GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY

UNIVERSITY SCHOOL OF LAW AND LEGAL STUDIES

LAW AND JUSTICE IN A GLOBALIZED WORLD

ASSIGNMENT 2

SUBMITTED TO: DR. ANUJ VAKSHA

SUBMITTED BY: DIKSHA [LL.M. (REGULAR) 2022-23]
 ROLE OF SOVEREIGN STATES IN CREATION OF JUST WORLD ORDER
Although the doctrine of sovereignty has had an important impact on developments within
states, its greatest influence has been in the relations between states. The difficulties here can
be traced to Bodin’s statement that sovereigns who make the laws cannot be bound by the
laws they make (majestas est summa in cives ac subditos legibusque soluta potestas). This
statement has often been interpreted as meaning that a sovereign is not responsible to
anybody and is not bound by any laws. However, a closer reading of Bodin’s writings does
not support this interpretation. He emphasized that even with respect to their own citizens,
sovereigns are bound to observe certain basic rules derived from the divine law, the law of
nature or reason, and the law that is common to all nations (jus gentium), as well as the
fundamental laws of the state that determine who is the sovereign, who succeeds to
sovereignty, and what limits the sovereign power. Thus, Bodin’s sovereign was restricted by
the constitutional law of the state and by the higher law that was considered as binding upon
every human being. In fact, Bodin discussed as binding upon states many of those rules that
were later woven into the fabric of international law. Nevertheless, his theories have been
used to justify absolutism in the internal political order and anarchy in the international
sphere.
Stoic Philosophy
Stoicism, a school of thought that flourished in Greek and Roman antiquity. It was one of the
loftiest and most sublime philosophies in the record of Western civilization. In urging
participation in human affairs, Stoics have always believed that the goal of all inquiry is to
provide a mode of conduct characterized by tranquillity of mind and certainty of moral worth.
The Stoics believed that perception is the basis of true knowledge. In logic,
their comprehensive presentation of the topic is derived from perception, yielding not only
the judgment that knowledge is possible but also that certainty is possible, on the analogy of
the incorrigibility of perceptual experience. To them, the world is composed
of material things, with some few exceptions (e.g., meaning), and the irreducible element in
all things is right reason, which pervades the world as divine fire. Things, such as material, or
corporeal, bodies, are governed by this reason or fate, in which virtue is inherent.
The world in its awesome entirety is so ruled as to exhibit a grandeur of orderly arrangement
that can only serve as a standard for humankind in the regulation and ordering of life. Thus,
the goal of humans is to live according to nature, in agreement with the world design.
Stoic moral theory is also based on the view that the world, as one great city, is a unity.
Humans, as world citizens, have an obligation and loyalty to all things in that city. They must
play an active role in world affairs, remembering that the world exemplifies virtue and right
action. Thus, moral worth, duty, and justice are singularly Stoic emphases, together with a
certain sternness of mind. For the moral person neither is merciful nor shows pity, because
each suggests a deviation from duty and from the fated necessity that rules the world.
Nonetheless—with its loftiness of spirit and its emphasis on the individual’s essential worth
—the themes of universal brotherhood and the benevolence of divine nature make Stoicism
one of the most appealing of philosophies.
Wolff’s Civitas Maxima
Famously, Wolff is part of the early modern person-of-the-state tradition that treats peoples,
like other associations, as legal persons. According to this tradition, peoples are the bearers of
rights and the subject of the ascription of actions. In Wolff, the commitment to this tradition
is expressed, for example, in his treatment of the liability of a people for the actions of its
political leadership: As Wolff argues, just as an action of someone can be imputed upon
another individual who would have been obliged to express dissent with the action, and who
was in the position to express this dissent, but failed to do so, so can an action of the
magistrate be imputed upon the entire people whose members had been obliged to object to
the action of the magistrate, if they had been in a position to do so and failed to do it. At the
same time, Wolff also is part of the German law tradition that regards peoples as special
cases of associations in the sense of a multiplicity of individuals standing in certain personal
and legal relations to each other. Wolff takes a people (gens) to be “a multitude of individuals
associated in a political community (civitas) for the purpose of achieving a certain goal with
conjoined forces”. As Otto von Gierke has pointed out in his work on the German law of
associations, regarding associations as multitudes of individuals makes it plausible to regard
associations as bearers not only of rights and liabilities but also of esteem and honour.
