Systems Theory and International Legal Legitimacy

Systems theory, Natural law, and International Constitutionalism; an unlikely triangulation By Zorba J Parer, November 2011 Submitted as satisfaction for MIL Independent Research; Microsoft Word Count 9,206
The legitimacy of international law, indeed the very existence of binding international laws, is a recurring theme in international relations, and in domestic discussions of international obligations with regard to domestic executive actions, and legislative behaviour. This question is at the forefront of international debate due to the ever changing global political situation, and recent actions by coalition forces, in particular as contra points; the US led invasion of Iraq; and the NATO intervention in Kosovo. Other emerging incidents in the Middle East and northern Africa involving domestic uprisings and the various levels and types of international intervention also highlight the question of international law and the legitimacy of international state and non-state actions. Natural laws have been known by other names, but exist perpetually, due to the fundamental nature of the universe. Whether these are given by God, or are an emergent property of hydrogen after 14 billion years, does not detract from the fact that they exist. When designing an airplane the engineer does not defy gravity; rather by understanding its properties we use one natural law to overcome the other, in order to change the state of the aircraft to one which appears to defy a natural law. It is only with the effects of gravity that an aircraft can fly, it is indeed the careful observation of the way things are, and how they interact, that gives us all the marvellous gadgets we have in our lives, here at the dawn of the 21st century.

This paper seeks to bring together a broad range of ideas to explore a single notion; can the international state system be mathematically modelled, and the role of international law observed in these models. These ideas are drawn out from readings in international relations, law, philosophy, mathematics, science, game theory, graph theory, and network theory. In a world of shifting sources of authority1, it is critical to ensure that those authorities are grounded in a reality which is harmonious with humanity, lest the system become oppressive rather than liberating.

Shifting Boundaries : the Authority of International Law 1, Mayo Moran, New Perspectives on the Divide between National and International Law, Edited by Janne E. Nijman and Andre Nollkaemper, Oxford Scholarship Online, January 2009.

This essay was seeded by Posner and Goldsmith2; who suggested that customary international law is simply game theory, where States interests determine the law. Game theory has established a significant corpus of methods and tools3 which were initially applied to economic models by the early developers. Legal scholarship on game theory is primarily focused on tactical implementation in courts4, disputes5, contract formulation6, or limited decision support analysis, where there is a small step from the world of business and economics.

The Limits of International Law; Chapter 1, A Theory of Customary International Law, Posner and Goldsmith.
3

Algorithmic Game Theory Edited by Noam Nisan, Tim Roughgarden, Eva Tardos, and Vijay V. Vazirani,
4

Settlement Negotiations with Two Sided Asymmetric Information: Model Duality, Information Distribution, and Efficiency, Daughety, Andrew F. and Reinganum, Jennifer F. (1994), International Review of Law and Economics, 283298.
5

Settlement Bargaining and the Design of Damage Awards, Spier, Kathryn E. (1994a), Journal of Law, Economics, and Organization, 84-95.
6

Incomplete Contracts and Signalling, Spier, Kathryn E. (1992a), Rand Journal of Economics,

432-443. The Dynamics of Pretrial Negotiation, Spier, Kathryn E. (1992b), Review of Economic Studies, 93-108.

The Posner and Goldsmiths conclusion that customary international law is simply game theory falls short of understanding the underpinning metaphysics, philosophy, and theory at work in game theory and human society, and thus draws them to the false conclusion that customary international law is not law at all. This conclusion appears to be based on the fundamental notion of international law as a positivist act, states giving tacit consent rather than states recognising the intrinsic nature of the system and consenting from necessity. Tacit consent is usually written in blood; the centuries of theory proceeding world war two failed to convince and bind the League of Nations on the principle of a prohibition on aggression. It was only after witnessing the deaths of over 50 million people in an industrialised total war scenario, that the States finally gave tacit consent to sacrificing some state authority in an attempt to prevent a repeat of the wholesale slaughter of humans.

This essay begins with an examination of metaphysics and philosophical basis of modern international relations7. Scientific Realism is examined here as an underpinning metaphysical and philosophical basis providing a background of concepts which can be drawn upon to interpret and defend definitions of natural law. This approach also allows us to move away from debates on whether natural law is a religious/moral dictate, or a sociological construct, and merely examines the is. Rational Choice8 provides a framework within which to construct why people choose to behave, whether as state agents, or as individuals within any given society. Understanding the basic variables for why people choose to act, provides a theoretical basis for constructing equations which can provide a positive theory which can be empirically tested.

Scientific Realism and International Relations; Edited by Jonathan Joseph and Colin Wright
8

Rational Choice Theory and International Law: Insights and limitations. Robert O. Keohane, The Journal of Legal Studies, Vol 31, No.S1

Once the theoretical basis of this approach is established, I move onto examining International Relations concepts of Anarchy and the relationship to International Legal scholarship notions of Natural law. Anarchy is proclaimed by many international relations theorists to be the organising principle of the current international system9. These theorists use almost the exact words in defining Anarchy as Hobbes did in defining Natural law. The ancient and enlightenment philosophers approached law out of anarchy or as they called it natural law, and postulated that the metaphysics, physics, and biological imperatives, of reality itself dictated certain universal, immortal, and irrefutable laws for humans, above the laws of man.

Anarchic orders and balances of power by Kenneth Waltz, American Foreign Policy, Theoretical Essays Fifth Edition, 2005.

Some of the enlightenment philosophers who held this view included Leibniz and Newtown, who are more famously known as Natural Philosophers, or in modern terms, Scientists. These two brilliant polymaths independently discovered and established the mathematics of calculus. Calculus is the mathematics of things which change with relationship to other variables. Calculus encompasses partial differential equations, which model systems with many different variables, and form the basis of many algorithmic game theory methods. Partial differential equations became part of the modern zeitgeist with the emergence of Chaos Theory. Partial differential equations are shown to offer us the tools to model the international system, and Chaos Theory provides us the methods for predicting the future outcomes of the system, within certain prediction horizons. International relations and international legal scholars have increasingly looked at what game theory can tell us about how states behave. Beginning at the top and performing reductionist analysis on state decisions, and approaching from the bottom and performing constructionist analysis based on sociological analysis of individuals, and group behaviours. Either way it becomes clear that the future of international law is domestic10, i.e. individuals drive the body politic interests of any given Nation, and are the ultimate subjects of any international laws.
10

The Future of International Law is Domestic by Anne-Marie Slaughter and William Burke-White from New Perspectives on the Divide between International and National Law, Edited by Andre Nolkaemper and Janne Nijman (2007)

The birth of Algorithmic Game Theory came from the work of economists who applied the third law of thermodynamics to economic models, and were also later applied to evolutionary modelling. What does thermodynamics have to do with people, nations, or state interactions? It is because a seemingly impossible number of interactions can have a statistically predictable outcome, if the constituents can be categorised (a taxonomy of States) and their behaviours modelled. In thermodynamics these equations relate to atomic and molecular interactions seeking to exchange and consume free energy, in evolution it is how plants and animals interact seeking to use free energy, and in economics and international relations it is how people and institutions seek to consume free energy. Morals underpin human behaviour, globally there are many moral perspectives which are forever changing, and the ultimate teleology of any human social group is survival. Ultimately survival in the animal world is defined evolutionarily by a species ability to obtain energy.

