Michael Oakeshott’s political philosophy of civil association and constructivism in International Relations

Introduction

Michael Oakeshott’s thought has been considered from a great variety of perspectives and has been interpreted in many, often divergent, ways. For example, scholars have placed his works in the context of the history of philosophy and they have highlighted their relationship with British and German idealism (Boucher, 2012; Nardin, 2001; Podoksik, 2010). His critique of rationalism, central planning and political dogmatism, as well as the contraposition between civil association and enterprise association, has been considered as a contribution to contemporary liberalism (Franco, 1990, 2004; Galston, 2012; Gamble, 2012; Giorgini, 1999; Gray, 1989: 199–216, 1993: 40–46; Haddock, 2005), conservatism (Abel, 2010; Devigne, 2012) and republicanism (Boucher, 2005; Callahan, 2013; Coats, 1992). However, it often goes unnoticed that his work has occasionally influenced international political theory. ¹ In particular, the dichotomy between civil association and enterprise association, developed in On Human Conduct (Oakeshott, 1975: 111–122), has been employed by Terry Nardin (1983) and Robert Jackson (2000) to revitalise the English School’s notion of international society, and, more recently, Nicholas Rengger (2013) has used it to interpret the evolution of the just war tradition (see also Astrov, 2005; Bain, 2003, 2007; Frost, 2002).

This article will elaborate on these works and will show the relevance of Oakeshott’s political philosophy for the contemporary constructivist debate in International Relations. ² First, I will argue that Oakeshott’s perspective stresses that political institutions are based on norms and relationships which result from human understanding. To this end, I focus on the distinction between civil association and enterprise association, with particular regard to the concept of authority, also in light of Oakeshott’s indebtedness to Hobbes. Second, I will contend that in On Human Conduct it is possible to find some considerations about world politics that are consistent with his broader political philosophy. Third, I will discuss Terry Nardin’s theory of ‘practical international society’ (1983, but also 1998, 2008), and the criticism of it made by Christian Reus-Smit (1999). With this discussion as a background, I will contend that the theory of civil association may represent the ground for a constructivist understanding of international society: a relationship between states based on understood and socially constructed moral values. Finally, I contend that these shared moral values are substantiated in the norms of customary international law. As such, Oakeshott’s political and legal philosophy illuminates the possibility of an international legal order without a central legislative office or power. This is of particular importance, not just because of the Hobbesian influence on Oakeshott, but also because it sheds light on the historical nature of the criteria of conduct and on the obligations that states acquire, in their relations with other states and their populations.

Civil association and enterprise association

Elaborating on the British idealist tradition (Boucher, 2012; Orsi, 2012), Oakeshott contends that philosophy conceives concepts from a point of view as universal as possible, sub specie aeternitatis. Political philosophers, in particular, see political ideas and values not in relation to the normative or practical conflicts in which they are situated, but instead ‘outside of the contingencies and ambiguities of actual goings-on in the world’ (Oakeshott, 1975: 109). Consistent with this approach, in On Human Conduct, Oakeshott applies a critical method that identifies the distinguishing features of two autonomous and irreducible modes of human relationship. He does not focus on actual institutions, but defines them alongside the various occurrences to which they are related. To achieve this result, he constructs ideal characters, which are a composition of elements abstracted from ‘actual goings-on in the world’ (Oakeshott, 1975: 109; see Nardin, 2014).

The first of the two modes of political association is enterprise association, or teleocracy. ³ It is a ‘relationship in terms of the pursuit of some common purpose’ (Oakeshott, 1975: 114), intended as a substantive condition of things to be procured. Its defining element is the goal common to the members of the association, which can be identified as a ‘community of wills’, or of ‘choices’. Agents are related to one another through their making of decisions oriented towards the pursuit of this purpose.

This is also a relationship in terms of ‘the management’ of the individuals’ activities that are oriented towards the common purpose. The activity of governing is based on ‘power’ (dominium) and imposes actions in order to obtain the expected consequences (Oakeshott, 1975: 115). Laws are therefore ‘commands’, calling for obedience, and for a particular response to particular situations from assigned agents. They are instrumental to the purpose concerned, which constitutes the criterion for judging the propriety of the rules, and individual actions and choices.

The second mode of human association is civil association, or nomocracy (Oakeshott, 1975: 121). As distinct from ‘enterprise association’, which is teleologically constituted by the common goal of the associates and by the management of its pursuit, civil association is a relationship identified by the rules subscribed to by agents. These rules do not ask for specific action or outcomes, but only for recognition. It is for this reason that they are ‘moral’ and not instrumental (Oakeshott, 1975: 119). If instrumental rules are the efficient means of achieving a purpose, moral or civil laws are the conditions for individual enactment and are ‘indifferent to the success or to the failure of the substantive enterprises being pursued’ (Oakeshott, 1991: 454). They are purely adverbial and indeterminate, because they set the procedural conditions that individuals have to take into account when they act.

When law is non-instrumental, it defines the autonomy and completeness of the political order with regard to any external features, such as the substantive, absolute goals set by ‘enterprise association’. Thus, what civil association conceptualises is not just the ideal of law as a limit to politics (O’Sullivan, 2012: 290), but also the autonomy of politics from any comprehensive ethical conceptions that impose an end from outside the moral and legal system of a political community. There is no external criterion that legitimates and authorises the rules in terms of which the civil relationship is constituted.

