit for well beyond our lifetimes. NASA estimates 500,000 human-made fragments, from the size of a speck of paint to a whole school bus, orbit Earth today.

Each piece of space debris can also collide with other objects at speeds faster than a bullet. This means that the population of space debris is self-growing as more things collide and break into even smaller pieces. Each country maintains an independent catalog of items, oftentimes keeping information isolated and difficult to access.

The orbital debris problem is further complicated by the economic interest in asteroid mining and commercial uses of outer space, which focus on the new delineation, ownership, privatization, and extraction of space resources. Echoing a French law from the beginning of the eighteenth century, Article I of the Luxembourg Draft Law on the Exploration and Use of Space Resources argues that “there is an even closer analogy in legal terms between space and the sea.”[263] According to the adopted law of July 13, 2017 that entered into force on August 1, 2017, Luxembourg’s main objective is to provide “legal certainty as to the ownership of minerals and other valuable space resources identified in particular on asteroids.” The adopted law argues that OST only prohibits the ownership of celestial bodies, but not the potentially extracted resources. It separates the definition of a celestial body from any resources to be found on that body.

Orbital regions represent valuable resources because they have characteristics that enable spacecraft operating within them to execute their missions more effectively. Functional spacecraft share the near-Earth environment with natural meteoroids and the orbital debris that has been generated by past space activities. Meteoroids orbit the Sun and rapidly pass through and leave the near-Earth region, or burn up in the Earth’s atmosphere, resulting in a fairly continual flux of meteoroids on spacecraft in Earth’s orbit.[264] In contrast, artificial debris objects, including non-functional spacecraft, spent rocket bodies, mission-related objects, the products of spacecraft surface deterioration, and fragments from spacecraft and rocket body breakups, orbit the Earth and will remain in orbit until atmospheric drag and other perturbing forces eventually cause their orbits to decay into the atmosphere.[265] Because atmospheric drag decreases as altitude increases, large debris in orbits above about 600 kilometers can remain in orbit for tens, thousands, or even millions of years.[266]

The possible mechanisms to regulate active space debris removal, including the issues arising in the implementation of active debris removal mechanism in law and the necessity for international cooperation at all levels regarding space debris issue, have yet to be developed. Presently, there is no internationally-agreed legal definition of orbital debris. It is generally understood to be human-made objects – including their fragments and parts, which are in orbital space, re-entering the Earth’s atmosphere, or reaching the Earth’s surface – that are non-functional with no reasonable expectation of being able to assume their intended functions or any other functions for which they are or can be authorized.[267] As the functional status of a space object does not, as such, affect the applicability of rules of international space law, orbital debris remains subject to the same rules, which apply to space objects.

Some spacefaring states have voluntarily implemented non-binding space debris mitigation measures into their national space laws and technical standards as mandatory requirements.[268] For other states, such recommendatory instruments can serve as an indication of an expected standard of due regard. In implementing space debris mitigation measures on a voluntary basis, states are recommended to follow some of the existing non-binding guidelines and technical standards, which have been developed by international governmental and non-governmental organizations and other international forums.[269] In 2007, the UN General Assembly endorsed the Space Debris Mitigation Guidelines of the UN COPUOS[270] and agreed that these voluntary guidelines reflected the existing practices as developed by a number of national and international organizations.[271]

Article I, paragraph 2 of the OST[272] provides that outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all states. However, there can also be a situation where a space operation of State A carried out near an asteroid generates a multitude of space debris orbiting around such asteroid on different planes, thereby making it technically impossible for a scientific spacecraft of State B to complete its space mission by landing on this asteroid and collecting a probe. In this situation, State A’s creation of space debris infringes the freedom of exploration and use, which can no longer be enjoyed with respect to the asteroid in question, neither by State B nor by any other state. Article VI of the OST[273] stipulates that an appropriate state shall bear international responsibility for national space activities involving a space object, which can be classified as space debris, and for assuring that such activities are carried out in conformity with the provisions set forth in the OST. The second sentence of Article IX of the OST states that studies of outer space shall be pursued, and the exploration of outer space shall be conducted, so as to avoid its harmful contamination, and that States shall adopt appropriate measures for this purpose.[274] Article 7, paragraph 1 of the Moon Agreement contains a similar provision – it obliges state parties, in exploring and using the Moon, to take measures to prevent the disruption of the existing balance of its environment by its harmful contamination.[275] Importantly, space debris has an impact on the fragility of the outer space environment[276] and is qualified as contamination strictu sensu.

For instance, if a space operation of State A that strictly followed space debris mitigation guidelines and standards nevertheless caused damage to an in-orbit space object of another state, proving State A’s fault may prove to be a more difficult task in comparison with proving fault of State B, who failed to comply with any of such guidelines and standards when carried out its space operation, which caused damage to another state’s space object. As there are no mandatory international guidelines or standards of conduct for states and international organizations with respect to the creation of space debris, none of them can be used to definitively assess fault for the purpose of establishing international liability under Article III of the Liability Convention or to establish a universal standard of due regard. The recovery and return of space objects, which in such circumstances are usually space debris, is a central focus of the Rescue Agreement.[277] In addition, it obliges the launching authority to immediately take effective steps to eliminate the possible danger of harm, which is believed to be produced by its space object or its component parts of a hazardous or deleterious nature.

How does the lack of clear legal status of orbital debris compare to the current domestic legislation on the commercial uses of outer space? In 2015, the United States launched its Commercial Space Launch Competitiveness Act. Its purpose is “to facilitate a pro-growth environment by encouraging the private sector investment and creating more stable and predictable regulatory conditions.” According to § 51303 of Title IV of the Space Resource Exploitation and Utilization Act, U.S. citizens engaged in commercial space mining shall be entitled to the extracted resources “including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.”[278] On July 13, 2017, Luxembourg’s parliament adopted a law on the licensing of commercial space mining and invested in private space mining companies. The law entered into force on August 1, 2017.[279] Luxembourg’s main objective is to provide “legal certainty as to the ownership of minerals and other valuable space resources identified in particular on asteroids.” The adopted law argues that OST only prohibits the ownership of celestial bodies, not the potentially extracted resources. It thus separates the definition of a celestial body from any resources to be found on that body. Article 2 of the adopted law indicates that the approved operator has to act in conformity with conditions of its approval and Luxembourg’s international obligations. In the legal context, which does not even specify the treatment of space debris, such initiatives allocate value to space as a commercial resource and not a fragile area with unpredictable reactions. The United Arab Emirate (UAE) Space Agency announced the UAE Space Law on February 24, 2020.[280] The UAE National Space policy Section 5.2.5 shall promote programs such as “Exploration, mining, extraction and utilization of resources in space.”[281] The context is clearly stated whereby UAE is advancing its national interests in outer space and in relation to considerable growth and change in the global space economy.[282]

Other states have announced an allocation of significant budgets to encourage private companies to enter this field and base their headquarters in its territory. The recent Executive Order on Encouraging International Support for the Recovery and Use of Space Resources signed by President Trump[283] encourages international support for the public and private recovery and use of resources in outer space and does not recognize the Moon as commons. The above described gaps in the current outer space law and climate change governance have a troubling relationship. The “Astrofuturism”[284] of space mining continues to emphasize the ownership and use model in relation to non-human spaces.

The uses of outer space can also serve a different purpose, however. The international community is at a crossroad and can either recognize the special nature of outer space as a domain that does not inherently “belong” to humans, or it can follow the current unilateral interpretations that approach it as a space to be appropriated and commercialized. The above-described domestic initiatives might result in emergent customary international law principles. Indeed, mining space resources such as asteroids could greatly expand humanity’s knowledge about the origins of the solar system, the Earth, the abundance of water, and the origin of life. It could also provide knowledge about the composition and structure of asteroids. Being able to use satellites to connect space-weather phenomena with geophysical processes such as earthquakes would be a type of multidomain fusion that can have beneficial outcomes.[285] It allows for an understanding of causal relationships among phenomena and building of models that better predict how to address issues such as climate change. However, the model currently promoted adapts a market-based approach to outer space, which in the context that lacks effective environmental controls, including space debris mitigation, seems to translate earthly environmental problems into space. Considering that debris moves at a speed of 21,600 miles per hour, increased commercialization of outer space without environmental regulation and the impact of orbital pollution is uncertain, as is its impact on the Earth system or human life in outer space. In reference to the alternate image of multiple and divergent human and nonhuman worlds which come together in the matters of global warming or outer space exploration and the existing governance in practical terms, the law is not there yet.

5.6. The Cosmolegal Proposal

Gases, objects, and the Earth system already have agency even if they are not recognized as such in the legal playing field.[286] The state is reliant on the terrain as a motionless surface. However, in order to establish sovereignty over volume, for instance, it needs to create imaginary measurements such as “one tonne of carbon dioxide equivalent (1tCO2e).[287] ”Similarly, lines of an axis cannot represent an orbit round, which is a spacetime of orbital speed. The current state sovereignty on the one hand and global warming and orbital debris on the other hand are not coextensive, and therefore require non-cohesive regulation.

GHGs act in accordance with non-human biochemical and other laws, and as such, influence all life in the Earth system. Human-made orbital debris now needs to be controlled in a variety of ways, including, for instance, accurate prediction of the future path of debris in deciding if and when to maneuver satellites to avoid collisions. In these instances, the following questions could also be asked: How do we follow laws such as the geochemical or biological cycles of the Earth systems instead of the market-based greenhouse gas trading system? How can international law extend into orbital space, which is governed by a different spacetime? In trying to answer such questions, the cosmolegal proposal does not imply that gases would enter the courtroom. Rather, the cosmolegal challenges the appearance of distinctions and disparate attributes of the world. The Earth system as a whole demonstrates that its apparent fracturing in human understanding, practice, and regulation does not stem from its own inherent multiplicity, but from the human understanding thereof. The law, instead of being the mirror of permanently split human subjectivity, would recognize the indeterminate nature of the world beyond it.

The cosmolegal proposal builds on the hypothesis of profound interrelatedness in the Earth system.[288] In addition, it seeks to adapt to international law certain components of the complex system’s theoretical approaches.[289] As the current legal fragmentation and conflict of laws demonstrates, analysis or regulation of each individual component has proven difficult in the regulation of the relationships among all components. For this reason, international legal governance would need to be able to address emergent behaviors that are not always predictable. The current state sovereignty on the one hand and global warming and orbital debris on the other hand are not coextensive, and therefore require non-cohesive regulation.

Unlike the aims of complex systems theory to reveal all possible patterns, cosmolegality proposes a more plural and flexible thinking towards the Earth system and cosmos. We cannot ignore ongoing developments in the human self-assertion in outer space, and therefore the “cosmos” aspect of “legality” is not improbable. Rather, these debates have been present for quite some time.[290] In practice, there are already efforts in civil society and academia to provide a commentary on the future of international lawmaking on the interrelatedness of outer space and the Earth system. Novel challenges are a constant issue for the legal discipline, including new discoveries, technological advances, environmental changes, and the like.

The hypothesis is that the arguments for law – as performing and enacting interventions as reasons in mental operations, incentives in utility calculations, and moral decisions – are still too anthropocentric. Cosmolegality requires a different ontological approach,[291] as it recognizes the possibility of many co-present variables. Opening possibilities for normative-rethinking of the world of lawmaking is necessary because new activities, which continue to extend the borders of the current international law, are becoming possible, such as the mining of the Moon, including the unintended or unexpected reactions of various environments. The key working method of the cosmolegal project is to facilitate cooperation and interaction among different disciplines and knowledge, including an opening for contingencies provided by the agency of the non-human and other dimensions or spaces where humans seek to extend their activities and life. Part of the cosmolegal argument rests on the hypothesis that a claim to a total understanding of natural phenomena such as climate change or geoengineering are not accurate. There is insufficient data to predict the long-term effects.

The proposed thinking seeks to delineate the law’s disciplinary extension towards the inclusion of the Earth system as a planetary entity, and therefore, also in relation to extraterrestrial spacetime. In practice, it should be rich enough to capture a wide variety of learning problems. Cosmolegality would deploy two methodological toolsets: Doctrinal and theoretical analysis of existing law. While these are standard methods in legal studies, they gain new undertones in this proposal as they become deployed in uncertain and prospective settings. As the law is either still developing or is not there at all, such research would have to parse together the future law applicable to non-human agencies from data, conceptual structures, and materials emanating from other contexts and disciplines. Certainly, doctrinal speculation is a misnomer and carries significant risks. This is why the future-oriented themes require strong interdisciplinary cooperation even if the learning curves would be steep. This would involve a transdisciplinary learning and gathering of information about the dynamics of the world. If the domain specification does not have to be complete, then the lawmaking process involves constant learning about how the world works. The sequence of the learning and lawmaking processes would be as follows:

Ontology;
Epistemology and Theory;
Policies and Law.

At the same time, there is no dimension-like quantity or criteria that can characterize learnability in some other form of totality. This will be a learning process, which will also use sequences of percepts to estimate the missing detail in world dynamics.

The general proposal of this Article is meant to be an unsettling of what seems to be knowable, while at the same time embodying a normative, and admittedly, finite and preconfigured objective that focuses on protection – or mitigation and prevention of further environmental degradation – of the Earth system and beyond, on a planetary scale. What might be the use of such thinking? In order to answer this question, at least partially, transdisciplinary approaches are necessary.

The transdisciplinary aspect of the proposed cosmolegal principle and method does not automatically mean a borrowing or translation of other disciplines. Instead, it seeks to present possibilities rather than absolutes. For example, a combination of social sciences with natural sciences does not automatically provide correct answers. Philosophy of science has been grappling extensively with this tension between the social and scientific.[292]

For instance, the appropriation of quantum mechanics beyond physics has allowed for an understanding beyond ontologies of spheres or levels, challenging the nature-culture divide. It offers a thinking of possibilities famously represented in the double-slit experiment and its variations.[293] Namely, because the experiment demonstrates that light and matter can unpredictably display characteristics of both classically defined waves and particles, it also showed the fundamental limitation of the ability of the observer to predict experimental results. In reference to the double-slit experiment, Richard Feynman stated, “we choose to examine a phenomenon which is impossible, absolutely impossible, to explain in any classical way, and which has in it the heart of quantum mechanics. In reality, it contains the only mystery.”[294] In other words, there are different possibilities, reactions not easily predictable by the human mind, and constantly changing limitations on what or whom is not knowable. The existence of the unknowable, then, could be seen as an invitation to reimagine the world. The following section looks at some of the current state of the art on the topic of the non-human and its agency and how it might find its way into international lawmaking.

The idealizing assumption of the world’s total knowability and determinability in accordance with laws that humans perceive or create, in turn, leads to frustration with the limits imposed by them. Cosmolegality would need to be constantly open to contingencies in future coefficients of friction-observable friction among various processes, hence deviating from what might be considered as a normal relation. In the rest of this section, I will delineate some of the theoretical and methodological aspects of the proposal with the focus on non-human agency and indigenous peoples’ traditional knowledges.

5.7. Non-Human Agency

The cases of GHGs and orbital debris bring to the fore a variety of issues posed by human-nonhuman interactions, including different dimensions and aggregate states. The cosmolegal proposal belongs to legal approaches, which emphasize the multidimensional and interactive nature of human reality. It echoes the posthuman approach of political theorist Jane Bennett, who has argued for the term “vibrant matter”[295] in political agency of the non-human and defines “vitality” as the capacity of things such as metals to influence the will and designs of humans and to act as agents or forces with laws of their own.[296] This perspective recognizes the capacity of anything non-sentient to influence its surroundings. In the case of CH4 craters, the overall process of global warming that causes them has been human initiated. However, GHGs act in accordance with non-human biochemical and other laws and as such influence all life in the Earth system. Human-made orbital debris now needs to be controlled in a variety of ways, including for instance accurate prediction of the future path of debris in deciding if and when to maneuver satellites to avoid collisions.

The volumetric movements of GHGs such as CH4, melting ice, and fluid spaces and the rapid orbital movement of space debris require a novel legal understanding of spaces beyond the Earthly surface and a more coherent volumetric framework for research and governance. For instance, Stuart Elden’s 2013 article, Secure the Volume, argues for the necessity to rethink geography in terms of volumes rather than areas.[297] This scholarship has been prominent especially among geographers. In more recent years, an increasing cohort of anthropologists have also been actively engaging with the volumetric, both in terms of new research and in revisiting past work.

The legal debates over the status of animals, corporations, unborn, non-biological machines, and nature have, for their part, made questions regarding what is the specific character enjoyed by natural persons, living human beings, that make their actions significant and their rights legally enforceable in comparison to these other entities, or the things.[298] According to Latour, “instead of making the distinction between subjects and objects, we shall speak of associations between humans and non-humans.”[299] The network of associations[300] between humans and non-humans recognizes non-human agency, or actancy.[301] International law has been designed to regulate human behavior. It is built on certain assumptions of how human beings behave and demonstrate agency. To the extent that non-human beings or physical and biological processes are beyond human control and react in unpredictable ways, these assumptions of what has agency no longer apply.[302]

Finally, while a biological or material mechanism does auto-develop according to a set of its own laws, these laws, as Earth system science demonstrates, are not based on fully self-enclosed systems.[303] In addition, a biological life or matter does not need to be aware of itself to have agency.[304] Nor does this mean that the category of the subjective experience is superfluous, or unnecessary, to the materialism displayed by matter. Rather, it is important to account for the uncertainty of complex interconnectedness.

5.8. Indigenous peoples’ knowledge

Indigenous ontologies are presently mentioned in the semantics of the climate change regime or Arctic governance.[305] Nevertheless, the inclusion or mention does not mean equal consideration in the practice of lawmaking.[306] Rather, in most jurisdictions, the actual experience demonstrates ongoing conflicts between indigenous and other interests.[307]

Although in its recommendations, IPCC has proposed a mobilization of “new, traditional and indigenous knowledge”,[308] there is still a lack of genuine collaboration and participation in how traditional indigenous knowledges are understood or approached.[309]

As indigenous societies are incredibly diverse, it is important not to make over-generalized assertions and judgments regarding who is indigenous or the specifics of indigenous knowledge. In particular, a substantial amount of indigenous knowledge is accessible through published academic words authored by indigenous scholars and is part of higher education curriculums.[310] Aboriginal scholars have been calling for the recognition and employment of Aboriginal worldviews, paradigms, theories of knowledge, and methods indigenous to Aboriginal cultures in intellectual endeavors in different fields and disciplines.[311] There is a difference in using indigenous knowledge as a framework of reference from a mere and essentializing depiction of indigenous peoples as “stewards of nature.”[312] Proponents of indigenous research paradigms do not deny the usefulness of Western methods, including the emphasis on empirical evidence. Instead, they call for us as researchers to place Western methods and paradigms into the context, which includes the colonial project and the valorization of those same ways of knowing.

In describing her own work, for instance, Leanne Simpson has argued, “I did not want to study Aboriginal people, or my culture, or even Traditional Ecological Knowledge, but I wanted to study the people who were writing about TEK, defining it and documenting it in the area of the environment, and I wanted to do this from the Anishinaabe perspective.”[313]

Simpson turns the research method upside down as she uses the Anishinaabe perspective to analyze non-Aboriginal research on Aboriginal knowledge. Moreover, all research questions do not have to be community-generated. It is not a methodological necessity to engage in “fieldwork,” depending on the disciplinary definition thereof, whereby Western scholars engage with indigenous communities, as multidisciplinary research by aboriginal scholars is as accessible as any other knowledge. The inclusion of indigenous knowledge in the form of a proposal does not equate consideration in the practice of lawmaking.[314] Experience on the ground demonstrates ongoing conflicts between indigenous and other interests.[315]

The cosmolegal project refers to indigenous scholarship in order to present what Karen Barad has described:

“A multiplicity of paths and histories and the situatedness of time are also aspects of quantum temporality, which is not to suggest that (specific) quantum and (specific) indigenous approaches are identical or commensurate or have the same effect or stakes, but they do share in offering disruptions of the conception of homogenous empty time.”[316]

What I mean by this is evident in the following example. Namely, Steinberg and Peters have questioned the materiality, motion, and temporality of the sea in order to “allow for new ways of thinking that are not possible when only thinking with the land.”[317] In so doing, they develop a term “wet ontology” – a way of thinking about the world that comes from a wet, watery perspective.[318] Liquidity, however, is not a metaphor, but a process independent of human decision-making.

With relevance for “wet” thinking, the ontological elements raise a spatial dynamic to the arterial flows of water-as-lifeblood, which aboriginal elders of the Canadian Anishinabek nation have described as “blood veins of the Earth.”[319] Water as a flowing, living, and connected being sustains life, not just in our bodies, but also among the ecosystems from and through which healthy water must inevitably travel.[320] An ontology such as water-as-lifeblood therefore raises awareness of the centrality of water as a living being, and of the relational connections that we all have with often distant life-sustaining waters.

The cosmolegality here seeks to instead engage with ontologies that already recognize non-human agency as such, and in so doing, also engages with issues of social and historical justice. Indigenous and other peoples often cast as “outside” of modernity have already long stressed multiple and relational ontologies,[321] which remain underunexplored in much of the current research on Earth system governance, or non-human entities.[322] Part of the cosmolegal project, in practice, would require an awareness of these issues, suggesting that engaging substantially with the implications of a politics of multiple ontologies might provide a better understanding of conflicts that emerge when particular governance and management options are proposed and, at times, challenged.[323] This sensitivity is especially needed in settler-colonial contexts where modern legal ontologies remain hegemonic.

There is an enormity in the question of how various peoples on Earth engage with outer space in their respective worldviews. The proposal of this Article is not meant to be comprehensive in that regard. Rather, it echoes the ongoing proposals in practice, among various communities, to keep the future of both Earth System and outer space governance as accessible to – and debatable by – all. This would include the human and non-human.

For this reason, the cosmolegal proposal does not claim to propose a new foundation. A particular theory or method cannot be easily applied everywhere. In other words, a theoretical model cannot predict the unknown, as we do not yet even know how to formulate the potential unknown in terms of the theory. Rather, contingency is the essence of its proposal. It requires that humans imagine a model of the situation, which would lend itself to interpretation and without any guarantee that adequate models can be constructed for every possible situation. But this entails an entirely new approach to law, which first has to recognize its limitations as rooted in the very foundations of the law, including international law, and then implement a diversity of methodologies depending on context and suitability.

«If I am right the development of what can properly be called an environmental ethic requires that we postulate inherent value in nature. I have tried to say something about this variety of goodness as well as something about its role in an ethic of environment.

If my remarks have been intelligible and my arguments persuasive, then, though the project is far from being complete, we at least know the direction in which we must move to make headway in environmental ethics, and that is no small advantage».

Tom Regan, (The Nature and Possibility of an Environmental Ethic)

General conclusions

1) As to Hart and his concept of international law, it has been said that the question “Is international law really law?” has not proved troublesome, according to H. L. A. Hart, simply because “a trivial question about the meaning of words has been mistaken for a serious question about the nature of things.”[324] His examination of this problem in The Concept of Law deserves a greater measure of critical scrutiny than it has received, partly because of the increasing recognition that his book is destined to become a milestone in jurisprudence and partly because of the way in which he reaches a generally acceptable conclusion. Unlike his predecessor Austin’s claim that international law was merely positive morality, Hart defends international law in Bentham’s terms as “sufficiently analogous” to municipal law.[325] It is important to see in what way this analogy is viewed by Professor Hart in order to determine whether the reasoning he offers is too high a price to pay for accepting a neo-positivist into the circle of those who hold that international law is really law.

Hart’s argument deals with two principal sources of doubt arising from the claim that international law is somehow less real than municipal law. The first is easily dealt with: how international law can be binding upon sovereign states. At an early stage in his book Hart disclaims the usefulness of “sovereignty” in describing any legal system. When he turns to international law, he adds the further argument that “sovereign” means no more than “independent.” Thus we must look to the rules of international law to see just how far this independence extends. The second doubt is how international law can, in the absence of organized international sanctions, be binding in the same sense as ordinary municipal law. Hart argues that, although in any legal system obligation is generally congruent with a likelihood of sanctions for disobedience, there is no necessary relation between the two. Nor are sanctions “necessary” to a legal system, for while they may be used in municipal law against an expected minority of malefactors without too much risk, in international law sanctions may lead to widespread and self-defeating international strife. Whatever differences exist do not overcome the fact that international law is thought and spoken of as obligatory, that it gives rise to claims and admissions couched in legal terms, and that when rules of international law are disregarded, states attempt to show that the facts are not as claimed (or, it may be added, that the rules do not apply to the alleged facts), rather than that the rules are not binding. Thus, summarized, Hart’s position appears to be one with which few would substantially disagree. Nevertheless each of his arguments entails a line of reasoning which may lead to undesirable implications for international law. In his first line of argument,

Hart finds “sovereignty” unnecessary to neo-positivism because there is a more illuminating tool of analysis which he labels the “rule of recognition.” By this he means the rule or rules in a society which confer power upon lawmakers. This rule makes it possible to identify sources of law. The rule of recognition is more fundamental than the notion of sovereignty since it tells who the sovereign is and how his power can be transferred. Yet in his consideration of international law, Professor Hart argues that there is no unifying rule of recognition specifying “sources” of law and providing general criteria for the identification of its rules. This argument runs parallel to his view that there is no proper sense of “sovereignty” in international law other than “independence.”[326] But if international law lacks a rule of recognition, how can it still be termed ” law”? Hart’s answer appears to be that international law is still primitive: it is a set of rules, not a system. Yet it is no less “law” since there is a great range of principles, concepts and methods which are common to both municipal and international law and which make a lawyer’s technique freely transferable from one to the other. Perhaps, Hart adds, if multilateral treaties were to be generally recognized as binding upon states that are not parties to them, such treaties would become legislative enactments and thus international law would be provided with a distinctive criterion of validity for its rules.

The advent of such a rule of recognition would lay to rest the skeptic’s last doubts that international law is really law. This Hart’s argument is disturbing in that international law becomes law at the price of conceding that it is a primitive kind of law lacking in “rules of recognition.” His conclusion will certainly be challenged by those who agree with his analysis of rules of recognition but consider that they are more fundamental than he does. More significantly, Hart’s argument may suggest that international law is basically incomplete and thus deserving of less respect on the part of states than ordinary municipal law. A closer look at the idea of rules of recognition is therefore in order. When does the rule of recognition arise which transforms a primitive society into a modern legal system? How does it arise? Once it has arisen, can it be revoked? Hart does not appear to give a satisfactory answer to these questions, which are analogous to questions one might ask about a theory of sovereignty. Further, how does the rule of recognition cope with the possibility of an abuse of authority on the part[327] of the lawmakers? Hart’s answer to this appears to be that the authority conferred by the rule cannot be withdrawn even if the rule is abused. But if this is true, it would not take long for a legislator to change or manipulate the rules of recognition at whim.

Additionally, as Fuller points out, Hart seems saddled with the necessity of excluding from a rule of recognition any express or tacit provision to the effect that the authority it confers can be withdrawn for abuses of it, such a provision might seem to impose a duty upon the legislator – an idea contrary to Hart’s definition of the rule of recognition as solely a power-conferring rule which cannot give rise to duties.[328]The difficulty with the idea of a rule of recognition is that it mistakenly tries to account for sociological fact (how and why people obey laws) by the use of legal concepts which necessarily arise after such fact. This point is easily seen in international law. The practice of states which gives rise to rules of international law often reflects shared attitudes about what international law ought to be. States are aware that their actions have legal consequences – that their conduct is the raw material of custom and precedent – within a system in which it is generally accepted that their actions ought to have legal consequences. Thus there is an interrelation between law-formation and law-interpretation; the “rules of recognition” of international law, as it were, are a product of the practice of states. Why this has come about is a matter of sociology, but there is no doubt that it does occur. Hart’s own example of multilateral treaties provides a good illustration. His argument is that when multilateral treaties become generally accepted as binding upon nonparties, they will become legislative enactments and thus international law will finally have a rule of recognition. But this argument betrays a longing for a legislative system similar to that in municipal law despite Hart’s insistence that international law is “law.”

How can it be assumed that the extension of rules contained in multilateral conventions to non-parties will necessarily become a sort of “legislation?” These treaties might, on the contrary, be viewed as evidence of custom to be weighed in the balance with other evidence of usage becoming customary obligation. The treaties might be given weight according to the number of states which have ratified each convention, an idea wholly at variance with municipal legislation. But quite apart from these objections, it is apparent that if treaties become a form of international legislation, they will have done so by the operation of the practice of states hardening into law. State practice may accept a form of international legislation or it may not, but the entire legal system is not fundamentally altered thereby. Assigning international legislative consequences to multilateral conventions may be a step in the direction of simplicity, but surely cannot be held to be the revolution which transforms primitive international law into a complex system of modern law. In his second argument that international law is “binding” without organized sanctions, Hart uses the same reasoning to read out of international law any necessary connection with morality per se or with morality induced by sanctions. In addition he uses the conclusion that international law is really law to exclude the classification of international law as “morality” in any normal sense of that word.

Although neither of these arguments separating law and morality appears logically compelled by his main arguments on international law, it is nevertheless significant that Hart has made them. They tie in with his general thesis that rules of law are often morally indifferent but are no less rules of law. While it is true that at least some rules of law in most legal systems may be morally indifferent, to emphasize this too much is to underestimate the contribution of natural law to international law or to misinterpret some of the rules deriving from natural law. Thus Hart rejects the views of Brierly and Lauterpacht that moral obligation is a foundation of international law. Yet to reject this learning may be to discard much of the structure that is common to international law and to classic theories of natural law. Two brief examples may be cited: first, it is possible to argue that the prohibition against unjust wars found in Grotius and many of his contemporaries has persisted as a rule which requires by its own terms a moral or natural-law interpretation. Even in the era of the United Nations there may still be a just war fought solely for self-defense against an armed attack or fought by the international community acting through appropriate United Nations organs against a state which has caused a threat to the peace. If in years to come the idea of threat to the peace is enlarged to include such actions as violation of an arms control treaty or even severe violations of human rights law, natural law and morality will have to be taken into account in determining whether the international community is authorized to take action. Second, the rule of pacta sunt servanda cannot always be satisfactorily applied without reference to its moral purpose. Hart suggests that a state may adhere to an onerous treaty because of a long-term interest in preserving confidence in treaties or because it considers that, having received the benefits of a treaty, it is likewise obliged to accept its present burdens. Yet such motivation – which may indeed explain the not quite analogous municipal law contract – is no help in assessing a claim of clausula rebus sic stantibus.

