International Legal Evangelism: Intelligence, Reconnaissance & Missions

we do not have in the state of nature. 128 No doubt, as a matter of desire, “every
man, ought to endeavour Peace.” But when he has no hope of obtaining it, “he
may seek and use all helps and advantages of war.” 129 Charles Beitz’s exploration
of this Hobbesian position in Chapters 2 and 3 of Political Theory and
International Relations is extremely helpful. 130
Of course, Hobbes’s view of what the law of nature requires is not
necessarily correct. Others have postulated a less survivalist account. (In general
we should resist the fashion of identifying the law of nature with the
pronouncements of any philosophical, scholastic or ecclesiastical authority. This is
most common in Catholic natural law theory, where invoking natural law often just
means quoting Aquinas. What a philosopher writes, even a sainted philosopher, is
not itself natural law; what it records is that philosopher’s opinion about what
natural law is (which opinion may be wrong)—a point that is probably easier for
some to accept in the case of Aquinas than it is in the case of Hobbes. But it
applies to both of them).
On the other hand, my fellow fellow at All Souls College, Oxford, Noel
Malcolm, has argued that, anyway, Hobbesian natural law is not entirely
ineffective in the international realm. 131 He cites the third Law of Nature on
Hobbes’s list—“That men performe their Covenants made.” And he points out
that, although Hobbes also said that covenants without the sword are but words, he
also believed that anyone who made an agreement in circumstances where the
other party showed himself willing to abide by it, even in a state of nature, would
be a fool not also to abide by it himself. (It is actually one of the most
philosophically interesting arguments in Leviathan.) Dr. Malcolm also mentions
other Hobbesian principles of natural law that seem to apply directly, and in their
own right. There are the principles about free trade that are discussed in The
Elements of Law, and the seventh law of nature in Leviathan, limiting the demand
for revenge and reparations. And he adds this observation:
There is something very implausible about the claim that Hobbes's laws of
nature cannot apply at the international level, given that one of them relates
directly to diplomatic practice: his fifteenth law is “That all men that
mediate Peace, be allowed safe Conduct.” … [T]he point of the inclusion of
this rule in Hobbes's list was evidently to settle the long-standing dispute
about the status of ‘ius feciale,’ the special area of international law relating
128 Hobbes, Leviathan, Chs. 14-15.
129 Ibid., Ch. 14.
130 Cite to Beitz, Political Theory and International Relations
131 Noel Malcolm, Aspects of Hobbes, pp. __.
54