The mathematics of all these systems is governed by partial differential equations which result in wildly different predictions based on the smallest changes to the historical conditions of the equation, even though they are absolutely deterministic. Thus while it is possible to make predictable outcomes on equilibrium and optimisation within closed systems (a beaker of chemicals, an island of animals, a village market), large open systems prove much less predictable (global weather patterns, flame propagation in a bush fire, share market prices, human society in 20 years), and many of these systems were thought to be mathematically impossible to predict numerically due to the impossibility of measuring and tracking every input condition. With the advent of Chaos Theory, hope was born for predictable outcomes for such systems. By calculating every possible input variable and plotting the outcomes in a multidimensional space, we begin to see patterns emerge, and once chaotic, seemingly random, systems begin to reveal deep sources of information.

METAPHYSICAL AND PHILOSOPHICAL BASIS OF RATIONAL, SCIENTIFIC, INTERNATIONAL LAW

The classic philosophers of law (Cicero, Aristotle, Augustine, et alia) through to the Enlightenment and Renaissance scholars (Aquinas, Grotius, Spinoza, Hobbes, Kant, Wolff, Vattel, et alia) have all at least attempted to clearly define their metaphysical position. These positions then informed the basic assumptions they used to develop their philosophies. Since Hume threw the naturalistic fallacy spanner into the works, and produced his remoulded realism model11, the importance of maintaining a metaphysical foundation has waned. However I will start at the beginning in order to obtain a thorough understanding of the subject. The very Victorian Sir Traverse Twiss considered international law to be an obvious merging of natural and positive legal schools, under the banner of a scientific approach to international law12. It is the metaphysics of science that guides the modern concepts of truth, and thus in any current discussion of laws or policy in government our rational actions are guided by scientific reasoning.

11

British International thinkers from Hobbes to Namier edited by Ian Hall and Lisa Hall.
12

Two introductory lectures on the science of international law, Twiss, Travers, Sir, London 1856, British International Law

Metaphysics is, by one definition, the study of being qua being, and in that sense here it is the study of the essence of international law, or the essential underpinning immutable forms of international law. Metaphysics provides a canvas upon which to discuss the epistemology (how we know what we know) of international law. By examining the basics, we move beyond semantic discussion of positivism and naturalism, law and rule, and we can see that the major themes running throughout the legal scholarship derive quintessentially from their metaphysical assumptions. Whether this is Kants Perpetual Peace, tied to his metaphysical Transcendental Idealism or Hobbes and his version of Realism, we gain a clearer understand there thoughts and conclusions, if we understand their metaphysical positions. This essay examines international law scientifically, which is to say, from position that it is an a priori condition which becomes evident with the interaction of n>1 nations of people. International law exists, whether there are many or no nations of people. However it remains unseen until such time that two or more groups of people, having different governing social arrangements13, interact, only then does the law becomes observable. This then ascribes them a fundamental potency14 which becomes manifest when the n>1 nations interact.
13

Between Authority and Interpretation On the Theory of Law and Practical Reason By Joseph Raz, Oxford Scholarship Online: May 2009, Chapter 4
14

Natures metaphysics Laws and Properties by Alexander Bird; Oxford Scholarship Online: September 2007.

Metaphysically these laws exist without people or nations or any material form, they simply have no effect. Similarly the laws which govern the interaction of oxygen and hydrogen exist; however in a closed system without oxygen and hydrogen they have no effect. Adding those elements to the closed system enacts the laws of chemistry which results in a reaction between the two elements, giving off energy, and resulting in equilibrium with some amount of water, and some excess of either hydrogen or oxygen. Claiming that international law is an a priori condition does not give it any claim to a beneficial teleological purpose. The research and discussion here centres around what is; in a form that ought to provide guidance to international legal thinking. Natural international law from this perspective simply is; what we ought to do requires us to make choices with regard to that law.

Without a corpus, (a population within which to function) law can still be said to exist in the abstract (Platonic Form) sense, it simply has no visible effect on existence15. The positioning of law in this metaphysical construct rather than any other varied position16, allows us to distinguish between Good and Bad international law; law which is per se authoritative and legitimate. By combining a constructive approach to defining international legal system within an deductive mathematical framework, and using a statistical mode of thinking to examine customary international law, we can seek evidence of natural international laws.

15

Between Authority and Interpretation On the Theory of Law and Practical Reason By Joseph Raz, Oxford Scholarship Online: May 2009
16

See for example The Method is the Message with Steven R. Ratner, 93 American Journal of International Law 410 (1999), The American Society of International Law

Philosophy
The philosophy of science is firmly entrenched in modernity which on the international plane has led to the application of scientific realism17. The philosophy of science is fundamentally inductive, and so too is the philosophy of international law. Scientific realism requires inductive reasoning, the repeatable, evidence to validate perceptions and assertions. The truth of a law of science is a combination of the inductive (veritatem per demonstrationem18) demonstrations of science, combined with the deductive logical reasoning (verum per deductionem19) of mathematics. When these two elements are combined correctly, we find predictable, repeatable, patterns in the universe; natural laws. Realpolitik offers the perspective that international patterns emerge with the State interest as the motive force behind action, the policy adopted by the State is based on the necessity of the situation at hand arising from unregulated interactions. The test of success in Realpolitik, of a policy is whether it preserves and strengthens the State.

17

See Scientific Realism and International Relations Edited by Jonathan Joseph and Colin Wright, for a treatment on SR and IR.
18

Latin always sounds more convincing! Ibid.

19

Taken in the literal sense, Realpolitik becomes fascism; the individual exists to preserve and support the state. The outcome of fascism has been innumerable shown to undermine the state, and lead to state extinction. Born out of Dickensonian experiences, Bentham and Hume expounded the notion of utility and human happiness as the proper goal for rulers to focus upon delivering to their people20. This has been largely successful, although it was tempered in favour of happiness for the aristocracy and socially enfranchised.