But attention to the substance of morality inherent in a prior promise may, in some cases where the circumstances have radically changed, indicate that the prior promise is no longer substantively applicable and that it would be unjust to insist upon strict compliance[329]. One might tentatively conclude that the attempt to apply a positivist Occam’s razor to morality or natural law in international law may lead to considerable distortion in its interpretation.

2) Our answer to the question what competition is and why it is wrong sheds a new light on how to make ethically informed decisions on how to (competitively) organise our social practises. Our alternative conceptual and normative approaches invites political philosophers and policy makers to continue the philosophical debate and improve policy measures.

One of the few explicitly philosophical analyses of competition is Waheed Hussain’s ‘Pitting People Against Each Other’ (2020). Hussain provides an explanation why competitive institutions can be morally permissible and when they become “morally defective” (p. 87). He defends his ‘Estrangement account’ to argue that competition pits people against each other and leads to a failure in solidarity amongst members of a political community. In this response, we aimed to summarize his main claims, connect them more extensively to existing work on competition and formulate two types of objections. Then, we first provided a conceptual objection, arguing that Hussain’s definition of competitive institutions is too narrow and, second, offer our own alternative conceptual approach. Lastly, we provided a normative objection and propose a more straight-forward way to identify the moral problems of competition that more easily fits a wider range of different politico-philosophical strands than Hussain’s. More specifically, we argued that the inevitable and predictable harm inflicted on losers constitutes a pro tanto reason not to distribute goods competitively.

3) We claim, in relation to the nature of the moral injury inflicted by terrorism, that the substantial value to be promoted in justice after terrorism is recognition, defending a position which puts the victim’s moral injury at the centre of the provision of justice in the post-terrorism period. Re-recognition model based on Haldemann’s transitional justice account not only provided a ground for theorizing justice after terrorism but also ascertained the irrelevance of the oversimplified and mistakenly centralized dispute over truth commissions and war crime trials.

The definition we proposed combined together the widespread intuition in political and social sciences that conflict expresses some kind of incompatibility (‘Conflict not only relates to physical interaction; but also to any form of disagreement about ends to be pursued’ Bealey, 1999, p. 79; ‘A conflict exists when two people wish to carry out acts which are mutually inconsistent’ Nicholson, 1992, p. 11), with the Weberian insight that we have conflict ‘insofar as an action is oriented intentionally to carrying out the actor’s own will against the resistance of the other party’ (Weber, 1978, p. 38).

We defined thus conflict as a situation characterized by (1) two or more actors (be they institutions, individuals or groups) that have incompatible wills (due to their interests, values, identities…) and (2) at least one of them intended to carry out his will at the expenses of others.

Terrorists have the direct targets to inflict harm, the indirect targets to spread fear among, and the political authority to coerce. All these targets are wronged, however, each particular wrongdoing differs. We suggest a theory that approaches the wronging of terrorism from the spectacles of the theory recognition. By doing so, we concluded that terrorism misrecognizes the direct victims’ human status and disrespects the indirect victims’ political agency.

In particular, we defended a position which puts the victim’s moral injury at the centre of the provision of justice in the post-terrorism period. I claim, in relation to the nature of the moral injury inflicted by terrorism, that the substantial value to be promoted in justice after terrorism is recognition. Re-recognition model based on Haldemann’s transitional justice account not only provided a ground for theorizing justice after terrorism but also ascertained the irrelevance of the oversimplified and mistakenly centralized dispute over truth commissions and war crime trials.

4) Although the actions which exacerbate anthropogenic global warming are not executed with the direct intent of harming human security, in this point we argued that the widespread consensus and recognition of the consequences should render the causal actor as culpable as if they had taken direct and deliberate action. A case was constructed for these future environmental harms to be recognised as actual harms, and thus treated with the same practices of protection, liability, responsibility and accountability. Given that environmental harm is accumulative and indirect, it proves a complex threat which raises questions relating to the distinctions and transformative points between a risk, a threat and a harm, the justification of pre-emptive action on behalf of indeterminate victims, and the notion of assigning intent in relation to imminence versus probability.

Taking a moderate cosmopolitan stance on both harm and human security, coupled with an English school approach to an international society of States imbued with sovereign responsibilities, this point of the paper outlined the imminence of environmental harms as equating to actual harms, and as being parallel to gross harms, humanitarian disasters and crimes against humanity. An argument for pre-emptively treating actors as liable, accountable and responsible for harmful-conduct was also presented, to construct a clear and rational case for treating predicted environmental threats and risks as harms pre-emptively, in order to protect the human security of future victims from imminent harm, on both ethical and humanitarian grounds.

5) The last part of this research demonstrated that the current legal regimes, which are relevant in the context of climate change in the Arctic and the increasing orbital debris, are ill-suited to the specifics of those problems due to their state-centric and formalistic nature. In response, the cosmolegal theoretical and methodological proposal would strive to provide an alternative to the legal instruments, which were not contemplative of either climate change, or the still open unknowns of outer space and human interactions with it. In the Arctic, commercial and state interests contradict the consequences of global warming. In outer space, the “conquest of new frontiers” discourse propagated by the private sector and accompanied by scientific and technological invention and dominance of space-faring states has reached an element of hubris, as the orbital environment is increasingly polluted by dangerous debris and extraterrestrial dimensions remain largely unknown. These two cases refer to the rush for commercialization of newly accessible spaces,[330] such as the Arctic high seas, outer space, and the surrounding regimes in international law. Moreover, legal gaps in UNCLOS and OST are contributing to the legal uncertainty surrounding environmental protection in both the Arctic and the Earth’s orbit. UNCLOS is one of the most relevant regimes in the Arctic, yet its internal structure is not fully equipped to respond to global warming. In the context of human-made orbital debris, there are no specific regulations governing environmental protection in outer space.

Instead, the cosmolegal project seeks to contribute to the process of reimagination and away from some of the more prominent approaches to environmental governance in international law and scholarship. In this respect, it has more in common with posthumanism thought in various disciplines and different ontologies. For instance, cosmolegality would not focus primarily on the issue of the commons as currently constructed in international law.[331] The existing international legal instruments governing the Arctic high seas and outer space as commons are state-centric and, as such, contain within them provisions that would allow for the increasing promotion of state territorial and commercial interests even beyond national jurisdictions. Examples include the gap in the OST allowing for states to enact commercial laws for outer space mining, the expansion of the continental shelf under the UNCLOS regime, or the existing no-harm or liability provisions for the mining of the deep-seas.[332] Also, most of the Arctic region is under state jurisdiction.

As Donna Haraway has argued, “it matters which stories tell stories, which concepts think concepts. Mathematically, visually, and narratively, it matters which figures figure figures, which systems systemize systems.”[333] It matters how the “stories tell stories” in the legal context, how humans define the spaces in which they live and operate, or which sciences and knowledges are consulted and referenced. What also connects these two cases is the argument, or imagination, that in the case Earth becomes uninhabitable, humans can colonize other planets. The leaders representing interests in commercial and industrial opportunities available in outer space have propagated this argument.[334] However, Michel Mayor, a physicist at the University of Geneva, argues that colonizing exoplanets is impossible as “we are talking about hundreds of millions of days using the means we have available today.” Mayor emphasized that he wanted to “kill all the statements that say ‘Well, we will go to a livable planet if one day life is not possible on Earth’”. Rather, “we must take care of our planet: it is very beautiful and still absolutely livable.”[335] With this need for the protection of our planet in mind, this chapter sought to parallel some of the interdisciplinary arguments for the greater engagement with the non-human agency.

With the increased awareness of the human impact on the Earth system and extraterrestrial environments, there is also the recognition of a loop where the agent – human – does something that changes the state of the environment, and then it perceives some new information about the state of the environment.

In practice, there are already academic programs that provide common educational programs for various disciplines, or as space scientist and aerospace engineer Jah Moriba has described, “the common Defence Against the Dark Arts class that we can all take together” in reference to transdisciplinary programs at the University of Texas at Austin.[336]

Indeed, there are too many ways the world could be, and there are too many sequences of precepts that one could have of the world. It is not possible to anticipate them all. For some domains, the written law can compactly implement the same function as the table of reactions. The cosmolegal takes as one of its constraints that the developed mechanisms need to be related to the mechanisms that go on among non-human entities and environments. Its research horizon builds on this hypothesis of discontinuity. On the one hand, the ensuing changes are likely to contribute to new imaginations within the existing anthropocentric conceptual structures. On the other hand, we will need novel responses, adaptations, and legal modalities that can go beyond the human-centric model.

«Act in such a way that the effects of your action could be compatible

with the continuation of an authentically human life».

Hans Jonas

«We do not choose political freedom because it promises us this or that.

We choose it because it makes possible the only dignified form of human coexistence,

the only form in which we can be fully responsible for ourselves.

Whether we realize its possibilities depends on all kinds of things – and above all on ourselves».

Karl Popper

«It is complete nihilism to propose laying down arms in a world where atom bombs are around.

It is very simple: there is no way of achieving peace other than with weapons».

Karl Popper (The Lesson of This Century: With Two Talks On Freedom and The Democratic State)

Footnotes

[1] H.L.A. Hart, The Concept of Law (2nd edn., 1994). (Professor of Jurisprudence in Oxford, Hart – (Harrogate, July 18th, 1907 – Oxford, December 19th 1992, is considered one of the most prominent exponents of 20th century philosophy of law). A further contribution of Hart to international law, which is beyond the scope of this article, is his essay ‘Kelsen’s Doctrine of the Unity of Law’ in which he engages with Kelsen’s monist theory of the relationship of international law and municipal law: H.L.A. Hart, Essays in Jurisprudence and Philosophy (1983), at 309–342.

[2] S.J. Shapiro, The “Hart-Dworkin” Debate: A Short Guide for the Perplexed. University of Michigan, Public Law and Legal Theory Working Paper Series, at 22, No. 77 (2007), available at SSRN: http://ssrn.com/abstract=968657 and http://dx.doi.org/10.2139/ssrn.968657. ID.: (2001). On Hart’s Way Out, in Hart’s Postscript: Essays on the Postscript to the Concept of Law. Oxford, Oxford University Press, ed. J. Coleman; ID.: Law, Morality and the Guidance of Conduct, in Legal Theory 6 (2000): 127–70; ID.: (2011). Legality. Cambridge, Mass.: Harvard University Press. See also KRAMER, MATTHEW: Throwing Light on the Role that Moral Principles Play in the Law. In Legal Theory 8 (2002), 115–143. As to the Italian scenario: P.L. Chiassoni, Utopia della ragione analitica. Origini, oggetti e metodi della filosofia del diritto positivo, Torino, Giappichelli, 2005; ID.: L’indirizzo analitico nella filosofia del diritto. I. Da Bentham a Kelsen, Torino, Giappichelli, 2009, pp. XVIII-406.

But firstly, as for the epistemological debate between Hart and his rival Dworkin, as well known, see HART, HERBERT L.A.: (1994). Postscript. In The Concept of Law. Clarendon Press, Oxford, (1961 first edition; 1994 second edition). Published posthumously, the second edition of The Concept of Law contains one important addition to the first edition, a substantial Postscript, in which Hart reflects upon some of the central concerns that have been expressed about the book since its publication in 1961. The Postscript is especially noteworthy because it contains Hart’s only sustained response to the objections pressed by his foremost critic, Ronald Dworkin, who succeeded him to the Chair of Jurisprudence at Oxford in 1969. The Postscript, edited by Penelope A. Bulloch and Joseph Raz, focuses on a range of issues covering both Hart’s substantive view and his methodological commitments. In particular, Hart endorses Inclusive Legal Positivism, asserts that his is a methodology of descriptive jurisprudence which he contrasts with Dworkin’s normative jurisprudence or interpretivism, while denying that his theory of law has a semantic underpinning.

The Concept of Law was published in 1961; Hart long wanted to add a postscript responding to reactions to his work, but the postscript was unfinished when he died. The editors of the book published the most finished parts of the postscript but the drafts were not meant to be final.

In the Postscript, Hart notes that he wants to focus in detail on the criticisms of his view advanced by Ronald Dworkin and in a second section addresses a number of other critics; the second section was too undeveloped at the time of Hart’s death for the editors to include in the book; thus the postscript wholly focuses on Dworkin’s views. The reader’s purpose in studying the guide may not rely on the details of the Dworkin-Hart dispute; discussions of these debates have been reviewed in the secondary literature.

Cf. RAZ, JOSEPH – COLEMAN, JULES – PERRY, STEPHEN – LEITER, BRIAN – SHAPIRO, SCOTT – MARMOR, ANDREI: (2001). Hart’s Postscripts. Essays on the Postscript to “The Concept of Law”. Ed. by J.L. Coleman, Oxford, Oxford University Press. The essays in this collection address each of these issues in a sustained way. The book contains discussions of Hart’s semantic commitments, his rejection of a normative jurisprudence as well as the extent to which he can embrace Inclusive Legal Positivism in a way that is consistent with his other stated positions. The book’s contributors include the leading advocates of alternative schools of Positivist jurisprudence, important contributors to the methodogical disputes in jurisprudence and noted experts on the relationship of philosophy of language to jurisprudence.

It has been argued that Hart had redefined the domain of jurisprudence and moreover established it as a philosophical inquiry of the “nature” or “concept” of law. He is considered the «world’s foremost legal philosopher in the twentieth century». Many of Hart’s former students became important legal, moral, and political philosophers, including Brian Barry, John Finnis, John Gardner, Kent Greenawalt, Neil MacCormick, William Twining, Chin Liew Ten, Joseph Raz and Ronald Dworkin. Hart also had a strong influence on the young John Rawls in the 1950s, when Rawls was a visiting scholar at Oxford shortly after finishing his Ph.D.

See also DAN, PRIEL: (2011). H.L.A. Hart and the Invention of Legal Philosophy. In Problema 7 (5): 301–323; MULLENDER, RICHARD: (2004). Nicola Lacey. A Life of H.L.A. Hart: the Nightmare and the Noble Dream – H.L.A. Hart in Anglo-American Context. In Web Journal of Current Legal Issues (review 2007). Oxford, Oxford University Press; SCHAUER, FREDERICK: (Re)Taking Hart, 119, in Harvard Law Review, 852 (2006); REDONDO, MARIA CRISTINA: (ed.), Il “Postscript” di H. L. A. Hart, monographic issue. In Ragion pratica, 21 (2003), 347- 360; LEITER, BRIAN: Beyond the Hart/Dworkin Debate: the Methodology Problem in Jurisprudence (2003), now in ID.: (2007). Naturalizing Jurisprudence, Oxford, Oxford UP, 153–181.

A very update and innovative contribution is FIGUEROA RUBIO, SEBASTIÁN (ed.), (2014). Hart en la teoría del derecho contemporánea. A 50 años de El concepto de derecho. Santiago de Chile, Universidad Diego Portales.

Following DWORKIN, RONALD: (1977). Taking Rights Seriously. Cambridge, Mass., Harvard University Press, such a contention is often given a quite strong antipositivist import. That is the case, e.g., despite any difference in the arguments adopted, with ALEXY, ROBERT: (1985). Theorie der Grundrechte. Baden-Baden, Nomos; ZAGREBELSKY, op. cit., 192, and ATIENZA, Legal Reasoning and Constitutional State, op. cit., 12-16. Nevertheless, nothing prevents that the same contention be accounted for in positivist terms. To be sure, the alleged ultimate moral character of fundamental rights and legal principles affecting and/or grounding judicial reasoning and decision-making is far from being obvious and plain.

DWORKIN, RONALD: (1996). The Moral Reading of the Constitution. Cambridge, MA, Harvard University Press. In this book there is a particular way of reading and enforcing a political constitution, which Dworkin called the moral reading. Most contemporary constitutions declare individual rights against the government in very broad and abstract language, like the First Amendment of the United States Constitution, which provides that Congress shall make no law abridging “the freedom of speech”. The moral reading proposes that we all — judges, lawyers, citizens —interpret and apply these abstract clauses on the understanding that they invoke moral principles about political decency and justice. The First Amendment, for example, recognizes a moral principle — that it is wrong for government to censor or control what individual citizens say or publish — and incorporates it into American law. So when some novel or controversial constitutional issue arises — about whether, for instance, the First Amendment permits laws against pornography — people who form an opinion must decide how an abstract moral principle is best understood. They must decide whether the true ground of the moral principle that condemns censorship, in the form in which this principle has been incorporated into American law, extends to the case of pornography.

Presidents Ronald Reagan and George Bush were both intense in their outrage at the Supreme Court’s “usurpation” of the people’s privileges. They said they were determined to appoint judges who would respect rather than defy the people’s will. In particular, they (and the platform on which they ran for the presidency) denounced the Court’s 1973 Roe v. Wade decision protecting abortion rights, and promised that their appointees would reverse it. But when the opportunity to do so came, three of the justice Reagan and Bush had appointed between them voted, surprisingly, not only to retain that decision in force, but to provide a legal basis for it that much more explicitly adopted and relied on a moral reading of the Constitution. The expectations of politicians who appoint judges are often defeated in that way, because the politicians fail to appreciate how thoroughly the moral reading, which they say they deplore, is actually embedded in constitutional practice. Its role remains hidden when a judge’s own convictions support the legislation whose constitutionality is in doubt — when a justice thinks it morally permissible for the majority to criminalize abortion, for example. But the ubiquity of the moral reading becomes evident when some judge’s convictions of principle — identified, tested, and perhaps altered by experience and argument — bend in an opposite direction, because then enforcing the Constitution must mean, for that judge, telling the majority that it cannot have what it wants.

Senate hearings considering Supreme Court nominations tend toward the same confusion. These events are now thoroughly researched and widely reported by the press, and they are often televised. They offer a superb opportunity for the public to participate in the constitutional process. But the mismatch between actual practice and conventional theory cheats the occasion of much of its potential value. (The hearings provoked by President Bush’s nomination of Judge Clarence Thomas to the Supreme Court, are a clear example.) Nominees and legislators all pretend that hard constitutional cases can be decided in a morally neutral way, by just keeping faith with the “text” of the document, so that it would be inappropriate to ask the nominee any questions about his or her own political morality. (It is ironic that Justice Thomas, in the years before his nomination, gave more explicit support to the moral reading than almost any other well-known constitutional lawyer has; he insisted that conservatives should embrace that interpretive strategy and harness it to a conservative morality.) Any endorsement of the moral reading — any sign of weakness for the view that constitutional clauses are moral principles that must be applied through the exercise of moral judgment — would be suicidal for the nominee and embarrassing for his questioners. In recent years, only the hearings that culminated in the defeat of Robert Bork seriously explored issues of constitutional principle, and they did so only because Judge Bork’s opinions about constitutional law were so obviously the product of a radical political morality that his convictions could not be ignored. In the confirmation proceedings of the present Justices Anthony Kennedy, David Souter, Thomas, Ruth Bader Ginsburg, and Stephen Breyer, however, the old fiction was once again given shameful pride of place.

Dworkin (Worcester, Massachusetts, U.S.A., December 11, 1931 – London, February 14, 2013), was an American philosopher and scholar of constitutional law. He was Frank Henry Sommer Professor of Law and Philosophy at New York University and Professor of Jurisprudence at University College London, and had taught previously at Yale Law School and the University of Oxford. An influential contributor to both philosophy of law and political philosophy, Dworkin received the «2007 Holberg International Memorial Prize» in the Humanities for “his pioneering scholarly work” of “worldwide impact.”According to a survey in The Journal of Legal Studies, Dworkin was the second most-cited American legal scholar of the twentieth century.

His theory of law as integrity, in which judges interpret the law in terms of consistent and communal moral principles, especially justice and fairness, is among the most influential contemporary theories about the nature of law. Dworkin advocated a “moral reading” of the United States Constitution, and an interpretivist approach to law and morality. He was a frequent commentator on contemporary political and legal issues, particularly those concerning the Supreme Court of the United States, often in the pages of The New York Review of Books.

[3] Cf. MANIN, BERNARD: (1997). The Principles of Representative Government. Cambridge, Cambridge University Press; ID.: On Legitimacy and Political Deliberation in Political Theory 15 (1987), 338-368; B. MANIN – A. PRZEWORSKI – S. STOKES (eds.): (1999). Elections and representation. In Democracy, Accountability, and Representation. Cambridge, Cambridge University Press.

See SCHAUER, FREDERICK: (2002). Playing by the Rules. Oxford, Clarendon Press, 171-184; ID.: Balancing, Subsumption, and the Constraining Role of Legal Text. In Law & Ethics of Human Rights, 4 (2010), 34-45; ID.: (2011). The Theory of Rules, Karl N. Llewellyn. Chicago, Chicago University Press; ID.: in KLATT, MATTHIAS: (ed., 2012). Institutional Reason: The Jurisprudence of Robert Alexy. Oxford, Oxford University Press, 307-16; ID.: (2013). Thinking Like a Lawyer: A New Introduction to Legal Reasoning. Harvard, Harvard University Press.

But finally, see also ID.: (2015). The Force of Law. Harvard, Harvard University Press (forthcoming). Many legal theorists maintain that laws are effective because we internalize them, obeying even when not compelled to do so. In a comprehensive reassessment of the role of force in law, Frederick Schauer disagrees, demonstrating that coercion, more than internalized thinking and behaving, distinguishes law from society’s other rules.

Reinvigorating ideas from Jeremy Bentham and John Austin, and drawing on empirical research as well as philosophical analysis, Schauer presents an account of legal compliance based on sanction and compulsion, showing that law’s effectiveness depends fundamentally on its coercive potential. Law, in short, is about telling people what to do and threatening them with bad consequences if they fail to comply. Although people may sometimes obey the law out of deference to legal authority rather than fear of sanctions, Schauer challenges the assumption that legal coercion is marginal in society. Force is more pervasive than the state’s efforts to control a minority of disobedient citizens. When people believe that what they should do differs from what the law commands, compliance is less common than assumed, and the necessity of coercion becomes apparent.

Challenging prevailing modes of jurisprudential inquiry, Schauer makes clear that the question of legal force has sociological, psychological, political, and economic dimensions that transcend purely conceptual concerns. Grappling with the legal system’s dependence on force helps us understand what law is, how it operates, and how it helps organize society.

Ever since H.L.A. Hart published The Concept of Law in 1961, the coercive side of law – the aspect of law featured in the accounts of Jeremy Bentham and John Austin – has been treated as decidedly secondary by legal theorists. In seeking to understand the internalization of law by law’s officials and subjects, modern jurisprudence in the Hartian tradition treats law’s coercive force as an empirically contingent but non-necessary aspect of law whose pervasive existence is not part of an account of the concept of law itself. This approach, however, rests on view about the nature of concepts that is at least contested and may well be wrong. Moreover, the importance of the now-commonplace view that relegates coercion to the sidelines of legal theory is itself dependent on an empirical claim – Hart’s “puzzled man” – about the prevalence of sanction-independent obedience to law. Once we have clarified what it is to obey the law because it is law, however, rather than merely to act consistently with law for reasons other than the law, it turns out that puzzled people in Hart’s sense are far rarer than Hart and his followers have supposed. And to the extent that this is so, coercion – the ability of law to make people do things they do not want to do – reemerges as perhaps the most important characteristic and distinguishing feature of law. The presentation consists of two draft chapters from the in-progress book that seeks to support the foregoing claims.

That the law can force people to do things they do not want to do, and which are sometimes against their own interests or their own best (and not necessarily self-interested) judgment, might seem far too obvious to justify thinking or writing much about it. But here, as elsewhere, things are often not what they seem. For more than half a century, legal philosophers, drawing their inspiration from H.L.A. Hart, have questioned whether force, coercion, and sanctions are as important to understanding the nature of law as the ordinary person – the man on the Clapham omnibus, as the English quaintly put it – believes. Although the present examination of the role of coercion in explaining the character and distinctiveness of law will at times be philosophical or conceptual in style and method, it will, unashamedly, often break out of those boundaries defined by the discipline of philosophy, or accepted, rather more narrowly, by many contemporary practitioners of the philosophy of law. Some of what follows will be sociological, in the broadest sense, and more than some will draw on experimental psychological research. Some will make use of empirical and analytical conclusions from economics and political science. And none of what is to come will be a theory of law, or for that matter a theory of anything else. This book is thus an exploration of various aspects of law’s coercive dimension, pursued largely philosophically and analytically, but with some empirical assistance. It is an account and not a theory. It is certainly not a system. But perhaps a mere account can have some value.

I had the pleasure to meet and to discuss with Frederick Schauer when he explained his theories during the residential courses of “Master Global Rule of Law and Constitutional Democracy”, taught on Genoa University’s Campus in Imperia, on February 11-12, 2013. He was one of the teachers of the course ”Constitutional Rights & Multiculturalism”. I heard again this Professor’s lectures during the “Sociology of Human Rights Seminars. Frederick Schauer: the Differentiation of Law”, organized in the Faculty of Law at the University of Milan (Italy), under the direction of Thémis – Centre d’Études de Philosophie, de Sociologie et de Théorie du Droit – on October 03, 2014.

(Schauer is David and Mary Harrison Distinguished Professor of Law at the University of Virginia in Charlottesville, U.S.A. He is also Frank Stanton Professor of the First Amendment, Emeritus, at the Kennedy School of Government, Harvard University, where he taught from 1990 to 2008, served as Academic Dean and Acting Dean, and taught courses on evidence and freedom of speech at the Harvard Law School. Schauer was founding co-editor of the journal Legal Theory, and has served as chair of the Section on Constitutional Law of the Association of American Law Schools and of the Committee on Philosophy and Law of the American Philosophical Association. In 2006 Schauer was author of the Foreword to the Harvard Law Review’s Supreme Court issue, and has written numerous articles on freedom of speech and press, constitutional law and theory, evidence, legal reasoning, and the philosophy of law. His books have been translated into Italian, Spanish, Portuguese, Chinese, and Turkish, and his scholarship was the subject of a special issues in the Harvard Journal of Law and Public Policy).

(I visited the School of Law of the University of Virginia together with Charles Strauss, a former judge for the 22nd Judicial Circuit in Danville, at Pittsylvania County, Virginia. I was housed in his house in Chatham in March 2012, because I was a “Team Member” of Rotary International Group Study Exchange 2012. I had the opportunity to visit a part of Tennessee and almost the whole Commonwealth of Virginia, and the White House, too; I knew a lot of friends, Lawyers, Judges, Sheriffs Officers, Professors.

A special “thanks” to the Italian and American Rotary Foundation for the splendid and unique forty days we spent together. But a very special “thank you” also to Lawyer Jeffrey Van Dooren and to his family for the final period in which he housed me in his house in Salem; can not be also forgotten the consorts Jim and Janet Johnson, as well as Attorney at Law Stephanie Cox – Firm “Spicer, Frank & Cox” in Blacksburg, Virginia – after my visit to the Campus of Virginia Polytechnic Institute – Virginia Tech -. Now all that people and places belong to me, as well as I belong to them).

[4] As to the Italian scenario: BARBERIS, MAURO: Europa del diritto, Bologna, il Mulino, 2008.

[5] Hart, supra note 1, at 213–237.

[6] Waldron, ‘Hart and the Principles of Legality’, in M.H. Kramer et al. (eds), The Legacy of H.L.A. Hart (2008), at 67, 68–69.

[7] Ibid., at 69.

[8] Abbott et al., ‘The Concept of Legalization’, 54 Int’l Org (2000) 401, at 403. But also Williams, ‘International Law and the Controversy Concerning the Word “Law”’, 22 BYBIL (1945) 146, at 163, and M.N. Shaw, International Law (6th edn, 2008), at 2; S.D. Murphy, Principles of International Law (2006), at 6; P. Malanczuk, Akehurst’s Modern Introduction to International Law (7th edn, 1997), at 5.

[9] Fastenrath, ‘Relative Normativity in International Law’, 4 EJIL (1993) 306, at 307–308; Simma and Paulus, ‘The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View’, 93 AJIL (1999) 302, at 304–305.

[10] Sreejith, ‘Public International Law and the WTO: A Reckoning of Legal Positivism and Neoliberalism’, 9 San Diego Int’l LJ (2007) 5; Medrado, ‘Renegotiating Remedies in the WTO: A Multilateral Approach’, 22 Wisconsin Int’l LJ (2004) 323, at 328; Palmeter, ‘The WTO as a Legal System’, 24 Fordham Int’l LJ (2000) 444; Jones, ‘The Legal Nature of the European Community: A Jurisprudential Analysis Using H.L.A. Hart’s Model of Law and a Legal System’, 17 Cornell Int’l LJ (1984) 1; Schilling, ‘The Autonomy of the Community Legal Order: An Analysis of Possible Foundations’, 37 Harvard Int’l LJ (1996) 389, at 398–400.

[11] But see Morison, ‘The Schools Revisited’, in R. St. J. Macdonald and D. M. Johnston (eds), The Structure and Process of International Law (1986), at 131, 144–155; D’Amato, ‘The Neo-Positivist Concept of International Law’, 59 AJIL (1965) 321; Morss, ‘Sources of Doubt, Sources of Duty: HLA Hart on International Law’, 10 Deakin L Rev (2005) 698; Beckett, ‘The Hartian Tradition in International Law’, 1 The Journal Jurisprudence (2008) 51.

[12] J. Austin, The Province of Jurisprudence Determined (ed. W.E. Rumble, 1995); London: John Murray. Retrieved 2012-12-14. This is a book, first published in 1832, in which he sets out his theory of law generally known as the ‘command theory’. Austin (Lancaster, March 26th, 1911 – Oxford, February 8th, 1960) believed that the science of general jurisprudence consisted in the clarification and arrangement of fundamental legal notions.

His object in this book is to identify the distinguishing characteristics of positive law to free it from the precepts of religion and morality. The book consists of six lectures designed to be delivered in a law school setting. Although his theory did not receive significant attention in the 19th Century, it has since become central to the jurisprudential canon, and has been criticised, adapted and enlarged upon by subsequent jurists such as H. L. A. Hart and Ronald Dworkin.

Austin was a student of Jeremy Bentham, and as such subscribed to Utilitarianism. He adopted this perspective in his understanding of law, and argued that all laws should work toward promoting the greatest good for the greatest number of people.

According to Austin, a law is «a rule laid down for the guidance of an intelligent being by an intelligent being having power over him». This was what Austin defined as positive law. Austin believed that positive law was the appropriate focus of study for jurisprudence. He states that: «every positive law, or every law simply and strictly so called, is set, directly or circuitously, by a sovereign person or body, to a member or members of the independent political society wherein that person or body is supreme».

According to Austin, the sovereign could not be legally limited, «supreme power limited by positive law is a flat contradiction in terms» he states. However, he did concede that a sovereign may be limited in a non-legal sense by ‘popular opinion’.

