Law and War in Leo Strauss’s Thucydides, Grotius and Kant: Strauss as an International Legal Thinker

Forthcoming in Alexandra Kemmerer, ed., Transmigrations: Jewish International Lawyers between Law and Politics.

By Robert Howse1

1 Lloyd C. Nelson Professor of International Law and Faculty Co-Director, Institute for International Law and Justice, NYU Law School ; I owe an enormous debt to Ruti Teitel for conversation on many of the themes explored in this essay. Thanks to Peter Berkowitz and Alexandra Kemmerer for comments on earlier drafts; I also benefited from comments by David Jannsens and other participants at the Tilburg Law and Philosophy Workshop, where a version of this paper was presented in 2010. This Columbia workshop version omits most footnotes and draws from a longer work in progress, “Philosophy, Law and Political Violence: War and Peace in the Thought of Leo Strauss” and from the articulation of that project in my Inaugural Lecture for the Lloyd C. Nelson Professorship. A revised version of the lecture has now been published as “Man of Peace: Rehearing the Case Against Leo Strauss” in Burns and Connelly eds., The Legacy of Leo Strauss (Charlottesville, VA: Imprint Academic, 2010).

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Introduction

A range of media commentators and academics have suggested that the Iraq war

was prepared and decisively influenced by a perspective on world politics derived from

“Straussianism,” a school of thought that developed around the teachings of Leo Strauss, a

20th century German-Jewish philosopher who left Germany shortly before Hitler came to

power, and taught at the New School in New York and then the University of Chicago.

One dimension of the culpability attributed to Strauss for inspiring the Iraq venture

is his alleged contempt for international law and worship of power politics un-moderated

by any sense of legal or even moral restraint. In her book Leo Strauss and the Politics

of American Empire, Anne Norton claims that Leo Strauss and his disciples are

“proponents of war without limits.” James Atlas asserted in the New York Times that

Strauss endorsed “the natural right of the stronger.” The natural right of the stronger was

precisely the position taken by the Melian generals in the famed dialogue in Thucydides’

Peloponnesian War, an important element of the outlook of Athenian imperialism as

presented by Thucydides, on whom Strauss wrote a very long essay in The City and Man.

But when one turns to that essay, one observes something quite striking. Strauss prefaces

his reading of the Peloponnesian Wars with a statement that “perceptive” contemporary

readers of Thucydides note “the presence in his thought of that which transcends “power

politics,” of what one may call the human or humane.”(p. 145). Strauss suggests that,

contrary to first impressions, Thucydides provides an answer as to how ‘the power

political and the humane are reconciled with one another.” International law is central

to this reconciliation: This includes treaties and the unwritten sacral law, the latter

guaranteeing the principle of pacta sunt servanda itself and aspiring to set an absolute

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limit on the barbarism and dehumanization of war.

There is, I believe, much greater attention to international law in Strauss’s essay

than any other comprehensive interpretation of Thucydides by a modern political

scientist or political philosopher. What distinguishes Strauss’s account of international

law is that his understanding of the important humanizing and civilizing function of

international law goes hand in hand with a view of history that rejects, or at least

questions, progressivism. Strauss does not see international law as a secure vehicle for

perpetual peace or cosmopolitan citizenship, and while he is sympathetic with the

humane impulse behind such aspirations, he sees their attainment as well nigh

impossible-and the very attempt as likely to unleash forces of fanaticism and human

degradation (for him, the lesson of communism). In Strauss’s vision, international law

operates within the permanent possibility of war and indeed barbarism—within the

shadow of the very inhumanity against which it is a (fragile if necessary) bulwark.

Reassessing international law in the light of the experience of 20 th century

totalitarianism, Strauss thus avoids the ‘realism’ of Hans Morgenthau as well as the

neo-Kantian utopianism of Hans Kelsen, for whom international law points in the

direction of a world state or sovereign. Strauss’s unusual perspective is valuable

today, where debates about international law seem to be dominated on the one hand by

realist skeptics and on the other hand by progressive utopians, who believe that

international law is or should be the vehicle of world peace and universal rights, or

global constitutionalism. Strauss’s perspective forces us to ask hard questions, which

take us not so much above, but rather beyond, the contemporary controversies

concerning international law.

