Foundations of International Law as Humanity's Law by Valentin Tomberg

International law concerns all humanity and must therefore be linked to the whole of humanity's culture. It is an organic component of the socio-cultural values of all humanity, like religion and morality. For theoretical purposes it may very well be treated separately from intellectual culture as a whole, but in practical reality it can never exist by itself. As the language used for works on international law is not the artificial Esperanto or Volapük, but the living general language of cultural interaction, so the concepts, ideas, and ideals of international law are nothing but specialized concepts, ideas, and ideals. In other words, they consist of general concepts, ideas, and ideals of the general intellectual life of humanity, i. e. of religion, philosophy, and of science, applied to a specialized field. For that reason nature, foundations and principles of international law cannot be understood nor given their proper appreciation within the framework of cultural values as a whole if they are considered and represented separately from the soil in which they took root. If international law is to belong to humanity's realm of laws and justice and must not violate reason and morality, because it is guided and shaped by them (development of reason and morality, in turn, are dependent on the ideals ultimately set before them by religion), then international law as well is only part of the whole which consists of justice, morality, philosophy and religion.

Roman and canonical law matured for almost 2000 years, then international law began to separate from private law. The successive separation of law from metaphysics, i. e. philosophy, the divorce of philosophy from morality, the parting of morality from religion are not steps in the direction of progress, but steps in the direction of an increasing poverty of ideas and the narrowing of one's horizon in regards to posed problems. A "de-Romanized" international law, a philosophy of law "cleansed of metaphysics", a "science liberated from morals", and a "detheologized philosophy" seem to characterize the time from the "Enlightenment" to the present and thus are manifestations of progress in the sense of advancing time, but not in the sense of increased profundity, expansion and exaltation of these concepts, ideas and ideals. Just the opposite is true: The dominating tendency, especially since Kant, of a "clean separation of fields" did result in a separation of almost all fields from one another – a separation carried so far that professors of different faculties have so little to say to one another that they depend on the fodder delivered by the daily news. This process occurred at the expense of the general spiritual and intellectual culture. Up rises Wagner, the famulus – down sinks Faust, the doctor.

When carried through to its ultimate conclusion, this tendency of separation will simply become a process of disintegration – i. e. death – of the true intellectual culture. For if one does not stop at this point – and why should one? – having separated philosophy from religion, ethics from philosophy, science from philosophy and ethics, then the next step would be to separate science from logic, that is from judgement and conclusions; and subsequently from all abstract concepts, to finally end up playfully working only with the sum total of concrete concepts, perceivable by the senses, just like toddlers! The absurdity of following this tendency beyond the limits reached today is obvious – and still there is a desire, and efforts are being expended in the direction of extinguishing that which is higher in favor of that which is lower. In jurisprudence, for example, one is not satisfied with the already accomplished extinction of the two higher levels – divine law and natural law – of the formerly complete law which consisted of three levels, but one wants to eliminate even the concept of law itself, in order to let stand only a "law" without "law itself", i. e. leaving only absolute positivism as the arbitrary rule of the power of each state.

The legal proverb "Law is what has been established as legal."[1] expresses that kind of legal concept in jurisprudence, which has renounced law in favor of what has been established. Here we can see a very advanced degree of this trend towards separation: At first, law became separated from what is True and Good itself, i. e. God, and divine law was extinguished in humanity’s consciousness; then the remembered echo of this divine law, engraved in human reason and morality, i. e. the so-called “natural law”, was extinguished – until ultimately, the concept of law itself, which originated in the time of natural law and which lived on as the heir of established (positive) law, was eliminated in favor of an attitude without principles and without a foundation: "Law is what has been established as legal."

But what if we would have taken the same route, for example in philosophy, and renounced the concept of truth, proclaiming the sentence: "Truth is what has been established as true”? It would be the last nail in the coffin of philosophy, because it would mean the renunciation of the goal, the direction and the criterion for reason itself and thus would spell the end of philosophy. The same holds true for jurisprudence devoid of a concept of law: It stops being a science, i. e. a methodically maintained knowledge if it is not married to law itself as its goal, direction and criterion. As there can be no mathematics without "number and magnitude", i. e. quantity, there can be no jurisprudence without law. The tendency to eliminate the ideational in favor of the phenomenal, so that the "liberated" remaining field may be treated as a "separate science" will ultimately become absurd.

In this work we take the other road, namely the way of union of all which belongs together according to its nature. We will treat law as inseparable from justice; justice, in turn, as an inseparable part of morality; and morality as united with its ideals and tasks, i. e. religion. We will consider international law as part of the realm of laws and justice, and in its organic context to the general realm of laws and justice, morality, and religion. Sure, it is a specialized field, but it is a field where streams of humanity's intellectual culture as a whole flow together – not a field separate from the totality of intellectual life, like a glass flask housing an artificially created homunculus. The problem of international law which has been put so seriously before us by the catastrophic events of the two world wars, is not a mere juristic, political, and economic question, but also a moral and religious question. It is a total question of human culture – and one has to give a total answer, i. e. an answer which considers the totality of the question and points out a legal system for humanity suitable to save and preserve humanity's culture, and to enable its future development, for it is in mortal peril.

The only possible and permissible method which we will follow is the synthetic one, i. e. we will use an approach that does justice to the organic unity of the intellectual realm, in contrast to the purely analytical approach which first dissects the whole, and then proceeds to treat each artificially isolated piece as a separate world. Of course, a classification is necessary in order to scientifically penetrate a subject; but only as a preparatory process to enable recognition of the whole as a structured organism, because otherwise it would appear as an indeterminate nebulous form. Analysis proceeds synthesis: It lines up the elements which are to be grouped together. In this sense, classifying the whole realm of laws and justice, for example, into private law, public law, and international law can serve a valuable purpose if it is done solely for the theoretical purpose of clarifying the details and that which is unique. It serves a darker purpose when one takes its results and then feels permitted to single out one field and take it seriously, while at the same time neglecting all the others.

If the objective of the analytical process is to serve the synthesis then it leads to methodical perspicuity and clarity, but if analysis becomes an end in itself, then the criterion by which to judge, one’s ability to orient oneself and to judge, based on reality, are lost. The analytical process bears fruit only as the servant of synthesis, as its precursor. If it is an end in itself it is the death of ideals, ideas, and concepts. It leads to that shallow lack of ideas where a scientist can barely be distinguished from a stamp collector.

--Valentin Tomberg, Foundations of International Law as Humanity's Law

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[1] Where the applicability of the rules of international law as well as of domestic law is concerned, one searches in vain for generally valid concepts. In both cases we must depend on the statement "Law is what has been established as legal." (Th. Niemeyer, Völkerrecht, p. 39, 1923, Göschen collection)