He defined divine law as «law set by God to his human creatures». Although he contends that God’s (law) is above and beyond human law, he also states that: «to say that human laws which conflict with the Divine law are not binding, that is to say, are not law, is to talk stark nonsense». He emphasises that a law set by a sovereign to a subject is not negated by any apparent conflicting divine or moral law.

(Nowdays, his most famous pupil is John Searle).

[13] Ibid., at 21–22.

[14] Ibid., at 165–166.

[15] Ibid., at 171.

[16] Ibid., at 123, 171.

[17] Ibid., at 112, 124, 175.

[18] See Hart, supra note 1, at 18–78. Hart also rejects Austin’s conception that legal obligations of the legislator are possible if one conceives of the people as the sovereign. In addition, Hart criticizes Austin’s descriptive concept of obligation. According to Hart, to equate an obligation with the prediction of a sanction which might be imposed in the case of non-compliance is to distort the reality of law. It neglects that legal obligations not only predict the imposition of a sanction but also justify it. And it ignores the internal aspect of rules: the fact that people voluntarily accept rules and behave accordingly, irrespective of the prospect of punishment: ibid., at 82–91.

[19] Morgenthau, ‘Positivism, Functionalism, and International Law’, 34 AJIL (1940) 260; H.J. Morgenthau, Politics Among Nations (6th edn, 1985); G. Schwarzenberger, The Frontiers of International Law (1962).

[20] K. Waltz, Theory of International Politics (1979).

[21] J. L. Goldsmith and E. A. Posner, The Limits of International Law (2005).

[22] Ratner and Slaughter, ‘Appraising the Methods of International Law: A Prospectus for Readers’, 93 AJIL (1999) 291; S. J. Shapiro, Legality (forthcoming 2019), at 26–30.

[23] G. Jellinek, Die rechtliche Natur der Staatenverträge, Wien A. Hölder, 1880, at 2, 48–49. The author said: «In no juridical discipline does it frequently happen to question fundamental principles as in international law. Often regarded as inferior by scholars from other branches of the science of law, from time to time denied in its juridical existence and brought back to state morality or politics or to another uncertain scientific category, international law must always struggle to affirm its scientific existence and must constantly take care to demolish the arguments against it by demonstrating that it is based on the same foundation of constitutional law, of procedural, criminal and private law».

Die Rechtliche Natur Der Staatenverträge: Ein Beitrag Zur Juristischen Construction Des Völkerrechts, published in 1880, it belongs to the youth production of Georg Jellinek. Despite the brevity, and although it must still be expected long before the Austrian philosopher comes to the elaboration of the famous General Theory of State, this pamphlet not only shows how the idea of limited sovereignty was already very clear to the young Jellinek, but still retains full actuality.

Before dealing with the specific subject of the foundation of the obligatory international agreements, Jellinek concisely and effectively investigates the nature of the state authority from the point of view of domestic law. His reflection tries to stand against the thesis, whose first formulation is traced back to Jean Bodin, that the nature of sovereign power would know no limits and would therefore be absolute. Jellinek is confronted with the difficulty of finding an intrinsic limitation to state power, a difficulty that arises because the very nature of the State would seem, ultimately, to devote to the sinking any attempt to force public power to abide by the obligations contracted with its subjects or with other international subjects. Nevertheless, Jellinek manages to find a way to reinforce the right to substantial content that not only the individual but also the State as public power is obliged to respect.

Especially in our time when democratic values never find the quietness of what is sheltered once and for all, Jellinek’s contribution appears to be more valuable than ever because the way shown here is shown as an overcoming of the formalist approach to law professed by legal positivism, thus allowing the right to be relocated as a phenomenon on an ontological level.

The debate on the foundations of international law is concerned with touching only the most external profiles. But it is only the solution of the single problem that can cause the consistency and value of the general principles to be tested.

If in these pages the legal building of one of the most important sectors of international law will be fulfilled, a double objective will have been achieved.

First, an in-depth discussion of the subjective principle of international law, on which the legal assessment of this also depends. In my opinion the juridical character of international law is to be demonstrated only by the path taken by von Kaltenborn and Bulmerincq, and recently by Bergbohm. But precisely the denial of the possibility of an autonomous legal construction recently advocated by Fricker shows how much this point still needs a justification and a penetrating investigation.

And then the foundation of the contractual right based on the nature of the thing. Faced with the denial, widespread among the adepts of international law, of a positive general international law and the consequent willingness to recognize in relation to international principles only a casual agreement of the States, it was necessary to highlight the rational moment in the international law and to demonstrate that here there are rules whose collective recognition is already given by the nature of the legal transaction. Precisely the question of the source of objective contractual law shows the insufficiency of the thesis that wants to reduce international law to the external right of the State.

The first part of this discussion must also clarify how the juridical existence of international law is intimately linked to the internal legal order and what serious consequences the denial of the former has for the juridical character of the latter. Therefore these pages hope to be able to claim some relevance also for the general theory of law.

As to Jellinek, in Italian, see: R. Marra, La religione dei diritti. Durkheim – Jellinek – Weber, trans It. by G, Scotto, Giappichelli, Torino, 2006; E. Palici di Suni, Giustizia Costituzionale, Milanofiori Assago, UTET Giuridica, 2010, Universitaria.

[24] H. Triepel, Völkerrecht und Landesrecht (1899), at 32, 81.

[25] S.S. Lotus, 1927 PCIJ Series A, No. 10, at 18.

[26] Ratner and Slaughter, ‘Appraising the Methods of International Law: A Prospectus for Readers’, 93 AJIL (1999) 291; S. J. Shapiro, Legality (forthcoming 2010), at 26–30.

[27] Fastenrath, ‘Relative Normativity in International Law’, 4 EJIL (1993) 306, at 307–308; Simma and Paulus, ‘The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View’, 93 AJIL (1999) 302, at 304–305.

[28] Ratner and Slaughter, ‘Appraising the Methods of International Law: A Prospectus for Readers’, 93 AJIL (1999) 291; Id., supra, at 293 (characterizing positivism as ‘the lingua franca of most international lawyers, especially in continental Europe’); S. J. Shapiro, Legality (forthcoming 2010), at 26–30.

[29] H. Kelsen, Reine Rechtslehre (2nd edn, 1960), at 196.

[30] For a passionate critique of voluntarist conceptions of international law see Cançado Trindade, ‘International Law for Humankind: Towards a New Jus Gentium (I)’, 316 RdC (2005) 9, at 45–50.

[31] For a harsher critique see Brownlie, ‘International Law at the Fiftieth Anniversary of the United Nations’, 255 RdC (1995) 9, at 26 (allocating Hart to the group of ‘general theorists who fit international law into their theories but do so from a position of relative ignorance and non-involvement in foreign affairs’).

[32] N. Jansen, The Making of Legal Authority: Non-legislative Codifications in Historical and Comparative Perspective (2010), at 2–3. For an in-depth development of this argument see Goldsmith and Levinson, ‘Law For States: International Law, Constitutional Law, Public Law’, 122 Harvard L Rev (2009) 1791. Hart’s assessment that international law does not encompass secondary rules has been challenged by legal scholars: see, e.g., Dupuy, ‘The Danger of Fragmentation or Unification of the International Legal System and the International Court of Justice’, 31 NYU J Int’l L & Pol (1999) 791, at 793; A. D’Amato, The Concept of Custom in International Law (1971), at 41. But see Goldsmith and Levinson, supra, at 1801–1822 (pointing out, that the same can be said about constitutional law). As to the transformation of the international law-making process in the age of globalization in more depths, see M. Payandeh, Internationales Gemeinschaftsrecht (2010), at 177–367; Zemanek, ‘Majority Rule and Consensus Technique in Law-Making Diplomacy’, in MacDonald and Johnston (eds), supra note 9, at 857; Wolfrum and Pichon, ‘Consensus’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (2006); Alvarez, ‘The New Treaty Makers’, 25 Boston College Int’l & Comp L Rev (2002) 213. See also C. Tams, Enforcing Obligations Erga Omnes in International Law (2005); Payandeh, ‘With Great Power Comes Great Responsibility? The Concept of the Responsibility to Protect Within the Process of International Lawmaking’, 35 Yale J Int’l L (2010) 469, 508–513; (this argument is advanced in more detail by W. Friedmann, The Changing Structure of International Law (1964); A. Chayes and A.H. Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (1995).

[33] North Sea Continental Shelf [1969] ICJ Rep 3, at 43; Military and Paramilitary Activities in and against Nicaragua, Merits [1986] ICJ Rep 14, at 98; D’Amato, supra note 87, at 42; K. Wolfke, Custom in Present International Law (2nd edn, 1993), at 59.

[34] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 226, at 255; Military and Paramilitary Activities in and against Nicaragua, Merits [1986] ICJ Rep 14, at 99–100; Fisheries Jurisdiction, Merits [1974] ICJ Rep 175, at 195.

[35] Bernhardt, ‘Customary International Law’, in R. Bernhardt (ed.), Encyclopedia of Public International Law (1992), at 898, 901; D’Amato, ‘Trashing Customary International Law’, 81 AJIL (1987) 101, at 101–102; Kelly, ‘The Twilight of Customary International Law’, 40 Virginia J Int’l L (2000) 449, at 526; Kirgis, ‘Custom on a Sliding Scale’, 81 AJIL (1987) 146, at 147–148; Koskenniemi, ‘The Pull of the Mainstream’, 88 Michigan L Rev (1990) 1946, at 1952–1953.

[36] Bryde, ‘International Democratic Constitutionalism’, in R. St. J. MacDonald and D.M. Johnston (eds), Towards World Constitutionalism (2005), at 103, 111–112.

[37] Tomuschat, ‘Obligations Arising for States Without or Against Their Will’, 241-IV RdC (1993) 195, at 330–333.

[38] E. Yemin, Legislative Powers in the United Nations and Specialized Agencies (1969); T. Buergenthal, Law-Making in the International Civil Aviation Organization (1969).

[39] Rosand, ‘The Security Council as “Global Legislator”: Ultra Vires or Ultra Innovative?’, 28 Fordham L Rev (2005) 542, at 562; Kirgis, ‘The Security Council’s First Fifty Years’, 89 AJIL (1995) 506, at 522.

[40] SC Res. 1373 (2001).

[41] SC Res. 1540 (2004).

[42] Berman, ‘A Pluralist Approach to International Law’, 32 Yale J Int’l L (2007) 301; Burke-White, ‘International Legal Pluralism’, 25 Michigan J Int‘l L (2004) 963; International Law Commission, ‘Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law’, Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi, UN Doc. A/CN.4/L.682 (2006), at paras 491–493 (characterizing pluralism as a constitutive value of the international legal system).

[43] Military and Paramilitary Activities, Merits [1986] ICJ Rep 14, at 99–102.

[44] Art. 51 of the UN Charter.

[45] Randelzhofer, ‘Article 2(4)’, in B. Simma (ed.), The Charter of the United Nations: A Commentary (2nd edn, 2002), i, at paras 14–37.

[46] Hart also rejects Austin’s conception that legal obligations of the legislator are possible if one conceives of the people as the sovereign: ibid., at 71–78.

[47] In addition, Hart criticizes Austin’s descriptive concept of obligation. According to Hart, to equate an obligation with the prediction of a sanction which might be imposed in the case of non-compliance is to distort the reality of law. It neglects that legal obligations not only predict the imposition of a sanction but also justify it. And it ignores the internal aspect of rules: the fact that people voluntarily accept rules and behave accordingly, irrespective of the prospect of punishment: ibid., at 82–91.

[48] Ibid., at 80–81.

[49] Ibid., at 91.

[50] Ibid., at 92–94.

[51] Ibid., at 94–98.

[52] Ibid., at 100–101.

[53] Ibid., at 105–106.

[54] Ibid., at 107–110.

[55] Ibid., at 112–117.

[56] Ibid., at 115.

[57] Ibid., at 116–117.

[58] Kelsen, op. cit., p. 44.

[59] Hart, op. cit., at 92.

[60] Ibid., at 94–95.

[61] Ibid., at 233–236.

[62] Ibid., at 233–234.

[63] Ibid., at 236.

[64] For present purposes it suffices to address those aspects of the rule of recognition which affect Hart’s concept of international law. For a more comprehensive critique see Shapiro, supra note 65, at 235.

[65] See, e.g., the contributions in M.D. Adler and K.E. Himma (eds), The Rule of Recognition and the U.S. Constitution (2009).

[66] For a more complete examination of the functions of the rule of recognition see Shapiro, supra, at 242–245.

[67] I. Brownlie, Principles of Public International Law (7th edn, 2008), at 3–5.

[68] Koskenniemi, ‘The Politics of International Law’, 1 EJIL (1990) 4, at 7–9; M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Reissue 2006).

[69] Dworkin has famously invoked the lack of a consensus with regard to the modalities of interpretation as an argument against the positivist concept of law: see R. Dworkin, Law’s Empire (1986). In the present analysis I remain agnostic to the persuasiveness of Dworkin’s criticism. For present purposes it is sufficient to point out that the criticism applies to municipal law in the same way as it applies to international law.

[70] See, e.g., Tribe, ‘Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation’, 108 Harvard L Rev (1995) 1221 (arguing for the exclusivity of the Art. V amendment procedure); A.R. Amar, America’s Constitution: A Biography (2005), at 295–299 (accepting the theoretical possibility of constitutional amendments outside Art. V); B. Ackerman, We The People: Foundations (1991), at 266–294 (arguing in favour of higher lawmaking through constitutional moments outside Art. V). For an overview of the debate about constitutional interpretation in the US see E. Chemerinsky, Constitutional Law: Principles and Policies (3rd edn, 2006), at 15–28.

[71] Hart, supra note 1, at 95.

[72] Ibid., at 233.

[73] International Law Commission.

[74] Ibid., at para. 468.

[75] Ibid., at para. 85.

[76] Ibid., at paras 46–323.

[77] Ibid., at para. 26.

[78] Ibid., at paras 324–409.

[79] Edye v. Robertson (The Head Money Cases), 112 US 580, 598 (1884); Whitney v. Robertson, 124 US 190, 194 (1888) (arguing for an equal status of treaties and statutes); Henkin, ‘Treaties in a Constitutional Democracy’, 10 Michigan J Int’l L (1989) 406, at 424–426 (arguing for the superiority of treaties over statutes); Amar, supra note 157, at 302–307 (arguing in favour of the superiority of statutes over treaties).

[80] Payandeh, Mehrdad (2010), “The Concept of International Law in the Jurisprudence of HLA Hart”, European Journal of International Law, 21:4, pp. 967-995. This article analyses H.L.A. Hart’s concept of international law from the perspective of analytical jurisprudence and in light of the state of contemporary international law. The article challenges Hart’s view that international law is ‘law’ but not a ‘legal system’. Hart arrives at this conclusion on the basis of a comparison of the international legal order with the municipal legal system. This comparison is distorted by Hart’s general focus on private law and criminal law and becomes less convincing when constitutional law is added to the equation. As a consequence, Hart’s methodological approach is inconsistent and should be modified. Rather than asking whether international law resembles municipal law in form, it should be asked whether international law encompasses legislative, executive, and judicial structures which are able to perform the same functions as the legal order of a nation state, and which thereby overcome the defects of a primitive social order. Against the background of this modified analytical framework, Hart’s analysis is revisited in light of recent developments and changes in the structure of international law at the beginning of the 21st century.

[81] Waldron, John, (2019), Non-normative Principles (June 6, 2019). Available at SSRN: https://ssrn.com/abstract=3400296 or http://dx.doi.org/10.2139/ssrn.3400296 . How should we think about legal principles? Waldron means principles understood as a distinct kind of legal provision (contrasted with rules and with enacted standards). In analytic jurisprudence, the best-known account of legal principles – Ronald Dworkin’s account – assigns them a normative function in law, albeit not a hard or determinate one. But legal principles sometimes serve a characterizing rather than a normative function: they tell us about the character of a legal system rather than giving us instructions about how to deal with difficult cases. There is a further question whether characterizing principles can nevertheless perform some sort of normative function in legal argument. In the second half of this paper, Waldron considers the operation of constitutional principles, like the rule of law and the separation of powers. John Manning, in his treatment of the separation of powers, implies that is hard for constitutional principles to work normatively in our law because their representation in the constitutional text is ragged and compromised, and they present us with no canonical text other than the detailed provisions of the Constitution itself to chart the contours of such compromises.

[82] Goldsmith, J.L. and Posner, EA, (2005), The Limits of International Law, Oxford: OUP.

[83] Rodin, David (2002), War and Self-defence, Oxford: OUP.

[84] Fabre, Cecile (2011), A Cosmopolitan Theory of the Just War, Oxford: OUP.

[85] Austin, J.L. (1961), ‘A plea for excuses’, in Philosophical Papers, Oxford: OUP.

[86] Winch, Peter (1958), The Idea of a Social Science, London: Routledge.

[87] Hart, H.L.A. (1994), The Concept of Law, 2nd edition, Oxford: OUP.

[88] Walzer, Michael (2006), Just and Unjust Wars, 4th edition, New York: Basic Books.

[89] The International Institute of Humanitarian Law is an independent, “non-profit, humanitarian association having social values as its objectives”, founded in 1970 in Sanremo, Italy. Its headquarters are situated in Villa Ormond.

With almost 50 years of experience the Institute’s main task is to train the professionals in international humanitarian law, refugee law and migration law in order to equip them with the ability to tackle the complex situations the world civilizations are facing today. Alongside its main training task, the Institute also focuses on the dissemination and development of international humanitarian law through publishing, conducting research, workshops and conferences culminating in its annual Round Table that take place every year in September and gathers experts from all over the world to discuss selected issues.

The main purpose of the Institute is to promote international humanitarian law and related subjects. According the Statutes the Institute takes initiatives and carries out activities of a practical and multidisciplinary character, in particular, by organising courses of teaching, training and advanced studies in the fields of international humanitarian law, human rights, refugee law and related issues; by promoting dialogue with a view to fostering better respect and implementation of international law and by organising international conferences, meetings and seminars of scholars and practitioners.

Thanks to its specific, well-tested experience, the Institute has earned an international reputation as a centre of excellence in the field of training, research, and the dissemination of all aspects of international humanitarian law.

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The financial resources of the Institute include membership fees, course participant fees, voluntary contributions of Governments, Institutions or Organisations, and subsidies, bequests or donations. The financial resources of the Institute are modest if compared with the extent of its commitment and activity in a field of increasing interest to the international community.

Shortly after the foundation of the Institute, a library was created to provide the appropriate literature and documents to support the activities of the Institute.

Over the years, the library has gradually increased its resources, not only through its own acquisitions but also through donations from other international organisations concerned with humanitarian problems, such as, the United Nations, UNHCR, UNOHCHR, UNESCO, COE, OSCE, and the International Red Cross and Red Crescent Movement, particularly the ICRC. In addition, the library has an expanding collection of videos, DVDs and CDs for didactic purposes, and numerous periodicals.

The library has a tradition of welcoming researchers from all over the world. Inters usually find place in the library and during their stay they become involved in various research projects, previously agreed upon, as well as in the organisation of the Institute’s activities. All have benefited from their experience in the Institute’s library whether their stay has lasted a day, a month or 6 months.

[90] Gluckman, Max (1965), The Ideas in Barotse Jurisprudence, Manchester: MUP.

[91] Hobbes, Thomas (1994) Leviathan, ed. E.Curley, Indianapolis: Hackett.

[92] Locke, John (1993), The Second Treatise of Government, in John Locke: Political Writings, ed. D.Wootton, Harmondsworth: Penguin.

[93] N. Jansen, The Making of Legal Authority: Non-legislative Codifications in Historical and Comparative Perspective (2010), at 2–3.

[94] Hart’s assessment that international law does not encompass secondary rules has been challenged by legal scholars: see, e.g., Dupuy, ‘The Danger of Fragmentation or Unification of the International Legal System and the International Court of Justice’, 31 NYU J Int’l L & Pol (1999) 791, at 793; A. D’Amato, The Concept of Custom in International Law (1971), at 41.

[95] As to the Italian scenario see, e.g. Monoghaphic Issue of Ragion Pratica, 21, 2003, ed. by Cristina Redondo; A. Schiavello, Il positivismo giuridico dopo Herbert L.A. Hart. Un’introduzione critica, Torino, 2004; D. Canale, Teorie dell’interpretazione giuridica e teorie del significato, in «Materiali per una storia della cultura giuridica», a. XLII, n. 1, giugno 2012.

[96] For an in-depth development of this argument see Goldsmith and Levinson, ‘Law For States: International Law, Constitutional Law, Public Law’, 122 Harvard L Rev (2019) 1791.

[97] Alexander and Schauer, ‘On Extrajudicial Constitutional Interpretation’, 110 Harvard L Rev (2007) 1359.

[98] Edye v. Robertson (The Head Money Cases), 112 US 580, 598 (1884); Whitney v. Robertson, 124 US 190, 194 (1888) (arguing for an equal status of treaties and statutes); Henkin, ‘Treaties in a Constitutional Democracy’, 10 Michigan J Int’l L (1989) 406, at 424–426 (arguing for the superiority of treaties over statutes); Amar, supra note 157, at 302–307 (arguing in favour of the superiority of statutes over treaties).

[99] As to general references, see (in alphabetical order): Bowles, S., Edwards, R., & Roosevelt, F. (2005). Understanding capitalism: Competition, command, and change (3. ed). Oxford Univ. Press; Dietsch, P. (2010). The market, competition, and equality. Politics, Philosophy & Economics, 9(2), 213–244. https://doi.org/10.1177/1470594X09359148. Douglas, A. J. (2019). W.E.B. Du Bois and the Critique of the Competitive Society. The University of Georgia Press; Fishkin, J. (2016). Bottlenecks: A new theory of equal opportunity (First issued as an Oxford University Press paperback). Oxford University Press; Frank, R. H. (2011). The Darwin economy: Liberty, competition, and the common good. Princeton University Press; Hirsch, F. (1999). Social limits to growth. Harvard Univ. Press; Hussain, W. (2018). Why should we care about competition? Critical Review of International Social and Political Philosophy, 1–16. https://doi.org/10.1080/13698230.2017.1398859. Id., (2020). Pitting People Against Each Other. Philosophy & Public Affairs, 48(1), 79–113. https://doi.org/10.1111/papa.12158. Knight, F. H. (1923). The Ethics of Competition. The Quarterly Journal of Economics, 37(4), 579. https://doi.org/10.2307/1884053. Kohn, A. (1992). No contest: The case against competition (Rev. ed). Houghton Mifflin; Kushner, J. (2019). Coercion as a Pro Tanto Wrong: A Moderately Moralized Approach. The Journal of Ethics, 23(4), 449–471. https://doi.org/10.1007/s10892-019-09305-2. MacIntyre, A. C. (2007). After virtue: A study in moral theory (3rd ed). University of Notre Dame Press; Neuhouser, F. (2008). Rousseau’s Theodicy of Self-Love: Evil, Rationality, and the Drive for Recognition. Oxford University Press; Rawls, John (1999 [1971]). A Theory of Justice. Revised Edition. Cambridge (Mass.): Harvard University Press; Rousseau, J.-J., Dunn, S., & May, G. (2002). The Social Contract and The First and Second Discourses. Yale University Press; Walzer, M. (2010). Spheres of justice: A defense of pluralism and equality (Nachdr.). Basic Books.

[100] Some of the main, primarily economic analyses of competition include Frank Knight’s The Ethics of Competition (1923); Fred Hirsch’s Social Limits to Growth (1999); Samuel Bowles, et al.’s Understanding capitalism: Competition, Command, and Change (2005); Peter Dietsch’s The Market, Competition, and Equality (2010); and Robert Frank’s The Darwin Economy: Liberty, Competition, and the Common Good (2011). For a critical work on competition based on literature in the social sciences, see: No Contest: The Case Against Competition, by Alfie Kohn (1992). A recent sociological analysis is Andrew Douglas’s W.E.B. Du Bois and the Critique of the Competitive Society (2019). Competition gets some attention in the philosophical literature, but it rarely plays a central role. Think of Rousseau’s work on amour-propre and the role of institutions (Rousseau et al., 2002; Neuhouser, 2008); Michael Walzer’s Spheres of Justice (2010); Alasdair MacIntye’s After Virtue: A Study in Moral Theory (2007); and Joseph Fishkin’s Bottlenecks: a new theory of equal opportunity (2016). Waheed Hussain is thus one of the very few philosophers that puts competition at the center of attention in his articles: Why Should We Care About Competition? (2018b) and Pitting People Against Each Other (2020).

[101] https://www.usahockeyrulebook.com/page/show/1015119-standard-of-play-and-rule-emphasis-body-checking.

[102] In Section 4, we argue why – or: when – the harm inevitably imposed by substantially engulfing competitive institutions constitutes a pro tanto reason not to distribute goods competitively.

[103] Note, however, that some estrangement can exist without seriously obstructing the form of solidarity that is required among the members of an association (Hussain 2020, pp. 94–98).

[104] We want to avoid engaging in the more general debates between liberals (who focus primarily on principles such as liberty and equality of opportunity) and communitarians (who focus primarily on principles such as solidarity and fraternité). While Hussain’s approach seems communitarian, he explicitly advocates a liberal approach (p. 99, fn. 31) and argues: “On the liberal view, the relational ideal for citizens resembles the relational ideal for neighbors or professional colleagues in that it requires a form of solidarity” (p. 100).

[105] Empirical evidence that most people believe that the best-qualified applications should be hired for a job or admitted to a university can be found in Mulligan (2018, pp. 110–111).

[106] See Section 3.3. for our own conceptual approach to competition. Also note that, in a similar vein, Hussain includes in his definition of RDAs that A’s aspirations always interfere with B’s aspirations and thus that both competitors cannot simultaneously win a competition.

[107] Note that Ross uses ‘prima facie’ as referring to acts that are in themselves wrong or right. It is inherent to the very act of harming someone that it involves a wrong.

[108] Kushner’s definition refers to ‘pro tanto wrongs’, while for the purposes of this paper we use the subtler words ‘pro tanto reasons to avoid X’.

[109] I do not refer to any philosophically qualified accounts of ‘the Will’. I use the concept in its common-sensical understanding of whatever the subject wants.

[110] As to general references, see (in alphabetical order): Bealey, F. (1999). The Blackwell Dictionary of Political Science: A User’s Guide to Its Terms (1 edition). Oxford, UK; Malden, Mass: Wiley-Blackwell; Elster, J. (1985). Sour Grapes: Studies in the Subversion of Rationality. Cambridge University Press; Gray, J. (2002). Two faces of liberalism. New York: The New Press; Hampshire, S. (2001). Justice Is Conflict. (Reprint edition). Princeton: Princeton University Press; Hobbes, T. (1991). Man and Citizen: De Homine and De Cive. Indianapolis: Hackett Publishing; Honig, B. (1993). Political theory and the displacement of politics. New York: Cornell University Press; Locke, J. (2011). A Letter Concerning Toleration. New York: Merchant Books; Marx, K., & Mandel, E. (1992). Capital: Volume 1: A Critique of Political Economy. (B. Fowkes, Trans.) (Reprint edition). London; New York, N.Y: Penguin Classics; Mouffe, C. (2005). The Return of the Political. New York: Routledge; Nicholson, M. (1992). Rationality and the Analysis of International Conflict (1st Paperback Edition edition). Cambridge; New York, NY, USA: Cambridge University Press; Nozick, R. (1974). Anarchy, State, and Utopia. Oxford, UK: Blackwell; Rawls, J. (1993). Political liberalism. New York: Columbia University Press; Richardson, L. F. (1960). Arms and insecurity: A mathematical study of the causes and origins of war. Boxwood Press; Schmitt, C., Strong, T. B., & Strauss, L. (2007). The Concept of the Political: Expanded Edition. (G. Schwab, Trans.) (Enlarged edition). Chicago: University Of Chicago Press; Tönnies, Ferdinand. (2001). Community and society. (Jose Harris, Ed., Margaret Hollis, Trans.) (Cambridge University Press). Cambridge, UK; Weber, M. (1978). Economy and Society: An Outline of Interpretive Sociology. Berkley: University of California Press; Weber, M., Owen, D., & Strong, T. B. (2013). The Vocation Lectures: “Science as a Vocation” & “Politics as a Vocation”: “Science as a Vocation.” (R. Livingstone, Trans.). Indianapolis: Hackett Publishing Co.

[111] I am using political in Weber sense, whereby: ‘what “politics” means for us is to strive for a share of power or to influence the distribution of power, whether between states or between the groups of people contained within a state (Weber, Owen, & Strong, 2013, p. 33).

