1 Introduction

Modern jurisprudence has typically been presented as a debate between legal positivism and natural law,Footnote 1 with the legal order fluctuating between the pursuit of the good by the establishment of organised bodies of clear and precise rules, or principles of justice which define the extent of individual rights.Footnote 2 Legal theory, however, is in a process of transformation.Footnote 3 There has been a pronounced and noteworthy revival of natural law thought.Footnote 4 Furthermore, though the demise of legal positivism—the dominant theory of law today—has been touted despite its pre-eminence in past decades, it is clear that there remains a vigorous debate surrounding this theory in the literature, particularly through its juxtaposition with natural law.Footnote 5 Despite this, there remain a number of aspects of these theories which have remained outside of legal debates. This particularly concerns the central problem at the heart of the debate between legal positivism and natural law: the relationship of law and morality and the role which justice plays in relation to it.Footnote 6

It is noteworthy that Hans J. Morgenthau’s legal thought has remained unexplored in the context of this debate, particularly due to his prominent critiques of positivism.Footnote 7 When read carefully and in context, Morgenthau’s works emerge as a sophisticated interrogation of the relationship between power and politics.Footnote 8 The often-assumed close identity between realism as a set of scientific truths and those who happened to wield power is ‘is at best too simple, and at worst seriously misleading’.Footnote 9 Morgenthau saw himself as contributing to the preservation of the social fabric of democracy from the threats posed to it by the untrammelled exercise of power.Footnote 10 He committed himself neither to the view that politics is a predictable matter nor to the position that science must abstain from morality, worrying that the Hobbesian state of nature closed our eyes to the ways in which ethics and law regulated state action.Footnote 11

The utility of Morgenthau’s legal thought in relation to the ongoing debate between legal positivism and natural law is clear. Before reaching notoriety as an American international relations scholar, Morgenthau was a European jurist concerned with the theoretical problems which international law presented.Footnote 12 He wrote his works within the discipline of international law, only rarely referring to contributions from other disciplines.Footnote 13 His works have, as the growing body of literature on classical realism have brought to light, a deeply nuanced understanding of the relationship between ethics and politics.Footnote 14 There are further depths to his thought than those that have been conventionally accepted, particularly in relation to morality and law.Footnote 15 Morgenthau’s analysis of international law and of legal positivism addresses directly the question of whether moral considerations are relevant to determining the content of the law in force.Footnote 16 Through this, his works answer and grapple with questions which lie at the heart of the natural law and legal positivist debate, confronting them directly. This confrontation provides the foundations for his political realism. His interpretation of international law—deeply inspired by this confrontation—transcends the notion that politics, ethics, and law are separate domains of international society. In critiquing positivism, he addresses the dangers instrumental reason can bring to international law by making the rule of law be regarded as a panacea.Footnote 17

Building on existing literature, this paper will unearth and bring Morgenthau’s legal thought and critique of legal positivism to light.Footnote 18 It will do so by re-examining his works, which highlight the artificiality of the division between law and morality and offer a nuanced analysis of problems inherent in international law.Footnote 19 In examining Morgenthau’s legal thought and critique of legal positivism, this paper will challenge the claim that the law can be determined without resort to moral judgement and show how Morgenthau’s insights remain relevant to legal positivism and natural law debates today.Footnote 20 The argument will develop in five stages. First, the paper will establish Morgenthau’s theory of law—that is, of norms. Second, the paper will examine Morgenthau’s analysis and critique of legal positivism and positivism at large. Third, this paper will engage with Morgenthau’s analysis of the nature of international law. Fourth, it will explore the relationship between politics, justice, and ethics, after which it will examine Morgenthau’s concept of the political. Finally, this paper will bring these previously separate aspects of Morgenthau’s thought together, showing the profound effect his legal thought had in his political realism. In doing this, this paper will show that the solutions he offers retain their relevance both in contemporary international society and in current legal positivist and natural law debates. It questions the notion that Morgenthau’s theory was void of ethics and explores both the different elements of his critique of legal positivism and their relation to his proffered answers for how to enhance and ensure the effectiveness of international law.

2 Morgenthau’s Theory of Law

Morgenthau opens La Realité des Normes with a discussion on the nature of norms and laws. This work—based upon his Habilitation manuscript—constitutes a painstaking attempt to save Kelsen from the allegedly hollow conceptualisations of neo-Kantianism.Footnote 21 ‘A norm’ he writes is a ‘prescription of the will: it designates, from various possible actions, the one that must be chosen’.Footnote 22 Norms are comprised by two main elements: the expression of the will that makes something happen, that is to say, the normative disposition; and the abstract faculty of determining this will, that is to say, the validity of the will which realises it.Footnote 23 The validity of a norm is one of the preconditions of its effectiveness: Whilst a law’s effectiveness cannot be conceived without validity, validity can exist outside of all effectiveness.Footnote 24 If a norm possesses the power to determine the will of others, it is then subjectively effective. As soon as it possesses this power, both in principle and abstractly, it is valid regardless of anything being able to be concluded on its practical effectiveness. Validity, then, represents the normative existence of a norm, whilst its objective effectiveness is merely the positive result of its normative function.Footnote 25