Strauss’s treatment of international law in his essay on Thucydides is no mere

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incident of his reading of that one book; in 1964, the same year as The City and Man

was published, Strauss taught an entire course on Grotius’s Law of War and Peace at

the University of Chicago and from his remarks in that course, it is clear that many of

Strauss’s observations about international law in his Thucydides essay are actually

quite central to his whole conception of the problem of international relations. A few

years later Strauss would return to international law in his discussion of Perpetual

Peace in the 1967 Kant seminar at the University of Chicago.

International Law and the “Crisis of the West”

The “foreground” for Strauss’s consideration of international law in Thucydides

is his account of international order during the Cold War in the introduction to the City

and Man The introduction begins with one of the most characteristic claims in

Strauss’s thought, if not the key claim: the contemporary crisis of the West impels a

reconsideration of ancient political thought. However, the longest and culminating

chapter of the City and Man is not an interpretation of an ancient political philosopher; it

is Strauss’s own philosophical reading or reflection on Thucydides, a political writer and

historian who himself was neither a philosopher nor a student of philosophy (even if

Strauss claims he was something more or other than what mean today by an “historian”

or that he is a “philosophical historian”).

The necessity for a supplement to ancient political philosophy becomes clear

when Strauss articulates his understanding of the crisis of the West. This crisis is not

simply or at its core a crisis of confidence in the internal political and social morality of

Western societies; the crisis is linked to the rise of Soviet communism and the division

between the West and the communist East, to the external situation of the West. The

division shakes the confidence of the West in its ideal of a universal society based on

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freedom and equality; ironically, perhaps, because the original claim of Marxism was to

bring forth such a society. As Strauss showed through invoking Xenophon in his

exchange with the Hegelian Marxist philosopher Alexandre Kojeve on the world state,

ancient writings could furnish a valuable critical perspective on the modern Western

ideal of the universal society-but Xenophon, although an associate of Socrates, was

viewed by Strauss more in the manner of Thucydides than of Plato, as a political

historian or writer whose preoccupation with war and empire was in contrast with Plato

and Aristotle and their focus on the city at peace. But even if a classical political writer

like Xenophon can help us discern what was fundamentally defective in the modern

Western ideal of the universal society, now that the West’s confidence in such an ideal is

already shaken, the question is that of what political and indeed human possibilities

remain given the constraints of the Cold War situation.

The answer to this question relates to what is the root of the ‘difference’ or

conflict between Sovietism and the West, with its shaken or chastised ideal of a

universal society. And here Strauss addresses international law, where the ideal of a

universal society still, in the hopes for the United Nations for example, lives a kind of

half-life.

In the modern West’s original ideal conception, as Strauss notes, the universal

society would be brought through the eventually global spread of the democratic

revolution: “it had come to be believed that the prosperous, free, and just society in a

single country or in a few countries is not possible in the long run: to make the world safe

for the Western democracies, one must make the whole globe democratic, each country

in itself as well as the society of nations. Good order in one country presupposes good

order in all countries and among all countries.”69

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Here the ideal sketched by Strauss seems very similar to that elaborated by Kant

in his Perpetual Peace. By transforming itself into the constitutional law of a federation

of republican states, international law consecrates the universalization of liberal

democracy.

While the experience of Communism has taught many people, Strauss suggests,

that “for the foreseeable future there cannot be a universal state, unitary or federative.