[112] Regarding to a general scenario, see, in alphabetical order: Acemoglu D. and Robinson J. (2012). Why Nations Fail: the Origins of Power, Prosperity and Poverty, Profile Books, London; Allen C.R. and Holling C.S. (2010). Novelty, Adaptive Capacity, and Resilience, Ecology and Society 15: 24; Belligni S. (2005). Revisionismi Democratici. La Governance dell’Uomo col Fucile, Relazione tenuta per l’associazione “Historia Magistra”, Torino; Bevir M. (2010). Rethinking Governmentality: Towards Genealogies of Governance, European Journal of Social Theory 13: 423-441; Bevir M. and Rhodes (2005). Interpretation and Its Others, Australian Journal of Political Science 40: 169-187; Biggs R., Westley F.R. and Carpenter S.R. (2010). Navigating the Back Loop: Fostering Social Innovation and Transformation in Ecosystem Management, Ecology and Society 15: 9; Binmore K. (2010). Game Theory and Institutions, Journal of Comparative Economics 38: 245-252; Binmore K. (2006). Why do people cooperate?, Politics, Philosophy & Economics 5: 81–96; Binmore K. (2005). Natural Justice, Oxford University Press, New York; Byrne D. S. (1998). Complexity Theory and the Social Sciences: An Introduction, Routledge, London; Crouch C. (2012). Il Potere dei Giganti. Perchè la Crisi non ha Sconfitto il Neoliberismo, Laterza, Roma; De Landa M. (2000). A Thousand Years of Nonlinear History, The MIT Press, Cambridge; Ferh E. and Gintis H. (2007). Human Motivation and Social Cooperation: Experimental and Analytical Foundations, Annual Review of Sociology 33: 43–64; Fischbacher U., Fong C. M. and Fehr E. (2009). Fairness, errors and the power of competition, Journal of Economic Behavior & Organization 72:527–545; Foucault M. (1998). Le Parole e le Cose, BUR, Milano; Foucault M. (1976). Sorvegliare e Punire, Einaudi editore, Torino; Franzini M. (2004). Riformisti di qua, Conservatori di là? Contro il Riformismo Unico. Meridiana 50: 15-39; Galli C. (2008). Lo Sguardo di Giano: Saggi su Carl Schmitt, Il Mulino, Bologna; Gintis H. (2010). Social Norms as Choreography, Politics, Philosophy & Economics 9: 251–264; Hay C. (2007). Why We Hate Politics, Polity Press, Cambridge; Hall P. (1993). Policy Paradigms, Social Learning, and the State: The Case of Economic Policymaking in Britain, Comparative Politics 25: 275-296; Hilgartner S. and Bosk C.L. (1988). The Rise and Fall of Social Problems: A Public Arenas Model, American Journal of Sociology 94: 53-78; Holling C.S. (2001). Understanding the Complexity of Economic, Ecological, and Social Systems, Ecosystems 4: 390–405; Homer-Dixon T. (2002). The Ingenuity Gap, Vintage Books, New York; Klijn E.H. (2008). Complexity Theory and Public Administration: What’s New? Public Management Review 10: 299 – 317; Klijn E.H., Edelenbos J. and Steijn B. (2010). Trust in Governance Networks; its Impacts on Outcomes, Administration and Society 42:193-221; Lane P.R. and Tornell A. (1999). The Voracity Effect, American Economic Review 89: 22-46; March J.G.. and Olsen J.P. (2006). Elaborating the New Institutionalism, in: Rhodes R. A. W., Binder S. A. and Rockman B. A (eds.) Oxford Handbooks of Political Science, Oxford University Press, New York; Mastropaolo A. (2011). La Democrazia è una Causa Persa? Bollati Boringhieri, Torino; Mulder L.B, van Dijk E., De Cremer D. and Wilke H.A.M. (2006). When Sanctions Fail to Increase Cooperation in Social Dilemmas, Personality and Social Psychology Bulletin 32: 1312-1324; Morton A.D. (2007). Unravelling Gramsci: Hegemony and Passive Revolution in the Global Political Economy, Pluto Press, London; North D., Wallis J.J. and Weingast B.R. (2012). Violenza e Ordini Sociali: Un’Interpretazione della Storia, Il Mulino, Bologna; Oestreich G. (2007). Storia dei Diritti Umani e delle Libertà Fondamentali, Laterza, Roma; Pettit P. (2004). Depoliticizing Democracy. Ratio Juris 17: 52-65; Polany K. (2010). La Grande Trasformazione, Einaudi, Torino; Schmitt C. (2008). La Tirannia dei Valori, Adelphi, Milano; Schmitt C. (1972). Le Categorie del Politico, Il Mulino, Bologna; Smil V. (2010). Energy Transitions: History, Requirements, Prospects, Praeger Publishers, New York; Tilly C. (2005). Trust and Rule, Cambridge University Press, Cambridge; Tilly C. and Tarrow S.G. (2008). La Politica del Conflitto, Mondadori Editore, Milano; Thomas P.D. (2009). The Gramscian moment : Philosophy, Hegemony, and Marxism, Koninklijke Brill NV, Leiden; Weirich P. (2011). Exclusion from the Social Contract, Politics, Philosophy & Economics 10: 148–169.

[113] On the issue of historicism, see the framework defined by Gramsci (Thomas, 2009; Morton, 2007), Focault (Focault, 1976; Bevir, 2010) and Polany (2010).

[114] I have already dealt with the matter in my previous papers: see Enrico Arona, War through (International) Law? Some neo-rethoring of “othering” in the European “De jure belli ac pacis” context, in Nordicum-Mediterraneum, Icelandic E-Journal of Nordic and Mediterranean Studies, vol. 14, no. 1 (2019), section I.

[115] For the analysis of the “age of technique”, see Schmitt (1972) and Galli (2008).

[116] Quoting Byrne (1998, pag. 22), “what happens is that at these crucial transformation points the system seems to have two possible trajectories into which it can move and it ‘chooses’ between them on the basis of very small differences in the values of controlling parameters at the point of change“.

[117] For the concept of historical juncture, see Acemoglu and Robinson (2012).

[118] To understand this difference, we can consider, for example, the different effects of the Arab spring on the Egyptian and Moroccan regime between 2010 and 2011: the first has been unable to open its structures reducing the disruptive force of several components of the citizenship and it has dramatically collapsed, while the second has been able to partially adapt to the popular request, reducing the dangers and surviving to the clashes and demonstration of its citizenship.

[119] Explaining the evolution of the neo-liberal construction, they analyze very well the process of transformation and consolidation of the ideas – produced by Hayek and Friedman between the ‘50s and ‘60s, and improved by other scholars in the following years -, in concrete and durable institutions and hard norms – implemented by Regan and Thatcher twenty years later -.

[120] Here, I’m not defining these agencies as public or private, because their intrinsic form is strongly related to the context, socio-economic relations and specific structures characterizing a society. Reached this point, it is possible to concretely analyze the role of conflict in the institutional evolution. So, in the next paragraph I pay attention to the reciprocal and conflicting interactions operating between insider and outsider groups.

[121] For this paragraph, and particularly for the analysis of the role of social sanction and punishment on the cooperation between groups, I have taken inspiration by Binmore (2005, 2006, 2010), Gintis (2010) and Fehr and Gintis (2007). Also Fischbacher et al. (2009) is important, because it specifically analyses the role of conflict in the promotion of cooperation.

[122] Morton (2007) – moving in the Gramscian perspective defined by Cox – analyses the relations existing between the social relations of production, the social forces and the form of state. In its perspective, the social classes are strongly historicized, related to the shape of the production structures, technologies and processes.

[123] In a certain way, I have been inspired by the theoretical background of the paradigm change defined by Hall (1993).

[124] I want to underline I don’t use here a mechanical and deterministic model: i.e., the context, the concrete actions of the actors or the effectiveness of the external events could strongly modify the evolutionary patterns of the relation between included and excluded groups.

[125] I consider here the definition of absolute enemy proposed by Schmitt (2008): when the absolutization of values become central to the social and political life, the absolute enemy could be destroyed through a justified conflicting dynamic.

[126] I identify this process whit the concept of “passive revolution” defined by Gramsci (Morton, 2007).

[127] For a reflection on this issue, see Franzini (2004).

[128] As to democracy, terrorism, war and peace see: Bobbio, Norberto: Teoría general de la política, Trotta, Madrid, 2003; Id., “Paz y guerra”, pp. 547-583; Ferrajoli, Luigi: “La guerra y el futuro del derecho internacional”, en L. Bimbi (ed.), No en mi nombre, Trotta, Madrid, 2003, pp. 213-223; Bobbio, Norberto: Teoría general de la política, Trotta, Madrid, 2003, “Paz y derecho”, pp. 605-614; Kelsen, Hans: “Naturaleza del derecho internacional”, en Derecho y paz en las relaciones internacionales, FCE, México, 21989, pp. 49-79; Rigaux, François: “La doctrina de la guerra justa”, en L. Bimbi (ed.), No en mi nombre, Trotta, Madrid, 2003, pp. 91-121; D. Zolo, Danilo: La giustizia dei vincitori. Da Norimberga a Bagdag, Laterza, Roma-Bari, 2006; Id., “La guerra globale preventiva”, pp. 88-108; Id., “Le ragioni del terrorismo”, pp. 127-139; Ackerman, Bruce: Antes de que nos ataquen de nuevo, Península, Barcelona, 2007; Id., “Introducción”, pp. 11-20; “La constitución política”, pp. 107-137; Jakobs, Günther, Derecho penal del enemigo, Civitas, Madrid, 2006; “Derecho penal del ciudadano y derecho penal del enemigo”, pp. 23-56; Id., “¿Terroristas como personas en derecho?”, pp. 57-83. Echevarría, Javier: “Terrorismo en el tercer entorno”, en C. Roldán, T. Ausín, R. Mate (eds.), Guerra y paz. En nombre de la política, Calamar Ediciones, Madrid, 2004, pp. 193-206; Sen, Amartya: Identità e violenza, Laterza, Roma-Bari, 2006; Id., “La violenza dell’illusione”, pp. 3-19; Id., “Libertà di pensiero”, pp. 173-188; Bauman, Zygmunt: La globalización. Consecuencias humanas, FCE, México, 2001; Id., “Ley global órdenes locales”, pp. 135-165; Ignatieff, Michael: El mal menor. Ética política en una era de terror, Santillana, Madrid, 2005; Id., “La democracia y el mal menor”, pp. 15-44; Id., “Libertad y apocalipsis”, pp. 191-221; Bernstein, Richard: El abuso del mal. La corrupción de la política y la religión desde el 11/9, Katz Editores, Buenos Aires, 2006; Id., “Introducción”, pp. 13-38; Id., “La certeza moral y el compromiso profundo”, pp. 93-115; Revelli, Marco: La política perdida, Trotta, Madrid, 2008; Id., “La política hecha añicos”, pp. 53-74; Vitale, Ermanno: “La paz (im)posible y el mal radical”, en Derechos y paz. Destinos individuales y colectivos, Fontamara, México, 2004, pp. 49-71.

[129] Ganor, B. (2002). Defining Terrorism: Is One Man’s Terrorist Another Man’s Freedom Fighter? Police Practice and Research [online] 3(4), pp. 287-304. Available from: 10.1080/1561426022000032060. [Accessed 8 March 2015].

[130] Schnelle, S. (2012). Abdullah Azzam, Ideologue of Jihad: Freedom Fighter or Terrorist? Journal of Church and State [online] 54(4), pp. 625-647. Available from: 10.1093/jcs/csr123. [Accessed 8 March 2015].

[131] Held, V. (2005). Legitimate Authority in Non-state Groups Using Violence. Journal of Social Philosophy [online] 36(2), pp. 202-217. Available through Wiley Online Library [Accessed 9 March 2015].

[132] Jaggar, A. (2005). What is Terrorism, Why is it Wrong, and Could It ever be Morally Permissable? Journal of Social Philosophy [online] 36(2), pp. 175-193. Available through Wiley Online Library. [Accessed 9 March 2015]..

[133] Kamm, F.M. (2008). Terrorism and Intending Evil. Philosophy & Public Affairs [online] 36(2). Available at; http://www.jstor.org/stable/40212817. [Accessed 9 March 2015].

[134] Walzer, M. (2006). Just and Unjust Wars. 4th ed. New York: Basic Books, 1st edition 1977, pp. 251-252.

[135] Rawls, J. (1995). Fifty Years after Hiroshima. Dissent [online] 42(3) pp 323-327 (part of a symposium), Education Source, EBSCO host. [Accessed 9 March 2015].

[136] Smilansky, S. (2004). Terrorism, Justification, and Illusion. Ethics [online] 114(4), pp. 790-805, Available at: http://www.jstor.org/stable/10.1086/383443. [Accessed 7 March 2015].

[137] Walzer, M. cit., 107.

[138] Smilansky, S. cit., pp. 798-800.

[139] Coady, CAJ. (2004). Terrorism, Morality, and Supreme Emergency. Ethics [online] 114(4), pp 772-789. Available at http://www.jstor.org/stable/10.1086/38340. [Accessed 8 March 2015].

[140] Walzer, M. cit., 254.

[141] Coady, CAJ. (2010). Book Review of How Terrorism is Wrong: Morality and Political Violence. In Mind [online] 119(476), pp. 1186-1189. Available at: http://www.jstor.org/stable/23012218. [Accessed 9 March 2015].

[142] Nath, R. (2011). Two Wrongs Don’t Make a Right: A Critique of Virginia Held’s Deontological Justification of Terrorism. Social Theory and Practice [online] 37(4), pp. 679-696. Available at: http://www.jstor.org/stable/23558500. [Accessed 9 March 2015].

[143] Nath, R. cit., 682.

[144] Miller, R. (2005). Terrorism and Legitimacy: A Response to Virginia Held. Journal of Social Philosophy [online] 36(2), pp. 194-201. Available from: 10.1111/j.1467-9833.2005.00266.x. [Accessed 9 March 2015].

[145] Coady, CAJ., cit., 1188.

[146] Brincat, SK. (2009). “Death to Tyrants’: Self-Defence, Human Rights and Tyrannicide – Part II. Journal of International Political Theory [online] 5(1), p. 75. Available from: 10.3366/E1755088209000330. [Accessed 9 March 2015]; see also Kalin, W, and Kunzli, J. (2000). Article 1F(b): Freedom Fighters, Terrorists, and the Notion of Serious Non-Political Crimes. International Journal of Refugee Law [online] 12(special supplementary issue), pp. 46-78. [Accessed 9 March 2015].

[147] Grotius, H., De iure belli ac pacis (English: On the Law of War and Peace) is a 1625 book inLatin, written by Hugo Grotius and published in Paris, on the legal status of war. It is now regarded as a foundational work in international law.

Its content owed much to Spanish theologians of the previous century, particularly Francisco de Vitoria and Francisco Suarez, working in the Catholic tradition of natural law.

Grotius began writing the work while in prison in the Netherlands. He completed it in 1623, at Senlis, in the company of Dirk Granswinckel.

According to Pieter Geyl: “it is an attempt by a theologically and classically educated jurist to base upon law order and security in the community of states as well as in the national society in which he had grown up. In the rather naïve rationalism, the belief in reason as the lord of life, is revealed the spiritual son of Erasmus”.

In particular, this work is remembered for the Latin sentence: Et haec quidem quae iam diximus, locum aliquem haberent etiamsi daremus, quod sine summo scelere dari nequit, non esse Deum, aut non curari ab eo negotia humana. What we have been saying would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness: that there is no God, or that the affairs of men are of no concern to Him.

Such a concept has been synthesized with the famous Latin phrase etsi Deus non daretur, which means “even when God were assumed not to exist” but is normally translated “as if God did not exist”.

Hugo Grotius was born on 10 April 1583, to one of the wealthy ruling families in the Dutch city of Delft. The De Groots (“Grotius” is the Latinized version of his Dutch name – in common with intellectuals all over Europe, Grotius spoke and wrote to his fellow writers in Latin, and gave himself an appropriately Latin name) were regents of the city; that is, they were members of the self-selecting oligarchy which governed Delft, like many other Dutch cities. The generation before Grotius’s birth, his relatives had fought in the great struggle that established the freedom of the northern provinces of the Netherlands from the rule of the Spanish Crown, and many of Grotius’s writings display the intense patriotism engendered by that struggle. In Grotius’s case, his patriotism was as much focused on what he called his “nation,” the province of Holland and Zeeland, as it was on the wider United Provinces, which had collectively asserted their independence, and which form the modern kingdom of the Netherlands. All his life, Grotius remained wedded to the oligarchic republicanism of cities such as Delft, and somewhat wary of bigger states.

The young Grotius was educated as a humanist, in the tradition going back to the Italian Renaissance in which the study of classical texts provided an entire education, and in which the ability to write and speak persuasively, using all the ancient arts of rhetoric, was prized above all things. Although Grotius frequently cited philosophical texts written in a more “scholastic” style (that is, the style of the “schoolmen” of the Middle Ages, in which moral or legal issues were discussed in a kind of Aristotelian terminology, with little regard for literary elegance), his own writing was always essentially humanist in character. The De Iure Belli ac Pacis is full of literary and historical material from antiquity, and Grotius would have been delighted that a Genevan watch maker should think that his book was a natural companion to the works of Tacitus and Plutarch. Grotius was a prodigy within this education system and quickly made his reputation as a Latin poet and historian. For these rhetorical skills he was picked (as well-trained humanists always hoped to be) as an adviser and secretary by a leading politician, Jan van Oldenbarnevelt, who was in effect prime minister of the Dutch Republic. Grotius quickly became caught up in the political struggles of the new republic, an involvement that was ultimately to prove personally disastrous for him.

Grotius was taken in the winter of 1618 to his prison, Louvestein Castle, in the south of the United Provinces. He lived there until March 1621, when he escaped in famous and romantic circumstances: his wife arrived with a basket of books; Grotius (who was quite a small man) hid in the empty basket and was carried out of the castle. He succeeded in crossing the border to the Spanish Netherlands undetected, and took refuge in France, where he lived for most of the rest of his life. He returned to the United Provinces under a false identity in October 1631, hoping that Maurice’s successor as Statholder, Frederick William (who had always been personally sympathetic to Grotius), could arrange for him to be rehabilitated; but in the end Frederick William could not deliver an annulment of the original conviction, and Grotius slipped out of the country again in April 1632. As we shall see, these six months in his native land had an important effect on the received text of De Iure Belli ac Pacis, since Grotius issued a second edition of the work during this period in which some of his more disturbing claims were modified in order to win over his Dutch opponents. For the next three years he moved around Germany, until at the beginning of 1635 the government of Sweden appointed him as their ambassador to France, a post that allowed him to play a major role in the complex diplomacy surrounding the last years of the Thirty Years’ War. There was always a certain amount of unease in Sweden about using him in this important position, however, and in 1645 Grotius visited Sweden to defend himself against criticism; he passed briefly through the United Provinces on his way, without molestation. He failed to persuade the Swedes to renew his appointment, and left the country; his ship was caught in a storm in the Baltic and wrecked on the coast near Rostock. Grotius collapsed on shore after being rescued, and died in Rostock on 28 August 1645. His body was returned to Delft and given an honored burial by the same Dutch authorities who had kept him in exile for twenty-four years.

Though it was not published until four years after his escape, De Iure Belli ac Pacis really grew out of Grotius’s time in prison. Political prisoners in the sixteenth and seventeenth centuries enjoyed full access to their books and papers, and unlimited time to write: Sir Walter Raleigh, for example, wrote his massive History of the World while awaiting execution in the Tower of London. His two years in Louvestein allowed Grotius to revisit old projects; as he wrote to his old friend G. J. Vossius in July 1619, “I have resumed the study of jurisprudence [iuris studium] which had been interrupted by all my affairs, and the rest of my time is devoted to moral philosophy [morali sapientiae].” He told Vossius that to help his work in moral philosophy he was giving a Latin dress to the ethical passages in the Greek poets and dramatists collected by the Byzantine anthologist Stobaeus, and the effect of this approach to the subject is visible on every page of the De Iure Belli ac Pacis. Rousseau was to remark sardonically that Grotius’s use of quotations concealed the fundamental similarity between Grotius and Hobbes: “The truth is that their principles are exactly the same: they only differ in their expression. They also differ in their method. Hobbes relies on sophisms, and Grotius on the poets; all the rest is the same.” Grotius also turned his attention to rewriting and expanding his earlier work on theology, and it was this which he brought to fruition first after his escape; but once settled in France he concentrated on his juridical and moral project and wrote De Iure Belli ac Pacis between the autumn of 1622 and the spring of 1624, partly while staying as a guest at the country house of one of the presidents of the Parlement of Paris, Henri de Mesmes, at Balagny near Senlis. Printing took place slowly and inefficiently from January to March 1625; copies were rushed to the Frankfurt Book Fair in March in order to catch the eye of the European public, and in May Grotius was at last able to give a presentation copy to the book’s dedicatee, King Louis XIII of France.

Among the papers to which he must have turned while in prison was a long manuscript which he had written in 1606, before the practical requirements of Dutch politics came to occupy all his time and attention. It was a defense of the military and commercial activity of the Dutch East India Company in the Far East, and in it the central themes of De Iure Belli ac Pacis were already adumbrated. He had begun to circulate the manuscript among his friends, no doubt with a view to publishing it, but in the end only Chapter XII of the manuscript had appeared in print, as the famous Mare Liberum (1609); clearly, Grotius decided that his enforced leisure at Louvestein was an ideal opportunity to rewrite this early draft and finally put it in a publishable form. The manuscript lay unknown among Grotius’s papers until 1864, when it was discovered and published; its first editor gave it the title De Iure Praedae, The Law of Prizes, but Grotius himself referred to it more loosely as his De Indis, and its real scope was expressed by the subtitle of Mare Liberum, “a dissertation on the law which covers the Hollanders’ trade with the Indies.” Dutch expansion in the Far East was a peculiarly fertile context for Grotius’s political theory to develop, since (as I said earlier) it was essentially driven by a private corporation, interacting with local rulers such as the sultan of Johore and offering them military protection and beneficial trading arrangements. The Indian Ocean and the China Sea were an arena in which actors had to deal with one another without the overarching frameworks of common laws, customs, or religions; it was a proving ground for modern politics in general, as the states of Western Europe themselves came to terms with religious and cultural diversity. The principles that were to govern dealings of this kind had to be appropriately stripped down: there was no point in asserting to a king in Sumatra that Aristotelian moral philosophy was universally true, and not much more point in telling the admiral of the Dutch East India Company’s fleet that he had to wait for some judicial pronouncement by an appropriate sovereign before making war on a threatening naval force. The minimalist character of the principles that emerged from this setting caught the imagination of modern Europe, for they seemed to offer the prospect of an understanding of political and moral life to which all men – the poor and dispossessed and religiously heterodox of Europe as well as the exotic peoples of the Far East or the New World – could give their assent.

Grotius remained committed to this view in De Iure Belli ac Pacis, remarking in one of its most striking passages that “there are several Ways of living, some better than others, and every one may chuse what he pleases of all those Sorts.” He thus presupposed the naturally autonomous agents familiar to us from later seventeenth- and eighteenth-century political theory, who constructed their political arrangements through voluntary agreements. Though he did not have precisely the concept of the “state of nature,” which was so central to Hobbes and his successors, and which they always contrasted with “civil Society” (the product of agreement among naturally free men), he did use the terms in somewhat similar ways; and of course the domain of foreign trade and war was in itself the best example of such a state, and was always used as such by later writers.

[148] Crick, B. (2006). Justifications of Violence. Political Quarterly, [online] 77(4), pp. 433-438. Available from: 10.1111/j.1467-923X.2006.00815.x. [Accessed 9 March 2015].

[149] Samuel Scheffler, “Is Terrorism Morally Distinctive?”, The Journal of Political Philosophy, Vol. 14, No. 1 (2006), 9.

[150] Scheffler, “Is Terrorism Morally Distinctive?”, 4.

[151] Robert Nozick “Coercion,” in Sidney Morgenbesser, Patrick Suppes, and Morton White (eds.), Philosophy, Science, and Method: Essays in Honor of Ernest Nagel, (New York: St. Martin’s Press, 1969) 441-445.

[152] Jeremy Waldron, “Terrorism and the Uses of Terror”, The Journal of Ethics 8, No. 1, Terrorism (2004), 9.

[153] Margalit, The Decent Society, 103.

[154] G. W. F. Hegel, The Phenomenology of Mind, trans. J. B. Baillie, (New York: Harper & Row, 1967), 229-240.

[155] Margalit, The Decent Society, 109.

[156] Axel Honneth, The Struggle for Recognition: The Moral Grammar of Social Conflicts, (Cambridge, Massachusetts: Polity Press, 1995), 90-9.

[157] Honneth, The Struggle for Recognition, 95-107.

[158] Honneth, The Struggle for Recognition, 107-121.

[159] Honneth, The Struggle for Recognition, 121-130.

[160] My aim in this footnote is to re-examine the idea that contemporary societies can be criticized on the basis of an anthropological theory. Axel Honneth attempts to re-actualized the critical project inherited from the Frankfurt school by reflecting on “the inalienable preconditions of human mutability” (Honneth 1980: 13). I maintain that this approach does not serve the goal of practical emancipation, since it contradicts some elementary assumptions of a materialistic critique of society. Honneth’s project is transcendental in a way that inhibits the effectiveness of social action. This hypothesis is based on an examination of Feuerbach’s philosophical principles, which remain a fundamental point of reference in Critical Social Theory.

In his major work, The critical theory of Axel Honneth, Petherbridge (2013) claims that with the Theory of Recognition, Honneth has lost the most important insights of his earlier works; those that let a normative place to other forms of interaction. Honneth reduces power to domination, when this is intrinsic to all social relations and institutions, including recognitive ones. This misunderstanding is, according to the author, caused by the anthropological turn and results in a defective critique of current societies. According to her a “relational” concept of power is needed to regard power as an enabling and productive force. Amy Allen (2010) argues that Honneth has yet to offer a fully satisfactory analysis of domination because his recognition model is unable to make sense of modes of subordination that function without producing any struggle.

As to general references, see (in alphabetical order): Borman (2009) “Labor, exchange and recognition: Marx contra Honneth”, Philosophy & Social Criticism 35(8), 935–959; Id., Deranty, J.P. (2004) “Injustice, Violence and Social Struggle. The Critical Potential of Axel Honneth’s Theory of Recognition”, Critical Horizons 5(1), 297–322; Id., (2009) Beyond Communication: A Critical Study of Axel Honneth’s Social Philosophy, Leiden: Brill; Id., (2013) “Marx, Honneth and the Tasks of a Contemporary Critical Theory”, Ethical Theory and Moral Practice 16(4), 745-758; Feuerbach, L. (1986) Principles of the Philosophy of the future, Indiana: Hackett; Honneth, A. & Joas, Hans (1988) Social Action and Human Nature, Cambridge University Press; Honneth, A. (1991) The Critique of Power, Reflective Stages in a Critical Social Theory, London: MIT; Id., (1993) “Max Horkheimer and the Sociological Deficit of Critical Theory” in Benhabib, Bonß & McCole, On Max Horkheimer, Massachusetts: MIT; Id., (1994) Kampf und Anerkennung. Zur moralischen Grammatik sozialer Konflikte, Frankfurt: Suhrkamp; Id., (1995): The Fragmented World of the Social: Essays in Social and Political Philosophy, Albany, State University of New York Press; Honnet, A., & Fraser, Nancy (2004) Redistribution or Recognition? A Political-Philosophical Exchange, Verso; Id., (2007) Disrespect. The Normative Foundations of Critical Theory, Oxford: Polity Press; Id., (2009) Pathologies of Reason: On the Legacy of Critical Theory, Columbia University Press; Habermas (1984) Theory of Communicative Action, Boston: Beacon Press; Horkheimer, M. (1989) “The State of Contemporary Social Philosophy and the Task of an Institute for Social Research” in Bronner & Kellner, Critical Theory and Society, New York: Routledge; Id., (2002) Critical Theory, Selected Essays, New York: Continuum; Horkheimer, M., & Adorno, T. (2002) Dialectic of Enlightenment, Stanford: Stanford University Press; Marx, K. (1975) Early Writings, London: Penguin; De Oliveira, N. (2009) “Affirmative action, recognition, self-respect: Axel Honneth and the phenomenological deficit of critical theory”, Civitas, Porto Alegre 9(3), 369-385; Petherbridge, D. (2013) The Critical Theory of Axel Honneth, Plymouth: Lexington Books; Teixeira M. (2017) “The Sociological Roots and Deficits of Axel Honneth’s Theory of Recognition”, in Thompson M. The Palgrave Handbook of Critical Theory. Political Philosophy and Public Purpose, New York: Palgrave Macmillan; Van den Brink, B. & Owen, D. (2007) Recognition and Power: Axel Honneth and the Tradition of Critical Social Theory, Cambridge University Press.

The need for a social action theory and the project of emancipation

The main challenge of the emancipatory project has been to normatively justify the power of human action in the construction of social reality. The revolution supposes an active agent capable of world-changing; whose legitimate needs are still unsatisfied in current societies. Therefore, to theoretically support a conscious social transformation, it is necessary to determine the normative requirements, while ensuring that we have the means to demand them. This task has hardly been fulfilled in the history of Social Critique; mainly as an unintended effect of functionalist diagnoses on alienation or social domination. The description of the deviation of civilization has barely be aligned with a theory of social agency. Honneth tried to surpass this ‘sociological deficit’ manifested in the original project of the Frankfurt School.

The Marxist explanation of the social constitution process, still prevailing in the first phase of the Social Critique Theory, placed the productive forces as the determining factor of historical evolution. To such a degree, the emancipatory potential was still supposed to lie in the revolutionary spirit of the proletarian class. Men have produced their own world through labor and once they become aware of their role in history, the means for emancipation will be given. Inversely said, “the species is separated from the enjoyment of its power only as a result of its own lack of historical understanding” (Honneth, 1993: 191).

However, Horkheimer and his collaborators did not distinguish systematically any sphere of socialization in which a conscious human action/intervention could be manifested. Due to their focus on economic categories, they did not theorize the dynamics of value creation or social agency. It caused then the relegation of subjective will necessary for the practical deployment of emancipatory interest.

The practical difficulties of the first phase were evident after the victory of fascism and the establishment of Stalinism. Those events “destroyed any possibility of giving the theory’s critical perspective an objective foothold in a pre-theoretical resource, be it a social movement or an existing interest” (Honneth, 2007: 65). Only at that point it became evident that it was impossible to reasonably assume any emancipatory potential in the working class. The loss of hope brought with a strong perception of structural domination guided by instrumental rationality. And once again, the processes of value creation among individuals and the domain of practical-moral critique were ignored.

In a third moment, Habermas divided the social world into a normative and a non-normative sphere, the lifeworld and the system respectively. For him, the normative sphere grounds the emancipatory interest in modes of communication governed by formal rules of inter-subjective understanding (Habermas, 1984). However, the subsystems governed by means of control such as money and power or cultural impoverishment, conduce to the reification of living traditions and basic forms of understanding. Therefore, communication pathologies are the result of confusions between actions directed towards success, and actions oriented towards understanding.

Honneth points out that Habermas’ contribution of a delimited sphere of social interaction lacks reference in everyday experience. No concrete subjects are implied in his theory of communication. The result is that, in theory, the power of economic structures tends to deny once again that of individual subjects. This theoretical absence of power comes along with hopelessness and loss of alternatives for effective social action. To solve this deficit, Honneth has tried to base the composition of society on the structure of inter-subjective action. Therefore, he adopts the Foucaultian idea of power relations as the paradigm of social constitution (Honneth, 1991: 28).

Honneth has justified his paradigm of the social constitution with a specific thesis on personal identity based on recognition. His study has a strong anthropological component that was evident even in his early book Social Action and Human Nature. There we can note observe how the required image of autonomous agents is to be found in a reflection on human needs as natural bases assumed in social sciences. In this sense, Honneth & Joas sought to confirm “the legitimacy of the question of the relationship of the human being to nature and of nature in the human being” (Honneth & Joas, 1988: 3).

This is a project of ‘Humanization of Nature’ and has its roots in the Feuerbachian moments of Marxist historical materialism. Honneth, following Marx, took the substantive content of Feuerbach’s anthropology and obeyed his invitation to inquire about true human nature. In doing so, he ignored the critical materialist perspective that would let him connect with the direct experience of suffering. In order to differentiate these two paths and their impact on social critique, we need to re-construct the principles of “the philosophy of the future” as the contraposition of transcendental philosophy.