Keeping the presence of both aspects of Wolff's notion of a people in mind lends plausibility
to his strategy of construing duties between political communities as analogous to duties
between individuals. Generally, he claims that political communities owe to each other
exactly what individuals owe to each other - a claim that would be unintelligible if political
communities were understood only as legal persons. Using an equivocation on the term
“person” may be problematic because Wolff alludes to the theory of legal fictions when he
regards peoples as persons. No matter how useful such fictions may be for bringing out
intuitions concerning what would be rational to do in certain situations, legal fictions also
introduce a strong dissimilarity between peoples and individuals. This is so because, by
definition, legal fictions assume something that we know is contrary to what is true. For
instance, Andrea Alciato maintains that a legal fiction is “a disposition of the law that goes
against the truth in a possible situation and is introduced for a just cause”. Invoking legal
fictions is particularly problematic when it comes to transferring duties from the level of
individuals to the level of peoples. We know that legal fictions do not have feelings, hence
also no feelings of honour and sensibilities toward esteem. This is why it is problematic to
assume that everything that we know about the esteem-related natural needs of individuals
could be transferred to peoples, understood as legal persons. To aggravate this problem,
Wolff develops his account of the duties of esteem toward other political communities in the
context of a cosmopolitan theory of relations between peoples. As in his conception of the
nature of peoples, the theory of legal fictions plays a significant role in Wolff's conception of
the civitas maxima—the political community that encompasses all political communities.
Georges Scelle
"Law alone", writes Georges Scelle, "is sovereign. Every subject of law who claims to be
sovereign immediately rises up against law and denies it." This sentence is written in the style
of the Declaration of the Rights of Man of 1789! But what, in Scelle's system, is the basis of
the sovereignty of law? It has two roots. First, it develops from the origin of law, from its
nature as an expression of social reality identified with societal or intersocietal solidarity,
which confers on it the force of necessity. Second, it comes from the unity of law, that is, the
"law of people" which forms a whole, but is, at the same time, both hierarchically structured
and divided. In Scellian thought, objective law, far from being the product of the will of the
state, or, at the international level, the product of a confluence of states' will, develops out of
society itself. "Ubi societas, ubi ius." He saw it as expressing the unity and the universality of
law in time and space, in the international order as well as in national legal systems.
Furthermore, the same adage could be seen as reflecting the need for a law which binds
societies much in the same way as the laws of nature bind human beings. Indeed, Scelle
claims that law is "biological" in origin. According to him, in the same way that living beings
are subject to biological constraints, which ensure their equilibrium and their survival,
societies are subject to laws which condition their cohesion and progress. Scelle emphasized
this theme in an important article dedicated to Duguit (who also believed in the supremacy of
law over the state, though more with regard to domestic legal systems than to the
international level). In addition, in the Pricis du droit des gens he cited the famous definition
of law given by Montesquieu: "Laws are necessary relationships which derive from the
nature of things." But is it scientifically sound to equate legal constraints with those of
nature? Probably not, but the comparison stems from the foundation of objective law in
science and contributes to the rule of law. The state violating legal rules is like the individual
who risks his life by violating the laws of nature. In spite of those biological roots, law
develops nevertheless from social reality, which is identified with solidarity, "the only real
reason for the existence of objective law." This solidarity has two forms: one is solidarity "by
similarity", and the other is solidarity "by division of labour." (Scelle borrowed this
distinction from Durkheim). The first, solidarity by similarity, did not wholly find favour
with Scelle because, fundamentally, it is the basis of national exclusivity. Solidarity by
division of labour, on the other hand, is what makes individuals indispensable to each other.
It corresponds, said Scelle, to "a law of integration and progress." Here again, one finds the
idea of bringing peoples closer together by developing exchanges and economic partnerships.
In Scelle's thought, these solidarities give birth to "objective law", whose precise relationship
to both natural law and positive law will now be explained.
Hobbes
Hobbes thinks the state of nature is something we ought to avoid, at any cost except our own
self-preservation (this being our “right of nature,” as we saw above). But what sort of ought is
this? There are two basic ways of interpreting Hobbes here. It might be a counsel of
prudence: avoid the state of nature, if you’re concerned to avoid violent death. In this case
Hobbes’s advice only applies to us (i) if we agree that violent death is what we should fear
most and should therefore avoid; and (ii) if we agree with Hobbes that only an unaccountable
sovereign stands between human beings and the state of nature. This line of thought fits well
with an egoistic reading of Hobbes, but it faces serious problems, as will be seen.