“(p. 5) there are apparently people who see communism as only a temporary obstacle

and who take the existing federation-by which Strauss would appear to mean the United

Nations—as a “milestone on man’s onward march toward the perfect and hence

universal society….’ (p. 5). Today in the post-communist world the position in question

has been most prominently advocated by Jurgen Habermas, who sees an evolution of the

UN system of international law as the vehicle for the unfulfilled constitutionalist

aspiration in Kant’s Perpetual Peace. 2

At one level, Strauss suggests such thinking underestimates the nature of the

difficulty that Communism poses for the “onward march toward the perfect and hence

universal society.” The problem is not just the division between two political and social

systems, but the nature of Communism. The idea of sacred restraint, the notion that

some methods of advancing one’s objectives are simply beyond the pale, is antithetical

to the very ideology of communism: whatever advances the communists’ goals is sacred

and whatever hinders their achievement “devilish.” As Strauss will go on to elaborate

in his treatment of Thucydides, international law essentially depends on some

conception of “sacred” restraint, at least a minimum sense of decency in dealing with

others and fidelity to covenants, if sometimes (and, in the most extreme circumstances,

2? “Does the Constitutionalization of International Law Still have a Chance?” in Habermas, The Divided West.

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often) honored only in the breach. But the Communists lack this minimum sense of

‘sacred”3 constraint, and even if their tactics were to shift towards détente or

rapprochement, it would be an illusion to believe that the communist world could adhere

genuinely to the existing federation of nations: ‘Communism will remain, as long as it

lasts in fact and not merely in name, the iron rule of a tyrant which is mitigated or

aggravated by his fear of palace revolutions. The only restraint in which the West can

put some confidence is the tyrant’s fear of the West’s immense military power.” (p. 5)

Yet the impossibility of genuine or good faith participation by the Communists in

the postwar system of international law anchored in the United Nations could be only a

temporary defect or shortcoming of that system, to be eliminated with the end of

Communism. In stressing the specific intractability of the Communist belief system to

the minimum sense of constraint required for international law to function, Strauss

implies that most societies most of the time do have this minimum sense of constraint,

even if it is much tried under conditions of war or empire; this is misunderstood by

commentators who take his statements of skepticism concerning arms control treaties

with the Soviets, for example, as a demonstration that Strauss’s perspective is one of

pure power politics or ‘realism.”

Strauss goes on to assert that the postwar system of international law suffers from

internal contradictions that, he implies, would not be solved by an end of the Cold War,

and perhaps could actually be exasperated by it. In his identification of these

3 The idea of the “sacred” here connotes the sense of a constraint that is felt as a force beyond one’s own needs and interests, and thus which cannot be dispensed with in order to serve those needs or interests. As we shall see in his discussion of Thucydides, Strauss explicitly leaves open the extent to which this sense of “sacred restraint’ depends on an actual belief in the divine, or the divine law in the literal sense, and the extent to which it is reinforced or supported by a sense of long-term self interest or prudence-the requirement of living with others under conditions of peace and stability. On the human and religious dimensions of the sacral law in Greece, see Jacqueline de Romilly, La loi dans la pensee grecque des origines a Aristote (Paris: Belles Lettres, 2001), pp. 38-57.

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difficulties, Strauss would prove more perspicacious (in the 1960s!) than those observers

who, after the fall of the Berlin Wall, thought that finally the United Nations could now

be the vehicle of the “march toward the perfect and hence universal society.” But nor

can Strauss’s analysis be compared to the alternative “realist” post-Cold War prognosis,

as exemplified by John Meersheimer. Strauss’s analysis of the fundamental internal

contradictions of the United Nations-based legal system centers on problems of justice

not power politics.

Let us turn to that analysis without further ado. Strauss begins by observing that a

universal ban on wars of aggression assumes the justice of existing national boundaries,

for such a ban excludes the possibility of a just war to alter existing boundaries in the

name of self-determination. Yet, Strauss asks, how can one defend reasonably the

justice of existing national boundaries? “The assumption that all present boundaries are

just is a pious fraud of which the fraud is more evident that the piety. In fact, the only

changes of present boundaries for which there is any provision are those that are

agreeable to the Communists.” (p. 6)