These ideas of validity and effectiveness fundamentally underpin Morgenthau’s legal thought. His thesis, as Koskenniemi notes, revolved around ‘the apparent paradox that though there were no objective reasons for why the legal process could not be used for the resolution of any kinds of international conflicts, in practice only a very small number were submitted to it’.Footnote 26 If a norm is man’s attempt to adapt the domain of being to that of values and to form reality from the representations in his mind, it must have the faculty of determining his will.Footnote 27 The validity of the normative disposition of a norm, however, is independent of the will of the individual who forged it.Footnote 28 Legal norms, then, are valid not because of possessing certain elements, but because they conform in their contents to a valid norm of morals or customs.Footnote 29 If the norm does not have material validity or if its material validity is not conjoined with its normative validity, we cannot, Morgenthau argues, justifiably speak of it being a legal norm at all.Footnote 30

The first reaction that can occur in the mind of an individual enacting a norm will be directed against himself.Footnote 31 If the individual himself ‘disturbs this order by a contrary attitude’, he necessarily becomes ‘the first object of the sanction intended to ensure the realisation of the norm’.Footnote 32 In other words, he is, at the same time, the subject and author of the norm.Footnote 33 When a norm is addressed to the individual from outside, he cannot just refuse to carry it out, but can still ‘purely and simply dispute the legitimacy of the appeal that the norm addresses to its will’.Footnote 34 He can also further deny the obligatory character of the norm by saying that as ‘this prescription is not a norm of law (or respectively of customs) valid for me, I do not have to comply with it’.Footnote 35 For Morgenthau, this shows that the call which the standard of morality addresses to its will emanates from itself. An individual cannot avoid it by saying that a prescription does not matter as it was not made for them, as the standard of morality ‘is inherent in the very existence of conscious will’.Footnote 36

Conscience is, then, for Morgenthau, a specific sanction within the domain of morality. To say that a moral norm is valid is to hold that ‘a given normative disposition obtains, by means of moral conscience … the abstract faculty of determining the will of these individuals and by that of realising the effective order which it prescribes’.Footnote 37 The judgement of value which one would make by virtue of a moral norm on the behaviour of others is not a true judgement of morality.Footnote 38 However, if it is followed by an empirically ascertainable reaction against others, the normative disposition which served as a basis for the evaluation and which originally belonged exclusively to the domain of morality becomes ‘at the same time a heteronomous norm, either of law or of customs’.Footnote 39

There are important links between Morgenthau’s and Kelsen’s legal theories in this respect, particularly in relation to the idea of validity.Footnote 40 Morgenthau’s stress on validity as the distinguishing property of legal norms was clearly adopted from Kelsen.Footnote 41 This equation of the reality of norms with validity is both ‘the key to Morgenthau’s approach, and also completely in line with the work of Kelsen’.Footnote 42 Morgenthau’s equation of the reality of norms with validity, together with his interactions with Kelsen and Lauterpacht, forms ‘the basis for what would later become his realist theory of international politics’.Footnote 43 Morgenthau’s characterisation of what comprises legal norms, to which the following section will turn, underpins his analysis and critique of legal positivism and provides the foundations for his examination of the role ethics and politics play in international law.Footnote 44

3 Morgenthau’s Critique of Positivism

3.1 Legal Positivism and Natural Law

The phenomena that we call norms give rise to these four fundamental problems: (a) the logical structure of the norms, (b) the reality of norms, (c) the contents of the norms, and (d) the realisation of the norms.Footnote 45 Of these problems, Morgenthau writes, the Vienna School recognises only the first as truly scientific and normative in nature, whilst traditional legal doctrine deals mainly with the third (the positivist problem) in the proper sense.Footnote 46 The last three require a conception of norms tied in some measure to reality, with that which creates the contents of the norms, with that which is formed by the contents of the norms, or which generates them as such.Footnote 47

It is in confronting these four fundamental problems that Morgenthau touches on a series of other questions that appear as ‘external ramifications of our fundamental problem and which we can therefore hardly neglect’.Footnote 48 The four fundamental problems outlined above affect the study of the law through how ‘normative problems arise above all in the sphere and from the point of view of law’, showing us ‘because of its fragile reality, the systematic and constructive reach of our fundamental problem’.Footnote 49 It is here that the difference between legal positivism and natural law comes into play. Natural law ‘according to Grotius … would be valid even if there was no God to sanction its validity’.Footnote 50 Natural laws are therefore, as such, necessarily effective: ‘This form of validity has no beginning or end, it is immutable, inherent in the very nature of the world; it has an absolute character’.Footnote 51 Natural laws have no independent normative force; at most they will have a psychologically motivating force, as by neglecting a certain natural law, an individual may trigger the disadvantageous consequences of another.Footnote 52

Norms of law, morals, or customs, by contrast, are inseparably linked to human communities.Footnote 53 They are real things which lend themselves to exact descriptions and empirical verification rather than to metaphysical creations.Footnote 54 The science of law, therefore, deals with the norms of law that are in force rather than with imaginary ones that are only represented as valid. It deals with those that exist rather than those that ought to be positive laws.Footnote 55 Thus, legal positivism is a conception of the law which recognises legal norms as valid when they are laid down by valid legislative bodies.Footnote 56 It is empirical in nature and concerns the content of the rules in question, whereas natural law is of an ‘ideological nature and may concern the material as well as the formal element of these rules’.Footnote 57 This positivism brings forth several errors which, Morgenthau argues, affect the interpretation and application of laws:

  1. 1.

    Legal positivism, like all kinds of positivism, combats metaphysics which aspire to enter the domain of science.

  2. 2.

    Traditional juridical positivism not only refuses to admit the existence of specific types of law, but also refuses to take into consideration a branch of law whose existence is obvious: juridical norms foreign to the state.