The other way of interpreting Hobbes is not without problems either. This takes Hobbes to be
saying that we ought, morally speaking, to avoid the state of nature. We have a duty to do
what we can to avoid this situation arising, and a duty to end it, if at all possible. Hobbes
often makes his view clear, that we have such moral obligations. But then two difficult
questions arise: Why these obligations? And why are they obligatory?
Hobbes frames the issues in terms of an older vocabulary, using the idea of natural law that
many ancient and medieval philosophers had relied on. Like them, he thinks that human
reason can discern some eternal principles to govern our conduct. These principles are
independent of (though also complementary to) whatever moral instruction we might get
from God or religion. In other words, they are laws given by nature rather than revealed by
God. But Hobbes makes radical changes to the content of these so-called laws of nature. In
particular, he does not think that natural law provides any scope whatsoever to criticize or
disobey the actual laws made by a government. He thus disagrees with those Protestants who
thought that religious conscience might sanction disobedience of immoral laws, and with
Catholics who thought that the commandments of the Pope have primacy over those of
national political authorities.
Although he sets out nineteen laws of nature, it is the first two that are politically crucial. A
third, that stresses the important of keeping to contracts we have entered into, is important in
Hobbes’s moral justifications of obedience to the sovereign. (The remaining sixteen can be
quite simply encapsulated in the formula, do as you would be done by. While the details are
important for scholars of Hobbes, they do not affect the overall theory and will be ignored
here.)
The first law reads as follows:
Every man ought to endeavor peace, as far as he has hope of obtaining it, and when he cannot
obtain it, that he may seek and use all helps and advantages of war.
This repeats the points we have already seen about our right of nature, so long as peace does
not appear to be a realistic prospect. The second law of nature is more complicated:
That a man be willing, when others are so too, as far-forth as for peace and defense of himself
he shall think it necessary, to lay down this right to all things, and be contented with so much
liberty against other men, as he would allow other men against himself.
What Hobbes tries to tackle here is the transition from the state of nature to civil society. But
how he does this is misleading and has generated much confusion and disagreement. The way
that Hobbes describes this second law of nature makes it look as if we should all put down
our weapons, give up (much of) our “right of nature,” and jointly authorize a sovereign who
will tell us what is permitted and punish us if we do not obey. But the problem is obvious. If
the state of nature is anything like as bad as Hobbes has argued, then there is just no way
people could ever make an agreement like this or put it into practice.
At the end of Leviathan, Hobbes seems to concede this point, saying “there is scarce a
commonwealth in the world whose beginnings can in conscience be justified”. That is:
governments have invariably been foisted upon people by force and fraud, not by collective
agreement. But Hobbes means to defend every existing government that is powerful enough
to secure peace among its subjects—not just a mythical government that’s been created by a
peaceful contract out of a state of nature. His basic claim is that we should behave as if we
had voluntarily entered into such a contract with everyone else in our society—everyone else,
that is, except the sovereign authority.
In Hobbes’s myth of the social contract, everyone except the person or group who will wield
sovereign power lays down their “right to all things.” They agree to limit drastically their
right of nature, retaining only a right to defend their lives in case of immediate threat. (How
limited this right of nature becomes in civil society has caused much dispute, because
deciding what is an immediate threat is a question of judgment. It certainly permits us to fight
back if the sovereign tries to kill us. But what if the sovereign conscripts us as soldiers? What
if the sovereign looks weak and we doubt whether he can continue to secure peace…?) The
sovereign, however, retains his (or her, or their) right of nature, which we have seen is
effectively a right to all things—to decide what everyone else should do, to decide the rules
of property, to judge disputes and so on. Hobbes concedes that there are moral limits on what
sovereigns should do (God might call a sovereign to account). However, since in any case of
dispute the sovereign is the only rightful judge—on this earth, that is – those moral limits
make no practical difference. In every moral and political matter, the decisive question for
Hobbes is always: who is to judge? As we have seen, in the state of nature, each of us is
judge in our own cause, part of the reason why Hobbes thinks it is inevitably a state of war.
Once civil society exists, the only rightful judge is the sovereign.