Feuerbach: pre-theoretical experience vs. speculative philosophy

In Principles for a Philosophy of the Future, Feuerbach proposes to concede a primary significance and independence to sensual reality. “He rehabilitates sensuous pre-philosophical experience of the world not only as the foundation, but also as the medium and end of thought” (Honneth & Joas, 1988:15); since a merely speculative or theoretical standpoint is useless for practical concerns, for life. This practical stance implies the essential distinction between the intellectual world (including language) and the real world, “where words cease, life begins and being reveals its secret.”

As follows, it is important to clearly distinguish two contributions of Feuerbach’s philosophy:

a) the turn to the real-life against speculative investigation and
b) the substantive elaborations on a sensualistic and altruistic anthropology. As we shall see, the second derives from the first while functions as theoretical assumption to ensure the stability of the perspective. Once we have changed our traditional philosophical perspective, material reality reveals its authority. Subsequently a new image of cognoscente subject emerges. And, for the purposes of social theory, a more suitable idea of the human being is resulting. We can say that Feuerbach’s sensualism and altruism are strictly theoretical resources for the great goal of making a possible better worldly experience possible.

The failure of Modern Philosophy is proof of this interdependence between theoretical principles and the practical scope of knowledge. It lost its practical embodiment by adopting the essential dichotomy of intellect and senses that comes from theology. According to this, reality and certainty are qualities of thought, and as such are denied to sensuousness. This fundamental distinction implies a conflictive opposition and prescribes a condition for pure thought: it must be abstracted from external-material features, which bring darkness.

The mentioned qualities are indeed the hallmark derived from a description of God as a thinking being. God is a necessary being who exists without any limitation, reference or condition; instead, it is general, eternal, immutable and timeless. Limitations or conditions could only come from outside, from sensuousness. “But the thinking being is referred only to itself, is its own object, carries its essence within itself and is what it is only through itself” (Feuerbach, 1986: §6). It is essentially an abstracted and isolated being. Hence, the speculative philosophy has made of this characterization the very essence of the thinking subject.

This abstracted nature of reason/God would not function as a knower without any content or object to think about. Therefore, it finds the objects in its own being, and thus “persists in as uninterrupted unity with himself” (§11). According to Feuerbach, this radical unity is the secret of speculative philosophy. The existence of objects is given by the understanding or Ego. “All that exists, be it an actual or a possible object exist only as the object of consciousness” (§17). Consequently, self-consciousness became the initial and absolute being for theoretical research. It can deal with itself alone as the essence of the essences, and it must begin with complete abstraction from all that is possible to abstract.

Beyond the abstraction with respect to sensations, a severer damage for human experience was, according to Feuerbach, operated by Hegelian or absolute philosophy. This has refined man’s alienation from his own being and activity, which Feuerbach labeled Violence and torture in our minds. The subject was abstracted from thought itself in the attempt to solve the essence/existence, truth/reality contradiction postulated by Kantian philosophy.

For him who makes this abstraction, reason immediately ceases to be something subjective, as it is taken to be by most people; indeed it itself can no longer be thought of as something objective, because something objective or something conceived is possible only in opposition to something that thinks, a complete abstraction from that which is the case here; thus to this abstraction reason becomes the true in itself just at the point where there is no difference between the subjective and the objective (§23).

By unifying objectivity and subjectivity, this absolute being no longer encounters oppositions or limits to its essence. Subsequently, there is no longer any conceptual place for the agent to deny or criticize his material conditions. Sensuousness is viewed merely as an attribute and at the same time as the being of thought.

At this step, speculative philosophy – or the traditional thinking – negatively affects our relationship with objects to be known, and this is especially dangerous when studying our social world. Horkheimer brilliantly confirmed in “Traditional and Critical Theory” how a social theory based on the above-mentioned assumptions fails to critically question the status-quo. The radical separation between the transcendent subject and the external reality, between the individual and society, leads this one to accept as natural the limits prescribed for his activity.

Since the aim of Critical Theory is the emancipation from given social conditions, a truly materialist critique must develop adequate guiding principles to resolve the conceptual barrier imposed by the traditional mode of thought. The perspective adopted by Feuerbach can also be extended to social theory, but it is still necessary to differentiate the levels of his two contributions and how they should be assumed in social theory.

From the materialistic anthropology to the social critique

The state of modern philosophy and religion motivated Feuerbach to articulate some more humanitarian theoretical principles to guide the reflection. These principles would not ignore the pre-theoretical experience as foundation, medium and end. His impulse was not essentially speculative but practical: he sought to rectify some philosophical errors that obscure scientific and religious practices. As we have seen, the abstraction from sensual experience and the absolutization of pure thought cause contradictions in the subject.

Thus, in order to assign truth and reality to sensuousness, Feuerbach appeals to direct feelings such as love and pain; those which every man can experience as nothing more than objective limitations to the thinking subject. Referring to these feelings, no one can deny the subjective-objective distinction. By accepting this truth, the philosopher (and all that can be influenced) avoids contradiction.

Sensuous perception takes things in a broad sense, but thought takes them in the narrowest sense; perception leaves things in their unlimited freedom, but thought imposes on them laws that are only too often despotic; perception introduces clarity into the head, but without dete-mining or deciding anything; thought performs a determining function, but it also makes the mind narrow; perception in itself has no principles and thought in itself has no life (§48).

The broad sense – but also the immediate one – informs us about our dependence on others and the determination of the external living conditions. The cognitive effort needed to recognize those principles of a materialistic anthropology is to abandon the speculative or transcendental perspective and attend to our direct needs and sensations.

The basic principles of Feuerbach’s materialistic anthropology in response to those of the thinking ego are then:

a) sensualism: it is first of all a corporeal ego endowed with needs; and

b) altruism: it becomes an ego only by means of relations to others (Honneth & Joas, 1988: 14). It is evident that those principles are the conceptual resource to retain the subject in the real-life perspective and to ensure his practical search. The priority in this kind of reflection is then to inquiry on the material conditions of human existence.

The question that arises at this level is: How should Feuerbach’s insights be extended to social theory? Should social theorists to go deeper into the principles of Materialistic Anthropology? I state here that doing so might be useless for the purpose of social transformation. What the critical materialistic perspective requires is a constant adaptation of provisional theoretical principles to the needs and interests of concrete suffering subjects. In Feuerbach’s time, the theoretical urgency was to re-evaluate those harmful notions widely spread about the thinking subject. With this task already accomplished, the social thinker could take them for granted and reflect on the material conditions and processes of social constitution.

In some of his early writings, Max Horkheimer offers valuable epistemological clarifications that support my thesis. For example, in “Materialism and Metaphysics”, he clearly frees materialism from any metaphysical component that would distract practical reflection. This kind of critical theory is incompatible with the idea of absolute demands or values because it recognizes that reality cannot be grasped by a single viewpoint. Instead of that it “is concerned with changing the concrete conditions under which men suffer. This concern may be comprehended historically and psychologically; it cannot be grounded in general principles” (Horkheimer, 2002: 32).

Nevertheless, it does not mean that general prepositions are excluded from the theory. Its task is to categorically justify two basic assumptions: the potential capacity of subjects and the historical constitution of social institutions and values. This is due to the current situation of capitalist society, which threatens the self-awareness of individuals required for emancipation. On the other hand, the content of the theory takes different shapes in various historical situations. Marx – and the founders of the Frankfurt School – saw the need to adopt an existential judgment for their critique: the thesis of economy based on exchange. In this way, Marx transforms the critique of transcendental philosophy into a philosophy of praxis, and anthropological materialism into historical materialism.

Is Honneth’s research speculative?

According to Honneth, Marx under-appreciated an important substantive principle of anthropological materialism, that of altruism. “To the extent that Marx tailors his theory of society to the mode of production of capitalist societies, the anthropological moment of historical materialism, which Marx after all regards as its basis, becomes effaced” (Honneth & Joas, 1988: 24). This attack rests on a miscomprehension of the goals of Feuerbachian materialism. As it has already been argued, the anthropological moment of the reflection should not constitute its end in itself. Social science is called upon to conceptualize the structure of those socialization processes that cause suffering. In that task today, sensualism and altruism must be taken for, as well as the undeniable desire for happiness.

Certainly, Marx and his successors of the Frankfurt School have failed to determine a domain of social agency in their description of the social constitution process. They all lacked an appropriate concept for the analysis of societal processes. But an anthropological inquiry can hardly fulfil this lack, since it leaves the supra-structures of domination without a conceptual place in the theory.

Honneth’s criticisms of functionalism “are inspired by the conviction that a proper critique of society requires the categories of Praxis and social action as central notions” (Deranty, 2009: 56). This conviction means precisely to insist on the different links between theory and practice highlighted by the program of Critical Theory, achieving a full reconciliation of the “heart” and the “head”; of the self with itself; of human with human; of individual and society; of man and woman; of human with nature; of passion and action, and so on” (Ibid., 40).

In Feuerbach’s terms, such a reconciliation occurs in a new philosophy “corresponding to the need of mankind and of the future”. The most indispensable condition for this is “that it distinguish itself in essence from the old philosophy” (Feuerbach, 1986: §65). Does this distinction ultimately refer to the content of our understanding of human nature? It seems that an affirmative answer is the fundamental premise of Honneth’s work; his interpretation of Feuerbach’s categorical imperative: “think as a living, real being”.

However, to living as a man does not directly imply investigating what it is to be a man, what his essential attributes are. Honneth’s concern with anthropology in self-reflection presupposes a questionable teleological approach: first of all, it suggests that the object of science is the realization of the full humanity of human beings. Second, it indicates that the social and cultural sciences must always assume biological foundations.

Honneth scholars have identified a lack of analysis of the functional imperatives of the social order in his theory of recognition as the major obstacle for effective social critique. Yet, there is a common agreement that this shortcoming belongs to Honneth’s mature work. The emphasis on subject formation and primary forms of recognition seems to have undermined his initial impulse to theorize socialization processes. According to some interpreters this leads to a failure to understand power relations, to be aware of the influence of capitalistic logic in shaping the social world, to connect an account of personal experience of disrespect with a collective struggle for recognition, or to escape from an idealization or ideologization of the notion of intersubjective recognition. Hence, they all agree on the fact that those deficiencies depend on an inability to actualize the Marxist perspective, from within the complex social conditions of today, with recent empirical investigations.

By contrast, I describe Honneth’s shortcomings as the result of a non-emancipatory theoretical perspective assumed since his early works. Once we distinguish the materialistic perspective from its anthropological content, we can better understand the kind of project Honneth moves away from. His fundamental anthropological decision can no longer do justice to the concept of emancipation, because it can no longer focus on the very structures of power whose critique and dissolution is at stake. A theory of subjectivity is not the best tool for justifying emancipatory agency. It belongs to a kind of transcendental philosophy.

In my opinion, Feuerbach’s merit is that he questioned the primacy of reason or subjective thought an proposed a new perspective for experiencing the world while turning the eyes to a different object of study. Instead of the anthropological research, current social movements better provide social philosophy with the diagnosis of failed expectations today. (See, Deranty, Jean-Philippe (2013); see also Renante D. (2013); Nancy Fraser (2006) critics the psychologising effect of Honneth’s reduction of social struggles to personal identity issues. See also Rössler (2010) and Bader (2010) and David Borman (2010)).

[161] Honneth, “Recognition and Moral Obligation”, 26; Honneth, The Struggle for Recognition, 133-134.

[162] I believe finally here it is clear why I have been using misrecognition for the direct targets and disrespect for the indirect targets. These two terms are used interchangeably in the literature. Nonetheless, in my account they refer to the difference between acting in a way to consciously deny one’s self-confidence and self-respect and acting in a way to disregard a right that is grounded in one’s self-respect.

[163] Margalit, Decent Society, 85.

[164] Frank Haldemann, “Another Kind of Justice: Transitional Justice as Recognition”, Cornell International Law Journal, 41, No. 3, 697-700.

[165] Haldemann, “Another Kind of Justice”, 700.

[166] Haldemann, “Another Kind of Justice”, 701.

[167] Haldemann, “Another Kind of Justice”, 704.

[168] Global warming is perhaps the most dramatic example of what Timothy Morton calls “hyperobjects” – entities of such vast temporal and spatial dimensions that they defeat traditional ideas about what a thing is in the first place. Morton explains what hyperobjects are and their impact on how we think, how we coexist, and how we experience our politics, ethics, and art. In particular, in Hyperobjects, Timothy Morton brings to bear his deep knowledge of a wide array of subjects to propose a new way of looking at our situation, which might allow us to take action toward the future health of the biosphere. Crucially, the relations between Buddhism and science, nature and culture, are examined in the fusion of a single vision. The result is a great work of cognitive mapping, both exciting and useful. There is so much more Styrofoam on Earth right now than there is Timothy Morton.

He said about himself: “I’m an environmental philosopher. In 2008, I invented a word to describe all kinds of things that you can study and think about and compute, but that are not so easy to see directly: hyperobjects. Things like: not just a Styrofoam cup or two, but all the Styrofoam on Earth, ever. All that Styrofoam is going to last an awfully long time: 500 years, maybe. It’s going to outlive me by a great extent. Will my family’s descendants even be related to me in any kind of meaningful way by 2514? So hyperobjects outlast me, and they out-scale me in the here and now. Let’s think of another example. Not just this one speck of plutonium, but all the plutonium we’ve made, ever. That plutonium decays for 24,100 years before it’s totally safe. That’s an unimaginable time. I can just about wrap my head around 500 years when I think about Styrofoam. But 24,100 years? Yet I’m obliged to act with a view to the people, whoever they are, who are alive at that point. Who knows whether I would even recognize them as human? Maybe by then we will have merged with a whole host of extraterrestrials. I don’t know. I’m like Donald Rumsfeld and his “unknown unknowns”: There are things I don’t know about the future, and I don’t even know how much I don’t know about it. But it’s coming.

Plutonium is a problem. Humans made it, so we’re pretty much responsible for it. Beyond that, I can understand what plutonium is — which seems like a pretty good reason for assuming responsibility for something. Suppose I see someone about to be hit by an oncoming car. I can understand that she’s about to be killed, so I’m obliged to step in and save her. Hyperobjects are like that — like the Dust Bowl, for instance, or the colossal drought in California. We are obliged to do something about them, because we can think them.

That’s good news if you care about mitigating the effects of global warming. (I refuse to call it climate change. The globe is literally warming because of greenhouse gases.) Thinking ecologically about global warming requires a kind of mental upgrade, to cope with something that is so big and so powerful that until now we had no real word for it. However, thinking of global warming as a hyperobject is really helpful. For starters, the concept of hyperobjects gives us a single word to describe something on the tips of our tongues. It’s very difficult to talk about something you cannot see or touch, yet we are obliged to do so, since global warming affects us all.

Many people have told me, “Oh, now I have a term for this thing I’ve been trying to grasp!” We can see, for instance, that global warming has the properties of a hyperobject. It is “viscous” — whatever I do, wherever I am, it sort of “sticks” to me. It is “nonlocal” — its effects are globally distributed through a huge tract of time. It forces me to experience time in an unusual way. It is “phased” — I only experience pieces of it at any one time. And it is “inter-objective” — it consists of all kinds of other entities but it isn’t reducible to them.

If you can understand global warming, you have to do something about it. Forget about needing proof or needing to convince more people. Just stick to what’s really super obvious. Can you understand hyperobjects? Then you are obliged to care about them.

So hyperobjects are massively distributed in time and space and we are obliged to care about them, even if we didn’t manufacture them. Take the biosphere. I can’t see it. I can’t touch it. But I know it exists, and I know I’m part of it. I should care about it.

Or global warming. I can’t see or touch it. What I can see and touch are these raindrops, this snow, that sunburn patch on the back of my neck. I can touch the weather. But I can’t touch climate. So someone can declare: “See! It snowed in Boise, Idaho, this week. That means there’s no global warming!” We can’t directly see global warming, because it’s not only really widespread and really really long-lasting (100,000 years); it’s also super high-dimensional. It’s not just 3-D. It’s an incredibly complex entity that you have to map in what they call a high-dimensional- phase space: a space that plots all the states of a system.

In so doing, we are only following the strictures of modern science, laid down by David Hume and underwritten by Immanuel Kant. Science can’t directly point to causes and effects: That would be metaphysical, equivalent to religious dogma. It can only see correlations in data. This is because, argues Kant, there is a gap between what a thing is and how it appears (its “phenomena”) that can’t be reduced, no matter how hard we try. We can’t locate this gap anywhere on or inside a thing. It’s a transcendental gap. Hyperobjects force us to confront this truth of modern science and philosophy.

It’s like being inside the gigantic worm in The Empire Strikes Back. For a while, you can kid yourself that you’re not inside a gigantic worm, until it starts digesting you. Because the worm is “everywhere” in your field of vision, you can’t really tell the difference between it and the surface of the asteroid you think you landed on.

The person who denies there’s global warming because he can still touch snow is partying like it’s 1759. He’s partying like modern science never happened. Modern science happened largely because of Hume, a Scottish skeptical empiricist. In another life, Hume might have been the bass player for Pink Floyd, because he certainly could have written some of the group’s lyrics. “All you touch and all you see / Is all your life will ever be” — that’s basic Hume right there. You can’t know things directly; you can only know data. That’s the foundation of modern science. Cause and effect aren’t things that churn away underneath other things. They are inferences that we make about patterns we see in data.

Oddly enough, this makes modern science more accurate and honest than anything we’ve previously come up with. The thing is, statistical correlations are better than bald statements of fact that you just have to believe or face the consequences. (“The Earth is flat! God is this golden calf!”) It’s better to say that we’re 95 percent sure global warming was caused by humans than to shout, “It was caused by humans, dang it! Just believe me!” You have some actual data to go on, in the 95 percent case. Try rolling two 10-sided dice and coming up with the numbers from 96 to 100. (As a recovering Dungeons & Dragons player, I know what I’m talking about here.) It’s incredibly unlikely.

So hyperobjects are funny. On the one hand, we have all this incredible data about them. On the other hand, we can’t experience them directly. We’ve stumbled upon these huge things, like Han Solo and Princess Leia and the giant worm. So we need philosophy and art to help guide us, while the way we think about things gets upgraded. Human beings are now going through this upgrade. The upgrade is called ecological awareness”.

[169] As to the environmental explained in terms of ‘hyperobjects’ and ‘anthropocene’, see the books by Timothy Bloxam Morton. The Author, (born 19 June 1968) is a professor and Rita Shea Guffey Chair in English at Rice University. A member of the object-oriented philosophy movement, Morton’s work explores the intersection of object-oriented thought and ecological studies. Morton’s use of the term ‘hyperobjects’, although the term ‘Hyper-objects’ (denoting n-dimensional non-local entities) has also been used in computer science since 1967. Morton uses the term to explain objects so massively distributed in time and space as to transcend localization, such as climate change and styrofoam. His recent book Humankind: Solidarity with Non-Human People explores the separation between humans and non-humans and from an object-oriented ontological perspective, arguing that humans need to radically rethink the way in which they conceive of, and relate to, non-human animals and nature as a whole, going on to explore the political implications of such a change.

Since 2009, Morton has engaged in a sustained project of ecological critique, primarily enunciated in two works, Ecology Without Nature (2009) and The Ecological Thought (2010), through which he problematizes environmental theory from the standpoint of ecological entanglement. In Ecology Without Nature, Morton proposes that an ecological criticism must be divested of the bifurcation of nature and civilization, or the idea that nature exists as something that sustains civilization, but exists outside of society’s walls. As Morton states:

“Ecological writing keeps insisting that we are “embedded” in nature. Nature is a surrounding medium that sustains our being. Due to the properties of the rhetoric that evokes the idea of a surrounding medium, ecological writing can never properly establish that this is nature and thus provide a compelling and consistent aesthetic basis for the new worldview that is meant to change society. It is a small operation, like tipping over a domino… Putting something called Nature on a pedestal and admiring it from afar does for the environment what patriarchy does for the figure of Woman. It is a paradoxical act of sadistic admiration”.

Viewing “nature,” in the putative sense, as an arbitrary textual signifier, Morton theorizes artistic representations of the environment as sites for opening ideas of nature to new possibilities. Seeking an aesthetic mode that can account for the differential, paradoxical, and nonidentificational character of the environment, he proposes a materialist method of textual analysis called ‘ambient poetics’, in which artistic texts of all kinds are considered in terms of how they manage the space in which they appear, thereby attuning the sensibilities of their audience to forms of natural representation that contravene the ideological coding of nature as a transcendent principle. Historicizing this form of poetics permits the politicization of environmental art and its ‘ecomimesis’, or authenticating evocation of the author’s environment, such that the experience of its phenomena becomes present for and shared with the audience.

Art is also an important theme in The Ecological Thought, a “prequel” to Ecology Without Nature, in which Morton proposes the concept of ‘dark ecology’ as a means of expressing the “irony, ugliness, and horror” of ecology. From the vantage point of dark ecology, there exists no neutral theoretical ground on which to articulate ecological claims. Instead, all beings always are already implicated within the ecological, necessitating an acknowledgement of coexistential difference for coping with ecological catastrophe that, according to Morton, “has already occurred.”

Closely related to dark ecology is Morton’s concept of the ‘mesh’. Defining the ecological thought as “the thinking of interconnectedness,” Morton thus uses ‘mesh’ to refer to the interconnectedness of all living and non-living things, consisting of “infinite connections and infinitesimal differences.” He explains:

“The ecological thought does, indeed, consist in the ramifications of the “truly wonderful fact” of the mesh. All life forms are the mesh, and so are all the dead ones, as are their habitats, which are also made up of living and nonliving beings. We know even more now about how life forms have shaped Earth (think of oil, of oxygen – the first climate change cataclysm). We drive around using crushed dinosaur parts. Iron is mostly a by-product of bacterial metabolism. So is oxygen. Mountains can be made of shells and fossilized bacteria. Death and the mesh go together in another sense, too, because natural selection implies extinction”.

The mesh has no central position that privileges any one form of being over others, and thereby erases definitive interior and exterior boundaries of beings. Emphasizing the interdependence of beings, the ecological thought “permits no distance,” such that all beings are said to relate to each other in a totalizing open system, negatively and differentially, rendering ambiguous those entities with which we presume familiarity. Morton calls these ambiguously inscribed beings ‘strange strangers’, or beings unable to be completely comprehended and labeled. Within the mesh, even the strangeness of strange strangers relating coexistentially is strange, meaning that the more we know about an entity, the stranger it becomes. Intimacy, then, becomes threatening because it veils the mesh beneath the illusion of familiarity.

Object-oriented ontology

Morton became involved with object-oriented ontology after his ecological writings were favorably compared with the movement’s ideas. One way that his work can be distinguished from other variants of object-oriented thought is by its focus on the causal dimension of object relations. Against traditional causal philosophies, Morton argues that causality is an aesthetic dimension of relations between objects, wherein sensory experience does not indicate direct access to reality, but rather an uncanny interruption of the false ontic equilibrium of an interobjective system. Causation, in this view, is held to be illusion-like or “magical,” forming the core of what Morton terms “realist magic.”

Hyperobjects

In The Ecological Thought, Morton employed the term hyperobjects to describe objects that are so massively distributed in time and space as to transcend spatiotemporal specificity, such as global warming, styrofoam, and radioactive plutonium. He has subsequently enumerated five characteristics of hyperobjects:

Viscous: Hyperobjects adhere to any other object they touch, no matter how hard an object tries to resist. In this way, hyperobjects overrule ironic distance, meaning that the more an object tries to resist a hyperobject, the more glued to the hyperobject it becomes.
Molten: Hyperobjects are so massive that they refute the idea that spacetime is fixed, concrete, and consistent.
Nonlocal: Hyperobjects are massively distributed in time and space to the extent that their totality cannot be realized in any particular local manifestation. For example, global warming is a hyperobject which impacts meteorological conditions, such as tornado formation. According to Morton, though, entities don’t feel global warming, but instead experience tornadoes as they cause damage in specific places. Thus, nonlocality describes the manner in which a hyperobject becomes more substantial than the local manifestations it produces.
Phased: Hyperobjects occupy a higher-dimensional space than other entities can normally perceive. Thus, hyperobjects appear to come and go in three-dimensional space, but would appear differently if an observer could have a higher multidimensional view.
Interobjective: Hyperobjects are formed by relations between more than one object. Consequently, entities are only able to perceive the imprint, or “footprint,” of a hyperobject upon other objects, revealed as information. For example, global warming is formed by interactions between the sun, fossil fuels, and carbon dioxide, among other objects. Yet global warming is made apparent through emissions levels, temperature changes, and ocean levels, making it seem as if global warming is a product of scientific models, rather than an object that predates its own measurement.

According to Morton, hyperobjects not only become visible during an age of ecological crisis, but alert humans to the ecological dilemmas defining the age in which they live. Additionally, the existential capacity of hyperobjects to outlast a turn toward less materialistic cultural values, coupled with the threat many such objects pose toward organic matter (what Morton calls a “demonic inversion of the sacred substances of religion”), gives them a potential spiritual quality, in which their treatment by future societies may become indistinguishable from reverential care.

Although the concept of hyperobjects has been widely adopted by artists, literary critics, and some philosophers, it is not without its critics. Ecocritic Ursule Heise, for example, notes that in Morton’s definition, everything can be considered a hyperobject, which seems to make the concept somewhat meaningless, not to mention seemingly impossible to define clearly. As a result, Heise argues that Morton makes “so many self-cancelling claims about hyperobjects that coherent argument vanishes like the octopi that disappear in several chapters in their clouds of ink, Morton’s favorite metaphor for the withdrawal of objects from the grasp of human knowledge.”

His bibliography:

Ecology Without Nature: Rethinkng Environmental Aesthetics, (Harvard University Press), 2007; The Ecological Thought, (Harvard University Press), 2010; Realist Magic: Objects, Ontology, Causality, (Open Humanities Press), 2013; Hyperobjects: Philosophy and Ecology after the End of the World, (University of Minnesota Press), 2013; Dark Ecology: For a Logic Future Coexistence, (Columbia University Press), 2016; Humankind: Solidarity with Non-Human People, (Verso Books), 2017; Being Ecological, (Pelican Books), 2018.

[170] Not merely as threats or risks, and so commensurate with the various accountabilities and actions based on the causal anthropogenic harmful-conduct which creates and exacerbates various environmental harms.

[171] ‘Human security’ is a concept in which the lives of individuals are secured as a means in themselves, not a means to any other ends. These individuals make up a collective of citizens wherein each individual life is the referent object of securitization, and any threat to the continued well-being of that life may be construed as a threat to human security. From a state-based perspective the securitisation of a population is provided through security against threat, harm and catastrophe. Any action creating or threatening to incur extreme violence, being regressive, or impeding socio-economic development may be seen as a threat to human security (Owens 2012; 547).

[172] State recognition of the harms discussed in this paper is based on the consensus on the Intergovernmental Panel on Climate Change (IPCC) reports. The research on which climate predictions are based is taken from all IPCC member States (any U.N member state is also an IPCC member), and any researcher (from any State) – including climate sceptics – can request a third-party review of the research and data. The reports also must be approved unanimously by all UN members before publications and recommendations for policymakers etc. To date there has never been a with-holding of approval from any state. Where international environmental consensus fails is in the agreement on how to tackle these predictions. The latest IPCC report – under final review and due to be published September 2013 is that 99% of climate change is anthropogenic (up from 90% in the 2007 report). Furthermore, the existence of over 700 multi-lateral agreements indicate state consensus that action is necessary, which implies acknowledgement and agreement on the content of the research.

[173] See e.g.: J. Angelo Coreltt, The Philosophy of Joel Feinberg, in The Journal of Ethics, Vol. 10, n. 1-2, Jan. 2006, pp. 131-191, Springer Ed. According to Feinberg, paternalism raises a cluster of moral questions about the nature of a free society, its obligations to individual members, and the obligations of individuals to themselves, to each other, and to society. A key question concerns the classification of circumstances in which the limitation of individual freedom or autonomy may be properly considered to be paternalistic.

The central moral issue of paternalism is the legitimacy of limiting human freedom and autonomy in a free society of equals where all individuals are accorded respect, autonomy, and freedom by virtue of their humanity. Following Kant and Mill, this moral position derives from the assumption that human beings themselves are best capable of determining and pursuing what is in their own interest; to deny persons this right would be to treat them as instruments of their own good rather than as ends in themselves. Moreover, individuals in a society of political equals are thought to be capable as well of discerning the commonweal and modulating their exercise of personal freedom accordingly. Paternalism denies the full humanity of individuals by failing to respect their capabilities for acting in their own best interest. Moral arguments for paternalism must offer compelling reasons to justify the restriction of freedom and autonomy.

Kant’s objections to paternalism are absolute, with explicit moral prohibitions against lying and force as its chief instruments. Mill distinguished between paternalism in relation to children and to adults: the moral presumption would favour paternalism for a child and prohibit paternalism for an adult. Mill, however, considered paternalism as morally justified among adults to prevent harm to someone who is unaware of an impending danger (e.g., about to cross a bridge without knowledge that it is unsafe). In analyzing normative judgments of paternalism, Dworkin considered two possible normative options: either (1) it is never permitted to limit the freedom of others in an attempt to do good for them against their wishes or (2) it is possible to do so under some circumstances. The first option is often justified on the Kantian grounds that it is impossible to do good by limiting freedom. The second option may be justified on various grounds. Consequentialists may argue that the good done may outweigh the harm caused by loss of autonomy. Others may argue that individual autonomy may be protected in the long run by restricting it in the short run, such as in Mill’s prohibition against willfully contracting oneself into slavery. Moral contractualists may justify paternalism on the ground that, given appropriate knowledge and motivation, all reasonable people would agree to interference in certain circumstances, such as to prevent suicide caused by a temporary state of depression.

Paternalism is sometimes justified on the grounds of preventing harm. Mill’s harm principle, however, justifies interference only in cases in which there would be harm to others; it prohibits interference to prevent self-harm or consensual harms. The harm principle would require toleration of (1) competent self-harm and self-imposed risk, (2) harm to consenting others, and (3) harmless acts. The harm principle could thus be applied to legally prohibit classes of actions intended to harm others (murders, rape, theft, assault) without their consent. The harm principle would also apply in upholding a zone of privacy for consensual or self-regarding acts involving consenting adults and in decriminalizing victimless crimes.

The harm principle justifies restriction of freedom on behalf of others to prevent risk or harm in cases involving children, the mentally incompetent, or those with impaired judgment or faculties because such individuals are considered incapable of authentic consent. Furthermore, the harm principle may also permit consensual or self-paternalism wherein competent individuals or groups choose to impose self-restraining measures, such as living wills or legislative limits, involving future acts.