  3. 3.

    Legal positivism separates the law as an object of science from other neighbouring fields such as morality and politics.Footnote 58

In committing the first error, legal positivism becomes the principal enemy of natural law. It excludes the empirical possibilities which reality could logically contain, discounting, denying, and not taking into consideration the existence of norms foreign to the state.Footnote 59 Morgenthau accuses positivists of ‘mapping out a distorted picture of legal reality, in which law was artificially separated, on the one hand, from ethics and mores, and, on the other hand, from the factual realities of social power’.Footnote 60 By separating the law as an object of study from neighbouring fields, such as politics and morality, legal positivism modifies this principle of general positivism and moves it away from reality. The law—which for Morgenthau always participates in the destiny of ethics, faithfully following all its movements—carries the features of morality even when seemingly separated from it.Footnote 61 They are inherently and unequivocally linked, a fact which is misrepresented by legal positivism. In doing this, legal positivism forgets the ‘purely hypothetical character of the separation of the legal sphere from the other normative domains’.Footnote 62

In considering the law as an isolated phenomenon, legal positivism neglects a part of reality that would have otherwise concerned it.Footnote 63 It excludes elements—such as sociological, ethical, and other factors—that constantly penetrate into the legal rules.Footnote 64 It is because of this isolation that the normative proposals it formulates are unable to adequately characterise the legal phenomenon.Footnote 65 Traditional legal positivism is particularly affected by this problem, with Kelsen’s positivism—held by García Sáez to be a transition between traditional legal positivism and legal realism in Morgenthau’s thought—in turn suffering from its neo-Kantian base and its statist monism.Footnote 66

Legal positivism can only have one object: real legal norms, that is, those that are in force. Despite this, it does not possess a ‘scientific criterion which would allow it to distinguish the legal norms that are really valid from those that are only so in appearance’.Footnote 67 Positivism thus only knows two possible criteria that can give validity to legal norms, namely: (a) the declaration of a state, which enacts that a norm of such or such content is in force; and (b) the material concordance of the legal norm with a moral norm—with a natural law.Footnote 68 Legal positivism should know only one formal source of law: the laws set by the state. However, as there are legal norms in force which are not set by the state, this doctrine finds itself in the embarrassing position of ‘having to explain the existence of these standards without, however, breaking its own assumptions’.Footnote 69 Its error lies in its dogmatic reliance on a notion of validity that ‘qualified as law those rules that were not actually applied, and failed to include all those that were’.Footnote 70

This leads, for Morgenthau, to the use of a concept which has become a panacea for the theoretical pains of traditional positivism: customary law, which is used to designate the totality of norms not laid down by the state.Footnote 71 This concept does not, however, reconcile legal positivism’s assumption of ‘the exclusive existence of legal norms set by the State’ with the ‘existence of norms foreign to the State’.Footnote 72 Legal positivism is therefore unfaithful to both its principles and methods; it is unable to know legal orders in an objective, theoretical, and systematic way.Footnote 73 A fact that proves, for Morgenthau, that the validity of a legal norm ‘does not necessarily have to be based on another legal standard’ and that the last norm of a system of legal norms cannot be normatively determined.Footnote 74

3.2 Scientism, Positivism, and Rationalism

Morgenthau’s analysis of natural law and legal positivism is fundamentally linked to his overarching critique of scientism and rationalism in theory at large. His analysis stands apart from the ‘post-Enlightenment notion that the purpose of social inquiry is to expose the empirical regularities which govern the natural and social world’.Footnote 75 The philosophy of rationalism, through its inability to see that man’s nature has three dimensions—biological, rational, and spiritual—misunderstands ‘the nature of man, the nature of the social world, and the nature of reason itself’.Footnote 76 In neglecting man’s biological and spiritual impulses, it therefore ‘misconstrues the function reason fulfils within the whole of human existence’, distorting the problem of ethics as well as the nature of politics and of political action altogether.Footnote 77 This fundamental error is caused through the assumption that the problems of social life are in essence similar to that of those of physical nature.Footnote 78 It ignores the fact that the ultimate decisions that confront the scientific mind are ‘not intellectual but moral in nature’.Footnote 79 Thus, rationalism is unable to understand that, as modes of human behaviour, theoretical thinking and action are ‘irremediably separated by way of their logical structure’, with this same chasm existing between politics and a theoretical science of politics.Footnote 80

Objectivity is ‘not a naïve naturalism in the sense of scientific laws or rationalist calculation; it is a necessary engagement with a world that eludes one’s will’.Footnote 81 By covering political reality with an ideological veil, theoretical thought ‘cuts itself off from access to that reality and thereby loses its creative impulse’.Footnote 82 This critique is fundamentally built on Morgenthau’s analysis of legal and natural law. ‘As rationalism sees it’, writes Morgenthau, ‘the world is governed by laws which are accessible to human reason’.Footnote 83 Four conclusions are derived from this fundamental idea: (1) that the ‘rationally right and the ethically good are identical’, (2) that the ‘rationally right action is of necessity the successful one’, (3) that education leads man ‘to the rationally right, hence, good and successful, action’, (4) and that the laws of reason, as applied to the social sphere, ‘are universal in their application’.Footnote 84 Positive law is inherently linked to the philosophic assumptions of rationalism—it assumes that a system of legal rules can be as precise, coherent, and calculable as the laws of physics.Footnote 85