It is worth underlining that both civil association and enterprise association are socially constructed human relationships based on different beliefs about the source of authority and the role of the association. They are not a given, independent of the actors involved and of their understanding of the situation.

The distinction between civil association and enterprise association is between a relationship which is constituted by non-instrumental rules and one that is based on the pursuit of a common purpose. While the source of political obligation in enterprise association is this common end, in civil association, it is the recognition and acknowledgment of the authority of law by all agents who fall under its jurisdiction. Civil law is not authoritative because of its instrumental value, its expected outcomes or its desirability. This does not imply that, in civil association, purposiveness is eliminated from political life. First, when the legal order is independent from any overarching final end that needs to be attained to be reached, it is possible to have ‘an unregulated variety of self-chosen purposive associations’ (Oakeshott, 1975: 316). Civil association is a way to regulate different associations and individuals that act according to competing and often conflicting purposes and values. Moreover, civil association has its own purpose: to establish that small amount of ‘compulsory civilization’, without which the pursuit of individual endeavour would be impossible (Oakeshott, 1975: 152).

This, however, does not equate with saying, as suggested by David Mapel (1992), that all laws are purposive and that the distinction between instrumental and civil law is blurred. Instead, instrumental laws compel individual agents to fulfil certain actions functional to the pre-established goal, while civil association does not prescribe performances to agents, but aims at providing the conditions based on which particular ends may be achieved.

The elimination from the definition of authority of any conceptions of the good intended as the final summum bonum indicates Oakeshott’s indebtedness to Hobbes. As for Hobbes, in civil association, there is also no external criterion that may provide the ground for the authority of the legal order. Law is authoritative neither because of its expected outcomes nor because of its approval by the members of the association. In Hobbes, it is through the covenant that individuals recognise the authority of a sovereign legislative office as the sole author of valid laws, renouncing the possibility of other sources of moral obligation (Oakeshott, 1991: 284). ⁴ In Oakeshott’s civil association, laws are self-authenticating, and their authority ‘is recognized in terms of the rules which permit them to be made’ (1975: 186). Authoritative laws are those enacted by a previously recognised legislative office, which acts according to a pre-established procedure.

However, it is important to underline that, in contrast to Hobbes, Oakeshott does not see the origin of authority in the act of will of the subscribers to the covenant, and law as the expression of the will of the sovereign authority. On the contrary, for Oakeshott, expressions such as ‘covenant’ or ‘contract’ show that ‘civil association’ is an engagement and relationship between intelligent and free agents (1975: 150). These terms may indicate the day-to-day bargaining between different parties in society, and describe the intentionality that animates these acts. The notion of covenant may represent the evolving nature of political criteria and the fact that it is the result of historical human inventions.

The distance between Hobbes and Oakeshott in this regard is clarified in relation to the triadic conception of the history of political philosophy presented by Oakeshott in the ‘Introduction to Leviathan’, which may be considered to represent different theories about the source of political authority. The dialectical opposition between the three traditions of ‘Reason and Nature’, ‘Will and Artifice’ and ‘Rational Will’ provides a framework for an understanding of theories about the origin of political order and authority. While the first conceives of the principles of political order as natural and understood by reason (as in Plato’s Republic), the second (with Hobbes) thinks of them as the result of human creation and will. Finally, the followers of the third tradition believe ‘that in it the truths of the first two traditions are fulfilled and their errors find a happy release’ (Oakeshott, 1991: 227; also, 2000: 157). Most importantly, just as in Hegel’s Philosophy of Right, they see the world according to ‘the analogy of human history’ (Oakeshott, 1991: 227).

Therefore, the difference between Hobbes’ and Oakeshott’s ideas about the authority of law lies in its origin. While for Hobbes, the creation of the civil order is the result of an act of will, for Oakeshott it is the outcome of historical moral relationships, of evolving practices of civility. The recognition of the authority of the law is diffused throughout time (Oakeshott, 1975: 54).

To recapitulate, Oakeshott’s political philosophy identifies two opposite ideal characters that designate two incommensurable and irreducible modes of association between individual agents. While teleocracy is a transactional relationship composed of rules instrumental to the achievement of a pre-established goal, nomocracy is non-purposive: It is a legal order constituted by a system of non-instrumental rules. Insofar as it excludes any considerations about a higher ethical or normative ground, Oakeshott’s theory may be considered as a continuation of Hobbes and the legal positivist tradition. It identifies authority with authenticity, excluding any further considerations. However, as opposed to Hobbes, he does not identify the origin of authority in an act of will, but instead in the recognition of an existing and evolving relationship.