Morality and Legitimacy

Finnis provides three basic principles of morality which he holds to be irreducible, to drive a legal structure21, paraphrased here; (i) Integral Human Fulfilment (Do Good, Love thy neighbour, a whole of ends in systematic conjunction, greatest good/happiness of the greatest number) (ii) Protection of Human Good (Do no Evil, consequentialism, proportionalist, utilitarian, aggregated moral theory) (iii) Equality in Treatment (Reciprocity, do unto others as you would have them do unto you)

20

The Benthamite Constitution Decline and Fall? by Neil MacCormick, Quenstioning Sovereignty Law, State, and Nation in the European Commonwealth, Oxford Scholarship Online: January 2010.
21

Natural law: The Classical Tradition By John Finnis, The Oxford Handbook of Jurisprudence and Philosophy of Law, 2002

This moral structure clearly places the individual as the focus of law, and what good laws should strive to do. This approach requires a commitment in belief to these morals through abduction; the observation of truth as a pattern amongst the data, too complex for the test of constructive deduction, and to obfuscated for repeatable induction. Abduction as a method for humans to make rapid decisions is of clear benefit, however if valid they should hold up under the pain staking scrutiny of deductive (albeit bounded) proofs, against which to compare the inductive (albeit limited) evidence. Keohane on the other hand provides the following Six Specific Criteria (again requiring a leap of abduction on the basis of liberal democracies supremacy) for legitimacy of global governance22; (i) Minimal Moral Acceptability (Respect for human rights; at least physical security, liberty, subsistence); (ii) Inclusiveness (Institutions open to all members, although not equality amongst members); (iii) (iv) Epistemic Quality (Institutional integrity and transparency) Accountability (Three elements (1) Standards of measure (2) Provision of information to compliance agents (3) Compliance agents ability to impose sanctions)

22

Global Governance and Legitimacy by Robert O. Keohane (2011), Review of International Political Economy, 18:1, 99-109.

(v)

Compatible with democratic governments (Global rules must not constrain constituent populations from choosing their own path)

(vi)

Comparative Benefit (Global institution must be better than no institution, or alternative local arrangements)

From this it is taken that legitimacy of an international organ, in the liberal democratic sense, is that it receives the popular support of the body politic. It does not however provide a basis of legitimacy in the sense of whether the governance structure provides a positive outcome for the body politic. The liberal democratic test of a successful policy is the preservation and strengthening of the individuals within a state, which against the needs of maintaining the state structure may lead to a failed or weakened state; see Greece 2011 and maybe the USA 2009 credit crises. Therefore a global governance structure by these terms, may be legitimate in a popular support manifesto sense, whilst being ineffective, and ultimately lead to the inability to support individual citizen interests, therefore failing in its ultimate teleology. I suggest that the inductive test for success is that the state continues with the existing identity; that the executive is not overthrown (revolution by spin, vote, or gun), and the state institutions remain intact. This definition then presupposes that the state continues to be supported by the populous, and remains sufficiently supportive of the populous to maintain their support.

We have host of current examples of states failing, either through financial mismanagement, Greece, or through popular uprising and revolution, Libya, Egypt, Syria, et alia, or through breakaway state formation, Slovenia, Croatia, et alia. We also have many contemporary examples of failed states which have not been able to re-establish, Somalia, Zimbabwe, and the Congo. There are also plenty of examples today of weakening states, USA, Russia, and strengthening states, China, Brazil, India. Also many states emerging from total institutional annihilation, beginning their journey from day zero; Germany and Japan (post WWII), Cambodia, Vietnam, Burma (Post cold war), East Timor, Iraq, and hopefully one day Afghanistan (Global consolidation war), Egypt, Libya, Syria (Arab Spring). Are there structural international legal elements which are causing, or contributing to, the changing condition of these states? Are these simply the results of poor domestic policy, international relations, egoistic state behaviour, or individual antagonists? Are they temporary weaknesses, which are precursors to a strengthening, based on a necessary cost of fundamental restructuring?

Natural law
Finnis provides this taxonomy of classic natural law forms of order23;

23

Natural law: The Classical Tradition By John Finnis, The Oxford Handbook of Jurisprudence and Philosophy of Law, 2002

(i)

orders which are what they are, independently of our thinking, that is, nature, laws of nature, and correspondingly the natural sciences and metaphysics;

(ii)

the order which we can bring into our thinking, and correspondingly the standards and discipline of logic;

(iii)

the order which we can bring into our deliberating, choosing, and acting in the open horizon of our whole life, and correspondingly the standards of morality and the reflective discipline of ethics;

(iv)

the order which we can bring into matter (including our own bodies) subject to our power, as means to relatively specific purposes, and correspondingly the countless techniques, crafts, and technologies.

This taxonomy is useful in understanding the central theme of this particular essay; the international laws of the first order as described above. The international laws which stand immutable and unchanging, which if you choose to stand against them will destroy you, whether you believe in them or not. The other elements go towards the success of any particular society in recognising the immutable, and aligning themselves into harmony with the natural order, the Dao24. The first form of the above taxonomy reflected in the modern law

24

Law and Morality in Ancient China: the silk manuscripts of Huang-Lao By Randell P. Peerenboom

of nations, natural law thinking as seen in the work of Christian Wolff25:

3. Of what sort the law of nations is originally Since nations are regarded as individual persons living in a state of nature, moreover, as men in a state of nature use nothing except natural law, nations also originally used none other than natural law; therefore the law of nations is originally nothing except the law of nature applied to nations 4. Definition of the necessary law of nations We call that the necessary law of nations which consists in the law of nature applied to nations. It is even called by Grotius and his successors, the internal law of nations, since it evidently binds nations in conscience. It is likewise called by some the natural law of nations. 5. Of the immutability of this law Since the necessary law of nations consists in the law of nature applied to nations, furthermore as the law of nature is immutable, the necessary law of nations also is absolutely immutable.

The role of international law within the international relations realism framework was largely claimed to be non-existent26 (in the Positive sense of law authoritatively issued through a governing executive) by the international relations theorists27. Against the backdrop of the classical definitions above, based on Grotian definitions of natural law, and thence the Law of Nations, the international relations scholars seem like they were missing the point. While it is true that a power can set out any form of rules within their power to enforce, the cost of enforcement in the face of

25

Jus Gentium Methodo Scientifica Pertractatum by Christian Wolff, Translated by Joseph H. Drake Oxford: at the Clarendon Press, 1934
26

International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship by Anne-Marie Slaughter; Andrew S. Tulumello; Stephan Wood. The American Journal of International Law, Vol. 92, No.3. (Jul., 1998), pp.367-397.
27

Ibid

underlying prevailing natural orders will imperil the continuance of the nation28. Grotius defined two methods for divining international law, which have been used by international legal scholars since his time; one a constructionist approach, ascertaining the law by constructing rational logic from the physio-psycho-sociological attributes of humans29; the other a reductionist approach by observing the normative, accepted, behaviours of sophisticated socio-political groups30. Both of these approaches are fundamentally inductive, requiring the study of humans as they are, or observing the behaviour of states. These Grotian definitions mark the departure of international legal philosophy from notions of God given rights of the Feudal nobility, and the emergence of the science of international law viewing the states power flowing from the will and capabilities of the subjects.