Morgenthau’s analysis reflects not ‘a simple rejection of reason, or its total subordination to more fundamental power dynamics’ but an ‘assertion about the political limits and dangers of instrumental reason in an age of rationalisation’.Footnote 86 The belief in the redeeming power of the law, which reforms the conditions of man through its mere existence, is naught but ‘the classical belief in the autonomous powers of reason’.Footnote 87 It demands that politics be reformed and rationalised.Footnote 88 This ‘dominating thought of political thought’, writes Morgenthau, has brought forth the idea that ‘reason would reign supreme through the medium of the political scientist, the economist, the sociologist, the psychologist, etc.’.Footnote 89 It attempts to exorcise ‘social evils by the indefatigable repetition of magic formulas’, keeping to its assumptions despite suffering ‘constant defeat from experience’.Footnote 90

The focus on ‘certainty, rationality, and objectivity as natural, as the unproblematic theoretical basis for practice’, is, for Morgenthau, nothing short of ‘politically disastrous’.Footnote 91 The age is ‘forever searching for the philosophers’ stone, the magic formula which, mechanically applied, will produce the desired result and thus substitute for the uncertainties and risks of political action the certitude of rational calculation’.Footnote 92 This fundamentally affects the foundations of international law, with the abolition of war, and therefore of power, representing the fundamental problem confronting international thought.Footnote 93 It mistakes the nature of international society and propounds the wrong remedies, further confusing the domestic experience with the international experience.Footnote 94 Morgenthau was, in this sense, ‘a Kelsenian formalist worried about the dangers posed by adherence to the dominant doctrine of legal positivism’, which ‘occluded a large part of reality’ and ‘incorporated into its analysis empirically unverifiable elements’.Footnote 95 The rule of law had ‘come to be regarded as a kind of miraculous panacea which, wherever applied, would heal, by virtue of its intrinsic reasonableness and justice, the ills of the body politic’.Footnote 96 The problem of peace, ‘in contradistinction to the problem of an air-cooled engine, is not closer to solution today than it was when it first presented itself to the human mind’.Footnote 97 Having established Morgenthau’s critique of legal positivism, we will now turn to his to his analysis of international law, which is fundamentally affected by it.

4 The Nature of International Law

Morgenthau’s analysis of international law is grounded in both his theory of law and his critique of legal positivism and positivism at large. García Sáez and Jütersonke have explored this idea through their different analyses of Morgenthau’s early works. ‘A number of notions central to Morgenthau’s realism’, writes Jütersonke, ‘were the result of a series of reflections on the way the justiciability of disputes was discussed in international legal scholarship’.Footnote 98 García Sáez has emphasised the substitution of Morgenthau’s fledgling legal realism by his eventual political theory.Footnote 99 For Morgenthau, there is no area of law more needed of a profound sociological analysis than international law.Footnote 100 It is his critique of legal positivism that formulates his analysis of international law.Footnote 101

The reach and nature of domestic and international law are, for Morgenthau, markedly different. Within the internal domain of the state, a legal order must be able to give an answer to the four following questions:

Who has the legal power over a given object, say over a desk? How can the legal power over this desk change hands? How will a dispute on the legal power over this desk be settled? Finally, in what way will the person who holds legal power over this desk be protected in the exercise of it?Footnote 102

A legal order which does not provide an answer to the first of these questions is, Morgenthau argues, unable to have a material basis to solve the other three questions. A failure to give an answer to the second question leads to a fatal conflict ‘with the living forces which call for modifications in the domains of powers’.Footnote 103 If the legal does not give an answer to the third question, its constitutive elements remain ‘in the state of theoretical principles without ever being able to be realised in practice’, so that ‘it will no longer be possible to ensure its sanction’.Footnote 104 Finally, if a legal order fails to answer the fourth question, ‘its material decisions, and itself with them, would risk remaining ineffective’.Footnote 105

It is only by answering all four questions that a legal system, Morgenthau writes, can do what falls under the responsibility of any legal order: ‘justice and peace’.Footnote 106 A domestic legal order can fulfil this completely.Footnote 107 International law, however, is unable to do so. It only gives a more or less satisfactory answer to the first question. Its answers to the second and fourth questions are ‘absolutely insufficient’, and its answer to the third question, whilst ‘satisfactory in theory, remains largely devoid of practical efficacy’.Footnote 108 The legal order of the state has, from the point of view of international law, a position that is markedly different from that of any non-state legal order, making it incomparable to that of any other normative order.Footnote 109 Amstrup has remarked on this aspect of Morgenthau’s thought:

Morgenthau points to a very important problem. An international convention cannot be literally interpreted, but must be seen in relation to the political circumstances, not just at the time of its conclusion, but also and in particular at the moment of interpretation. International conventions cannot be interpreted in the same way as national laws.Footnote 110

The state of affairs on which international law makes legal consequences depend—that is, the highest degree of effectiveness of legal norms and sanctions empirically observable on a certain territory—represents the distinctive element which separates legal orders of a state nature from those of a non-state nature.Footnote 111 A legal order, upon reaching such a degree of efficiency within a particular territory, acquires automatically, according to the norms of international law, a ‘State character without the need for other legal events’.Footnote 112 The legal concepts contained within the norms of international law thus correspond ‘to a higher degree than the notions established by any other legal order’ to the requirements of theory.Footnote 113 International legal norms are, therefore, developed according to the objective requirements of the international social reality. That is to say, they impose their power on states which, in order to ‘regulate their respective relations in a normative manner’, have no other choice but to form ‘the norms of international law according to these requirements or to renounce any normative regulation of their relations’.Footnote 114