It is now possible to stress an initial element of similarity between Oakeshott and constructivism in International Relations. For Oakeshott the social world is the result of agents’ actions and understanding. Human conduct is the intelligent response of historical agents to understood situations, and it is shaped by the interpretation of pre-existing beliefs, and of the moral practices in which the agent is situated (Oakeshott, 1975: 31–90). Agents’ identities are not fixed and defined once and for all, but instead they are what they have become in their history and in their interpretation of the moral resources in which they are situated (Oakeshott, 1975: 37; see Orsi, 2015; Turner, 2010: 203). Civil association and enterprise association are two opposed ways of understanding political relationships, and are the two incommensurable manners of conceiving the nature of authority and law. Oakeshott thus shares some constructivist concerns and in particular the idea that ‘actors develop their relations with, and understanding of, others through media of norms and practices’ (Hopf, 1998: 173; see also Wendt, 1992).

The history of the modern European state and international order

This rapprochement between Oakeshott and constructivism is even more evident if we look at the third essay of On Human Conduct, where the dichotomy between civil and enterprise association is applied to the understanding of the history of the modern European state. This is seen as the conflict and coexistence between those who have understood the State as a societas, or civil association, and those who have seen it as a universitas, or enterprise association (Oakeshott, 1975: 185–326). As I have underlined, civil association and enterprise association are ideal characters and have never appeared in their pure form; they have represented the two ‘poles’ of ‘the modern European political consciousness’ (Oakeshott, 1975: 320) and have been interpreted by political actors, thinkers and theorists throughout history. To put it another way, as is the case with constructivism, in Oakeshott’s eyes, modern European political history is the history of intersubjective beliefs about the nature of the state and about the activity of governing. These beliefs and practices are ‘polarized’ (Oakeshott, 1975: 320) in nomocratic and teleocratic understanding.

It often goes unnoticed by readers and commentators that in On Human Conduct, Oakeshott presents some ideas that are relevant to International Relations and are part of his broader argument. In particular, he identifies in the international sphere some of the circumstances that favoured the increasing success of the teleocratic understanding of the state.

The first of these circumstances is colonialism. The initial colonial settlements were, in Oakeshott’s eyes, ‘corporate undertakings, communities of persons modelled upon the constitutions of churches or religious sects’ (1975: 270). As such, they understood their activity of government as that of a teleocratic enterprise. One consequence of this was the success of the disposition ‘to regard the office of government as the exercise of seigneurial management’. In particular, even in those cases in which the states regulated their internal affairs through the rule of law, in their colonial adventures, their style was teleocratic. The purpose of those early settlements was indeed the exploitation of resources, the increase of trade and the diffusion of a faith (Oakeshott, 1975: 270–272, 2006: 474–475). Quoting Burke’s famous description, Oakeshott says that in the colonies, the state was ‘disguised as a merchant’ (1975: 271).

In addition to colonialism, another element that enhanced the teleocratic understanding of the activity of government was, as Nicholas Rengger (2013) has recently highlighted, war. It is interesting to note that Oakeshott – who served in Continental Europe during World War II – also devoted some of his notebooks to this theme (for instance, 2014: 510). Even though they are scattered over many years, the bulk of these reflections is in one notebook, entitled ‘A Conversation’, begun in 1944. In it, we can identify the three main themes of Oakeshott’s discussion of war: its centrality in modern history, its deleterious impact on liberty and on the organisation of society, and the evolution of its role.

In On Human Conduct, Oakeshott characterises European modernity as dominated by continuous threats of war, and by the consequent necessity of providing protection from external invaders (2006: 385–386). The success of the teleocratic understanding of the role of the office of government was supplemented by the ‘great threat of extra-European invasion’ and by the continuous state of war within Europe (Oakeshott, 1975: 272, 322). It is indeed in the protection of state interests and in the care of its relations with other states that the teleocratic character of governing emerges more clearly (Oakeshott, 1999: 177). The Latin motto Inter arma silent leges is thus re-interpreted: when a state is menaced ‘with dissolution or destruction’, it becomes predominantly an enterprise association, and civil law tends to disappear (Oakeshott, 1975: 147).

As WH Greenleaf notes, the total mobilisation, the degree of destruction, the level of homogeneity achieved by propaganda and the exploitation and management of resources reached after two world wars have been decisive in the affirmation of the belief that the state is a form of enterprise association, oriented towards a common purpose and directed by the government (1983: 47–77). In short, war shapes the nature of the state and changes our understanding of what political association is.

Finally, in his notebooks especially, Oakeshott reflects on the nature of war. He seems to distinguish between a classical and a ‘gnostic’ conception of war, with the prevalence of the latter starting, according to Oakeshott, after 1918. This transformation is emphatically described by Oakeshott as the most important ‘in European civilization’, and as the change ‘which marks the twentieth century’ (2014: 518). ⁵ War changed from being a regulatory mechanism within the European state system to an instrument for the establishment of a radically reformed world order.

Arguing that there is a relationship between enterprise association and the state of continuous belligerence that characterised the modern European state system does not equate to a version of the democratic peace thesis (Rengger, 2013: 58–62). Indeed, Oakeshott gives short and rather cursory consideration to the idea that the constitutional form of government has implications for the persistence of war in history. In On Human Conduct, we read,

Kant and others conjectured that a Europe composed of states with republican constitutions would be a Europe at peace. This absurdity is often excused on the ground that it is a plausible (although naïve) identification of war with so-called dynastic war, but it is in fact the muddle from which Montesquieu did his best to rescue us, the confusion of a constitution of government (republican) with a mode of association (civil relationship). (Oakeshott, 1975: 273, n. 1)

In other words, what matters is not the constitution (monarchic or republican; liberal or non-liberal) of the office of government, but instead the beliefs about the nature of the association, that is to say the moral self-understanding of the members of the association.

