Law, Secularism, and the Evolution of the ‘Human’ in International Legal Discourse and Global Governance

Abstract

Historical records establish that before 1700 the concept of ‘religion’ as separate from that of ‘society’ or ‘politics’ was non-existent. As such, a ‘religious’ foundation for political transformation or military intervention was inseparable from its social basis; the temporal intermingled with the divine. Separation of the church and state is a relatively modern invention, scholars argue, and the wars preceding it were fought with religious sentiments present and largely intact. In a world so designed, religion regulated war, designated who and what constituted a causus belli or a ‘just cause’ for waging war, and stipulated terms and conditions of engagement and ultimately of peace itself. When the Spanish and the Portuguese embarked on the conquistadorian missions in the New World, Pope Alexander VI, himself, saw to it that the plunder and extermination of the natives that followed be veiled in the ‘just war’ rhetoric. In the 14th century, however, with the balance of power shifting from Popes to Kings and, in the 17th century, with the inauguration of the concept of the state arranged according to a legal and constitutional order, the notion of the secular took a firm root in the European political consciousness issuing subsequently in a revolutionary turn away from naturalism toward positivism and social constructivism. The following paper traces the development of the concept of secularization and evolution of the juridico-political discourse and of the ‘human’ subject in international law along with its social ramifications, while also paying attention to the lessened influence—if not an altogether commanding decline—of the religious or divinely inspired laws, which emphasized harmony and peaceful cohabitation of all beings. In so doing, I shall seek to hint at a gradual humanization of international law and accompanying judicialization of politics, whereby customarily absolute sovereign prerogatives and incontrovertible ‘acts of state’ have become subjects of increased scrutiny, legal qualification, and accountability. Furthermore, I shall trace the historical evolution of the cosmopolitan sensibility and the conception of human subjectivity to which it gave rise under international law and, in so doing, delineate the evolving human-centered, as opposed to the traditionally state-centered, understanding of international law, international adjudication, and their cumulative impact on state behavior and global governance.