International Law and the aking of the Modern State: Reflections on a Protestant Project

Abstract

The questions about the relationship between freedom and authority that faced European jurists of the sixteenth and seventeenth centuries remain persistent questions for lawyers seeking to justify, craft, comprehend or resist the practices of states today. Determining what political form might bring an end to divisive civil war, distinguishing the representatives of lawful authority from usurpers or insurgents, defining the limits of a state’s responsibility to protect its population or deciding when killing can be justified to preserve the commonwealth – these and many more such tasks of contemporary statecraft involve questions about the proper limits and ends of authority. The international legal doctrines that accompany acts of state or projects of international humanitarianism explain that those exercising power, whether as representatives of states or of the international community, are in fact guaranteeing the security, civility, immunity and life of those they control, manage, kill or wound. It is through the perfection of the modern state that protection and prosperity are to be achieved. International lawyers may at times see themselves as the representatives of a civilised conscience or shared sensibility that transcends state authority, yet they still rely upon the state as the vehicle through which this universal law is to find expression. To the extent that international law is concerned with the relation between private conscience and public authority, it can be understood as one site in which the Protestant project of the modern state is today being worked through. In that sense, theological debates about the proper form of the state are not ‘past’ and immutable, but rather represent a normative tradition that modern international law inherits and with which it remains actively engaged.