The self-understanding that the members have of their reciprocal relationship is the ‘moral essence’ of the association. When, at state level, individuals who are part of a political community understand themselves to be members of a collective enterprise for the achievement of a goal, or for the enactment of substantial conceptions of the good, war is more likely. This argument highlights precisely that the teleological style of politics and the teleological understanding of the state produce a mindset and a kind of government that are part of the conditions of war. At the same time, as already suggested, the condition of war forces the establishment of a teleocratic form of government in which all material resources, as well as all individuals, cooperate in the achievement of the final goal. As Oakeshott writes,

And although, even in these circumstances, the rule of law may (as Hobbes thought) be formally rescued by invoking such legal doctrines as that of the ‘eminent domain’ of a government to be exercised ex justa causa, this is only another way of saying that necessity knows no law. (1999: 178)

When the state is perceived as being under mortal threats, when an attack is feared and when the necessity of moving to war is felt, the office of government assumes its teleocratic appearance and the authority of its acts derives from the final end to be achieved: victory (which in the twentieth century has been the annihilation of the enemy).

However, it is not only the case that enterprise association has become dominant in our understanding of the state, it has also been victorious in the self-understanding of the society of states as a whole. Although only in a footnote of On Human Conduct, Oakeshott extends his diagnosis of the history of the modern European state to the international level:

It is perhaps worth notice that notions of ‘world peace’ and ‘world government’ which in the eighteenth century were explored in the terms of civil association have in this century become projects of ‘world management’ concerned with the distribution of substantive goods. The decisive change took place in the interval between the League of Nations and the United Nations. (1975: 313, n.1)

In his recent work, Nicholas Rengger has further developed these Oakeshottian claims and has focused on the just war tradition. According to Rengger (2013), the success of just war theory and practice has led to a permissive conception of the use of force by governments in international affairs. In particular, the just war tradition is the expression of this teleocratic leaning in modern history and should be regarded as a manner of justifying and encouraging war, rather than as a way of constraining it. The emphasis on humanitarian intervention, in both its minimalist (such as in Walzer, 1977) or solidarist form (such as in Wheeler, 2000), is an expression of this (Rengger, 2013: 152). The tendency depicted by Rengger, following Oakeshott, is one in which states, and associations of states such as the United Nations (UN), have become more and more responsible for delivering goods and achieving goals.

In short, both Oakeshott’s considerations and their elaboration by Rengger show that the dichotomy between civil association and enterprise association may be employed to interpret world politics. In this regard, it must be remembered that no actual political institution can be a pure civil association or a pure enterprise association, and, as Oakeshott is keen to underline, there is not a future in which one of the two tendencies will have passed away (1975: 320), and no regime has ever ‘represented’ one of the two understandings without qualification (1975: 313). In short, even though one may have a preference for the prevalence of one understanding or the other, Oakeshott’s political philosophy shows the ambivalence of actual political institutions and, as I have underlined, of world politics.

Practical and purposive international society

As already stated, Oakeshott’s theory of civil association has been applied to the understanding of international society. As is well known, the English School’s notion of international society finds its first theorisation in a series of writings by Hedley Bull, who was inspired by Martin Wight’s triadic conception of the way in which International Relations have been theorised (Wight, 1991). Bull distinguishes between three different traditions: a realist one, whose understanding of International Relations is shaped by Hobbes’ notion of the state of nature (1995: 24–25); a Kantian, universalist one which demands ‘that the international anarchy be brought to an end’ by achieving a transnational community (1966a: 38); and a Grotian or internationalist tradition, according to which the absence of a supranational government (i.e. anarchy) does not exclude cooperation framed by international law (1966a: 38, 1995: 23–25; on the differences between Bull and Wight, see Boucher, 1998: 15–16; Dunne, 1998: 138–140).

The Grotian tradition is the idea of international society defended by Bull. It represents a via media, a middle ground, between the realist and the revolutionist traditions (Dunne, 1998: 138–139). International society is a critique of both the realist view that the world comprises states in an anarchic power relationship with each other and of the universalist view that argues that the world is a single society (Bull, 1995: 13).

In The Anarchical Society, international society is instead grounded on the consciousness of ‘certain common interests and common values’ (Bull, 1995: 13) which, historically, can be found in ‘common culture or civilisation’ (Bull, 1995: 15). As such, international society has some goals: the preservation of order, the maintenance of the independence or external sovereignty of individual states, peace, the limitation of violence, the keeping of promises and the stabilisation of possession (Bull, 1995: 16–18).

In one of his contributions to Diplomatic Investigations, entitled ‘The Grotian Conception of International Society’, Bull distinguishes between two ways of interpreting the concept of international society. First is the pluralist conception (such as that of Oppenheim), where various states with different goals and conceptions of the good recognise that they are bound by a minimal code of coexistence. States agree on certain minimal rules, which are recognition of sovereignty and non-intervention. By contrast, we have the solidarist conception (such as that of Grotius) which argues instead for a collective will of the society of states (Bull, 1966b: 52). In this regard, Bull points out two possible manifestations of collective will, related to the enforcement of international law: the first concerns ‘police action’, where states respond to law-breaking; the second concerns the monitoring of the way in which states treat their own citizens (1966b: 63. On this see, Buzan, 2004: 46–47; Dunne, 1998: 100–101; Wheeler, 2000).