28

The Economics of Lawmaking by Francesco Parisi and Vincy Fon, Oxford Scholarship Online: January 2009.
29

arguing from the nature of and circumstances of mankind

30

by observing what is generally approved by all nations, at least by all civilised nations.

In his two introductory lectures on the science of international law (1856) Sir Travers Twiss points31 to the international legal taxonomy of Dr Richard Zouch; natural law being founded on the tacit consent of nations32, and positive law being that which is based on the express agreement of nations33. This clearly connects the 16th century Oxford professors definition of natural law to the modern customary international law definition. Wolff34 provides the following distinction between the species of international law:
22. Voluntary law of nations35 23. Stipulative law of nations36 24. Customary law of nations37
31

Two introductory lectures on the science of international law, Twiss, Travers, Sir, London 1856, British International Law, page 30.
32

Commonly referred to in modern terms as Customary International Law.

33

Also used in this way today, with the additional note that some positive law, when widely endorsed, may be seen to have achieved a status of customary international law.
34

Jus Gentium Methodo Scientifica Pertractatum by Christian Wolff, Translated by Joseph H. Drake Oxford: at the Clarendon Press, 1934
35

With Grotius we speak of the voluntary law of nations, which is derived from the concept of the supreme state, therefore it is considered to have been laid down by its fictitious ruler and so to have proceeded from the will of nations. The voluntary law of nations is therefore equivalent to the civil law, consequently it is derived in the same manner from the necessary law of nations, as we have shown that the civil law must be derived from the natural law in the fifth chapter of the eighth part of' The Law of Nature'.
36

There is a stipulative law of nations, which arises from stipulations entered into between different nations. Since stipulations are entered into between two or more nations, as is plain from the meaning of 'pact', since moreover no one can bind another to himself beyond his consent, therefore much less contrary to his consent, nor acquire from him a right which he does not wish to transfer to him; stipulations therefore bind only the nations between whom they are made. Therefore the law of nations, which -arises from stipulations, or the stipulative, is not universal but particular.
37

The customary law of nations is so called, because it has been brought in by long usage and observed as law. It is also frequently called simply custom, in the native idiom das Herkommen [usage]. Since certain nations use it one with the other, the customary law of nations rests upon the tacit consent of the nations, or, if you prefer, upon a tacit stipulation, and it is evident that it is not universal,

 25. Positive law of nations38

Vattells work39 on the subject (whilst somewhat derivative, he has independently considered the issue) provides some further clarification on the Necessary law of nations:
Since, therefore, the necessary Law of Nations consists in applying the natural law to States, and since the natural law is not subject to change, being founded on the nature of things and particularly upon the nature of man, it follows that the necessary Law of Nations is not subject to change. Since this law is not subject to change and the obligations which it imposes are necessary and indispensable, Nations can not alter it by agreement, nor individually or mutually release themselves from it. It is by the application of this principle that a distinction can be made between lawful and unlawful treaties or conventions and between customs which are innocent and reasonable and those which are unjust and deserving of condemnation. Things which are just in themselves and permitted by the necessary Law of Nations may form the subject of an agreement by Nations or may be given sacredness and force through practice and custom. Indifferent affairs may be settled either by treaty, if Nations so please, or by the introduction of some suitable custom or usage. But all treaties and customs contrary to the dictates of the necessary Law of Nations are unlawful.

but a particular law, just as was the stipulative law

38

That is called the positive law of nations which takes its origin from the will of nations. Therefore since it is plainly evident that the voluntary, the stipulative, and the customary law of nations take their origin from the will of nations, all that law is the positive law of nations. And since furthermore it is plain that the voluntary law of nations rests on the presumed consent of nations, the stipulative upon the express consent, the customary upon the tacit consent, since moreover in no other way is it conceived that a certain law can spring from the will of nations, the positive law of nations is either voluntary or stipulative or customary.
39

The Law of Nations or the Principles of Natural Law Emannuel de Vattel, Translated by Charles G. Fenwick 1916

The framework espoused by Waltz40 fundamentally incorporates the concept of natural law, through his firm positioning of Anarchy as the organising principle. One of the difficulties is in the common definitions of Law as a positive, authoritative, act, by a legitimate law making body. Without rulers, parliaments, or other law making bodies; law still exists. Waltz provides a sound working definition of Law in his introductory text41; Laws establish relations between variables, variables being concepts that can take different values. Organising principles in this context and laws as rules between variables suggests that the rules are mutable, whereas the organising principle is not. The rules in anarchy are the natural laws42, those laws which are immutable. The states which follow the immutable laws, within a sufficient degree of tolerance, survive. Those which flout them, diminish. These ideas suggest a self enforcing mechanism, with origins in human nature.

40

Anarchich Orders and Balances of Power by Dr Kenneth Waltz; pp.60-83, American Foreign Policy, Theoretical Essays, fifth edition, 2005.
41

Theory of International Relations by Kenneth Neal Waltz, Chapter 1, Laws and Theories, published 1979
42

Laws which govern the interactions between the variables.

Where economics have long studied the effects of the micro on the macro, Waltz suggests that even if a macro-political theory could be constructed, nations would not act on them as they are the only actors capable of affecting the global macro-political situation43, and effects would still require reversion to the micro-political order. While dismissive of a mathematical solution to the macro-political system, in his balance of power theory he offers several useful lemas. In taking the first of the Grotian approaches following von Wolff, Vattel and Kant, down the constructivist approach, beginning with man in nature. Fundamentally we are governed by our nature and our choices. From first principles we examine a person alone in the wild. The first choice the person makes is to survive or die, to die may seem easy but still the person has a set of rules they will need to follow in order to achieve this outcome. So too in nations; the body politic in choosing to work together, self constitute44.

43

Anarchic orders and balances of power by Kenneth Waltz, American Foreign Policy, Theoretical Essays Fifth Edition, 2005.
44

Self-Constitution Agency, Identity, and Integrity by Christine M. Korsgaard, Oxford Scholarship Online: September 2009.

The Balance of Power theory as defined by Waltz has two underlying notions; States choose to exist; Anarchy organises their actions. Beyond this initiating principle, states may choose to collaborate, and in doing so they subject themselves to additional natural laws. So from this approach we see that the authority of natural law is driven from the state choice, and back to the ultimate authority of dissolution as driven by the individuals within the constituent state; for example the citizens involved in the overthrow of states during the Arab Spring. In taking the second Grotian approach, we would ask what actions have states taken which were successful, and why? This reductionist approach is founded in the inductive method of demonstrated success or failure. This is taken as a fundamental principle in many approaches to espousing liberal democratic, and other socio-political theories. The strength of the approach is that clear examples of successful international legal tenants can be relied on, the weakness is that the difference between a successful socio-political model (even within the same family of structures such as democracies, state controlled, republics, monarchies) and a failed one, are subtle and the critical fault line lost in the depths of the details of cultural tendencies, geographic necessities, external influences, and other formative socio-political variability.