Although the harm principle may be cited as a justifiable ground for restricting the freedom of individual agents, it leaves unresolved many of its disputed moral questions. For example, even if agreement were to be reached to disallow paternalism intended to prevent self-harm, consensual harm, or harmless acts, reasonable people could conceivably disagree about what constituted self-harm, harm to others, and valid consent. These reasonable disagreements remain contested issues, as illustrated by contemporary debates. The default framing of retirement savings plan options (“opt-in” versus “opt-out” as the default) is viewed by some as a protection of individual choice in the disposal of earned income and by others as a failure to provide proper incentives for individuals to avoid the risk of an impoverished old age. Despite scientific studies, some communities do not regard the risks of secondhand smoke as sufficiently harmful to warrant indoor smoking bans. The debate over assisted suicide illustrates divergence of opinion about suicide as self-harm, its harm to others, and the validity of consent on the part of a person seeking assistance in committing suicide. Young women under the age of 16 are considered capable of consent in contracting a marriage in some jurisdictions, while other jurisdictions consider these same young women incapable of valid consent in seeking birth control or an abortion. In each of these examples, the harm principle is insufficient as a basis for achieving moral consensus.

Joel Feinberg delineated principles for reconciling opposing views regarding permissible grounds for interference with someone’s actions for the sake of preventing harm. First, he established distinctions: self-inflicted harm is still harm; intended self-harm is different from unintended self-harm as a consequence of another intended action; some risks are more reasonable than others; voluntary assumption of risk is a matter of degree. Further, he distinguished between strong legal paternalism, which justifies state protection of people against their will from the harmful consequences of their own voluntary choices, and weak legal paternalism, which prohibits state interference except to protect individuals from self-harm from actions presumed to be nonvoluntary or coerced. Like Dworkin, Feinberg advocated weak paternalism as a means to provide protection for individuals in circumstances where the full exercise of volition may be compromised.

In particular, Joel Feinberg (October 19, 1926 in Detroit, Michigan – March 29, 2004 in Tucson, Arizona) was an American political and legal philospher. Feinberg was one of the most influential figures in American jurisprudence of the last fifty years.

Feinberg was internationally distinguished for his major four-volume work, The Moral Limits of the Criminal Law, published between 1984 and 1988. Feinberg held many major fellowships during his career and lectured by invitation at universities around the world. He was an esteemed and highly successful teacher, and many of his students are now prominent scholars and professors at universities across the US. His former students include Jules Coleman, Russ Shafer-Landau, and Clark Wolf.

The Moral Limits of the Criminal Law

Feinberg’s most important contribution to legal philosophy is his four-volume book, The Moral Limits of the Criminal Law (1984-1988), a work that is frequently characterized as “magisterial.” Feinberg’s goal in the book is to answer the question: What sorts of conduct may the state rightly make criminal? John Stuart Mill, in On Liberty (1859), gives a staunchly liberal answer, that the only kind of conduct that the state may rightly criminalize is conduct that causes harm to others. Though Feinberg, who had read and re-read Mill’s classic text many times, shared Mill’s liberal leanings, he postulated that liberals can and should admit that certain kinds of non-harmful but profoundly offensive conduct can also properly be prohibited by law. In The Moral Limits of the Criminal Law, Feinberg sought to develop and defend a broadly Millian view of the limits of state power over the individual. In the process, he defended standard liberal positions on topics such as suicide, obscenity, pornography, hate speech, and euthanasia. He also analyzed nonmaterial concepts such as harm, offense, wrong, autonomy, responsibility, paternalism, coercion, and exploitation, conceding in the conclusion to the final volume that liberalism may not be fully defensible and that liberals ought to concede that there are rare cases where certain kinds of moral harms and harmless immoralities should be outlawed.

A ride on the bus

In Offense to Others, the second volume of The Moral Limits of the Criminal Law, Feinberg offers one of the most famous thought-experiments in recent philosophy: a series of imaginary scenarios he calls “a ride on the bus.” Feinberg invites us to imagine a bus ride in which you, a passenger rushing to an important appointment, are confronted by a series of deeply offensive but harmless acts. Some of the acts involve affronts to the senses (e.g., a man scratching his fingernails across a slate). Others involve acts that are deeply disgusting or revolting (e.g., eating various kinds of nauseatingly repulsive things). Still others involve affronts to our religious, moral, or patriotic sensibilities (e.g., overt acts of flag desecration); shocks to our sense of shame or embarrassment (such as acts of public sex); and a wide range of offensive conduct based on fear, anger, humiliation, boredom or frustration. The thought experiment is designed to test the limits of our tolerance for harmless but deeply offensive forms of behavior. More precisely, it raises the question “whether there are any human experiences that are harmless in themselves yet so unpleasant that we can rightly demand legal protection from them even at the cost of other persons’ liberties.” Feinberg argues that even left-leaning, highly tolerant liberals must recognize that some forms of harmless but profoundly offensive conduct can properly be criminalized.

“Psychological Egoism”

In a paper prepared in 1958 for the benefit of students at Brown, Feinberg seeks to refute the philosophical theory of psycological egoism, which in his opinion is fallacious. So far as he can tell, there are four primary arguments for it:

“Every action of mine is prompted by motives or desires or impulses which are mymotives and not somebody else’s.”
“When a person gets what he wants, he characteristically feels pleasure.”
“Often we deceive ourselves into thinking that we desire something fine or noble when what we really want is to be thought well of by others or to be able to congratulate ourselves, or to be able to enjoy the pleasures of a good conscience […]. Indeed, it is a simple matter to explain away all allegedly unselfish motives [….]” He quotes Lucius F.C. Garvin to this effect: “Once the conviction that selfishness is universal finds root in a person’s mind, it is very likely to burgeon out in a thousand corroborating generalizations. It will be discovered that a friendly smile is really only an attempt to win an approving nod from a more or less gullible recording angel; that a charitable deed is, for its performer, only an opportunity to congratulate himself on the good fortune or the cleverness that enables him to be charitable; that a public benefaction is just plain good business advertising. It will emerge that gods are worshipped only because they indulge men’s selfish fears, or tastes, or hopes; that the “golden rule” is no more than an eminently sound success formula; that social and political codes are created and subscribed to only because they serve to restrain other men’s egoism as much as one’s own, morality being only a special sort of “racket” or intrigue using weapons of persuasion in place of bombs and machine guns. Under this interpretation of human nature, the categories of commercialism replace those of disinterested service and the spirit of the horse trader broods over the face of the earth.”
“Psychological egoists often notice that moral education and the inculcation of manners usually utilise what Bentham calls the ‘sanctions of pleasure and pain.’ Children are made to acquire the civilising virtues only by the method of enticing rewards and painful punishments. Much the same is true of the history of the race. People in general have been inclined to behave well only when it is made plain to them that there is ‘something in it for them.’ Is it not then highly probable that just such a mechanism of human motivation as Bentham describes must be presupposed by our methods of moral education?”

Feinberg observes that such arguments for psychological egoism are rarely mounted on the basis of empirical proof when, being psychological, they very well ought to. The opening argument he dubs a tautology from which “nothing whatever concerning the nature of my motives or the objective of my desires can possibly follow […]. It is not the genesis of an action or the origin of its motives which makes it a ‘selfish’ one, but rather the ‘purpose’ of the act or the objective of its motives; not where the motive comes from (in voluntary actions it always comes from the agent) but what it aims at determines whether or not it is selfish.”

Similarly flawed in Feinberg’s opinion is the second argument. Just because all successful endeavour engenders pleasure does not necessarily entail that pleasure is the sole objective of all endeavour. He uses William Jame’s analogy to illustrate this fallacy: although an ocean liner always consumes coal on its trans-Atlantic voyages, it is unlikely that the sole purpose of these voyages is coal consumption.

The third argument, unlike the first two, contains no no sequitur that Feinberg can see. He nevertheless adjudges that such a sweeping generalisation is unlikely to be true.

In the final argument, Feinberg sees a paradox. The only way to achieve happiness, he believes, is to forget about it, but psychological egoists hold that all human endeavour, even that which achieves happiness, is geared towards happiness. Feinberg poses a thought experiment in which a character named Jones is apathetic about all but the pursuit of his own happiness. Because he has no means to achieve that end, however, “it takes little imagination to see that Jones’s one desire is bound to be frustrated.” To pursue only happiness, then, is to fail utterly to achieve it.

“The Rights of Animals and Future Generations”

In a 1974 paper, Feinberg addresses the possibility of legal rights for aniamls and future generations.

He begins by analyzing rights as “claims to something and against someone” which are recognized by legal rules. For instance, a worker’s legal right to a living wage is a claim tosome amount of money and against an employer. Having clarified the nature of rights, Feinberg seeks to answer the question: What sort of entities can bear rights?

Feinberg adopts an interest theory of rights, according to which a right can be had by any entity with interests. In formulaic terms, some entity S can have some right R if and only if R protects some interest of S’s. Interests here are defined as products of mental states such as desires, beliefs, wants, plans, urges, and so on.

On this account, contrary to other theorists who adopt a will theory of rights, animals can be legitimately given rights. The question, then, is whether they ought to be given rights. In other words, given that some entity S can have some right R, is it the case that the interests which R functions to protect morally ought to be protected? Feinberg argues that our commonsense moral duties concerning animals are really duties towards animals (i.e., they are duties for the sake of the animals, not for the sake of some indirect effects), and so justice demands that animal interests be protected by rights.

Feinberg spends the rest of the paper applying his interest theory to other entities, including plants, species, corporations, severely mentally disabled humans, dead humans, fetuses, and future generations. He argues that:

a) Plants cannot have rights, since they cannot be properly said to have interests. One might think that claims such as “Water is good for a plant” and “A plant needs sunshine” imply the existence of plant interests, but Feinberg maintains that this (and other errors) are due to linguistic confusions. He analyzes the claims that “X is good for A” or that “A needs X,” highlighting an ambiguity between two possible meanings: X helps A to achieve some goal, or to carry out some function (e.g., oil is good for a car, and a plant needs oil, only in the sense that oil helps a car to perform as desired). X benefits A, and an absence of X harms A (e.g., food is good for a dog, and a dog needs food).

b) Feinberg maintains that only the second interpretation makes sense for our claims about plants, since morally relevant benefits and harms require mental states such as desires, plans, goals, dreams, and so on.

c) Likewise, Feinberg denies the possibility of rights for species as such, since there is no entity called “the species” which has the mental states necessary for legitimate interests. This suggests that any laws affecting a species must be grounded in the interests of individual species members, in the interests of humans (who may have some aesthetic preference for the species), or in the interests of future generations (who may benefit from the preservation of the species).

d) On the other hand, Feinberg claims that the notion of rights for corporations, countries, and other similar entities is entirely legitimate, since we can ground these in the interests of real peopleacting in their official capacities.

e) Severely mentally disabled humans may or may not be legitimate right-holders, depending on the severity of their conditions. So long as they have the mental states necessary for the attribution of legitimate interests, then they may have rights.

f) Dead humans may not have rights since they lack any mental capacities, and so a fortiorilack the mental capacities necessary for interests. Feinberg thus grounds any laws regulating our actions with respect to the dead (such as acts of defamation) in one of two places: (i) they may be grounded in the interests of the dead person’s surviving friends and family, or (ii) they may be grounded in the future-oriented interests that the now dead person possessed prior to death. Thus Feinberg maintains that interests may be temporally extended, and so one’s rights can still be operative even once one has deceased.

g) Similarly, Feinberg argues that interests may be intertemporal in the reverse direction. That is, he maintains that beings who have not yet been born can have rights grounded in the interests they will come to hold in the future once they are born. Importantly, however, this constrains the possibility of fetus rights to rights concerning quality of life, ruling out a right to be born, since (i) rights can only be granted to a fetus on the basis of the interests they will come to hold in the future once they are born, and (ii) these interests only exist contingent on the fetus being born. Thus a right to be born would seek to secure the very thing which is required for the notion of rights to apply a circularity.

h) Finally, Feinberg addresses the possibility of rights for future generations. By parity with the case of fetuses, the possibility of intertemporal interests can ground the existence of rights for future generations even though they have not yet come into existence.

As to his bibliography: Doing and Deserving: Essays in the Theory of Responsibility. Princeton: Princeton University Press, 1970; “The Rights of Animals and Future Generations”. In William Blackstone (ed.), Philosophy and Environmental Crisis. Athens, Georgia: University of Georgia Press, 1974; Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy. Princeton: Princeton University Press, 1980; The Moral Limits of the Criminal Law. Vol. 1, Harm to Others. New York: Oxford University Press, 1984; The Moral Limits of the Criminal Law. Vol. 2, Offense to Others. New York: Oxford University Press, 1985; The Moral Limits of the Criminal Law. Vol. 3, Harm to Self. New York: Oxford University Press, 1986; The Moral Limits of the Criminal Law. Vol. 4, Harmless Wrongdoing. New York: Oxford University Press, 1988; Freedom and Fulfillment: Philosophical Essays. Princeton: Princeton University Press, 1992; Problems at the Roots of Law: Essays in Legal and Political Theory. Oxford: Oxford University Press, 2003.

[174] Although the harms I argue for pre-emptive action to be taken against would, when they transpired, fall below certain human security or humanitarian thresholds, pre-empting them requires considering the harm to be occurring before intolerable levels are reached.

[175] This is classed as the eco-crime of environmental disruption (El Hinnawi 1985 as cited in Westra L 2009; 3).

[176] While there are theories – such as the Gaia hypothesis – claiming the environment to be sentient, this claim is beyond the scope of my research, which is based entirely in the context of anthropomorphic climate change.

[177] Although certainly the actor may be liable to much recourse based on making the threat or causing the risk, the retribution will not be taken based on the threatened harm itself, but based on the making of the threat itself.

[178] And as the most at risk within Italy.

[179] As to the Italian scenario: Castignone S., Introduzione alla filosofia del diritto, Laterza, Roma-Bari, 2004; Id., Nuovi diritti e nuovi soggetti. Appunti di bioetica e biodiritto, ECIG, Genova, 1996; Id., Povere bestie. I diritti degli animali, 2nd ed., Venezia, Tascabili Marsilio, 1999; Id., Introduzione alla filosofia del diritto, Roma-Bari, Laterza Editori, new ed., 2009. Here many references for the international scenario, such as: HARGROVE E.C., Foundations of Environmental Ethics, New York, 1989; tr. It. Fondamenti di etica ambientale, Cedam, padova, 1990; HARRIS J., Human Rights and Mythical Beasts, in «Law Quarterly Review», 120, 2004, pp. 428-456; LEOPOLD A., A Sand County Alamnac and Sketches Here and There, New York, 1949; PASSMORE J., Man’s Responsibility for Nature, London, 1974; tr. it. La nostra responsabilità per la natura, Giuffrè, Milano, 1986; REGAN T. (ed.), The nature of Possibility of an Environmental Ethic, in All That Dwell Therein. Essays on Animal Rights and Environmental Ethics, U.P., California, 1982; RORTY R., Achieving our country: leftist thought in twentieth-century America, Cambridge University Press, Cambridge (Mass.), 1998; SANDEL M., What’s the Right Thing to do? Farrar, Straus and Giroux, 2009; TAYLOR R., Virtue Ethics. An Introduction, Interlaken, New York, 1991; TEMKIN L.S., Inequality, Oxford University Press, Oxford, 1993; WALDRON J., Minority cultures and the cosmopolitan alternative, in Will Kymlicka (ed.), The rights of Minority Cultures, Oxford University Press 1995; Id., “Toleration: Is There a Paradox?” In Toleration, Supererogation and Moral Duties: Conference in Honor of David Heyd, NYU School of Law, New York, 2012.

[180] The actors responsible for protecting the (future) victims may differ from the actors accountable or liable for the harmful-conduct. For example a State may be responsible for protecting its citizens, through interventional action, while an actor within another state (or another state itself) may be liable or accountable for the harm.

[181] If the substance was dumped legally but was known to be harm-causing if unearthed, then the regulatory body (i.e. the State) would assume liability.

[182] Although a causal action can certainly take place in the same area where the harm will occur, there are many cases where the action and consequent harm would be in alternative locations.

[183] Also Hans Jonas is considered one of the leading contemporary philosophers who has dedicated much of his work to environmental issues and collective responsibility in terms of future generations, starting, e.g., from The Imperative of Responsibility. In Search of an Ethics for the Technological Age, Das Prinzip Verantwortung: Versuch einer Ethik für die technologische Zivilisation. Frankfurt/M., 1979, (New Edition: Suhrkamp Taschenbuch, 1984; in Italian: Hans Jonas Il principio responsabilità. Un’etica per la civiltà tecnologica, by P. P. Portinaro, Biblioteca Einaudi 2002). Hans Jonas here rethinks the foundations of ethics in light of the awesome transformations wrought by modern technology: the threat of nuclear war, ecological ravage, genetic engineering, and the like. Though informed by a deep reverence for human life, Jonas’s ethics is grounded not in religion but in metaphysics, in a secular doctrine that makes explicit man’s duties toward himself, his posterity, and the environment. Jonas offers an assessment of practical goals under present circumstances, ending with a critique of modern utopianism.

He was a German-born American Jewish philosopher, from 1955 to 1976 the Alvin Johnson Professor of Philosophy at the New School for Social Research in New York City.

Jonas’s writings were very influential in different spheres. For example, The Gnostic Religion, based on his early research on the Gnosis and first published in 1958, was for many years the standard work in English on the subject of Gnosticism. The Imperative of Responsibility (German 1979, English 1984) centers on social and ethical problems created by technology. Jonas insists that human survival depends on our efforts to care for our planet and its future. He formulated a new and distinctive supreme moral imperative: “Act so that the effects of your action are compatible with the permanence of genuine human life”.

While The Imperative of Responsibility has been credited with catalyzing the environmental movement in Germany, his work The Phenomenon of Life (1966) forms the philosophical undergirding of one major school of bioethics in America. Murray Bookchin and Leon Kass both referred to Hans Jonas’s work as major, or primary, inspiration. Heavily influenced by Martin Heidegger, The Phenomenon of Life attempts to synthesize the philosophy of matter with the philosophy of mind, producing a rich existential understanding of biology, which ultimately argues for a simultaneously material and moral human nature. In particular, as a classic of phenomenology and existentialism, The Phenomenon of Life sets forth a systematic and comprehensive philosophy, an existential interpretation of biological facts laid out in support of his claim that the mind is prefigured throughout organic existence. Hans Jonas shows how life-forms present themselves on an ascending scale of perception and freedom of action, a scale reaching its apex in a human being’s capacity for thought and morally responsible behaviour.

His writing on the history of Gnosticism revisits terrain covered by earlier standard works on the subject such as Ernesto Buonaiuti’s Lo gnosticismo: storia di antiche lotte religiose (1907), interpreting the religion from an existentialist philosophical viewpoint. He was one of the first philosophers to concern himself with ethical questions in biological science. Jonas’s career is generally divided into three periods defined by his three primary works, but in reverse order: studies of gnosticism, studies of philosophical biology, and ethical studies.

The Gnostic Religion: The Message of the Alien God & the Beginnings of Christianity (Boston: Beacon Press, 1958); The Phenomenon of Life: Toward a Philosophical Biology (New York, Harper & Row, 1966) (Evanston, Ill. : Northwestern University Press, 2001); The Imperative of Responsibility: In Search of Ethics for the Technological Age (translation of Das Prinzip Verantwortung) trans. Hans Jonas and David Herr (1979), (University of Chicago Press, 1984); Philosophical Essays: From Ancient Creed to Technological Man (Chicago: University of Chicago Press, 1974); “Technology and Responsibility: Reflections on the New Tasks of Ethics,” Social Research 15 (Spring 1973); “Jewish and Christian Elements in Philosophy: their Share in the Emergence of the Modern Mind”; “Seventeenth Century and After: The Meaning of the Scientific and Technological Revolution”; “Socioeconomic Knowledge and Ignorance of Goals”; “Philosophical Reflections on Experimenting with Human Subjects”; “Against the Stream: Comments on the Definition and Redefinition of Death”; “Biological Engineering – A Preview”; “Contemporary Problems in Ethics from a Jewish Perspective”; “Biological Foundations of Individuality”; “Spinoza and the Theory of Organism”; “Sight and Thought: A Review of ‘Visual Thinking.'”; “Change and Permanence: On the Possibility of Understanding History.”; “The Gnostic Syndrome: Typology of Its Thought, Imagination, and Mood.”; “The Hymn of the Pearl: Case Study of a Symbol, and the Claims for a Jewish Origin of Gnosticism.”; “Myth and Mysticism: A Study of Objectification and Interiorization in Religious Thought.”; “Origen’s Metaphysics of Free Will, Fall, and Salvation: a ‘Divine Comedy’ of the Universe.”; “The Soul in Gnosticism and Plotinus.”; “The Abyss of the Will: Philosophical Meditations on the Seventh Chapter of Paul’s Epistle to the Romans.”; Mortality and Morality: A Search for Good After Auschwitz ed. Lawrence Vogel (Evanston, Ill.: Northwestern University Press, 1996); With Stuart F Spicker: Organism, medicine, and metaphysics : essays in honor of Hans Jonas on his 75th birthday, May 10, 1978; On faith, reason and responsibility (San Francisco: Harper and Row, 1978. New edition: Institute for Antiquity and Christianity, Claremont Graduate School, 1981); Memoirs (Brandeis University Press, 2008).

His English monographs:

Immortality and the modern temper : the Ingersoll Lecture, 1961 (Cambridge : Harvard Divinity School, 1962) (included in The Phenomenon of Life); Heidegger and theology (1964) (included in The Phenomenon of Life); Ethical aspects of experimentation with human subjects (Boston:American Academy of Arts and Sciences, 1969).

His selected papers:

“The Right to Die.” Hastings Center Report 8, number 4 (1978): 31–36; “Straddling the Boundaries of Theory and Practice: Recombinant DNA Research as a Case of Action in the Process of Inquiry” in Recombinant DNA: Science, Ethics and Politics, edited by J. Richards, 253–71. New York: Academic Press, 1978; “Toward a Philosophy of Technology.” Hastings Center Report 9 (1979): 34–43; “The Heuristics of Fear.” In Ethics in an Age of Pervasive Technology, edited by Melvin Kranzberg, 213–21. Boulder, Colo.: Westview Press, 1980; “Parallelism and Complementarity: The Psycho-Physical Problem in Spinoza and in the Succession of Niels Bohr.” In The Philosophy of Baruch Spinoza, edited by Richard Kennington, 121–30. Washington, D.C.: Catholic University of the Americas Press, 1980; “Reflections on Technology, Progress and Utopia.” Social Research 48 (1981): 411–55; “Technology as a Subject for Ethics.” Social Research 49 (1982): 891–98; “Is Faith Still Possible? Memories of Rudolf Bultmann and Reflections on the Philosophical Aspects of His Work.” Harvard Theological Review 75 (1982): 1–23; “Ontological Grounding of a Political Ethics: On the Metaphysics of Commitment to the Future of Man.” Graduate Faculty Philosophical Journal 10, no. 1 (1984): 47–62; “Ethics and Biogenetic Art.” Social Research 52 (1985): 491–504; “The Concept of God after Auschwitz: A Jewish Voice.” Journal of Religion 67, number 1 (1987): 1–13; “The Consumer’s Responsibility.” In Ecology and Ethics. A Report from the Melbu conference, 18–23 July 1990, edited by Audun 0fsti, 215–18. Trondheim: Nordland Akademi for Kunst og Vitenskap, 1992; “The Burden and Blessing of Mortality.” Hastings Center Report 22, no. 1 (1992): 34–40; “Philosophy at the End of the Century: A Survey of Its Past and Future.” Social Research 61, number 4 (1994): 812–32; “Wissenschaft as Personal Experience [brief memoir],” The Hastings Center report 32:4 (Jul–Aug 2002): 27–35; “Materialism and the Theory of Organism.” University of Toronto Quarterly, 21, 1 (1951): 39–52.

[184] See PHACIANET N., Hans Jonas’s Philosophy of Responsability, in The Philophical Genesis of the Ecological Crisis, State University of New York Press, Albany, 2013, pp. 16-28.

[185] As to general references, see (in alphabetical order): BAIER, A. 1980. The rights of past and future persons in PARTRIDGE E. (Ed.) Responsibilities to Future Generations. Environmental Ethics, New York, Prometheus Books, pp. 171-186; CARROLL R. 2000. “Nothing natural about this disaster” in The Guardian 18/10/2000 available online at http://www.guardian.co.uk/environment/2000/oct/18/worlddispatch.weather last accessed 19/04/.2013. CAVARERO, A. 2007. Horrorism. New York. Columbia University Press; COLLINS-CHOBANIAN, S. 2000. Beyond Sax and Welfare Interests. Environmental Ethics 22(2) pp. 133-148; CONTI S., MELI P., MINELLI G., SOLIMINI R., TOCCACELI V., VICHI M., BELTRANO C., PERINI L. 2005. Epidemiologic study of mortality during the Summer 2003 heat wave in Italy. Environmental Research 98(3) pp. 390–399; EUROPEAN COMMISSION JOINT RESEARCH CENTRE. Climate Change Impact Assessment. Available online at http://floods.jrc.ec.europa.eu/climate-change-impact-assessment.html. Last accessed 22/01/2013; FEINBERG, J. 1980. Rights, Justice, and the Bounds of Liberty. Princeton. Princeton University Press; FOUCAULT, M. 1988 Sexuality Morality and the Law. Michel Foucault: politics, philosophy, culture: interviews and other writings. KRITZMAN L.D (Ed.) SHERIDAN A. (translator) New York. Routledge; FRANCIONI, F. 2010. International Human Rights in an Environmental Horizon. The European Journal of International Law. 21 pp. 41-55; HARDENBERG, W.G. The Great Fear: The Polesine Flood of 1951. Environment and Society available online at http://www.environmentandsociety.org/arcadia/great-fear-polesine-flood-1951 last accessed 19/04/2013. HILLYARD P., TOMBS S., PANTAZIS C. & DOORLING D. 2005. Criminal Obsessions: Why harm matters more than crime’, Society Foundation, London; ICISS. 2001. EVANS G. & SAHNOUN, M. (co-Chairs). THE RESPONSIBILITY TO PROTECT, Report of the International Commission on Intervention and State Sovereignty, International Development Research Centre Ottawa; IPCC. 1990. Climate Change The IPCC Impacts Assessment. Final Report by Working Group II; IPCC. 2000. Emissions Scenarios. available online at http://www.ipcc.ch/pdf/special-reports/spm/sres-en.pdf -last accessed 23/01/2013. MARCHI E., ROTH G., & SICCARDI F. 1995. The November 1994 Flood Event On The Po River: Structural And Non-Structural Measures Against Inundations. U.S.- Italy Research Workshop on the Hydrometeorology, Impacts, and Management of Extreme Floods Perugia (Italy). available online at http://www.engr.colostate.edu/~jsalas/us-italy/papers/13marchi.pdf last accessed 19/04/2013. MITCHELL, R.B. (2007) ‘Compliance Theory: Compliance, Effectiveness and Behaviour Change in International Environmental Law’ in The Oxford Handbook of International Environmental Law, edited by D. Bodansky, J Brunnie & E Hey, Oxford, Oxford University Press pp. 893-921; NICKEL, J.W 1993. The Human Right to a Safe Environment: Philosophical Perspectives on Its Scope and Justification. Yale Journal of International Law 18 pp. 281 –295; OWENS, P. 2012. Human Security and the rise of the social. Review of International Studies. 38(3) pp. 547-567; THOMSON, J. J. 1986. Imposing Risks in PARENT, W. (ED) Rights, Restitution, & Risk. Cambridge, Harvard University Press; UNITED NATIONS. 2009. WORLD WATER DEVELOPMENT REPORT 3. CASE STUDIES VOLUME – FACING THE CHALLENGES. Paris UNESCO and London Earthscan (Joint Publishers); WESTRA L. 2004. Ecoviolence and the law (Supranational Normative Foundations of Ecocrime), New York, Transnational Publishers; Id., 2006. Environmental justice and the Rights of Unborn and Future Generations. London, Earthscan; Id., 2009. Environmental Justice and Rights of Ecological Refugees. London, Earthscan.

[186] See Emma Milne, Putting the Fetus First — Legal Regulation, Motherhood, and Pregnancy, 27, 1 MICH. J. GENDER & L. 149 (2020). The cited Article concerns over the rights and well-being of the fetus has arguably become a normal aspect of the modern world. For example, the mortality rates of both pregnant women and their fetuses/newborn infants continues to be a focus of national and international health agencies, there are numerous advice guides for the period of pregnancy, and there are continuous revisions to public health messages for pregnant women. This focus on health has resulted in scrutiny of the behavior of pregnant women, and, more recently, women who may become pregnant, in relation to the impact their behavior may have upon the health of their fetus. Women’s consumption of certain foods, alcohol, cigarettes, and illegal substances, and their rates of obesity, levels of stress, certain pre-existing medical conditions, how they wear a seat belt, and the level of pollution in the air they breathe are just some examples of areas in which advice is given to women who either are pregnant or may become pregnant in order to ensure the health of their fetus. The scale and scope of guidance is such that for many women the advice and subsequent expectation result in the need to alter their lives completely for the period of pregnancy and potentially a substantial period before becoming pregnant. This expectation of modified behavior can be understood as a “fetus-first mentality” – the idea that it is perfectly normal and appropriate for a woman who is pregnant to put the needs and well-being of her fetus before her own needs and well-being. Such expectations have received criticism for creating a perspective whereby the life and well-being of a fetus is given preference and priority over the rights and needs of the pregnant woman and even a woman who is not yet pregnant. Such concerns about women’s behavior while pregnant take on a new dynamic when considering the implications that these concerns have for criminal law.

This Article focuses on concerns about the impact of behavior by pregnant women upon their fetuses and the influence these concerns have had on criminal law. The implications of societal expectations that women will put the fetus first are clearly outlined and critiqued by analyzing two types of cases: Killing the fetus and consuming controlled substances during pregnancy.

This Article considers cases from Alabama and Indiana in the United States and England in the United Kingdom. Concerns about the behavior of pregnant women and women who could become pregnant have permeated criminal law and now hang heavily over criminal justice responses to women who experience a negative pregnancy outcome or who are perceived to have behaved in a way that could result in a negative outcome. In assessing cases from the UK and US, the Author illustrates how perceptions of “good” maternal behavior, which encompasses the principle of putting the fetus first, have influenced the application of law. Analyzing cases from different jurisdictions clearly shows the influence of the fetus-first mentality on the creation and application of criminal law.