Elaborating on these ideas, Terry Nardin has considered Oakeshott’s theory of civil association in the attempt to find a middle ground between the idea that international order is absent, and that it can only be achieved through a world society. In particular, Nardin argues that there exists a practical or moral understanding of international society, a universal community where members are not persons but states, which understand themselves to be bound by non-instrumental rules, and not by common purposes (1998: 20).

At the outset, it is indeed worth underlining once again that, as in much of the modern literature on International Relations and in sympathy with Bull, Nardin conceives states as individual agents. Thus, he develops his notion of international society by analogy with the relations between persons in civil society (Nardin, 1983: 16). The members, the individuals (or using the Oakeshottian terminology, the personae) related by their recognition of a system of non-instrumental rules are, at an international level, the sovereign states. They are formally equal because the rules are specified in the same terms for all, even though they do not have the same opportunity to use the resources of the law, and to pursue their chosen purposes.

Problematic for this way of understanding international society is the increasing importance in International Relations of non-state actors. The emergence of outlaw agents – in addition to outlaw states – such as Islamic State, Boko Haram and Al Qaeda, who disregard international norms and are dismissive of the rule of law, poses new challenges for the international community. Without denying the increasing relevance of these agents – and therefore the highly problematic nature of their exclusion from discourses about international order – what this approach wishes to stress is the legal primacy and the logical priority of the relations between states (Jackson, 2000: 109). It argues that non-governmental organisations (NGOs), non-state actors and international organisations pursue their divergent goals in a world that is framed and shaped by relations between states.

Following Oakeshott, Nardin conceives international society as an ideal character, that is to say as a composition of characteristics detached from world circumstances (1983: 34). In doing so, he distinguishes between the different conceptions of international society: practical and purposive. As enterprise and civil association are the exclusive means by which the relationship between individual intelligent agents may be understood, practical and purposive society are two modes of international society. According to the purposive conception, different states are united by shared values and purposes, while for the practical conception they are united by the subscriptions of a set of custom and practices. In the former case, international law is the instrument for the achievement of the common purpose, while in the latter ‘rules constrain the conduct of states pursuing different and sometimes incompatible purposes’ (Nardin, 1983: 187).

Oakeshott’s political philosophy provides an argument that asserts the self-contradictoriness of purposive or solidarist international society. Indeed, Nardin’s point is not just about the distinction between these two modes of international society, but much more about the logical priority of the practical form over the purposive. Elaborating on an aspect that was merely hinted at in Oakeshott – according to which enterprise association entails a moral practice ⁶ – the pursuit of shared purposes presupposes procedures to which agreement may be achieved. The legal order, understood as a system of non-instrumental rules, makes possible a vast array of purposive associations organised through treaties, contracts and stable organisations (Nardin, 1983: 15–16). In short, the purposive conception is not autonomous, and it is self-contradictory insofar as it presupposes the existence of a practical society, constituted by a set of laws, customs and practices, recognised by different states.

In other words, it is possible to conceive international law as a set of constraints to the conduct of states that are pursuing different goals. In particular, it is customary international law which is relevant. Indeed, it is neither the result of a central legislative authority nor of the command of the sovereign, nor of an agreement between states (Nardin, 1983: 166–173). Instead, it is based ultimately on the practice of its users and contains the authoritative rules according to which the conduct of states is directed and judged. Therefore, the first level of international society would be represented by customary international law and would correspond to the ‘practical conception’. Besides this, there exists the political level, in which a multitude of purposes are shared, and in which interests either converge or clash.

Nardin’s notion of international society as a practical association based on the recognition of non-instrumental rules substantiated in customary international law has been criticised by Christian Reus-Smit, who has claimed that ‘all historical societies of states have begun … [as] communities of states, linked by common sentiment, experience and identity’ (1999: 37). It is this intersubjective common belief – Reus-Smit argues – that represents the moral purpose of the state and of international society. However, it is worth recalling, as stated above, that to say that a political association is based on subscription to rules indifferent to any particular moral goals does not equate with saying that purposiveness is absent or eliminated. On the contrary, Oakeshott’s distinction between enterprise and civil association is all about the nature of authority and governing. As already clarified, in enterprise association, the authority of the law is based on its relations with the pre-established goal, which is intended as a substantive state of affairs to be attained. Governing is the activity of managing individuals towards this goal through the coercive apparatus of power. Civil association, however, simply denies that the legal order should be at the service of any superimposed goals.