Morgenthau’s legal realism assumes that just like every legal order, international law is ‘an autonomous system of norms culminating in a basic norm that was of necessity in the realm of morals or mores’.Footnote 115 Decentralised systems of legal enforcement, however, suffer from ‘relatively substantial doses of irregularity and inconsistency’.Footnote 116 International law cannot generate through its own forces ‘a state legal order, as it cannot otherwise prevent the spontaneous generation of the legal order of a state’.Footnote 117 It neither says that it is ‘necessary to engender, on such and such territory, the legal order of a State’ nor that it is ‘necessary to destroy the legal order that a State engenders on such an such territory’.Footnote 118 The legal orders of states can therefore only be said to be subordinate to the norms of international law in two different ways: On the one hand, international law establishes ‘the conditions under which a new state legal order can be engendered’, and, on the other, it delimits ‘the domains of validity of norms-sanctions as well as the material norms of the different state orders by protecting them against any encroachment’.Footnote 119 These two functions are typical in any legal order: the creation of subjects of law and the delimitation of their spheres of competence.Footnote 120 If aiming to apply these conclusions to international law, however, we must first establish that its norms are legal norms valid as such and that their object is to regulate relations between men or groups of men.Footnote 121

The concept of the normative structure and validity of laws—grounded in his theory of law—is the key to both Morgenthau’s analysis of international law and his later realist theory.Footnote 122 If international law exists as law, it must, for Morgenthau, ‘logically take precedence over the internal legal orders of States’.Footnote 123 If what we call a state is the domain of validity of norms and sanctions that reach the highest degree of effectiveness empirically observable in a determined territory, then, to say that international law is a law governing states is then to hold that it: ‘normatively determines the relations between groups of men subject to the personal domain of validity of various legal orders’.Footnote 124 Thus, if we consider the norms of international law from the point of view of their normative structure, the problem that we have to solve—that is, the reality of the norms of international law—can be reduced to the following two questions. First, who are ‘the bearers of this reality’ and, second, ‘what is the particular nature of the element of validity of norms of international law’.Footnote 125 The first of these two questions raises the following two additional problems: What is the ‘nature of the element of validity of the normative provision on which the validity of the entire legal order depends’ and what is the ‘nature of the element of validity of norms of international law’.Footnote 126

If in seeking to answer the first of these two questions, Morgenthau writes, we ask what the contents of the fundamental norm of international law is, many authors will answer that it is the normative provision of pacta sunt servanda.Footnote 127 This standard, however, cannot serve as the fundamental norm of international law, as it ‘requires that all the norms of a legal system … can derive their validity from this norm’.Footnote 128 If pacta sunt servanda were to be the fundamental norm of international law, it should be formulated in the following way: ‘The head of the international community must be the guarantor of international conventions, the bearer of their validity’.Footnote 129 However, as the international legal order also includes non-conventional norms, this fundamental norm is, instead, as follows:

The head of the international community must be the guarantor of the international legal order, the bearer of its validity. We therefore need to know who is the guarantor of this entire legal order, that is to say the supreme guarantor, and what are the guarantees by which the validity of this fundamental norm is ensured.Footnote 130

The international legal order is, however, decentralised by nature; no single man or group or men are the bearers of its validity.Footnote 131 The validity of international law rests ‘not on the fundamental norm of international law, but on the fundamental norm of state law’.Footnote 132 This represents the dualism of international law. Morgenthau’s analysis of international law transcends the notion that politics and law are separate domains of international relations with their own distinctive rationalities and consequences.Footnote 133 The bearers of the validity of the norms of international law are all the individuals which belong to the states that form the international community. In order for them to become the bearers of legal validity, ‘the nature and the modalities of this validity must be normatively determined’.Footnote 134 It is this that leads Morgenthau to analyse the preeminent role that ethics and politics both play in international law, which will be examined in the next section.

5 Politics, Justice, and Ethics

Politics and ethics are, for Morgenthau, fundamentally linked. The juxtaposition of power politics and moral politics is, he argues, mistaken and leads to the assumption that it is possible to replace the principles of politics with those of morality.Footnote 135 No politician can accept this incompatibility, however, as it is in the appearance of being moral whilst seeking power than peace of mind and elements of power are found.Footnote 136 The ‘curious dialectic of ethics and politics’ thus prevents the latter from escaping the former’s ‘judgment and normative direction’.Footnote 137

This misunderstood aspect of Morgenthau’s has been examined in recent literature, particularly in relation to his misrepresentation as the amoral father of realism. Molloy’s analysis of Morgenthau has clearly shown the prominent role ethics play in his analyses of both international law and international politics.Footnote 138 Lang has similarly noted on this aspect of Morgenthau’s ethical framework, revealing its Aristotelian origins, with Scheuerman similarly noting the profound influence of ethics and morality in his theory.Footnote 139 Morgenthau produced the ‘outline of a political ethics that asked for a shift in policymaking and even a reconsideration of its purpose’.Footnote 140 His political project and theory is ‘profoundly different from the scientistic, determinist, and cynical images that have regularly surfaced the collective memory of IR’.Footnote 141 Through this ethical thought, it is ‘more sophisticated than the crude power politics privileged by standard interpretations of his thought and offers avenues for addressing issues of morality and ethics in contemporary debates’.Footnote 142 Williams has given voice to this aspect of Morgenthau’s thought, arguing that:to see Morgenthau’s realism simply as a crude reduction of politics to pure power is mistaken. In fact, when read carefully and in context, his realist theory emerges as a sophisticated, self-conscious, and highly political interrogation of the relationship between power and politics … his realism is marked by an attempt to recognize the centrality and complexity of power in politics while avoiding the extreme conclusion that politics is nothing but violence.Footnote 143

