International Legal Evangelism: Intelligence, Reconnaissance & Missions

the Hobbesian position that, as part of our subjection to an earthly sovereign, we
are to use the sovereign’s commands and only sovereign’s commands as our only
guide to right and wrong. 86 We have other imprescriptible sources of moral
insight.
6. Democracy
What about democracy? Is that also something we should be agnostic about,
recognizing that the responsibilities of governing and ordering a given society can
be fulfilled democratically or undemocratically, depending on the practice and
history of a given regime? Some have thought so. John Finnis, in the excellent
chapter on political authority in Natural Law and Natural Rights argued that we
should not condition the performance of our duty to play our part in governance
around here on the government’s having any particular credentials of consent or
democratic support. His view is that “[a]uthority (and thus the responsibility of
governing) in a community is to be exercised by those who can in fact effectively
settle coordination problems for that community,” 87 no matter who they are or how
popular they are.
Finnis is half-right, I think. There are compelling tasks to be performed, and
they must be performed whether there are democratic mechanisms to perform them
or not. One way or another, responsibility must be taken within a country for the
overall discharge of the proper tasks of order and justice in that country. The same
is true of the tasks of order in the international realm. In America, scholarly critics
of international law assail it for its undemocratic character, and they think this is an
irremediable fault, since no one can see how there can be any other than the most
attenuated democratic mechanisms for the ordering of the world. 88 But they are
wrong in the conclusion they infer. Just because democracy is unavailable in this
realm, doesn’t mean that the tasks of international governance evaporate. At both
levels, national and international, the tasks are urgent, in the sense of immediately
compelling. If we do not quickly organize to get them performed, great loss or
harm or injustice may result. This affects how we regard the powers that be—i.e.
that actually exist—however imperfect we may judge them. We have a
responsibility to play our part in and not to obstruct the ordering of the world
whether democratic mechanisms are available for doing so or not.
86 Hobbes, Leviathan, Ch. 26: “Civil law is to every subject those rules which the Commonwealth hath commanded
him, by word, writing, or other sufficient sign of the will, to make use of for the distinction of right and wrong”
87 NLNR (p. 246). “Consent, transmission, contract, custom—none of these is needed to constitute the state of
affairs which (presumptively) justifies someone in claiming and others in acknowledging his authority to settle
coordination problems for a whole community by creating authoritative rules or issuing authoritative orders and
determinations.” Ibid., pp. 248-9.
88 See e.g. McGinnis and Soman, “Should international law be part of our law?” 59 Stanford L. Rev. 1175 (2007)
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