In other words, my point is that the shared values that Reus-Smit identifies as constituting various historic international societies are not substantive purposes, but may be seen as procedural constraints. In this regard, it is enlightening that, as an example of his understanding of moral purpose, Reus-Smit quotes Aristotle’s famous sentence from the Politics (1.I, 57):

Observation tells us that every state is an association and that every association is formed with a view to some good purpose. I say good because in all their actions all men do in fact aim at what they think good. (Aristotle in Reus-Smit, 1999: 170)

According to Reus-Smit’s interpretation, Aristotle’s ‘good purpose’ should be interpreted as a goal that can be reached through the actions of the community of states. It is this shared notion of the good that is the foundation of international society in its various historical forms. It is significant to note that Oakeshott is inspired precisely by Aristotle’s Book I of the Politics in conceiving his model of civil association (1975: 110). However, Oakeshott’s interpretation stresses that for Aristotle the ‘good life’ is not a substantial state of things to be achieved, but instead a formal condition. To behave according to this ideal is not to do certain specific actions, but to act ‘while subscribing adequately to considerations of moral propriety or worth’ (Oakeshott, 1975: 118–119).

Thus, in my view, Oakeshott’s notion of civil association offers a new perspective on Bull’s key idea that international society is grounded on common values and interests. It is a perspective that elaborates on Nardin’s interpretation, and sheds further light on the nature of the moral values and purposes that ground international society. In contrast to Reus-Smit’s constructivism, the Oakeshottian position clarifies that these common values should not be conceived exclusively as the result of a common will, and do not necessarily impose particular actions on individual agents. Rather, they are a common concern, manifested in the subscription to the adverbial constraints to conduct prescribed by the law, and not in the pursuit of some common enterprise (Oakeshott, 1975: 147). As such, and insofar as it reflects the evolution of the relationship between individual agents, it is a ‘relationship of civility’ (Oakeshott, 1975: 108). The notion of civil association offered solution to the possibility of a legal order ‘in conditions of cultural and social diversity without imposing coercive constraints on individual freedom’ (O’Sullivan, 2012: 293). When considered at an international level, civil association shows the possibility of coexistence based on a legal system, even without an overarching conception of the good to be pursued.

The rule of law, customary international law and historical reason

So far, my claim has been that from an Oakeshottian point of view, international society may be seen as a relationship of civility based on the acknowledgment of a common set of values. I want in this section to explore whether this understanding sheds light on the nature of the international legal order.

With regard to the nature of authority, I have previously underlined some similarities as well as some differences between Hobbes and Oakeshott. In particular, I have claimed that even though in civil association authority, as for Hobbes, equates with authenticity, it does not arise from an act of will (a covenant), but rather from the evolving practice subscribed to by various agents. A similar difference may be seen at international level.

On the one hand, it is true that Oakeshott considered law as resulting from a legislative office. As a legal positivist, Oakeshott seems to deny the existence of any international law. This is also true when custom is considered as law, because for Oakeshott customary law is an indirect mode of legislation. When custom is considered as law, as we read in ‘The Rule of Law’, ‘its authenticity derives from a presumption that it cannot resist appropriation, rejection or emendation in a legislative enactment’ (Oakeshott, 1999: 151). A Hobbesian position would follow from a Hobbesian conception of authority, in which International Relations are anarchical. ⁷

On the other hand, however, Oakeshott (1999) distinguishes considerations about the authority of the law – which, as we have seen, are identified with those about its authenticity – from others concerning its enforcement (1999: 157). The sole terms of the relationship between individual agents is ‘the recognition of the authority or authenticity of the laws’ (Oakeshott, 1999: 149). In short, Oakeshott’s position suggests a way in which the theme of obligation and authority is distinct from that of the enforcement of law and from the constitution of the legislative office. Asking what is the relationship between different individual agents, and whether this relationship is based on the pursuit of a shared goal or, on the contrary, on the recognition of non-instrumental moral rules, is a very different question from that about the instruments of power.

Again, the difference between Oakeshott and Hobbes’ voluntarism may be understood in the light of the triadic conception of political philosophy that has been applied to the theory of International Relations by David Boucher. In his Political Theories of International Relations (Boucher, 1998), Empirical Realism is analogous to Oakeshott’s Will and Artifice and encompasses those thinkers such as Thucydides, Machiavelli and Hobbes who separate International Relations from morality, or equate political conduct with expediency.

In opposition to Realism and equivalent to Oakeshott’s Reason and Nature is the Universal Moral Order tradition. Even though it shares with Realism the idea that humanity is deprived and corrupted, it is more optimistic about the possibility of human self-improvement. The various exponents of this tradition – such as the Stoics, Aquinas, Vitoria, Gentili, Grotius, Pufendorf, Locke and Vattel – postulate the existence of a higher moral law, discovered by right reason, or inferred a priori from indubitable data, or even a posteriori from observing the common practices of nations.

These two opposite traditions are superseded by a third, ‘Historical Reason’, in which criteria of conduct emerge from historically evolving moral practices, resulting from intelligent responses to changing circumstances. What characterises the thinkers of this tradition (such as Burke or Hegel) is that the conduct of states is not capricious but regulated by principles. However, these are not objective truths – either intuitively known or constructed by right reason – but criteria justified as responses to changing historical circumstances (Boucher, 1998: 311).

Edmund Burke, for instance, considered Europe as a society of states, a Commonwealth, an expression of civilised manners and common sympathy organised by regulatory principles. Formal treaties and national interests are not the defining element of European society. Its nations are instead united by bonds such as common law, religion, customs, habits and the manners of a gentleman. These are regulative devices that maintain the integrity of the European Commonwealth. As is well known, for Burke, the most important of them is the customary law of the balance of power (with the related ‘principle of interference’ and ‘right of vicinage’), which represents the common law of Europe (Boucher, 1991: 140–148).