This complexity is particularly evident in Morgenthau’s analysis of the role that ethics and politics both play in international law. Morgenthau was ‘aware of the ethical dilemmas presented by international relations in an anarchic world’ and, like other realists, was haunted by the ‘element of tragedy in human history’.Footnote 144 His legal thought outlines the preeminent role ethics in both politics and law. Morgenthau worried that the Hobbesian metaphor of an international state of nature was misleading, and that it ‘closed our eyes to the myriad ways in which ethics, mores, and law regulated state action even absent world government’.Footnote 145 By depriving the political act of ethical significance altogether, the modern age reveals ‘its inability to understand and solve the problem of political ethics with its own intellectual means’.Footnote 146 This idea is echoed and expanded upon in Scientific Man vs Power Politics, where Morgenthau argues that harmony is sought ‘not in the reality of actual behaviour but in ethical judgment’.Footnote 147 Indeed:

Neither science nor ethics nor politics can resolve the conflict between politics and ethics into harmony. We have no choice between power and the common good. To act successfully, that is, according to the rules of the political art, is political wisdom. To know with despair that the political act is inevitably evil, and to act nevertheless, is moral courage.Footnote 148

The ideal of justice—a quality of interpersonal and, ultimately, social relations—finds itself affected by this dichotomy.Footnote 149 Justice requires that men ‘give to others, and receive from others, what is their due’.Footnote 150 This, however, gives rise to the question of where it is that we find the standards by which we measure the adequacy of what a man receives and gives.Footnote 151 It is here that power comes to affect justice: We ‘look at the world and judge it from the vantage point of our interests’, taking for granted that the ‘peculiarities of our perspective can serve as universal laws for all mankind’.Footnote 152 International politics are, for Morgenthau, inherently bound to power.Footnote 153 Adherence to a particular conception of justice whilst having enough power to make it prevail necessarily gives rise to two convergent political consequences. Parochial justice will be ‘meted out with unshakable self-confidence’, whilst other conceptions of justice will be judged and dealt with ‘in the light of the one which has been taken to be the reflection of the universal order’.Footnote 154 A great power imbued with the conviction that its particular conception of justice reflects the order of the universe will thus be tempted to make it prevail in the rest of the world.Footnote 155 This makes justice ‘a screen for parochial interests and dependent on power for its realisation’.Footnote 156 Man therefore ‘must see to it that justice is done, and he cannot admit that it cannot be done’.Footnote 157

Misrepresenting Morgenthau’s analysis of the dialectic of ethics and politics in realism distorts ‘its ethical dimensions, and ironically risks supporting forms of political naïveté and irresponsibility in the name of political Realism’.Footnote 158 Morgenthau critiqued the Hobbesian picture and solution of the state of nature and Machiavellianism.Footnote 159 Distancing himself from the troublesome legacy of these two thinkers, he outlined ‘a refreshingly demanding political ethics’.Footnote 160 In the dialectic between power and justice, power therefore gets the better of justice. The reason for this, for Morgenthau, is clear. Whilst ‘the work of justice is never done and always dubious; the work of power, however ephemeral it may be, is clearly seen and simply enjoyed’.Footnote 161 Thus, the quest for justice can neither be satisfied nor eradicated.Footnote 162 It cannot be satisfied ‘because we are ignorant of the order of the universe which is invoked to supply justice to a concrete case’, with this invocation justifying and rationalising ‘parochial interests which can only maintain themselves supported by power’.Footnote 163

Morgenthau feared that science had entered a state of moral crisis due to the positivist mode of inquiry.Footnote 164 His conception of the ways in which justice is affected by power lies at the heart of his analysis and critique of both legal positivism and international law. It gives rise, as Koskenniemi has noted, to Morgenthau’s calls for interdisciplinarity.Footnote 165 Lawyers should ‘develop a better understanding of the relationship between law and ethics’ and not be blind to the sociological context of economic interests, social tensions, and aspirations of power which are motivating forces in the international field.Footnote 166 It is only in the combination of ‘political wisdom, moral courage, and moral judgement’ that man ‘reconciles his political nature with his moral destiny’.Footnote 167 Power is fundamentally related to ethics and justice in international law. This challenges the core assumptions of legal positivism, giving rise to the question of what the concept of the political is in legal questions.

6 The Concept of the Political

Morgenthau’s interest in the concept of politics originally arose both from his attempt to oppose Schmitt’s oppositional vision of the concept of the political and his desire to construct a viable liberal politics in the light of the collapse of Weimar and the rise of fascism.Footnote 168 Schmitt is the key position against which his understanding of a limited politics emerges.Footnote 169 Schmitt’s distinction between friend and foe, for Morgenthau, is of little scientific value when attempting to determine the concept of the political.Footnote 170 This is due to the fact that this opposing pair represents ‘tautological relations derived from the quality of the respective value spheres of the moral and the aesthetic, and are of no use to an analysis attempting to delineate one sphere from another’.Footnote 171