Ultimately for international institutions, organs, and laws, the legislative acknowledgement and support, by state sponsors, is secondary to their primary existence. Most, if not all, successful international institutions, regimes, and frameworks constituted themselves out of necessity through a variety of international actors, prior to any state acknowledging or creating a congress, conference, regime, or other institutional embodiment. In this very brief dip into philosophy, I have taken a direction of analysis to international law requiring an inductive approach based on examining past behaviours of states to find the behaviours which are successful, and those which end with state failure, without a resort to leaps of moral faith. Our global community necessarily bridges significant differences in fundamental moral and ethical assertions requiring an objective approach to the topic. To develop true philosophy of science laws, they must be combined with deductive methods of mathematics, and so requires also a commitment to the philosophy of mathematics. All physical behaviours can be observed and reduced to mathematical formulae; using mathematical methods these can be manipulated to provide useful information about the behaviour of the system. Mathematics can be used to find optimal solutions, which can be related back to the physical system.

The Beginning
Nations can choose to survive, and they choose to interact with other nations; history shows that nations which interact with each other are more successful (as measured in the Realpolitik sense) as they gain access to resources and capabilities unavailable in their own domains. This comes at some cost of national identity and ethnic homogeneity45, in some cases (colonial interactions) this means the total subsuming of the nation under a much more powerful nation, with the subsumed culture changing the social and cultural fabric of the conqueror. In other cases this has resulted in some agents (tribes, individuals, corporations, etc) within the nation benefiting, at the expense of others. Once nations learn how to effectively benefit from the transactions between nations, they have tended towards empires with external nations forced to inclusion and benefit, or seeking inclusion and benefit. Although eventually all empires to date have contracted as the various elements seek to control the central power structure, veiled as making remedy on their claim as conquered, their moral superiority, outright coups by force, or other manifestations of revolution46.
45

The USA occupation of Germany and Japan, through the personal interactions of soldiers with citizens, to relationships, both intimate and platonic, which resulted in an increase in German language, and an adoption of Kaisan management systems in the USA. The conqueror in exposing its citizenry, absorbs a degree of the conquered.
46

The Government of Self and Others; Lectures at the College de France Michael Foucault, edited by Frederic Gros, English translation published in 2010 by Palgrave Macmillan.

The international legal system is self constituting47. From this perspective, International Law does not exist where nations either have no knowledge of the existence of other nations, other nations do not exist (n = 1), no nations exist (n=0), or the nations have no ability to interact. Where more than 1 nation exists, and they have knowledge of another nation, the rules which govern the behaviour between those two variables begin to act, and the international system self constitutes. As an aside this leads to a conclusion that if international law were truly monist, it would not exist. That is to say, if everyone enshrined international law into their domestic law automatically, then we would be a global nation, and international law would cease to exist. Waltz asserts48, this would not eradicate conflict it would merely change all wars into civil wars. Waltz also predicts49 that a single global governmental authority solution would not be sufficiently diverse to accommodate the vast array of cultural, ethnic, and social conditions required to enfranchise all individuals within the system, leading to increased violence as different factions vied for control of the centralised authority. This prediction may in fact be playing out in the form of Islamic transnational terrorism.

Legitimacy, Normative Behaviour, Authority

47

Self-Constitution Agency, Identity, and Integrity by Christine M. Korsgaard, Oxford Scholarship Online: September 2009. 48 Anarchic orders and balances of power by Kenneth Waltz, American Foreign Policy, Theoretical Essays Fifth Edition, 2005.
49

Ibid

There are many definitions and theories of legitimacy. In the context of this research I am looking at the legitimacy of international law. This is the legitimacy of the previously discussed a priori rules which exist between variables under particular circumstances. How do we recognise them as legitimate? One of the ways legal scholars have recognised legitimacy is based on consistent state behaviour. If all nations which continue to prevail follow a set of rules, then these could be claimed as legitimate. This falls down when we see revolution leading to an overturn of long held consistent state behaviour, in favour of new sets of consistent state behaviour. For the purposes of discussing the legitimacy of international law I will take it to mean that people all agree that the laws are binding, and if they disagree, the law prevails irrespective of their belief. This high threshold is set to examine there exist any international laws which can be demonstrably binding. From these we can then examine what other rules ought to flow out of the basic principles.

In keeping with the philosophy of science, a law is only legitimate if it coincides with reality. As an absurd example; a law which prohibits people from obeying gravity, while authoritative (penalties for all), has no legitimacy. As a less absurd example; a speed limit of 100 around a corner which can only be taken by a sports car at 35, is excessive. That is to say it permits a speed which will ultimately lead to tragedy, and a per se penalty not only for the individual injury, but also to society in cleanup costs. In the other extreme a law which unreasonably prohibits the individual from achieving reasonable ends is also not legitimate; a speed limit of 2 on a perfectly straight road, with no obstacles or traffic. A legitimate law in this sense is a fountain of wisdom from which the unfamiliar stranger may drink and know they will be safely slaked of thirst. An illegitimate law is one born from excess, restriction, or discord. A legitimate law must also be coherent, and internally defensible. I will use here a clear definition from Nomics50. Nomic Preservation (NP) m is a law if and only if m would still have held under any counterfactual (or subjunctive) supposition p that is logically consistent with all of the laws (taken together).
NP m is a law if and only if in any context , p-> m holds for any p that is logically consistent with all of the ns (taken together) where it is a law that n (that is to say, for any p that is logically consistent with the firstorder laws).

Laws and Lawmakers Science, Metaphysics, and the Laws of Nature Marc Lange, Oxford Scholarship Online; September 2009.
50

In the law against gravity example, it is not coherent with the nature of the system. All humans live on earth, gravity applies everywhere on earth, all legitimate laws accept that the law of gravity is a necessary law with supreme jurisdiction not subject to negotiation. Customary law forms through spontaneous adherence by members of the community51. So it is with customary international law; sometimes these customs emerge slowly, and others emerge rapidly after dramatic global shocks. Customary international law, in this context changes with the circumstances of the environment, and the capabilities of the state members. As technology advances, new challenges are presented which require the formation or adaptation of customs. So how can it be considered immutable? In this sense the natural law is a maze where the hedges change over time; customary international law is the map which must align itself to the changed map, if it is to remain useful.

51

The Economics of Lawmaking by Francesco Parisi and Vincy Fon, Oxford Online, January 2009.