This Article provides a new approach by bringing together a critical assessment of fetal protection laws with theories of motherhood ideologies and analyzing how such ideologies have resulted in legal developments not only in the US, where we have seen a clear change of laws, with fetuses being granted legal recognition in most states, but also in England and Wales, where the law has been static for almost 100 years and the fetus continues to have no legal personality.

In England and Wales, a person must be born alive and be a “reasonable creature in rerum natura” in order to be a victim of a crime against a person or a homicide offense. A consequence of the “born alive rule” is that a fetus does not have legal personality. Instead, it is conceptualized as a “unique organism,” that is “neither a distinct person separate from its mother nor merely an adjunct of the mother.” Consequently, fetuses have few legal protections prior to the completion of birth that results in a live-born child. Therefore, a pregnant woman or woman in labor who has acted in a way that resulted in the death of the fetus has not committed a criminal offense, with two exceptions. The first exception occurs if it can be proven the woman intentionally acted to end her own pregnancy, in which case the offense of procuring a miscarriage has been committed. The second exception is if she intentionally acted to prevent a viable fetus from living, in which case the offense of child destruction may apply. Procuring a miscarriage criminalizes the ending of a pregnancy at any stage of gestation by any person, and child destruction makes it an offense to kill a child that is capable of being born alive, once the pregnancy has reached 28 gestational weeks.

Outside of these two offenses, a woman is not legally obliged to protect her fetus from harm and does not owe the fetus a duty of care. In England and Wales there is one further pregnancy-related offense relevant to this Article: the offense of concealment of birth, which prohibits the concealment of the knowledge of a birth through the secret disposal of the body of a child. It is a homicide-related offense but does not actually involve the homicide of the child, although it may be charged concurrently. The child need not be born alive, but if it is born alive, then it must be dead prior to the concealment of the body. While the offense is punishable by up to two years in prison, an immediate custodial sentence is very rare. Enacted in 1803, the offense was used to criminalize those women who were suspected of killing their newborn children, but who could not be proven to have done so due to the difficulties of proving live birth.28 Today, the offense is rarely prosecuted with only four convictions between 2010 and 2014, mostly of women who have given birth to the child. Recent analysis of the offense has concluded that it continues to be used today as it was historically – to punish women who are suspected of homicide but cannot be proven to have killed their child. There is also evidence to suggest the offense is used to punish women who transgress traditional gender roles, specifically ideals of motherhood. The position of the fetus in English and Welsh law contrasts to most jurisdictions in the United States, despite the United States adhering to the common law principle of the born alive rule until the 1970s. California was the first state to recognize the fetus as a potential victim of homicide. In 1970 the state legislature amended their homicide law to include the fetus as a possible victim of unlawful killing. This change in the penal code arose after the Superior Court of California ruled that Robert Keeler could not be convicted of murder for causing his pregnant ex-wife, Teresa, to give birth to a stillborn child after he kneed her in the abdomen while shouting, “I’m going to stamp it out of you.” The law was changed so that a fetus that has passed the embryonic stage (approximately six to eight gestational weeks) could be a victim of unlawful killing. The law now reads: “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” At least 38 states now have laws protecting fetuses, and at least 29 of these states apply their laws to the early stages of pregnancy, employing language such as “any state of gestation,” “conception,” “fertilization,” or “post-fertilization.” Fetuses have been included in penal codes in a number of different ways across the states. In some states, such as California, the fetus or “unborn child” has been added as a potential victim of homicide. In other states the fetus has been defined as a “person” or “human being” so that it is protected by existing laws. Other states have made it a specific offense to injure or kill a fetus, or to commit “feticide.”Massachusetts is unique in that it is the only state to recognize the fetus as a victim of homicide through case law alone. Changes to federal law have also been made on this basis, with the Unborn Victims of Violence Act recognizing the fetus as a separate victim from the pregnant woman if it is killed or experiences bodily injury during the commission of a federal crime of violence.

Despite the expansion of criminal law to protect the fetus, in 24 states and in federal law, statutes include “maternal exceptions,” whereby the law specifically excludes pregnant women from prosecution in relation to their own pregnancy. For example, the Unborn Victim of Violence Act 2004 states, “Nothing in this section shall be construed to permit the prosecution of any woman with respect to her unborn child.” Similarly, in four states it would appear unlikely that a pregnant woman would be prosecuted for causing the death of her fetus due to the wording of the legislation. However, other states are silent on whether or not a pregnant woman could be held liable. This leaves the possibility of criminal proceedings against women to individual prosecutors, who, evidence would suggest, have demonstrated willingness to advocate for a broad interpretation of such statutes.

As a consequence of laws protecting fetuses, over 413 women were arrested, detained, and forced to have medical treatment between 1973 and 2005. These arrests and detainments have resulted in forced Caesarean sections, and the arrest and sometime imprisonment of women following the stillbirth or miscarriage of a baby, or after they have not followed medical advice in relation to their pregnancy. Similarly, women have faced criminal justice involvement in cases where the baby has been born alive and then died shortly after birth, and medical professionals and law enforcers have deemed that the actions of the birthmother while pregnant were the cause of the death of the child. Women have also been imprisoned following a live-born child testing positive for an illegal substance and homicide convictions have been sought in instances where a pregnancy loss has been believed to be an illegal abortion.

As analysis in this Article illustrates, the differing legal status of fetuses across jurisdictions appears to have limited impact on the application of law to criminalize women for behavior deemed to harm or have potential to harm the fetus. Instead, the perception that a woman should put her fetus’s needs and well-being before her own needs and desires – the fetus-first mentality – appears to be driving decisions to prosecute and apply criminal law.

The application of the fetus-first mentality within criminal law has resulted in dangerous legal developments that challenge women’s rights, while, evidently, doing little to protect fetuses. The implications are the same whether laws have been specifically enacted to protect fetuses, as in the US, or if such legal protection is technically not a feature of the criminal law, as in England and Wales. Criminalization of women who fall short of the ideals of motherhood is the most extreme aspect of the governance of pregnancy. Self-regulation and maternal sacrifice are defining characteristics of the myths of motherhood and are perceived to demonstrate a woman’s “love” and devotion to her fetus and future child. As illustrated by the CDC’s message about women’s consumption of alcohol and NHS Greater Glasgow & Clyde’s report on preconception health, public messages encourage women to selfregulate for the good of their unborn child, even if not yet conceived and if the woman has no plans or desires to conceive. It is clear from the content and tone of these public health messages that organizations such as the CDC consider it appropriate and acceptable to deliver such messages to all women of reproductive age; this suggests that there is a general acceptance of these messages and the ideologies that lie behind them – the principle that women should be prepared to self-regulate and deprive themselves of things they desire for the betterment of a future child. That is not to say that either the CDC’s or NHS Greater Glasgow & Clyde’s messages were accepted without contestation, as a number of commenters were highly critical of the press releases, and a social media storm ensued. The CDC later amended the infographic while standing by the message. Nevertheless, the nature of messages such as these points to the wide acceptability of the principle that women should do what is best for the fetus. The criminalization of numerous women in the US and the small number of women in England, such as Hayley and Sally, can be seen as extreme examples of a wider social and cultural movement towards state regulation of pregnancy. Thus, using criminal law to sanction the behavior of pregnant women should be understood as being at the extreme end of a spectrum of the regulation of women’s behavior through public health messages, medical “advice” and intervention, and social and cultural expectations.

Nevertheless, one of the challenges in this area of law is how to balance the rights of the pregnant woman with the protection of the fetus. There is ongoing debate as to whether a fetus has rights and should be protected under law. Engaging in this philosophical and ethical debate is outside of the scope of this Article; however, as analyzed above, it is important to note the practical implications of enshrining fetal rights in law – notably the negative consequences for women’s rights and the limited gains in outcomes for fetuses. Supporting women – not just through their pregnancies and reproductive choices, but also more widely – is likely to have a far greater impact on the well-being of fetuses.

This is particularly true for women living in poverty, who are therefore at a greater risk of negative pregnancy outcomes. However, such an approach would require governments to acknowledge that their attitudes and practices towards women’s rights are limited and are causing harm, and to be prepared to invest in services to support women. Sadly, labeling women as “bad” mothers who belong in prison is the far easier option.

The fetus-first mentality advocates that pregnant women and women who could become pregnant should put the needs and well-being of their fetuses before their own. As said, this Article illustrated, this popular public perception has pervaded criminal law, impacting responses to women deemed to be the “irresponsible” pregnant woman and so the “bad” mother. The Article considered cases from Alabama and Indiana in the United States and from England in the United Kingdom, providing clear evidence that concerns about the behavior of pregnant women now hang heavily over criminal justice responses to women who experience a negative pregnancy outcome or who are perceived to have behaved in a way that could result in a negative outcome. This Article provided a new approach by bringing together a critical assessment of fetal protection laws with theories of motherhood ideologies and analyzing how such ideologies have resulted in legal developments not only in the US, where the fetus has been granted legal recognition in most states, but also in England and Wales, where the fetus continues to have no legal personality. The Article concluded that the application of the fetus-first mentality within criminal law has resulted in dangerous legal developments that challenge women’s rights, while doing little to protect fetuses.

(For further details, see, e.g., Health Matters: Reproductive Health and Pregnancy Planning, PUB. HEALTH ENG., https://www.gov.uk/government/publications/health-matters-reproductivehealth-and-pregnancy-planning/health-matters-reproductive-health-and-pregnancyplanning (last visited May 27, 2019); Maternal Health, UNITED NATIONS POPULATION FUND, https://www.unfpa.org/maternal-health (last visited May 27, 2019); Maternal, Newborn, Child and Adolescent Health, WORLD HEALTH ORG., https://www.who.int/maternal_child_adolescent/maternal/en/ (last visited May 27, 2019). See also Pregnancy, CTRS. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/pregnancy/index.html (last visited May 27, 2019); Your Pregnancy and Baby Guide, NAT’L HEALTH SERV., https://www.nhs.uk/conditions/pregnancy-and-baby/ (last visited May 27, 2019); Pregnancy, OFF. ON WOMEN’S HEALTH, https://www.womenshealth.gov/pregnancy (last visited May 27, 2019)).

[187] Coronavirus COVID-19 Global Cases by the Center for Systems Science and Engineering (CSSE) at John Hopkins, https://gisanddata.maps.arcgis.com/apps/opsdashboard/index.html#/bda7594740fd40299423467b48e9ecf6.

[188] https://audiovisual.ec.europa.eu/en/topnews/M-004631 (accessed Apr. 7, 2020).

[189] Article 6, consolidated version of the Treaty on the Functioning of the European Union (TFEU), see also article 168 TFEU.

[190] Billy Perrigo, Why Is Germany’s Coronavirus Death Rate So Low? (Time, Mar. 30, 2020), https://time.com/5812555/germany-coronavirus-deaths/ (accessed Apr. 7, 2020).

[191] Loizidou v. Turkey (preliminary objections), 1995, at 93.

[192] There are ‘accommodation clauses’ as framed by Christoph Schreuer, ‘Derogation of Human Rights in Situations of Public Emergency: The Experience of the European Convention on Human Rights’, 9 The Yale Journal of Word Public Order, 113 (1982).

[193] Michel Rose, ‘We are at war’: France imposes lockdown to combat virus (Reuters,Mar. 16, 2020), https://www.reuters.com/article/us-health-coronavirus-macron-restriction/we-are-at-war-france-imposes-lockdownto-combat-virus-idUSKBN2133G5 (accessed Apr. 7, 2020).

[194] For a commentary on Article 15, see William Schabas, The European Convention on Human Rights: A Commentary (OUP 2015).

[195] African Commission on Human and Peoples’ Rights, Sudan Human Rights Organization et al. v. Sudan, 13–27 May, 2009, § 165.

[196] In that sense, see Human Rights Committee, Statement on derogations from the Covenant in connection with the COVID-19 pandemic, 24 Apr., 2020, CCPR/C/128/2, at §2 (c).

[197] Emilie M. Hafner-Burton et al. “Emergency and Escape: Explaining Derogations from Human Rights Treaties”, in 65 International Organization 673 (2011) at 680.

[198] Gerald L. Neuman, Constrained Derogation in Positive Human Rights Regime, in Evan J. Criddle, Human Rights in Emergencies (CUP, 2026), pp. 15–31.

[199] Article 2 ECHR, Article 4 ACHR, Article 6 ICCPR.

[200] Human Rights Committee, Statement on derogations fromthe Covenant in connection with the COVID-19 pandemic, 24 Apr., 2020, CCPR/C/128/2.

[201] France made a reservation to Article 15 stating in particular that ‘that the circumstances in Section 1 of Act No. 55–385 of 3 Apr., 1955 regarding proclamation of a state of emergency, and in which it is permissible to apply the provisions of those texts, must be understood as complying with the purpose of Article 15 of the Convention’. Although it is inspired from the 1955 legislation, the Parliament adopted a new and specific statute in the COVID-19 context.

[202] Upon ratification by the USA, the ICCPR became the ‘supreme law of the land’ under the US Constitution. However, the country made a declaration when it ratified: ‘That the United States declares that the provisions of articles 1 through 27 of the Covenant are not self-executing.’

[203] As to these kinds of statual limitations: LEBRET A., Covid-19 Pandemic and Derogation to Human Rights, in Journal of Law and the Biosciences, 1–15 doi:10.1093/jlb/lsaa015. Advance Access Publication 4 May 2020.

[204] Dmitry Yumashev, et al. Climate policy implications of nonlinear decline of Arctic land permafrost and other cryosphere elements 10 NAT.COMMUN.1900 (2019).

[205] The local news provided images of the crater: https://www.youtube.com/watch?time_continue=1&v=q3fQok8iQ94&feature=emb_title.

[206] In 1978, NASA scientists Donald Kessler and Burton Cour-Palais first described the problem of multiplying orbital space debris in their Article Collision Frequency of Artificial Satellites: The Creation of a Debris Belt. Donald J. Kessler & Burton G. Cour-Palais, Collision Frequency of Artificial Satellites: The Creation of a Debris Belt, 83 Space Physics 2637 (1978). The multiplying debris became known as the ‘Kessler Syndrome’, and instead of an image of a limitless environment, it became clear the orbital space was a very fragile area. Orbital debris is one of the main challenges resulting from anthropocentric outer space use.

[207] Land in Russia’s Arctic Blows ‘Like a Bottle of Champagne’, The New York Times, September 5, 2020.

[208] Elder, C. D., Thompson, D. R., Thorpe, A. K., Hanke, P., Walter Anthony, K. M., & Miller, C. E. (2020). Airborne mapping reveals emergent power law of Arctic CH4 emissions. Geophysical Research Letters, 47.

[209] Intergovernmental Panel on Climate Change, Global Warming of 1.5°C: An IPCC Special Report on the Impacts of Global Warming of 1.5°C above Pre-Industrial Levels and Related Global Greenhouse Gas Emission Pathways, in the Context of Strengthening the Global Response to the Threat of Climate Change, Sustainable Development, and Efforts to Eradicate Poverty (Valérie Masson-Delmotte et al. eds., 2019). See also, Final Report of the 2016 Calotte Academy: Resilience Related to Sustainable Development in Globalization, 17 (May 30– June 5, 2016). Finland, Russia, Norway. https://calotte-academy.com/sites/default/ files/2017-08/CA-2016-Final_Report.pdf.

[210] Christine Joseph and Danielle Wood, “Analysis of the Microgravity Research Ecosystem and Market Drivers of Accessibility” 70th International Astronautical Congress (IAC), Washington D.C., United States, 21-25 October 2019.

[211] Neel Patel, Satellite Mega-Constellations April 2, 2020, MIT Technology Review.

[212] For ongoing observations of “space junk” behaviour see for instance Jonathan McDowell (Harvard Smithsonian Centre for Astrophysics), GCAT: General Catalog of Artificial Space Objects, at https://planet4589.org/space/gcat/web/cat/index.html.

[213] Olavo O. Bittencourt Neto et.al (eds) Building Blocks for the Development of an International Framework for the Governance of Space Resource Activities: A Commentary (2020).

[214] https://www.space.com/trump-moon-mining-space-resources-executive-order.html.

[215] https://www.smithsonianmag.com/science-nature/spacex-environmentally-responsible-180968098/.

[216] https://www.nasa.gov/specials/artemis-accords/index.html.

[217] See, FRANK BIERMANN, EARTH SYSTEM GOVERNANCE: WORLD POLITICS IN THE ANTHROPOCENE (2014); Louis J. Kotze & Rakhyun E. Kim, Earth System Law: The Juridical Dimensions of Earth System Governance, 1 EARTH SYS. GOVERNANCE (2019).

[218] In law, this approach has been applied by the Earth System Governance (ESG) approach. This network originated in 2008 as a core project of the former International Human Dimensions Programme on Global Environmental Change (IHDP). See, Louis J. Kotze, Earth system law for the Anthropocene: rethinking environmental law alongside the Earth system metaphor Transnational Legal Theory (2020).

[219] See FOR EDUCATORS, NASA, www.nasa.gov/stem/foreducators (March 5, 2020).

[220] See RACHAEL LORNA JOHNSTONE, OFFSHORE OIL AND GAS DEVELOPMENT IN THE ARCTIC UNDER INTERNATIONAL LAW 7 (2014).

[221] Isabel Feichtner, Mining for Humanity in the Deep Sea and outer Space: The Role of Small States in the Extraterritorial Expansion of Extraction, 32 Leiden J. Int’l L. 255 (2019), arguing that the current structure of international legal framework allows extraterritorial landgrabs by granting states extraterritorial exploitation rights –or “the turning of the deep seabed and outer space into realms of commercial exploitation.” See also The Hague International Space Resources Governance Working Group, Draft Building Blocks for the Development of an International Framework in Space Resource Activities (Nov. 12, 2019), www.universiteitleiden.nl/binaries/content/assets/rechtsgeleerdheid/instituut-voor-publiekrecht/lucht—enruimterecht/space-resources/bb-thissrwg–cover.pdf.

[222] Elon Musk, Making Humans a Multi-Planetary Species, 5 NEW SPACE 46 (2017).

[223] In a widely cited text, Philip Steinberg and Kimberley Peters have proposed that the ocean represents an ideal spatial environment to challenge the assumed fixity and groundedness of space. The ‘voluminous, stubbornly material, and unmistakably undergoing continual reformation of oceans,’ they write, is able to ‘reinvigorate, redirect, and reshape debates that are all too often restricted by terrestrial limits’. (Philip Steinberg & Kimberley Peters, Wet Ontologies, Fluid Spaces, 33 SOC’Y & SPACE 247 (2015)).

[224] HUGO GROTIUS, DE IURE PRAEDAE [COMMENTARY ON THE LAW OF PRIZE AND BOOTY] (M.J. van Ittersum ed., 2006 [1606/1868]); Ileana Porras, ‘Appropriating Nature: Commerce, Property, and the Commodification of Nature in the Law of Nations’ (2014) 27 Leiden Journal of International Law 641; Will Steffen, Paul J Crutzen and John R. McNeill, ‘The Anthropocene: Are Humans Now Overwhelming the Great Forces of Nature?’ (2007) 36(8) Ambio 614, 617.

[225] Martti Koskenniemi, International Law and the Emergence of Mercantile Capitalism: from Grotius to Smith, in The Roots of International Law, Vol. 11/5, Brill/Nijhoff, 2014.

[226] Janne Elisabeth Nijman, Grotius’ Imago Dei Anthropology: Grounding Ius Naturae et Gentium (September 25, 2015). Martti Koskenniemi, Monica García-Salmones, and Paolo Amoroso (Eds.), International law and Religion.

[227] On UNCLOS, see Ori Sharon, Tides of Climate Change: Protecting the Natural Wealth Rights of Disappearing States 60 HARV. INT’L L J 99 (2019) who demonstrates that: “UNCLOS is an instrument for apportioning maritime rights between sovereign political entities, not divesting rights in catastrophes.” Importantly, on the protection of marine life see Pierre Cloutier de Repentigny (2020): To the Anthropocene and beyond: the responsibility of law in decimating and protecting marine life, Transnational Legal Theory, which analyses “the constitutive impact of economic profit and territoriality on the law of the sea.”

[228] For the global commons perspective see Isabel Feichtner & Surabhi Ranganathan, International Law and Economic Exploitation in the Global Commons: Introduction, 30 EUR. J. INT’L L. 541 (2019): ‘Yet current initiatives that seek to harness the economic potential of the oceans in the name of ‘blue growth’, projects seeking to commercialize outer space and, a fortiori, proposals to ‘colonize’ outer space and the oceans as a solution to conflict and environmental destruction stand in stark contrast with visions of a commons economy built on solidarity’, at 541.

[229] Andreassen et. al, supra note 1.

[230] Joeri Rogelj, et.al, Chapter 2 Mitigation pathways compatible with 1.5°C in the context of sustainable development. In: Intergovernmental Panel on Climate Change, Global Warming of 1.5°C: An IPCC Special Report on the Impacts of Global Warming of 1.5°C above Pre-Industrial Levels and Related Global Greenhouse Gas Emission Pathways, in the Context of Strengthening the Global Response to the Threat of Climate Change, Sustainable Development, and Efforts to Eradicate Poverty (Valérie Masson-Delmotte et al. eds., 2019).

[231] Id., 138.

[232] Id., 139.

[233] Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 11, 1997, 37 I.L.M. 22 (entered into force Feb. 16, 2005).

[234] J. Dehm, supra note 20.

[235] On the problems and limitations of the current 1tCO2e trading system see generally, Michael A. Mehling et al., Designing Border Carbon Adjustments for Enhanced Climate Action, 113 AM. J. INT’L L. (2019).

[236] Id., 88.

[237] United Nations Framework Convention on Climate Change (UNFCCC), May 9, 1992, 1771 U.N.T.S. 107 (entered into force Mar. 21, 1994).

[238] Kyoto Protocol supra note 23.

[239] Paris Agreement on Climate Change, Apr. 22, 2016 (entered into force Nov. 4, 2016).

[240] Dehm, supra note 20.

[241] See generally, Report of the Study Group of the International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, U.N. Doc. A/CN.4/L.702 (July 18, 2006).

[242] See also Thomas Gehring & Sebastian Oberthür, Institutional Interaction: Ten Years of Scholarly Development, in MANAGING INSTITUTIONAL COMPLEXITY: REGIME INTERPLAY AND GLOBAL ENVIRONMENTAL CHANGE 25 (Sebastian Oberthür & Olav Schram Stokke eds., 2011).

[243] See Isabel Feichtner, Contractor Liability for Environmental Damage Resulting from Deep Seabed Mining Activities in the area, MARINE POL’Y (in press 2019), discussing the ‘mining code’ proposals for deep-seabed mining.

[244] Sarah Burch et. al., New Directions in Earth System Governance Research, 1 EARTH SYST. GOV.1, 7 (2019), provides a description of human-centric agency interactions: ‘Agency interactions include norm creation and diffusion, orchestration, regime creation, modification and demise. These interactions lead to questions relating to the relative power of the actors involved and the nature and implications of their actions in governance, including: the ethical (legal and fiduciary), normative (transparency, equity, accountability, inclusiveness), technical (effectiveness, sustainability), temporal (present and future consequences), spatial and scalar (state/non-state, global/international, geographical, economic, political, uni-/multi-/ interdisciplinary).’

[245] See generally, Anna Grear, Towards a New Horizon: In Search of a Renewing Socio-Juridical Imaginary, 3 OÑATI SOCIO-LEGAL SERIES 966 (2013).

[246] Id., 223.

[247] Feichtner, supra note 21.

[248] Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 (entered into force Nov. 1, 1994). It builds on the four treaties that resulted from the first Conference on the Law of the Sea (UNCLOS I), which took place in 1958. These are the Convention on the Territorial Sea and Contiguous Zone, which entered into force on September 10, 1964, the Convention on the Continental Shelf, which entered into force on 10 June 10, 1964, the Convention on the High Seas, which entered into force on September 30, 1962, and the Convention on Fishing and Conservation of Living Resources of the High Seas, which entered into force on March 20, 1966. (For additional discussion, see Conference Report, United Nations Conference on the Law of the Sea (Feb. 24–27, 1958), http://legal.un.org/diplomaticconferences/1958_los/; and Tullio Treves, 1958 Geneva Conventions on the Law of the Sea, AUDIOVISUAL LIBRARY OF INTERNATIONAL LAW (undated), http://legal.un.org/avl/ha/gclos/gclos.html).

[249] Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 (entered into force Nov. 1, 1994).

[250] Stephanie Holmes, Breaking the Ice: Emerging Legal Issues in Arctic Sovereignty, 9 CHI. J. INT’L L. 323 (2008).

[251] JOANNA MOSSOP, THE CONTINENTAL SHELF BEYOND 200 NAUTICAL MILES (2016).

[252] Id., 89.

[253] Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (1994) UN Doc A/RES.48.2663; ATS 32/33; ILM 1309. Preamble of the 1994 Agreement reads in the original as: ‘Noting the political and economic changes including market-oriented approaches, affecting the implementation of Part XI’. One of the functions of the Authority is ‘to approve applications for mining contracts or licenses submitted to in the form of plans of work for exploration or exploitation’ (section 3, para 11 (a)).

[254] Outer Space Treaty, art. II, Jan. 27, 1967, 610 U.N.T.S. 205 (entered into force 10 October 1967).

[255] See Isabel Feichtner, Contractor Liability for Environmental Damage Resulting from Deep Seabed Mining Activities in the area, MARINE POL’Y (in press 2019), discussing the ‘mining code’ proposals for deep-seabed mining, and at 1, clarifying ‘that the UN Convention on the Law of the Sea (LOSC) provides not for strict liability, but responsibility for wrongful conduct and that the international law of deep seabed mining does not include a no-harm rule’.

[256] Id.

[257] See generally, Timo Koivurova & Richard Caddell, Managing Biodiversity Beyond National Jurisdiction in the Changing Arctic, 112 AM. J. INT’L L. UNBOUND 134 (2018).

[258] Arctic Council, Ecosystem Based Management in the Arctic. Report submitted to Senior Arctic Officials by the Expert Group on Ecosystem-Based Management May 2013 Principles, at 13 (May 2013).

[259] Id.

[260] This subsection primarily narrows on the current instruments that are relevant for space debris mitigation in the context of the growing state and private commercial interests in outer space.

[261] They are: the “Outer Space Treaty” Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies Adopted by the General Assembly in its resolution 2222 (XXI), opened for signature on 27 January 1967, entered into force on 10 October 1967; The “Rescue Agreement”, Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, Adopted by the General Assembly in its resolution 2345 (XXII), opened for signature on 22 April 1968, entered into force on 3 December 1968; The “Liability Convention”, Convention on International Liability for Damage Caused by Space Objects, Adopted by the General Assembly in its resolution 2777 (XXVI), opened for signature on 29 March 1972, entered into force on 1 September 1972; The “Registration Convention”, Convention on Registration of Objects Launched into Outer Space, Adopted by the General Assembly in its resolution 3235 (XXIX), opened for signature on 14 January 1975, entered into force on 15 September 1976; The “Moon Agreement”, Agreement Governing the Activities of States on the Moon and Other Celestial Bodies Adopted by the General Assembly in its resolution 34/68, opened for signature on 18 December 1979, entered into force on 11 July 1984.

[262] Alexandra Witze, ‘The quest to conquer Earth’s space junk problem’ Nature (2018), available at: https://www.nature.com/articles/d41586-018-06170-1/.

[263] Translation of the Draft Law on the Exploration and Use of Space Resources (draft law), https://spaceresources.public.lu/content/dam/spaceresources/news/Translation%20Of%20The%20Draft%20Law.pdf.

[264] Id.

[265] Id.

[266] Id.

[267] See, e.g., U.N. Committee on the Peaceful Uses of Outer Space: Scientific and Technical Subcommittee, Space Debris Mitigation Guidelines of United Nations Committee on the Peaceful Uses of Outer Space, Background, para. 1, endorsed by G.A. Res. 62/217, U.N. Doc. A/RES/62/217 (Dec. 22, 2007).

[268] See COMPENDIUM OF SPACE DEBRIS MITIGATION STANDARDS ADOPTED BY STATES AND INTERNATIONAL ORGANIZATIONS pt. 1: National mechanisms, UNOOSA, http://www.unoosa.org/oosa/en/ourwork/topics/spacedebris/compendium.html. See also China National Industry Standard, Requirements for Space Debris Mitigation (2006); National Standard of the Russian Federation, Space Technology Items: General Requirements for Mitigation of Near-Earth Space Debris Population, GOST R 52925-2018, adopted by the Rosstandard Order No. 632-st (Sep. 21, 2018).

[269] COMPENDIUM OF SPACE DEBRIS MITIGATION STANDARDS ADOPTED BY STATES AND INTERNATIONAL ORGANIZATIONS, pt. 2: International mechanisms, UNOOSA, http://www.unoosa.org/oosa/en/ourwork/topics/spacedebris/compendium.html.

[270] U.N. Committee on the Peaceful Uses of Outer Space: Scientific and Technical Subcommittee, Space Debris Mitigation Guidelines of United Nations Committee on the Peaceful Uses of Outer Space, endorsed by G.A. Res. 62/217, U.N. Doc. A/RES/62/217 (Dec. 22, 2007).

[271] Space Policy Directive-3, National Space Traffic Management Policy, § 5(a)(iii), WHITE HOUSE (June 18, 2018),

https://www.whitehouse.gov/presidential-actions/space-policy-directive-3-national-space-traffic-managementpolicy/.

[272] Outer Space Treaty, art. II, Jan. 27, 1967, 610 U.N.T.S. 205 (entered into force 10 October 1967).

[273] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and other Celestial Bodies, Jan. 27, 1967, 610 U.N.T.S. 205 (entered into force Oct. 10, 1967) [Outer Space Treaty].

[274] Id.

[275] Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, art. 7, para. 1, Dec. 5, 1979, 1363 U.N.T.S. 3, (entered into force 11 July 1984) [Moon Agreement].

[276] International Cooperation in the Peaceful Uses of Outer Space, pmbl., G.A. Res. 62/217, U.N. Doc. A/RES/62/217 (Dec. 22, 2007).

[277] Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, Apr. 22, 1968, 672 U.N.T.S. 119 (entered into force Dec. 3, 1968) [Rescue Agreement].

[278] U.S. Commercial Space Launch Competitiveness Act, Pub. L. No. 114-90, 129 Stat. 704 (2015). See specifically, 51 USC 51303: Asteroid resource and space resource rights, From Title 51-National and Commercial Space Programs, Subtitle V-Programs Targeting Commercial Opportunities, Chapter 513-Space Resource Commercial Exploration and Utilization. Available at:: http://uscode.house.gov/view.xhtml?hl=false&edition=prelim&req=granuleid%3AUSC-prelimtitle51-section51302&num=0&saved=%7CZ3JhbnVsZWlkOlVTQy1wcmVsaW0tdGl0bGU1MS1zZWN0aW9uNTEzMDM%3D%7C%7C%7C0%7Cfalse%7Cprelim.

