Tuesday, October 28, 2003

“May I be excused? My brain is full.”
(another study blog)

It’s wonderful to be excited and challenged by ideas again. To have my brain stretched in what occasionally feels like intellectual sumo wrestling – where I, unfortunately, still weigh in with my scant 55 bantam-weight kilos.

Anyway, while kind of scary-daunting, its good scary-daunting.

One of the classes I’m getting the most out of is History and Theory of International Law. It’s basically jurisprudence (jurisprudence being the philosophy of law) and so asks the big questions I mostly ignored in undergraduate legal theory: and not just “why do we obey rules?”, and “where does law come from?”; but, “what is the nature of law?”, “what is a civil society?” and “how do ideas transform social systems?” – and “do ideas (including law) create reality?”

It’s being taught by a Big Name (to vaguely google-proof this course review, I mention the lecturer and his book over here), one of the few philosophers of international law currently working in English.

He’s a genuine English old-school eccentric: a musing and reflective radical in suit, tie and cardigan; an international lawyer who has suggested (in so many words) that international law and international legal relations as presently structured are wrong and, indeed, immoral. He refers with genuine sincerity to the idea that “the purpose of education is not that we know more, but that we become different”.

The readings he sets for class include a lot of dead guys with big ideas: Kant, Plato, Locke, Mill, Hayek, Marx, Popper and Hobbes, to grab a random fistful. I feel like I’m getting a crash course in classical western social theory and philosophy, albeit with a definite natural law slant.

To grossly oversimplify, I think what we’re being asked to wrestle with includes:

(1) Ideas do not only exist merely in human consciousness, they are powerful things abroad in the world - which while enduring, constantly change through interpretation.

(2) Any society, including international society, is composed of dynamic, interacting elements that work upon each other to produce change. These elements include: a society’s ideal of itself (its “ideal constitution”, what it believes it could become), its legal structure (which directs social power) and its “real constitution” (how power is actually exercised). Each element influences and is changed by the others.

(3) Related to, but different from, a society’s ideal constitution is the good old-fashioned notion of a social contract (or sovereignty of the people) – however this can also be seen as embodying a societal will, a will finding its expression in legal structures and acts of power within a society: not just legitimating the actions of the powerful, but – in a functioning, healthy society – guiding and limiting them (the ideology of the “rule of law”?).

(4) We obey law not to avoid punishment, or just because by being socialised we have internalised society’s restraints, but because by doing so we become part of that social will: we participate in its making and expression. Acting lawfully makes us part of our society’s will and “higher ideal”, we become not merely ourselves – but expressions of the greater Law.

Maybe only a lawyer would be exicited by this, but it’s vastly more stimulating than black letter law (find the rule, interpret the rule, apply the rule, analyse the result). Lawyers are too seldom encouraged to think normatively about what law should be, or to engage in the historic philosophical debate that surrounds our own discipline.

It’s wonderful to weigh into class discussions with the words: “But surely that’s the beauty of the idea …”

Still, the prospect of an exam at this abstract level is spooky.

I need to be taking better notes.

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