The spontaneous selection of strategies demonstrated by long usage of agreed principles in international law, suggests that these laws follow the natural (most efficient) course of action. The river does not flow uphill. By examining customary laws which have long been held as valid, it ought to be possible to deduce the underlying mathematical principles in play on the international plane.

Constitutionalism
The above discussion indicates that International Law self constitutes under these conditions: A the existence of nations52; people constituted under a set of homogeneous governing laws (rules, norms, or otherwise); i.e. a group of people harmonise and choose to become a coherent nation. AND B The existence of n>1 nations AND C The interaction of n>1 nations If we take it for given that the world we live in now (2011) is made up of many states, with executive powers granted through some mechanism to a central state authority; then what power should they give to a central authority? What head of power should reside in the central global government, such that the states have sufficient power without needing to wrest it from the central

52

I use the term nation rather than state as many non-state actors which meet the definition of nation, but are not, or can not be, a recognised state need to be considered in the analysis of the global governance structure. These nations have internal rules governing behaviour and come in many forms; religious, ideological, and commercial.

authority? Indeed is the current trend toward conglomeration a stable configuration for large groups of humans? Constitutionalism as a project can be seem as the study and analysis of fundamental norms, the type of actors, and the institutions and procedures through which legal and political decisions are made53. So here I will approach the constitutionalism project, via algorithmic methods grounded in an inductive/deductive philosophy of science/mathematics, based on a concept of legitimacy grounded in coherent and consistent reasoning, with the ultimate authority the individuals choice in participation.

53

Global constitutionalism: Mapping an Emerging Field Antje Wiener, self published background for conference, Constitutionalism in a New Key? Cosmopolitan, Pluralist and Public Reason-Oriented Berlin, Jan 2011

Game Theory and AGT

Modern game theory was the brain child of John Von Neumann, in his examination of zero-sum games and the non-existence of blended-strategy equilibria. This initial proof rapidly expanded into a wide range of primarily economic models of expected utility and decision making analysis. It has been extensively applied in variety of fields, and importantly for this essay; international relations and biology. The application of game theory to international relations has varied in its application; indeed where it has been applied, the scope tends to be limited and does not consider all the complexities of the open form extensive nature of the international system or the variations in payoff ratios54. The typical approach is to use the Prisoners Dilemma, or other relatively simple game model to extrapolate conclusions in limited circumstances with regard to international legal or international relations cases, based on analogies. These simple form games do not provide sufficient variables to accurately capture the complexity of options open to the various state and non-state actors, and tend to be used as supporting rhetoric.

54

See for example The Economics of Lawmaking by Francesco Parisi and Vincy Fon, Oxford Online, January 2009, The Limits of International Law; Chapter 1, A Theory of Customary International Law, Posner and Goldsmith.

Others have taken the approach that assumes the validity of customary international law, and examined the conditions which make it possible55. The second approach used in examining lex mercatoria posits the following game rule conditions necessary for the formation of lex mercatoria [paraphrased]:

(i)
(ii) (iii)

Voluntary reciprocal duty (Players choose to participate with each other) Reciprocity must be equitable (Payoff ratios are equivalent) Ongoing relationship (Multi-shot game)

In a multi-shot game the agents participating learn from the previous games. Reputation of past choices is retained, such that a consistent inequitable payoff will result in the disadvantaged agent disengaging, trading inequitably, or following some other nonoptimal strategy. The technological and sociological conditions of various nations gave rise to the international merchant, which constituted the international trade cosmopolis. Unconstrained by formal positive laws, or external enforcement mechanisms, the successful merchants were those that followed the natural rules of the game. These rules were then, over time, codified into the lex mercatoria.

55

Customary Law as a Social Contract: International Commercial Law By Bruce Benson, Constitutional Political Economy, Vol. 3, No. 1, 1992.

One form of evolutionary game theory is the application of game theory in the study of animal populations. Success and failure depends on the energy available to different species dependent on their unique capabilities derived from random mutations of their genome. These methods can be recast to look at any system which can be seen as having multiple species (entities with unique inherent capabilities), interacting in the same system (closed or open, but necessarily connecting the species), over a period of time. It is a fairly small leap to see the international system of states in this light.

The application of game theory, and evolutionary game theory, has met with some success, but has so far failed to provide a set of concise tools to explain the normative behaviours seen on the international plane. The complexity of trades (economic, reputation, military, et alia) at the international level make defining a universal utility variable difficult. Additionally, by observing the system from a particular perspective (defining in the context of socially preconceived variables) we find ourselves trapped by Humes fallacy of inferring an ought-statement from a conjunction of isstatements56, which in many cases results in a use of game theory to bolster the foregone position of the writer. One promising theory57 suggests that Entropy can be used as the utility function, which ought to rid us of Humes fallacy. Algorithmic Game Theory (AGT) is a useful tool in examining strategic behaviour by abstracting rational decisions and deducing the payoffs, which has emerged from game theory applied to computer networks58 and other systems of greater complexity. There is a significant body of knowledge on the subject59 which provide a great number of tools for analysing many different problems. Based on the previous discussions here, there are a number of AGT methods which appear to be applicable.
56

Plato.stanford.edu/entries/game-evolutionary/

57

Natural Games By Jani Anttila and Arto Annila, Physics Letters A, Volume 375, Issue 43, p. 3755-3761, Elsevier, 8 September 2011
58

An Algorithmic Game Theory Primer Tim Roughgarden, June 21, 2008

59

Algotithmic Game Theory Edited by Noam Nisan, Tim Roughgarden, Eva Tardos, Vijay V. Vazirani.

The various types of algorithmic models depend on the system under inquiry. So what kind of system is the international system?

Defining the International System

Classical Natural Law Let us begin by listing what a set of constructive variables might look like using the classic natural law taxonomy: (i) orders which are what they are, independently of our thinking, that is, nature, laws of nature, and correspondingly the natural sciences and metaphysics; There are 193 members of the United Nations. There are 153 members of the World Trade Organisation. Nations of the world choose to interact with each other. The international system is constituted by a series of interactions on multiple levels, in multiple dimensions, by a variety of nation types; states, corporations, ideologues, et alia. (ii) the order which we can bring into our thinking, and correspondingly the standards and discipline of logic; The international system orders its Thinking through treaty making, in accordance with the standards of the Vienna Convention on treaty interpretation, and application of rational state behaviour.

Nations have unique socio-political thinking based on historically defined and evolving standards and discipline of logic. Despite this diversity of national thinking, the order of thought of states in the international system is based on the rules of international diplomacy and discourse. (iii) the order which we can bring into our deliberating, choosing, and acting in the open horizon of our whole life, and correspondingly the standards of morality and the reflective discipline of ethics; The international system order for deliberation, choosing, and acting happens in many different forums, and is based on a diverse range of morals and ethics. Within the international system there is a formative notion of common morality around the idea of jus cogens. However the international system currently recognises that each state must choose its own path. Nations have unique standards of morality and ethics which define which treaties, conventions, congresses, regimes, and institutions where they participate. The choice nations make is primarily based on the species of nation to which they belong. (iv) the order which we can bring into matter (including our own bodies) subject to our power, as means to relatively specific purposes, and correspondingly the countless techniques, crafts, and technologies.