Similarly to this, from an Oakeshottian point of view, international law may be considered as a codification of evolving customs and practices. As already stated, for Oakeshott, a practice is a set of considerations and rules that represents the conditional context subscribed to by agents (1975: 54–55). It ‘prescribes conditions but does not determine substantive choices and performances of agents’ (Oakeshott, 1975: 55). It is a relationship postulated in conduct. Non-instrumental rules (the laws that constitute civil association) are a moral practice regarded as obligatory. From this point of view, whenever two or more states enter into relations with one another, the slow emergence of a custom or practice, which makes this interaction intelligible, is unavoidable: it is in virtue of their reciprocal understanding as participants in those practices that they have the possibility of engaging in mutual relations. The continuity of purposive transactions between agents creates new practices in which these specific actions may be understood, and which are not themselves purposive.

Indeed, customs and existing practices are traditionally considered among the sources of international law. This is exemplified in Article 38(1) (b) of the Statute of the International Court of Justice (ICJ), which identifies well-established criteria according to which international custom may be recognised as law. These are consistent practice (usus) and acceptance of the practice as obligatory (opinio juris). Usus distinguishes custom from ‘merely ideal standards’, while opinio juris separates legal custom from mere regularities or routines. In fact, as argued by Gerald J. Postema (2012), the identification of a customary law is a matter of judgment shared among the participants. Both usus and opinio juris are normative elements (see also Henckaerts, 2005: 182). From this point of view, regularity of behaviour is – Postema argues – not a simple material fact; it is more than an example of empirical evidence. It is instead the result of the persistent subscriptions to the conditions prescribed by the practice. It is the result of a normative engagement. This is further exemplified by the fact that customary norms are transmitted not by repetition or imitation, but ‘in virtue of their integration into the discursive network’ (Postema, 2012: 730), because they are part of the system of conditions that are taken into account while acting. In this regard, it is also worth noting that the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Court (ICC) has been elevated into a norm of customary law (Baker, 2010).

Moreover, on the basis of two important decisions made by the ICJ (Barcelona Traction and North Sea Continental Shelf), treaties have been considered as a source of customary norms. In the North Sea Continental Shelf case, for example, the ‘widespread and representative’ adoption of the rule over ‘a short period of time’ by states which did not sign the conventional relevant treaty was considered as valid grounds for the establishment of customary norms. For example, treaties on the prohibition of torture, genocide or slavery, albeit not signed by all states, may be considered as customary norms, binding all international actors (Baker, 2010: 176–184; Meron, 1989).

With regard to customary international law and its role in defining states’ obligations, Oakeshott’s legal philosophy illustrates that the source of its authority (as of any other law) is in its recognition by its subscribers, regardless of any other considerations. As already argued, this circularity reveals the autonomy of the legal order, denies the existence of any foundation external to the authority of the law and shows its non-instrumental character. This is clearly exemplified by the following passage from On Human Conduct:

And should it be asked how a manifold of rules, many of unknown origin, subject to deliberate innovation, continuously amplified in judicial conclusions about their meanings in contingent situations, not infrequently neglected without penalty, often inconvenient, neither demanding nor capable of evoking the approval of all whom they concern, and never more than a very imperfect reflection of what are currently believed to be ‘just’ conditions of conduct may be acknowledged to be authoritative, the answer is that authority is the only conceivable attribute it could be indisputably acknowledged to have. (Oakeshott, 1975: 154)

Thus, the Oakeshottian perspective identifies, from inside the actual practice subscribed to by the states, the ground of their reciprocal obligations. In other words, international law makes obligatory moral claims that are immanent in international society (Boucher, 2011: 764). The classical question about the origin of law and its relation to custom is solved without appealing either to the will of a ‘Legislator’, nor, as recently restated by James B. Murphy (2014), to ‘basic norms of objective morality or natural law’ (2014: 117). There is no ‘ready and indisputable criterion’ for determining the desirability of a certain change. Customs and customary law are not the product of explicit design, but rather the by-products of intentional performances. The test or criterion that identifies the relevance of a customary norm is that of integration. It is an evidential and circumstantial argumentative discourse that attempts to define the emergence of new authoritative rules, and aims at considering the coherence of the emerging norms with those assumptions and considerations already in place.

As contended by David Boucher, the centrality of customary international law to the definition of international obligations is illustrated by its role in the advancement of humanitarian justice. For example, the actual advancement in the recognition of human rights is not made in virtue of declaration or treaties. Instead, what has been essential – as in the case of the establishment of the International Tribunal for the Former Yugoslavia and the International Criminal Court – is customary international law (Boucher, 2011: 763–768). A further significant example in this regard is the progressive codification of customary International Humanitarian Law (IHL) by the International Committee of the Red Cross (ICRC), which aims to identify norms that bind all states in the conduct of war and protect its victims (Henckaerts, 2005).