Morgenthau’s antithesis to Schmitt’s concept of politics is an important aspect of his theory at large. Correctly understood, the concept of politics ‘provides an ethical (fundamentally democratic) position from which, and in the name of which, strategies of enmity can be resisted in both domestic and foreign policy’.Footnote 172 Political questions in international society, he argues, are those that are ‘likely to have an influence on the relations of a State with other States, on the situation of a State within the international community’.Footnote 173 As any action by the state outside of itself ultimately affects its relations with other states, from the point of view of the goal they pursue, all external actions of the state are always political. Morgenthau contrasts this position with the idea that the difference between political and other international questions lies in the fact that political questions have no legal character, and that, therefore, ‘the notion of a political question would thus be equivalent to that of a question of pure interest’.Footnote 174 This differentiation cannot be substantiated upon an examination of the facts, as historical experience ‘abounds with cases where questions of law unquestionably took on a political character’.Footnote 175

The notion of an international legal standard is, therefore, a fundamental problem faced by international law, particularly as international law cannot be the object of a universally accepted solution in its present state. Any examination of legal disputes must necessarily ‘pose the question of the notion of law in general’.Footnote 176 It is this question that allows us to see the difficulties that arise in international law in relation to the contents and concept of the law. A definition of legal disputes must establish an objective criterion through which we can distinguish, from amongst the allegations of the parties invoking legal grounds, between those which ‘cannot rely on positive law’ and those whose relationship ‘with positive law cannot be admitted without examination’.Footnote 177 Though the norms of international law make it possible to say whether or not the allegations of a state party invoke existing legal rules, they are not able to determine the nature of its legal motivation. This is because the norms of international law provide no ‘direct point of reference for the discrimination of the various demands of this category’.Footnote 178 The affirmation of the legal character of a dispute does not, therefore, necessarily imply that it is not political. Politics and law do not form an antithetical couple.Footnote 179

The political character of these questions depends on circumstances of place and time, and do not arise from a sole principle. There cannot be a single question which can once for all be qualified as political in nature; instead, all that can be said is that in certain circumstances, certain questions acquire ‘regularly a political character, which they would not have in other circumstances’.Footnote 180 Morgenthau illustrates this idea through the debates which took place during the second Hague Conference. Certain questions which a certain state considered from the point of view of its interests ‘as devoid of any political character’ appeared to other states as having ‘a political character, or at least as likely to have one’.Footnote 181 Morgenthau’s concept of politics, through this, emerges as more than Reus-Smit’s characterisation of realism and power: International is not merely ‘epiphenomenal’ nor does it exclusively serve the political purposes of powerful states.Footnote 182 We must conclude, Morgenthau argues, that it is impossible to distinguish ‘between political and non-political questions’, as the concept of the political ‘is not necessarily inherent in certain determined objects, just as it is not necessarily absent from other determined objects’.Footnote 183 It does not have a fixed contents which can be defined once and for all. Rather, it is a ‘quality, a tonality, which can be specific to any object, which attaches preferentially to some of them, but which does not necessarily attach to any’.Footnote 184

Morgenthau’s conception of politics is a moral and political project.Footnote 185 His arguments, Koskenniemi argues, lead ‘beyond law as the banal application of (formal) rules but also beyond sociology and ethics as scientific disciplines or bureaucratic techniques’.Footnote 186 They bring into existence ‘international relations as an academic discipline that would deal … with the functioning of eternal human laws in a condition of anarchy’.Footnote 187 The scope of the political for international law does not consist only in that the political ‘serves international law as a social support’ but that it is, as such, an ‘intrinsic element of international law itself’.Footnote 188 The norms which are at the base of this problem all refer to this political element and represent the general problem of the relationship between international law and the political in all its aspects.Footnote 189 Politics, then, is a quality which can be found, to varying degrees, in ‘in all subjects’, and just how one cannot say that of a body that it is its essence to be hot, ‘nor can one say of a given matter of international relations that it possesses, by its very nature, a political character’.Footnote 190 There is no possible objective measurement for the scope of the political in international law.Footnote 191 Williams has emphasised the importance of this aspect of Morgenthau’s thought. His refusal to accept an exclusive delineation of the political, he argues:allows him to examine the ways in which political reality is structured according to the interpenetration of different social spheres, while still maintaining that politics has a distinctive core that must not be reduced to other spheres.Footnote 192

It is the lack of an objective measurement for the scope of the political that leads Morgenthau to conclude that, in its broadest sense, the concept of the political ‘applies to events that go far beyond the domain of the State’.Footnote 193 Any foreign policy is therefore nothing but the will of a state to ‘maintain, increase or assert its power’.Footnote 194 These three manifestations of political will, in turn, translate into the fundamental empirical forms of ‘status quo politics, imperialist politics, and prestige politics’, with the policy taken representing the will of a state to maintain, increase, or assert its power.Footnote 195 Politics in the specific sense, therefore, for Morgenthau, consists of ‘the particular degree of intensity of the relationship that the will to power of the State creates between its objects and the State’.Footnote 196 This fundamentally affects international law in all its facets, linking it irrevocably with politics.