The international system functions at this level with little required central influence required. Nations have unique natural (mineral and biological) resources allocated by virtue of their geography. These are the raw, unformed, resources which no man may claim as the produce of his labour, in the John Locke sense. Nations have human potential; the potential identified by Rousseau as the core of a nations being, supreme in sovereignty. While we might say that two individuals are equal, very few individuals are equally capable. Just as a wheel chair bound Hawkins is capable of amazing insights, he is not capable of winning an Olympic medal. Nations have unique human capacities (scientific, technological, craft, art, physical, et alia) dependent on historically defined, and evolving education and potency maintenance standards. What a nation makes of its human potential. The international system itself is in a physical sense closed. It currently cannot obtain physical resources from outside the earth, although it potentially could. However it is open in a pure resource sense; new technologies can always be created, enabling a more efficient method of energy acquisition and utilisation, the raw resources of earth are still being discovered, and new means of reusing waste is constantly emerging. Variables and Constraints of the International System

Given the above conditions, variables, and constraints, any model needs to be representative under the following conditions: Multiplayer, > 1000 individual agents (defined as nations; groups of individuals working together using an internally established set of rules/laws) Multi Shot; Reputation informs decisions, behaviours change over time Agents base decisions on deontological structures; utility sought is highly dependent on national cultural beliefs Information is incomplete; agents know the rules of their own nations, but have only imperfect, to no, knowledge of others Information is not symmetrical; different nations have different levels of knowledge of the world Energy is measurable; GDP, investment, ownership (physical and intellectual), natural resources (raw materials), capability resources (ability to transform raw materials), IP generation (ability to create more efficient capabilities) System is open; new energy is always discoverable System is survivalist; nations can feed off other nations if it is a more efficient access to energy, and starve another nation Natural resources are unequally distributed; trades are necessary to maximise available resources

Capabilities are unequally distributed; trades are necessary to maximise productive efficiency

System is dependent on many variables which change over time and with relation to each other; non-linear system

Nations are highly interconnected; overlaying decision networks

System is stoichiometric; law of big numbers applies and statistical properties exist.

Graph Theory Graph theory is part of the basic language of algorithmic game theory. Graphs represent the nodes and connections within a given system. The global network of states can be represented by 192+ nodes with an edge connecting each state with an embassy, commercial or other connection. Further, national nodes (cooperative groups of individuals using a uniform and unique set of rules for interaction) can be represented with this model, allowing for visibility of non-state international agents. Different flows can occur between the different nodes; resources, products, capital, people, information, et alia. Different dimensions can be attributed to each of the nodes, symbolising their participation in exclusive networks which may influence their decision on any given matter. These dimensional networks can be historical, ideological, religious, political, cultural, or any other national aspect.

The use of graph theory representation has been used to consider issues as broadly separated as certification as a general model of governance60, to the fundamental metaphysical structure of the world61. The use of graphs allows us to capture many dimensions of a given node, and the multitude of transactions between the nodes. The global system of today is highly defined by the UN institution of state recognition; however there are also a multitude of other transnational actors which affect the overall state of play. The UN recognition could be represented as an exclusive network, which alters the behaviour of nodes connected to the exclusive network. Non-government organisations can create social momentum over particular issues, religious groups can mobilise their constituents, and corporations can freeze regulations. While individuals can have an influence, it is only seen on the international level when they are magnified through an institution. A person standing on a sidewalk yelling is unlikely to have an enduring effect on Aboriginal traditional land ownership. However a person, given access to the courts, and quietly demurring to international law, may make a difference.

60

Structuring Transnational Fields of Governance: Network Evolution and Boundary Setting in the World of Standards By Tim Bartley and Shawna Smith.
61

The Mathematical Structure of the World: the World as Graphby Randall R. Dipert, The Journal of Philosophy, Vol.94, No. 7 (Jul 1997), pp. 329-358

Each of the edges (connecting lines) has a weighting factor applied which represents a transaction cost associated with the particular transfer. Laws as rules between variables sit as weighting factors on the connections. Heavy trade tariffs between nodes will increase the cost, and hence the weighting factor, associated with transacting between the two nodes. The literature on routing algorithms is extensive62, as this has been a major driver in computer networking. Indeed the complexity of information routing in the computing world far exceeds the complexity of the international socio-politicaleconomic system. In constructing the international state model we need to account for every type of transaction which occurs. This model would need to include individual relationships, corporate associations, nongovernment organisations, treaty regimes, diplomatic notes, et alia. These transactions create a bias between nodes, which over long periods of time increases or diminish the transaction costs associated with particular types of connections. Due to the difficulty in calculating outcomes with huge numbers of inputs, an initial look would tend to use statistical data to sum up inputs from minor variables.

62

Algorithmic Game Theory Edited by Noam Nisan, Tim Roughgarden, Eva Tardos, Vijay V. Vazirani, Cambridge University Press

In mapping out the history of the world as a series of transactions, we can see that certain behaviours at the state level result in a lowering of transaction costs between nodes. The nodes with the most connections, and the lowest transaction costs, will ultimately dominate. The amount of capital a particular nation has can be compared to trade, knowledge, or social flows which it can generate through connection increases. A national nodes behaviour can impact the weighting of a particular variable. The aggression of a nation upon another nation is likely to result in a diminishing of trade between the two nations, and with other nations in general. The reduction in trade is based on the nature of trade, i.e. stability is required to safely transfer goods between ports. An increased risk due to warfare will reduce the amount of individuals willing to transact. Even warfare can be seen as a transaction between two nodes; in peace the cost of the transaction is zero, in war it goes up. Transactions do not only involve financial consequences, they also transfer information, ideas, culture, ethics, morals, social behaviours, product preferences, and more. The interaction of nations transfers people, genetic lines, and creates familial bonds. The different varieties of connections come with different legal identity depending on the nations that are interacting.

Graph theory is a great tool for gaining insight into the system. For the purposes of identifying natural laws from a data set of customary international law, we are looking at the multi-shot game over very long periods of time. A nation, or group of nations, could potentially work against the prevailing winds of natural law for a very long time before they exhaust their energy reserves.

