Dr. Glen T. Martin
The rationality and sociality of human beings presuppose universal positive law. No complex society of any size beyond small groupings can function without law. Like grammar, and the translatability of all languages into one another, law manifests universal deep structures translatable into one another universally: the law in any human culture or language is recognizable and translatable by those outside that culture. Universal positive law is an a priori structure for human life, presupposed by human reason.
The social-contract theorists of law and government from the 18th century Enlightenment (Thomas Hobbes, John Locke, Jean-Jacques Rousseau, and Immanuel Kant) all recognized the absolutely primary role of law and the governmental framework that makes positive law possible. However, theoretically Hobbes and Locke argued that law and government were created on utilitarian grounds: for Hobbes the positive law was needed to replace the “war of all against all” and for Locke positive law was needed to overcome the chaos of unreliable and subjective interpretations of the natural moral law made by people in the state of nature.
Such utilitarian interpretations of the law have it backwards—for the deep, universal characteristics of positive law cannot be derived from pragmatic, localized, or particularized justifications. For Rousseau and Kant, on the other hand, the positive law arises precisely from our universal humanity informed a priori by human reason and sociality. The law therefore is universal and prior to all particular cultures, nations, or social-systems. For Rousseau, the universal law, equivalent to the general will, derives from man’s affirmation of himself as a universal, moral being prior to his unique, subjective particularities and differences. For Kant, the social contract (of positive law under a universal constitution) is an absolute moral imperative deriving from man’s rational nature and therefore an a priori requirement for all human societies, apart from any utilitarian or pragmatic considerations.
Some writers identify our situation under the descriptive phrase: “Hobbes’ paradox.” For Hobbes, we end the war of all against all by entering into a social contract in which enforceable positive law keeps the peace and allows for civilized living. But this social contract as Hobbes conceived it was and is confined to particular sovereign nationstates and therefore gives rise to the same condition of war that the implementation of enforceable law was intended to prevent: the state of war now exists among the multiplicity of sovereign nation-states.
To escape the condition of war requires the advent of the universal rule of law. All the social contract theorists are agreed on this. However, you cannot establish the universal rule of law by reinforcing the particularistic and subjective characteristics of the very entities whose warring existence needs to be overcome. Rousseau and Kant understood this—only by drawing on what is truly reasonable and universal can we really actualize the rule of law in human affairs. By trying to make the development of world law contingent on the voluntary agreements or treaties of sovereign nation-states, we are reinforcing the very resistance to law that needs to be overcome. We are exacerbating, not removing, Hobbes’ paradox.
The paradigm-shift effected by the 20th century sciences, across the board, was a shift from the early-modern mechanism, atomism, and determinism to holism: 20th century science discovered that the universe and everything in it is characterized by a holism in which everything is internally related to everything else and there are no autonomous, independent atoms at the basis of any cosmic, social or natural structures. The cosmos is an integrated whole of unity-in-diversity, the planetary biosphere is likewise an ecological whole, and human beings are universally the same: our unique individuality and diverse cultures are inconceivable apart from our human rational, moral, and social universality.
The system of sovereign nation-states, usually dated from the Peace of Westphalia in 1648, derives from the earlymodern assumptions about the atomism and mechanism of nature and society. These are false premises and the idea of a world divided into some 193 national sovereignties is based on these false premises. The truth of this is seen in the on-going destructive presence of Hobbes’ paradox: there is war, environmental destruction, and social chaos everywhere on Earth. The United Nations is based on this outdated premise of “the sovereign integrity of its member states.” The UN Charter must be replaced with a constitution based on correct presuppositions.
If we want to overcome the chaos of warring nations and planetary environmental and social chaos, our best option is to begin operating from the a priori status of universal law that is intrinsic to the human condition itself, not by reinforcing those incorrect premises behind the nation-state system as if they were the source of legitimate positive law and must be drawn upon to make universal law a reality. You cannot draw upon the false atomism that prevents universal law from becoming a reality by relying on those same illegitimate atoms as the basis for your endeavor. That is why the ascent to universal human and planetary law requires the paradigm-shift, made by all the 20th century sciences, from atomism to holism.
To actualize the universal a priori rule of law implicit in human sociality, rationality, and morality, we must begin with these presuppositions. You cannot succeed by presupposing precisely what prevents universal law from actualizing itself, namely, sovereign nation-states. That is why the Constitution for the Federation of Earth must be the presupposition of our endeavors to create a world court system and initiate the rule of universal positive law for humanity. By presupposing the holism and universality of law in all our endeavors (symbolized and concretized by the Earth Constitution), we bring our concrete, particular activities in the current state of fragmentation into actuality under premises that both give them legitimacy and progressively legitimize in the eyes of humanity the dimensions of universal positive law that constitutes our final goal.
To constitute a bench of the World Supreme Court in Costa Rica to try public cases such as the Ecuador-Chevron case (to actualize this particular element of emerging world law) will only prove really fruitful in the long run only if that particular court is framed within the foundational premises of universal positive world law, and not if one attempts to justify that court as a treaty among sovereign nation-states. We must begin with the correct presuppositions that are confirmed by the holistic revolution at the heart of all the 20th century sciences. We must begin by assuming what is presupposed in human rationality and sociality from the very beginning. Appropriate assumptions will lead to the actualization of truly humane systems of world peace, sustainability, and justice. Inappropriate assumptions will continue to exacerbate the atomism and anarchy of the current world disorder.
The Constitution for the Federation of Earth is indeed a particular document that draws on these holistic universal premises concerning the framework of positive world law presupposed by human reason and sociality. As a particular document, there obviously could be other constitutions that embody these same universal presuppositions. However, in the face of our current planetary crises, potentially lethal and endangering the immediate future of the human project itself, we very much need to concretize the fundamental presuppositions of the universal rule of positive law in a way (both symbolic and specific) that serves as a visible and credible framework for our specific activities, such as the actualization of benches for a World Court system.
That is why we must begin to frame all the world courts as benches of the World Supreme Court as defined by the Earth Constitution. If we begin thinking of the ICJ as the bench for disputes between nations, the ICC as the bench for criminal cases, the courts of human rights as benches of the World Court Bench for Human Rights, and the bench being developed in Costa Rica as the World Court Bench for Public Cases, then the movement for universal positive law will be so much more powerfully enhanced because it is premised on appropriate assumptions. If we cater to the outdated paradigm presupposed by the very existence of a multiplicity of sovereign nation-states, we will be dragging down our endeavor, and our good-intentions are liable to lead to continuing chaos and disaster.
The Constitution for the Federation of Earth does not need to be ratified by the people of Earth prior to our using it as a concrete symbol for the appropriate universal presuppositions. It is these presuppositions that influence our thinking and our actions. By assuming the Constitution as a model and embodiment of rationally grounded universal presuppositions, we are transforming human false assumptions into ways of thinking and acting evermore congruent with the correct assumption that universal democratic positive law is implicit in the human condition from the very beginning. With the very future of the human project at stake, the kind of assumptions we make become absolute vital to the possibility of realizing a truly humane and transformed future characterized by peace, sustainability, and justice. Framing the Earth Constitution in this presuppositional role, is basic to the very possibility of our being successful.