John Locke
John Locke is among the most influential political philosophers of the modern period. In
the Two Treatises of Government, he defended the claim that men are by nature free and
equal against claims that God had made all people naturally subject to a monarch. He argued
that people have rights, such as the right to life, liberty, and property, that have a foundation
independent of the laws of any particular society. Locke used the claim that men are naturally
free and equal as part of the justification for understanding legitimate political government as
the result of a social contract where people in the state of nature conditionally transfer some
of their rights to the government in order to better ensure the stable, comfortable enjoyment
of their lives, liberty, and property. Since governments exist by the consent of the people in
order to protect the rights of the people and promote the public good, governments that fail to
do so can be resisted and replaced with new governments. Locke is thus also important for
his defense of the right of revolution. Locke also defends the principle of majority rule and
the separation of legislative and executive powers. In the Letter Concerning Toleration,
Locke denied that coercion should be used to bring people to (what the ruler believes is) the
true religion and also denied that churches should have any coercive power over their
members. Locke elaborated on these themes in his later political writings, such as the Second
Letter on Toleration and Third Letter on Toleration.
Hugo Grotius
The guiding idea in Grotius’ treatment of sovereignty, as with his treatment of rights
generally, is that systems of rights are radically alterable through the ways people choose to
dispose of those rights. As a result, societies will vary widely in how they organize the
powers of sovereignty. Philosophers might argue for the advantages of one scheme or
another, “but as there are several ways of living, some better than others, and every one may
choose which he pleases of all those sorts; so a people may choose what form of government
they please: neither is the right which the sovereign has over his subjects to be measured by
this or that form, of which divers men have divers opinions, but by the extent of the will of
those who conferred it upon him”. What justifies a scheme of rights is that it has arisen from
the historical choices of their legitimate holders, not any features of its form. This principle
gave Grotius a great deal of flexibility in defending different political arrangements, provided
the facts of history for the given society would play along.
On one side, Grotius was able to argue against royalists who sought to define sovereignty as
an indivisible package of prerogatives that could be vested in only a singular will. Grotius
takes this claim, which Jean Bodin had advanced a generation earlier, at face value but treats
indivisibility as a purely conceptual point: to institute civil power in a society consists in
gathering up a certain package of governmental rights and in designating who will hold that
power supremely. The rights of governing come as a package, but a society may, if it
chooses, designate different holders for the various rights.
Grotius’ understanding of sovereignty carries several implications for his theory of just war.
The concerns on the “right of resistance,” the hotly contested question of whether a subject
people may ever justly depose a ruler for misgovernment. While Grotius rejects
constitutionalist arguments that reserve inalienable rights to the people, he finds a way to
preserve this rationale for resistance in a more limited form. It is unlikely that most civil
societies would have been founded on utter subjection. In the absence of clear evidence that
subjects have completely alienated their rights, one has to presume that rational people would
have preserved their most basic rights against arbitrary treatment. This presumption attaches
only in cases of “extreme necessity,” as when a government turns its sword on innocent
subjects, and then only when resistance could be carried out without creating an even
bloodier civil conflict.
Vasudhaiva Kutumbhakam
Vasudhaiva Kutumbakam is a Sanskrit phrase found in Hindu texts such as the Maha
Upanishad, which means "The World Is One Family". Vedic tradition mentions "Vasudhaiva
Kutumbakam" meaning all living beings on the earth are a family. The majority of people in
the world lived through the culture of conflicts & violence during the twentieth century. It is
unfortunate that the twenty first century too has started in an environment of hostilities and
holocaust. In the post 9/11 world, we find ourselves in what some have called a global human
crisis - crisis of humanity. & earth planet.
As we know that the world has been transformed into a global village. Globalization is
having a major impact not only on the business world but also on the whole humanity. Global
recession, Global warming, climate change, poverty, conflict and violence are the main
challenges that have dominated the first decade of the 21st century.
Humanity is facing a terrible challenge of its own existence. The 19th century was known as
Industrial Revolution and 20th century – century of Globalization: population explosion,
increasing poverty & ‘Information Technology Revolution’ & also century of Conflicts &
Wars.
Human values are eroding at very fast rate resulting in declining the quality of life & people.
At the dawn of the new millennium, there is greater need for Indian philosophy of
‘Vasudhaiva Kutumbakam: World is One Family’ for the welfare of humankind in 21st
century.