Non-Linear Equations applied to the International System Non-linear mathematics is the foundation of modern engineering control theory, used in everything from aircraft63 to automobiles. In examining the international system as a system64, we can examine international laws as the control inputs to the system. Before we can do that, we need to understand how the system functions without any control inputs. Non-linear equations model systems with multiple variables which change with relation to each other. One compelling argument provides an amoral mathematical model based on restating thermodynamic equations65;

(1) This equation shows a change over time (dt) of entropy (S) using Bayesian probability (P) due to energetic exchanges in kB (energy -> assets, money, IP, labour, et alia) over time (dt) between two asset pools Nj and kB. For any particular nation we can equate to national asset pools, kB, and the asset pool available from the international system. So any connection to the outside world adds available assets to drive the potential difference, it can also bidirectional and scalar (non-dimensional form of cash or assets or IP
63

Derivation and Definition of a Linear Aircraft Model NASA Reference Publication 1207, August 1988
64

Systems Thinking, Systems Practice Peter Checkland, John Wiley, 1981

65

Natural Games By Jani Anttila and Arto Annila, Physics Letters A, Volume 375, Issue 43, p. 3755-3761, Elsevier, 8 September 2011

into energy units). Each edge represents an additional connection to a source of energy and is summed in equation (1) to represent the total energy reserve available to a nation.

Economi c Intellectu al

Et Alia

Social

The international system is an open energy system, on the basis that we have not exhausted out natural resources, and discovery and innovation always allow new sources of energy to be added. In an open system Ajk [equation 1] is the free energy available to the system and is determined by multiplying the number of assets by their value in energy units. This could be monetised by making energy equal to currency, but floated currency itself is a form of energy with variability in this model. Also the value of the asset is defined in the exporting nation, a greater value in the importing nation provides a driving function for the transaction to occur, so long as the increase in value exceeds the transaction costs. This way of looking at international transactions sits neatly with the remedies the World Trade Organisation provides in disputes. It is also demonstrable in the way executive governments negotiate terms in Free Trade Agreements, and other cooperative agreements, exchanging one form of asset or assistance (military agreements, cultural exchanges, intellectual exchanges, et alia) for a different form of perceived equal value. It also allows for information as knowledge and due to the statistical nature of the model, the form of the knowledge becomes largely irrelevant (whether it is strategic knowledge, technological, medical, or other). So long as there are statistically diverse forms of a particular asset type, they can be modelled as a single form; energy.

In working through these equations it is shown that the international system represents a non-Hamiltonian system with three or more degrees of freedom, where the driving forces and the energy flows are inseparable66. This also leads to the conclusion that if this model is correct a Linear model could be derived and control theory methods used to show control inputs. In looking at the international legal system we should see that customary laws statistically follow natural laws, and represent the rules within the system context which provide the optimal approach to achieving the maximum entropy within the international system. Further work in natural networks67 shows that networks themselves have a tendency to drive towards the maximum entropy. Therefore networks of states and nations would have a tendency to form connections which maximise energy gains from the system. While there may be connections which do not lead to optimal energy consumption, over a statistically relevant set of actions (500 years of international interactions), the emergent rules should provide the paths which lead to optimal energy gains.

66

Natural Games By Jani Anttila and Arto Annila, Physics Letters A, Volume 375, Issue 43, p. 3755-3761, Elsevier, 8 September 2011
67

Natural Networks by Tuomo Hartonen and Arto Annila, Not yet published [arXiv.org > physics > arXiv:1106.4127]

The current macro-economic models used to handle our global economy are based on the idea that the system is stoichiometric, that it is statistically defined due to the law of large numbers interacting in complex ways, what systems theorists call unorganised complexity. However as we drive towards a goal of defining more and more international laws, the system may become organised complexity. Still a non-linear complex system, but with emergent properties which are no longer stoichiometric. Systems theorists working in computer science have found that classical electro-mechanical stoichiometric failure models and methods cease to work in complex computer systems, because there is too much structure while the systems remain non-linear68.

Rando m

Unorganised Complexity Stoichiometric Macroeconomic

Organised Complexity Global government Discret e Organised Simple

Simple

Complex

68

STAMP a new approach to accident analysis by Nancy Leveson, MIT Press, 2011

Conclusions Classical natural law theory provides us with a view of the law which is immutable and eternal; as valid today as it was two thousand years ago, based on intellectual consideration of historical observations. Using modern analytical methods and mathematical tools we can examine the international laws naturally emerging from international interactions. This method allows us to examine the rules in play which are unrelated to our moral or ethical perspective, or particular teleological purposes. These rules require ratification through positive international, only for the purpose of not having to re-discover them continually. This way of defining Natural law is significant, not because it proves here what is or isnt a legitimate law, but that it provides a method for weighing the legitimacy of international law without presuppose the rightness of any one ethical or moral deontology. The use of deductive methods to examine the international system as a network allows us to construct a framework to which we can apply scientific laws of thermodynamics. This coupled with the inductive process of examining past international behaviours provides us a method by which to determine the rules (laws) which result in the optimal access to free energy within the system. Further survey efforts looking at customary international laws and networks, using entropy as the driving utility function is required to demonstrate this method.

This view of the international system suggests that customary laws emerge only after a statistically relevant passage of time, which has resulted in the agents within the system learning the natural laws which result in maximum payoff. The authority of these rules prevails so long as the system remains stoichiometric, over a statistically relevant time frame. Movement away from the natural laws by any one nation will result in inefficiencies and losses for that nation and with other agents access the energy sources more efficiently, will lead to degradation and potential collapse of that nation. The legitimacy of an international law can be determined by understanding the interactions of the international system as a network with a natural tendency towards maximum entropy. International laws which disrupt the statistical nature of particular interactions will cause a breakdown in the ability of the system to move towards maximum entropy, and will be rejected by the system.

This breakdown and rejection process, when viewed the first person perspective can be deadly. Breakdowns occur as national scale breakdowns in economy, social structure, or pacific stability. An international legal system constituted on the principles of natural law, enshrining only those laws which are clearly definable as optimal interactions for achieving maximum entropy while maintaining a level of randomness necessary for stoichiometric process, would be per se legitimate, and ought rightly be enshrined in a formal international constitution providing a head of power above the nation state. My prediction would be that very few, if any, new additions to the international treaty system would be required. Based on this research I would also predict that continued pressure from the global community to build additional transnational laws to foster ethical, moral, or social movements related to specific national preferences will ultimate undermine the global governance system leading to organised complexity and a need to totally rework the fundamentals of the global system. Nations should be wary in seeking to develop transnational laws unrelated to the necessary functions between them.

In closing, this paper has shown that the international system can be mathematically modelled (albeit imperfectly), and that natural international laws can be observed through historical statistical analysis. It also suggests that rather than there being any limit to what nation states can enact as international law, that there are limits on what they ought to enact as international law. The modelling of the international system shows that laws defying natural law, are as doomed to failure as laws defying gravity. Enshrining natural law as a legitimate set of constitutional limits in international law will limit excursions in national, and transnational, behaviour which courts catastrophe.