Moreover, rules of jus cogens, such as the prohibition of genocide, have emerged as fundamental rules of customary law. These examples show that the cogency of international obligations derives from the recognition and codification of already existing norms of conduct in relations between states. Advancement in the recognition of human rights and humanitarian principles derives from the fulfilment of these intimations, and not from the success of some rationalistic project.

This is also illustrated by the progressive codification of customary practices – a process that occurred after the establishment (in 1947) of the International Law Commission. Since then, customs and practice have increasingly taken written and codified forms. Similarly, as shown by Peter Sutch, the Martens clause has consistently been used in international treaties and in the work of jurists in various international tribunals, such as the Nuremberg Tribunals, the ICJ and the ICTY, and has been accepted as a norm of customary international law (2011: 109, 2012; see also Chetail, 2003: 257). Its purpose is to remind all belligerents that there are established customs that have an obligatory character (Sutch, 2011: 107–115).

Notwithstanding these analogies, it is possible to raise objections to this identification of customary international law with an Oakeshottian rule of law. In particular, customary international law does not just provide the conditional context for interactions between states, but also the protection of convergent interests. It often appears that new customary law is established as a response to emerging economic interests (for instance in the law of the sea, or in the norms of the continental shelf), where divergent interests and distribution of resources may not be efficiently regulated by treaties (Cassese, 2005: 166). Moreover, they require specific actions by all international actors, and cannot be considered as independent from the substantive conditions of things to be attained. However, as in the case where certain fundamental humanitarian rights are considered as part of customary law, this social recognition is justified ‘on the ground that they contribute to the common good of global society’ (Boucher, 2009: 325, 328, 2011: 761). In this regard, Oakeshott’s theory of civil association highlights that this common good is not a substantive state of affairs to be reached, but a conditional constraint on the conduct of states. Like Oakeshott’s civil law, customary international law may be seen as a ‘moral practice’, which is a ‘durable relationship between agents’, composed of a set of conditions recognised as authoritative by agents in their interactions (1975: 55).

In this regard, it is important to stress, once again, that the contribution of Oakeshott’s political philosophy to our understanding of the evolving norms of international society should not be seen in the definition of their nature as exclusively ‘civil’. Instead, just as in the case of the interpretation of the history of the modern European state, what this perspective stresses is its ambivalence and indeed the coexistence between a teleological understanding and a moral, civil understanding of the evolving norms of international society.

Conclusion

This article has shown that Oakeshott’s theory of civil association has broad implications for a constructivist understanding of International Relations.

First, it appears that for both Oakeshott’s political philosophy and constructivism in International Relations, political institutions are based on understood norms and relationships. In the constructivist paradigm, the emphasis is on the role of normative structures and relationships and on the understanding of the agents involved. Similarly, in Oakeshott, the dichotomy between civil association and enterprise association is one between two incommensurable and different manners (teleocratic and nomocratic) of understanding and interpreting the nature of authority, political obligation, norms and social relationships. This difference is not a natural given or an invariable fact, but the result of human understanding and interpretation.

Second, in Oakeshott’s works, there is a systematic theory of the historical evolution of international society. In contrast with how it may first appear, the distinction between civil association and enterprise association has important implications at international level. Oakeshott identifies war – along with colonialism – as one of the elements that contributed to the success of the teleocratic understanding of the state. Moreover, international society as a whole has been increasingly understood as a universitas, that is to say, according to a solidarist conception of relations between states. This is shown by the transformation of war from a regulatory device to an instrument for the creation of a new world order, and by the establishment of purposive international organisations (such as the UN and the European Union (EU)).

Third, the theory of civil association can be seen – and it has been conceived by Nardin in this manner – as a further contribution to the notion of international society as based on shared moral values elaborated by the English School of International Relations and further developed by constructivism. At international level, civil association theorises a rule-based form of relationship between formally equal agents (the states), united by common recognition of procedural moral constraints to their actions. As in the constructivist paradigm, these foundations are shared beliefs and values understood by the agents involved, and they constitute the normative grounds of international political institutions. In contrast to Reus-Smit’s criticism of Nardin’s notion of ‘practical’ association, I have claimed that the Oakeshottian perspective does not deny the role of moral values in historical international society. Instead, the notion of international civil association highlights that these moral beliefs and values should not be interpreted exclusively as common purposes aiming at the construction of substantive states of affairs. Instead, the moral purpose of international society – which is shared by all its members – may well be composed of procedural or conditional constraints, of shared moral concerns to be subscribed to by agents.

Finally, I have argued that these shared moral concerns may have a legal force when they are codified in customary international law. Therefore, Oakeshott may be associated with those thinkers (such as Burke) who see the conduct of states as regulated by historically emerging criteria. Even though actual legal and political institutions have through the lens of Oakeshott’s theory a necessarily ambivalent character, I have illustrated that, insofar as customs may emerge without design and may be regarded as a by-product of actual relations between states, customary international law may partly be considered as a system of moral (non-instrumental) rules. According to Oakeshott, its authority is not grounded in expected outcomes or on the ‘dictates’ of right Reason, but instead on its recognition by international actors. In summary, the Oakeshottian perspective underlines the declaratory and evolving nature of international society and shows how moral principles which result from interaction between states may acquire legal force, binding the conduct of international agents and providing criteria for judging their actions.