[279] Loi du 20 juillet 2017 sur l’exploration et l’utilisation des ressources de l’espace. Journal Officiel du Grand-Duché de Luxembourg, Mémorial A, No 674 du 28 juillet 2017. (Aug. 22, 2017) The Luxembourg Chamber of Deputies adopted a law on the exploration of space and the use of space resources on July 13, 2017; the Grand Duke signed the law on July 20,2017. (Loi du 20 juillet 2017 sur l’exploration et l’utilisation des ressources de l’espace [Law of 20 July 2017 on the Exploration and Use of Space Resources], Journal officiel du Grand-Duché de Luxembourg [Official Gazette of the Grand Duchy of Luxembourg], No. 674 (July 28, 2017), Lexilux; Draft Law on the Exploration and Use of Space Resources, spaceresources.lu (July 13, 2017).

[280] https://space.gov.ae/.

[281] UAE National Space Policy (English): https://space.gov.ae/Documents/PublicationPDFFiles/UAE_National_Space_Policy_English.pdf Section 5.3.5, that clearly argues for the commercialization for outer space “5.3.5. Promote Creative Entrepreneurship and Commercial Space Projects The UAE recognizes that entrepreneurship catalyzes economic growth, increased employment, and innovation. The UAE Space Agency shall provide support to relevant government authorities, private sector entities and other relevant stakeholders to identify new commercial opportunities for market and technology growth. The UAE Space Agency will facilitate research, regulatory and financial incentives to support entrepreneurial endeavors. It will abstain from activities that discourage or compete with UAE commercial sector activities, unless required for critical national interests such as national security or public safety. The Agency will also seek to provide appropriate support and motivation for innovative and inspiring commercial space projects that bring transformational changes or historic achievements in space activities, and at the same time contribute to the development and expansion of capabilities, knowledge and human capital in the UAE. Examples include: space projects related to space manufacturing by robots, ancillary industries, threedimensional printing, commercial space flights, including orbital and sub-orbital, as well as projects that deal with the exploration and exploitation of resources in space, and other projects that may create a global revolution in the field of exploration, the utilization of space and its resources, and the spin-off of space technologies.”

[282] See Introduction “Outer space is getting busier, with more emerging technologies and an increasing number of countries and entities that seek to exploit the advantages of outer space, in the context of a wider contribution from the commercial and academic sectors and a higher level of cooperation between space-faring nations. In light of these developments, the planning and management of national capabilities and capacities requires clarity in the government’s approach and goals with respect to the national space sector. For this reason, as the competent authority on this issue, and in accordance with Federal Law No.1/2014, the UAE Space Agency developed the National Space Policy” at 15.

[283] https://www.whitehouse.gov/presidential-actions/executive-order-encouraging-international-supportrecovery-use-space-resources/.

In addition, the Fiscal Year 2020 National Defense Authorization Act has put into action the proposal for the independent Space Force, formally as the sixth military service branch, absorbing its predecessor, the Air Force Space Command. See, https://www.spaceforce.mil/.

[284] DOUGLAS KILGORE DE WITT, ASTROFUTURISM: SCIENCE, RACE, AND VISIONS OF UTOPIA IN SPACE (2019).

[285] See supra note 11.

[286] This argument is only partly influenced by the new ecology approaches which have already proposed methodologies based on systems approaches. Systems require more than one perspective in order to account for potentially endless and interconnected possibilities and interactions. Moreover, as GHGs and orbital debris demonstrate there are both simultaneous and contradictory patterns of activity in similarly complex and not yet fully understood spacetime. See for example, Zora Kovacic, Investigating science for governance through the lenses of complexity, 91 FUTURES 80 (2017).

[287] Dehm, supra note 20.

[288] See, FRANK BIERMANN, EARTH SYSTEM GOVERNANCE: WORLD POLITICS IN THE ANTHROPOCENE (2014); Louis J. Kotze & Rakhyun E. Kim, Earth System Law: The Juridical Dimensions of Earth System Governance, 1 EARTH SYS. GOVERNANCE (2019).

[289] Supra note 11.

[290] WILFRED JENKS, SPACE LAW (1965).

[291] IPCC, Chapter 7 “Managing the Risks: International Level and Integration across Scales” (2018).

[292] BRUNO LATOUR, POLITICS OF NATURE: HOW TO BRING THE SCIENCES INTO DEMOCRACY 75 (2004).

[293] The double-slit experiment is a demonstration in modern physics that light and matter can display characteristics of both, what are classically defined waves and particles. This possibility also demonstrates the probabilistic nature of quantum mechanics. Feynman, Richard, The Feynman Lectures on Physics, Vol. 3. 1.1–1.8 (1965).

[294] RICHARD FEYNMAN, THE FEYNMAN LECTURES ON PHYSICS, VOL. 3. 1.1–1.8 (1965).

[295] In Vibrant Matter. A Political Ecology of Things, Duke University Press 2010, the political theorist Jane Bennett, renowned for her work on nature, ethics, and affect, shifts her focus from the human experience of things to things themselves. Bennett argues that political theory needs to do a better job of recognizing the active participation of nonhuman forces in events. Toward that end, she theorizes a “vital materiality” that runs through and across bodies, both human and nonhuman. Bennett explores how political analyses of public events might change were we to acknowledge that agency always emerges as the effect of ad hoc configurations of human and nonhuman forces. She suggests that recognizing that agency is distributed this way, and is not solely the province of humans, might spur the cultivation of a more responsible, ecologically sound politics: a politics less devoted to blaming and condemning individuals than to discerning the web of forces affecting situations and events.

Bennett examines the political and theoretical implications of vital materialism through extended discussions of commonplace things and physical phenomena including stem cells, fish oils, electricity, metal, and trash. She reflects on the vital power of material formations such as landfills, which generate lively streams of chemicals, and omega-3 fatty acids, which can transform brain chemistry and mood. Along the way, she engages with the concepts and claims of Spinoza, Nietzsche, Thoreau, Darwin, Adorno, and Deleuze, disclosing a long history of thinking about vibrant matter in Western philosophy, including attempts by Kant, Bergson, and the embryologist Hans Driesch to name the “vital force” inherent in material forms. Bennett concludes by sketching the contours of a “green materialist” ecophilosophy.

[296] Jane Bennett develops a theory of vital materialism that employs the Deleuzian notion of assemblages to conceptualize the diffuse set of actors (both ‘human’ and not) that are involved in the enactment of any given phenomena. Her goal is ‘to articulate a vibrant materiality that runs alongside and inside humans to see how analyses of political events might change if we gave the force of things more due’ in Jane Bennett. Vibrant Matter (2010).

‘Assemblage’ (from French: ‘agencement’, “a collection of things which have been gathered together or assembled”) is a concept developed by Gilles Deleuze and Félix Guattari, originally presented in their book A Thousand Plateaus (1980). Assemblage theory frames social complexity in the emphasis of fluidity, exchangeability, and the multiple functions through entities that create their connectivity. Assemblage theory asserts that, within a body, the relationships of component parts are not stable and fixed; rather, they can be displaced and replaced within and among other bodies, thus approaching systems through relations of exteriority.

The term assemblage, in a philosophical sense, originally stems from the French word agencement, whose meaning translates narrowly to English as “arrangement”, “fitting, or “fixing”. Agencement asserts the inherent implication of the connection between specific concepts and that the arrangement of those concepts is what provides sense or meaning. Assemblage, on the other hand, can be more accurately described as the integration and connection of these concepts and that it is both the connections and the arrangements of those connections that provide context for assigned meanings.

John Phillips argued in 2006 that Deleuze and Guattari rarely used the term assemblage at all in a philosophical sense, and that through narrow, literal English translations, the terms became misleadingly perceived as analogous. The translation of agencement as assemblage that “give[s] rise to the connotations based on analogical impressions, which liberate elements of a vocabulary from the arguments that once helped form it.”

In A Thousand Plateaus: Capitalism and Schizophrenia, Deleuze and Guattari draw from dynamical systems theroy, which explores the way material systems self-organize, and extend the theory to include social, linguistic, and philosophical systems in order to create assemblage theory. In assemblage theory, assemblages (or relationships) are formed through the processes of coding, stratification, and territorialization. Any one philosophical context never operates in isolation.

Deleuze and Guattari use the term “constellation” when they talk about assemblage. A constellation, like any assemblage, is made up of imaginative contingent articulations among myriad heterogeneous elements. This process of ordering matter around a body is called coding. According to Deleuze and Guattari, assemblages are coded by taking a particular form; they select, compose, and complete a territory. In composing a territory, there exists the creation of hierarchical bodies in the process of stratification. Drawing from the constellation metaphor, Deleuze and Guattari argue that the constellation includes some heavenly bodies but leaves out others; the included bodies being those in close proximity given the particular gathering and angle of view. The example constellation thus defines the relationships with the bodies in and around it, and therefore demonstrates the social complexity of assemblage.

Territorialization is another process of assemblage theory, and is viewed as the ordering of the bodies that create the “assemblage”. Assemblages territorialize both forms of content and forms of expression. Forms of content, also known as material forms, include the assemblage of human and nonhuman bodies, actions, and reactions. Forms of expression include incorporeal enunciations, acts, and statements. Within this ordering of the bodies, assemblages do not remain static; they are further characterized by processes of deterritorialization and reterritorialization. Deterritorialization occurs when articulations are disarticulated and disconnected through components “exiting” the assemblage; once again exemplifying the idea that these forms do not and can not operate alone. Reterritorialization describes the process by which new components “enter” and new articulations are forged, thus constituting a new assemblage. In this way, these axes of content/expressive and the processes of territorialization exist to demonstrate the complex nature of assemblages.

Manuel DeLanda detailed the concept of assemblage in his book A New Philosophy of Society (2006) where, like Deleuze and Guattari, he suggests that social bodies on all scales are best analyzed through their individual components. Like Deleuze and Guattari, DeLanda’s approach examines relations of exteriority, in which assemblage components are self-subsistent and retain autonomy outside of the assemblage in which they exist DeLanda details Deleuze and Guattari’s (1987) assemblage theory of how assemblage components are organized through the two axes of material/expressive and territorializing/deterritorializing. DeLanda’s additional contribution is to suggest that a third axis exists: of genetic/linguistic resources that also defines the interventions involved in the coding, decoding, and recoding of the assemblage. Like Deleuze and Guattari, DeLanda suggests that the social does not lose its reality, nor its materiality, through its complexity. In this way, assemblages are effective in their practicality; assemblages, though fluid, are nevertheless part of historically significant processes.

As to some references: Wikis.la.utexas.edu,. (2016). Assemblage Theory | University of Texas Theory. Retrieved 1 March 2016, from “Archieved copy”. Archived from the original on on 2016-03-14. Retrieved 2016-03-01; Phillips, J. (2006). “Agencement/Assemblage”. Theory, Culture & Society. 23 (2–3): 108–109; Smith, D., & Protevi, J. (2008). Gilles Deleuze. plato.stanford.edu. Retrieved 1 March 2016, from http://plato.stanford.edu/entries/deleuze/#ThoPla . Wise, J., & Slack, J. (2014). Culture and Technology. New York, NY: Lang, Peter New York; Karaman, O (2008) Antipode. 40 (5): 935–937; Karaman, O (2008). “A New Philosophy of Society: Assemblage Theory and Social Complexity by Manuel DeLanda”.

As to Deleuze-Guattarian assemblage: see e.g. J.D. Dewsbury, “The Deleuze-Guattarian Assemblage: Plastic Habits.” Area, vol. 43, no. 2, 2011, pp. 148–153. JSTOR, www.jstor.org/stable/41240478. Accessed 27 Jan. 2021. In particular, this paper will attend to the emergence of the concept of assemblage in human geography and looks towards some vigilant steps we might take in using Deleuze and Guattari’s version of it The paper is in three parts: first, it briefly looks backwards, charting this emergence to the uptake of the work of Gilles Deleuze and Felix Guattari as a counterpoint and extension of the earlier engagement with the concept of the network, primarily in actor-network theory (ANT); second, it makes this argument for being vigilant with assemblages through focusing attention on the tetravalent characteristics of the concept of the Deleuze-Guattarian assemblage, emphasising the way this points to alternative arrays of matter and thought This segues into the third section, which situates the debates in our contemporary understandings of our technological and biochemical condition. The point being that we need precisely the kind of assemblage thinking proposed by Deleuze and Guattari to seize the agenda on the emergent micro-and eco-logical implications these arrays of matter and thought produce; the agenda proposed is exampled through understanding the assemblage concept through the work of Catherine Malabou on that of plasticity and habit, clear extensions in the 21st century of Deleuze and Guattari’s earlier ideas.

(Journal Information: Area was established in 1969 as a bulletin for the Institute of British Geographers (IBG), but has evolved into a full academic journal of the Royal Geographical Society (with the IBG). The mission of Area is to publish the very best of geographical research and scholarship on all aspects of human and physical geography. Its particular emphasis is on the presentation of innovative and fresh ideas that move the discipline forward and make the journal accessible to new researchers (including postgraduate students and academics at an early stage of their research careers). It achieves this by publishing shorter articles that focus on topical issues, new research results, methodology theory and practice, and academic commentaries and debates.

Publisher Information: Wiley is a global provider of content and content-enabled workflow solutions in areas of scientific, technical, medical, and scholarly research; professional development; and education. Our core businesses produce scientific, technical, medical, and scholarly journals, reference works, books, database services, and advertising; professional books, subscription products, certification and training services and online applications; and education content and services including integrated online teaching and learning resources for undergraduate and graduate students and lifelong learners. Founded in 1807, John Wiley & Sons, Inc. has been a valued source of information and understanding for more than 200 years, helping people around the world meet their needs and fulfill their aspirations. Wiley has published the works of more than 450 Nobel laureates in all categories: Literature, Economics, Physiology or Medicine, Physics, Chemistry, and Peace. Wiley has partnerships with many of the world’s leading societies and publishes over 1,500 peer-reviewed journals and 1,500+ new books annually in print and online, as well as databases, major reference works and laboratory protocols in STMS subjects. With a growing open access offering, Wiley is committed to the widest possible dissemination of and access to the content we publish and supports all sustainable models of access. Our online platform, Wiley Online Library (wileyonlinelibrary.com) is one of the world’s most extensive multidisciplinary collections of online resources, covering life, health, social and physical sciences, and humanities).

[297] S. Elden. ‘Secure the Volume: Vertical Geopolitics and the Depth of Power’ (2013) Political Geography 34, 35-51.

[298] T. Selkälä and M. Rajavuori, ‘Myths, and Utopias of Personhood: An Introduction’ (2017) 18 German Law Journal 5, 1017–1068; M. Viljanen, ‘A Cyborg Turn in Law ?’ (2017) 18 German Law Journal 5, 277–308.

[299] Latour, supra note 12 at 237-8.

[300] Supra note 12, 237-8.

[301] Id.

[302] Latour leaves the word ‘society’ behind and adopts the word ‘collective’, denominating a network of associations98 between humans and non-humans, thus giving non-humans a sort of agency – actancy. Latour, supra note 54.

[303] Steffen, supra note 14.

[304] BRUNO LATOUR, REASSEMBLING THE SOCIAL: AN INTRODUCTION TO THE ACTOR-NETWORK THEORY 71 (2005).

[305] See e.g. European Parliament. 2017. Resolution of 16 March 2017 on an integrated European Union policy for the Arctic (2016/2228(INI)).

[306] Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, 29 October 2010, arts 5-7 (entered into force 12October 2014) [Nagoya Protocol].

[307] 18th Session of the Permanent Forum (2019) Actionable Recommendations Matrix.

[308] The broad ways in which indigenous content is framed in IPCC mirrors other such portrayals of Indigenous peoples, their knowledge and experiences in general scientific and popular discourse, forming part of what Roosval and Tegelberg term the ‘victim-heroes’ frame. The complexity and diversity of experiences, understanding, and responses to climate change evident in the scholarship is not captured. Anna Roosvall & Matthew Tegelberg, Misframing the Messenger: Scales of Justice, Traditional Ecological Knowledge and Media Coverage of Indigenous Peoples and Climate Change, in MEDIA MEETS CLIMATE: THE GLOBAL CHALLENGE FOR JOURNALISM 297 (Elisabeth Eide & Risto Kunelius eds., 2012).

[309] Indeed, some domestic initiatives have taken place in form of a historically belated recognition and the inclusion of indigenous peoples’ legal systems. The Te Awa Tupua (Whanganui River Claims Settlement) Act of 2017 in New Zealand, for instance, recognized rivers as legal persons. Article 14 of the Act declares the Te Awa Tupua river to be a legal person with all the corresponding rights, powers, duties, and liabilities, which in turn are exercised by Te Pou Tupua peoples on behalf of, and in the name of, Te Awa Tupua. In this manner, the rights of nature, as traditionally recognized in indigenous cosmovision, are also included in the dominant legal system, as represented by indigenous peoples. As such, the right of the river still requires the ‘stewards of nature’ approach to indigenous peoples who have the particular position as its ‘protectors’. Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, http://www.legislation.govt.nz/act/public/2017/0007/latest/whole.html.

[310] See, e.g., GLEN SEAN COULTHARD, RED SKIN, WHITE MASKS: REJECTING THE COLONIAL POLITICS OF RECOGNITION (2014); Glen Coulthard & Leanne Betasamosake Simpson, Grounded Normativity / Place-Based Solidarity 68 AM. Q. 249 (2016).

[311] Dennish McPherson & J. Douglas Rabb, Some Thoughts on Articulating a Native Philosophy, 1 AYAANGWAAMIZIN 3 (1997); ROBERT ALEN WARRIOR, TRIBAL SECRETS: RECOVERING AMERICAN INDIAN INTELLECTUAL TRADITIONS (1995).

[312] Leanne Simpson, Aboriginal People and Knowledge: Decolonizing Our Processes, 21 CANADIAN J. NATIVE STUD. 138 (2001).

[313] Id..

[314] In the case of the Convention on Biological Diversity (CBD) its implementation is supported by the Nagoya Protocol which sets out a framework where fair and equitable compensation for local and indigenous producers of biological and genetic resources must be made conditional for access to these resources to be given. Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, 29 October 2010, arts 5-7 (entered into force 12 October 2014) [Nagoya Protocol].

[315] 18th Session of the Permanent Forum (2019) Actionable Recommendations Matrix.

[316] K Barad. Meeting the Universe Halfway (2007).

[317] P. Steinberg, and K. Peters. ‘Wet Ontologies, Fluid Spaces: Giving Depth to Volume through Oceanic Thinking’ (2015) 33 Environment and Planning D: Society and Space, 247-264.

[318] Id.

[319] K. Anderson et al., ‘Carriers of water: aboriginal women’s experiences, relationships, and reflections’ (2013) Journal of Cleaner Production 60, 11-17.

[320] Cave, K. Exploring the Influences of Institutions on Water Governance and Management: First Nation Case Study. University of Waterloo [online] (2012). http://uwspace.uwaterloo.ca/bitstream/10012/6492/3/Cave_Katherine_2012.pdf.

[321] J. Yates, N. Wilson and L. Harris ‘Multiple Ontologies of Water: politics, conflict and implications for governance (2017) 35 Environment and Planning D: Society and Space 5, 797.

[322] As Leanne Simpson has argued in 2001: ‘Non-Aboriginal researchers are flocking to Aboriginal communities. For Aboriginal peoples, at least initially, this was a good thing. After years of appropriating, assimilating, ignoring, undermining and degrading our knowledge, it was finally acknowledged by members of the dominant society. But outside researchers were not interested in all kinds of knowledge, and they remain specifically interested in knowledge that parallels the western scientific discipline of ecology or the ‘environment’, Aboriginal Peoples and Knowledge and they are often looking specifically for information that presents solutions to their own pending ecological crises’, in L. Simpson, supra note 233.

[323] On examples of conflicts with the extractive industries see generally, E. Cirkovic, Community, Law, and Justice: Conflict Between Indigenous Peoples’ Claims to Self-Determination and the Transnational Extractive Industry in Peru and Canada (2010); G. Christie, ‘Indigeneity and Sovereignty in Canada’s Far North: The Arctic and Inuit Sovereignty’ 110 S Atlantic Q 2 (2011) 329; G Munarriz Ulloa, Indigenous peoples and international human rights law: mining, multinational corporations and the struggles of indigenous peoples in Peru (2017); D. Szablowski. Transnational Law and Local Struggles: Mining, Communities and the World Bank (2007).

[324] Hart, The Concept of Law, 209 (1961).

[325] Hart, cit., 231.

[326] In making this claim, Hart is aware of the theories advanced for “basic norm” in international law. Of the two serious candidates, pacta sunt servanda does not account for all obligations under international law, however widely the term “pacta” is construed, while the rule that “States should behave as they customarily behave” says nothing more than that “those who accept certain rules must also observe a rule that the rules ought to be observed,” which is only another way saying that these rules are accepted as binding. As to these considerations: see E. Arona, Pacta servanda sunt? Jus post-bellum and transitional (in)justice in post-war and in post-authoritarian regime context, in Nordicum-Mediterraneum (Icelandic E-Journal of Nordic and Mediterranean Studies); University of Akureyri; vol. 15, no. 1, 2020; pagg. 201.

[327] Hart, cit., 323.

[328] Fuller, The Morality of Law, pp. 137-138 (1964).

[329] See K. Popper, The Lesson of This Century: With Two Taks On Freedom and The Democratic State, Venezia, Tascabili Marsilio, 1992. One of the century’s greatest and most influential thinkers, Karl Popper reminds us that we must recognize our responsibilities in preserving the democratic system we enjoy: it is our actions which will create the world of tomorrow. In these interviews with journalist Giancarlo Bosetti, Karl Popper ranges widely over contemporary political and social issues. He reflects on many topics, from the decline of the Soviet Union and the danger of a Third World War, to our obligations to children and the potentially harmful influence of television. He warns us that the increasing violence and egotism of our society, if unchecked, will imperil our civilisation. The volume also contains two talks on the theory of democracy, arguing that democracy has never been the rule of the people (nor can or should it be), but only the best method we know for preventing tyranny.

Popper’s purpose is to warn us against the increasing violence and egoism of our society. What solutions can we offer to the problems of the environment, demography and corruption? How can we prevent the violence our society engenders? How can we preserve our democratic system while at the same time paving the way for global peace? Popper believes that the philosopher has a duty to intervene in politics and he utters a clear call to all of us to recognise our responsibilities. He reminds us that it is our actions which will create the world of tomorrow.

“The lesson of this century is an exhortation to realize that it is foolish to compromise the inestimable good of peace in the state of law to seek illusory paradises that lead, as history has shown, to war and tyranny” (Maurizio Viroli).

See also R. Dahrendorf, Economic Opportunity, Civil Socieity and Political Liberty, Roma-bari, Laterza, 1996. This essay explores the dilemmas associated with ‘squaring the circle’ of wealth creation, social cohesion and political freedom in the OECD countries. As the metaphor of square and circle implies, these three essential goals of development are not necessarily compatible and may even conflict with each other, particularly at a time when advancing globalization creates perverse choices. To become and remain competitive in international markets requires a flexible use of resources which threatens social cohesion and political freedom in a number of ways. After analysing these tensions, the essay concludes with six proposals for improving the likelihood that a workable balance between prosperity, democracy and social cohesion can be maintained in advanced industrial societies.

“The OECD countries, to put it in a very direct and hasty way, have reached a level of development in which the economic opportunities of their citizens lead to dramatic choices.To remain competitive in a growing world market must take measures to irreparably damage the cohesion of the respective civil societies If they are unprepared to take these measures, they have to resort to restrictions on civil liberties and political participation that even shape a new authoritarianism, or at least that seems to be the dilemma. in the next decade or so it is to square the circle between creation of wealth, social cohesion and political freedom.The quadrature of the circle is impossible, but we can perhaps approach it, and a realistic project of social welfare promotion probably can not have goals more ambitious” (Ralf Dahrendorf, 1995).

[330] Feichtner & Ranganathan, supra note 128.

[331] The current legal status and legal consequences flowing from the international rules governing the global commons is a question of significant public policy interest at the present time. For example, Preparatory Committee BBNJ, Report of the Preparatory Committee established by General Assembly resolution 69/292: Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, in: United Nations General Assembly (Ed.), 2017 https://undocs.org/A/AC.287/2017/PC.4/2 (last accessed March 12, 2020). At its 3450th meeting, on 9 August 2018, the International Law Commission (ILC) decided, in accordance with articles 16 to 21 of its statute, to transmit the draft guidelines on the protection of the atmosphere, through the Secretary-General, to Governments and international organizations for comments and observations, with the request that such comments and observations be submitted to the Secretary-General by 15 December 2019.

[332] Feichtner, supra note 22.

[333] Donna Harraway, Anthropocene, Capitalocene, Plantationocene, Chthulucene: Making Kin, 6 ENVTL. HUMAN. 159, 160 (2015).

[334] Elon Musk, Making Humans a Multi-Planetary Species, 5 NEW SPACE 46 (2017).

[335] Kristin Houser, Astrophysicist Who Just Won The Nobel Prize Says We’ll Never Colonise Exoplanets, SCIENCEALERT (Oct. 11, 2019), www.sciencealert.com/nobel-winning-astrophysicist-says-we-ll-never- oloniseexoplanets.

[336] See, Moriba Jah, Less Than Infinite — Space is Becoming an Orbital Landfill at: https://news.utexas.edu/2020/02/24/less-than-infinite-space-is-becoming-an-orbital-landfill/.

See also: https://spacewatch.global/2019/12/spacewatchgl-oped-my-2019-in-a-review-by-dr-moriba-jah/.

Andreas Raspotnik, The European Union and the Geopolitics of the Arctic (Cheltenham & Northampton: Edward Elgar, 2018)

06/02/2019Book reviewArctic, Arctic Council, European Union, global warming, indigenous peoplesFederica Scarpa

Andreas Raspotnik, in his new book “The European Union and the Geopolitics of the Arctic”, critically scrutinizes the decade-long history of successes, failures and attempts of the European Union in constructing its own legitimacy and credibility in the multi-layered geopolitics of its “northern neighborhood”, the Arctic. In doing so, the author attempts to define this “unknown” but yet a “component of the Arctic geopolitics”, that is to say the EU, and to provides his own response to the long-standing matter of which role the EU has to play in the region.

One immediate question that arises in the mind of those who are more familiar with EU’s studies, especially with regards to the Arctic, is not if the EU has an influence in the Arctic region, but whether the EU holds the actual capacity to act as an international actor in the given geopolitical context. Regardless of EU’s formal acceptance as an observer to the Arctic Council – now a symbolic token, as the EU can de facto observe, taken by too many as the ultimate proof of EU’s extraneousness to the region – this politico-economic Union of 28 Member States has shown clearly over the years both its negative and positive influence, yet influence nonetheless; though the question remains in which capacity. Raspotnik raises this question in his introduction, and skillfully adds another layer to this already complex picture, by using his study to “question [EU’s] broader role as an international actor with evolving geopolitical identity”. The study won’t provide the reader with a clean-cut answer, as the very last sentence of the book suggests – “[u]ltimately, the European Union attempts to act as sui generis geopolitical actor in the Arctic” – but it is a classic example of research where the journey itself is more relevant than the destination.

The main text of the book is structured in 5 parts which, excluding “Introduction” and “Conclusions”, compose the title of the book: II) Geopolitics, III) The Arctic, and IV) The European Union. This structure underlines the choice and need of the author for excavating and critically analyzing each of these concepts before providing – in an almost Hegelian fashion – a final synthesis. This book is indeed very well researched, and combines a vast literature of classic “Arctic Geopolitics” scholars, interviews, official documents and speeches given by EU representatives. Under several aspects – e.g. the use of explanatory “boxes” within the text and the careful contextualization of each new term used – this book could be positively marked as a textbook for students in geopolitics or European studies or a vade mecum for scholars, without ever providing a superficial account of the issue it addresses.

Raspotnik’s sets the start of his journey in 2007/2008, when high-level representatives of the EU and its member states – J.M. Barroso (former president of the EU Commission), Angela Merkel and Romano Prodi – all visited in different moments the new “Mecca of climate change”, Greenland, to experience first-hand the ice-cap melting. The Arctic was, in the meanwhile, experiencing a new moment in the global media, with the Russian flag being planted more than 4000 m beneath the North Pole, or the new record low in the Arctic Ocean’s sea-ice extent in September 2007. In addition, climate change – which will quickly turn into one of the strongest leitmotifs of the European Union’s narrative in the Arctic – was also having a new impetus in the same years and made it to the top of the G8 Summit agenda in Bad Doberan/Heiligendamm (Germany). Therefore, climate change, (potential) availability of resources, environmental and social challenges turned into a potential security issue for the EU, which, with the strong encouragement of Finland, added the Arctic to its “neighborhood’s radar”. In 2008, the EU formally started developing its own Arctic Policy.

This process took about 10 years, many documents and speeches, and for many observers it is not even yet fully finalized. The chapter dealing with this “policy-in-the-making” process is actually one of the highlights of this book. An overview that too easily risks turning into a repetitive and pedantic mantra – given the nature itself of the EU’s structure where documents/proposal need to bounce among the EU Parliament, the Commission and the Council (and repeat this itinerary several times) – was given new life. The author alternates the description of each step taken toward the development of an EU Arctic Policy with an “external reading”, combining in this way facts with his analyses.

The formal analysis used in the book, while accomplishing the need for providing a deep understanding of the EU’s role in the Arctic, runs into the same negative underestimation made by the EU regarding the role of indigenous people in the Arctic geopolitics. Reading this book, likewise most of the narrative and approaches used by the EU itself, the feeling is that the indigenous peoples of the Arctic appear more as a cameo – or a political/formal duty to be discussed – rather than part of Arctic geopolitics. In the description of the Arctic’s layered geopolitics, for example, a good overview is provided with regards to the “issue of eight national identifies”, but no mention at all is given regarding Indigenous peoples’ visions for their own territories. The role of Indigenous Peoples Organizations (IPOs) within the Arctic Council is only formally addressed and therefore minimized (“although the AC includes IPOs, decision making formally remains with its core members, the A8”), and the “seal-issue”, which ultimately costed the EU its formal acceptance as observer at the Arctic Council from 2009 to 2015 (then the Crimean crisis came into play) is dealt as a largely solved political issue, which formally and politically it is, but not in practice, at least for some of the indigenous peoples of the Arctic.