7 Conclusion

Morgenthau’s critique of legal positivism and his legal theory at large offer valuable insights for contemporary discussions on the nature of international law, legal positivism, and natural law. They profoundly affect his political realism and his proffered answers for how to enhance and ensure the effectiveness of international law. Morgenthau’s legal formalist heritage, as Jütersonke has previously shown, ‘incited him to make repeated calls for greater emphasis on the “reality” of international legal norms’.Footnote 197 It is this heritage that makes him addresses the dangers of viewing international law and the fundamental norm of pacta sunt servanda as a panacea. Morgenthau’s analysis—which critiques the idea that the law can be wholly divorced from the influence ethics, justice, and politics—bridges ‘issues of power, emotion, and insufficiency’ and offers a view of ‘subjectivity which is thus far unique in IR theory’.Footnote 198 His theory provides us with answers as to the relationship between politics and international law, which is best encapsuled through the following extract:

For, by virtue of the very essence of law, every legal order possesses a certain static tendency; the principles of order, rationality, predictability, which are immanent in the nature of law and which all proceed from the principle of legal certainty, in fact require, above all, the delimitation and preservation of the spheres of power given in reality and in a pre-existing way, which the legal order is called upon to govern.Footnote 199

The static tendencies which exist within every legal order fundamentally affect how it functions, with the tendency to modify the domains of power also stemming, in the same way as ‘the tendency to preserve existing domains of power, from sociological necessities’.Footnote 200 No legal order can survive in the long run if it aims to push these principles to their final consequences.Footnote 201 There is an insoluble antinomy between the static and dynamic tendencies of legal orders, where each tries to mark the internal structure of the law and, as a rule, leads to a more or less lasting modus vivendi where the static element predominates.Footnote 202 No legal order can fully separate itself—as explored in the pages above—from the influence of justice, ethics, and power, as it is in the combination of ‘political wisdom, moral courage, and moral judgement’ that man ‘reconciles his political nature with his moral destiny’.Footnote 203 In other words, rather than being merely affected by its underdeveloped nature and decentralised structure, politics are inherent in international law.Footnote 204 In asserting the antinomy between the static and dynamic tendencies of legal orders, Morgenthau questions the central tenets of legal positivism, linking them to his analysis of international law and its different problems.

Morgenthau’s analysis and critique of both legal positivism and international law are in this sense, as held by García Sáez, akin to those of Danilo Zolo in relation to contemporary international law.Footnote 205 His legal thought, critique of legal positivism and positivism at large, exploration of politics, justice, and ethics and his concept of the political show Morgenthau was aware of Reus-Smit’s critique that the ‘proposition that international law is simply a codification of the interests of powerful states’ requires us to turn a blind eye to ‘much that is rich, complex, and intriguing about the contemporary politics of international law’.Footnote 206 Morgenthau’s thought stands out from contemporary iterations of political realism. He attacks enlightenment rationality, and its misapplication in politics and law distinguishes between the ‘natural world of phenomena and the world of human affairs in which human consciousness plays the central role’.Footnote 207 Morgenthau’s legal theory and critique of legal positivism exemplifies Crawford’s assertion that:

Neither party to the growing epistemological dispute in IR seems able to recognize that its distorted, lopsidedly realist, construction as an academic discipline has suppressed rather than eradicated its natural and perennial philosophical diversity.Footnote 208

International law, for Morgenthau, stems from more than the permanent interests of states: it is uniquely affected by power politics and moral politics.Footnote 209 This due both to the fact that there does not exist ‘any organised and monopolised physical force capable of sanctioning the validity of international law’ and that the development of this type of law has not gone beyond the point where this fundamental function of any legal order originates.Footnote 210 Thus, despite the fact that international law ‘creates norms capable of fixing a given state of law’, these ‘only exist in international law in quite a rudimentary way’, with international law being distinctively static in nature through its dependence on the goodwill of interested states.Footnote 211 It is fundamentally affected by both the power and moral considerations of different states.

The impossibility of empirically comparing the needs of different states complicates this. Where is it possible to find, asks Morgenthau, ‘a universally accepted measure of values’ which would make it possible to decide in a universally binding manner ‘the merits of the contradictory claims of States?’Footnote 212 Though these problems fundamentally affect international law, they are not, Morgenthau argues, insurmountable. International law is not fully at the mercy of the political. International relations are not only ‘a realm of power and interest’.Footnote 213 ‘To deny a positive legal order effective sanctions is’, Morgenthau writes, ‘nothing other than to abandon it to the mercy of its adversaries who will strive … to replace it with a legal order at their convenience’.Footnote 214 Anyone who raises the question of the legitimacy of an international legal order only raises the moral or political question of whether such an international legal order deserves to be protected by sanctions, in other words, whether it deserves to exist.Footnote 215 Morgenthau’s conclusion, as Scheuerman has shown, originates in his critique of legal positivism and positivism at large, wherein:a naïve faith in natural science led too many of its admirers to advance simplistic answers to deeply rooted political and social dilemmas for which we can only hope to find unavoidably fragile and provisional resolutions.Footnote 216

Morgenthau’s solutions and proposed answers for how to enhance and ensure the effectiveness of international law bear the mark of his critique of legal positivism. The role played by ethics and justice is key amongst these. An international morality should be formed, ‘for there can be no stable legal order without a moral foundation, a truth which the classical internationalists from Vittoria and Suarez to Grotius and Wolf were not unaware of’.Footnote 217 The stability of the legal order, however, is ensured only ‘on the condition that the proportionality of the sanctions is achieved in a definitive manner’ and that, therefore, the sanctions which are available to the legal order ‘are sufficient to defend it against any foreseeable attack’.Footnote 218 Thus, having achieved this moral consensus, the belief or conviction of the most influential members of the international legal order ‘should be the other ideal support of the international community’.Footnote 219 Neither a complete dependence on the letter of the law nor a surrender to power and politics are appropriate answers. If international law seeks to develop and exist, it must rely on an international morality, justice, and ethics.