Subsequent developments can be seen as vindicating Strauss’s articulation of the

difficulty in question. In the wake of the Cold War, the attempt to paper over this

difficulty by confining demands for external self-determination by peoples previously

under Communist tyranny to those consistent with uti possedetis-the internal boundaries

in the Communist world, whether within the former Yugoslavia or the former Soviet

Union-has hardly had the effect of preserving the integrity and viability of the approach

of the UN legal system to the use of force. Instead, the ensuing conflicts (e.g. Kosovo,

Chechnya) have stressed that system to the limit.4 Indeed, such a result is already 4 See Robert Howse and Ruti Teitel, “Humanity Bound and Unbound: The Regulation of External Self-Determination under International Law,” Colloquium in Legal, Social and Political Philosophy, NYU Law School, November 10, 2011.

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foreshadowed by the weak and failed states and resultant internal/external conflicts

characteristic of those parts of the developing world where, in order to avoid reopening

the question of boundaries, uti possedetis was used as a basis of decolonization.

This brings us to the second contradiction that Strauss identifies in the postwar

system of international law. There is a tension between the legal equality of states on

which the system is based and the factual inequality of developing nations. To this day,

the failure to close this gap-whether through adequate development assistance or a set of

additional rules on trade finance and investment that has profound redistributive effects-

has made the UN model of the global rule of law ineffective in addressing the problems

that a universal society would need to solve, whether climate change or epidemics or

terrorism by the discontents of the universal society. (See the scathing critique of the

existing international economic order by the liberal moralist Thomas Pogge).

Strauss notes, “no bloody or un-bloody change of society can eradicate the evil in

man…., and hence there cannot be a society which does not have to employ coercive

restraint.”(p. 5). The developing countries’ sense of the injustice of the existing factual

inequality makes elusive any full agreement between developed and developing

countries on the allocation by law of burdens that must be borne to solve the problems of

global society. The legal equality on which the UN system of international law is

premised is an inadequate principle of justice.

These limits of the postwar UN-based system of international law, judged against

the ideal or aspiration of a universal society, do not however settle the question of the

limits of international law as such. Rather for Strauss, the critique of the utopianism of

postwar international law merely sets the stage for the examination of earlier

conceptions of international law, which are not dependent upon adhesion to a belief in

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unlimited progress towards the universal society.

But even less so does Strauss’s critique of international legal utopianism purport

to settle the question of the desirability or viability as such of the universal society. As

we shall see when we consider the treatment of Perpetual Peace in Strauss’s 1967

seminar on Kant, in engaging with Kant’s idea of a republican federation of states based

on the abolition of war, Strauss proceeds from agreement with Kant about why a world

state is an undesirable goal.

As Strauss’s exchanges with Alexandre Kojeve illustrate, much more is at stake

in that question than the limits or possibilities of international law. Kojeve viewed the

goal of the universal society as to be pursued, in the wake of what Strauss calls the

lessons of the experience of communism, not so through the UN system of international

law, but through the deepening and widening of the European model of economic and

political integration and at the same time the rebalancing of relations between the

developed and the developing countries in the GATT, perhaps with a view to the

ultimate possibility of their absorption eventually as full and equal members into an

ever-widening EU-style federation. On this understanding, UN-based international law

is a sideshow, relative to proto-constitutional transnational legal order exemplified by

the EU. According to Kojeve, once there is a universal society, the relations between all

its citizens are regulated juridically. 5 There are no longer “states” in the strong

Schmittean sense (defined by the possibility of violent existential struggle between

peoples) and the global reach of the internal law of the universal society renders

international law-law of nations-superfluous. In fact, the internal law of the universal

society is not modeled on international law, or a gradualist strengthening or deepening

5 A. Kojeve, Outline of a Phenomenology of Right, tr. Frost and Howse; See introductory essay by Howse.and Frost.

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of international law; rather it emerges through the mutual recognition by states sharing a

common principle of (social democratic) justice of each others’ domestic laws, and the

eventual harmonization of those laws, at least in essential respects.

International law in its classic meaning-the law of war, peace, and diplomacy-

will therefore matter most at the limits or the periphery where the true global rule of law

remains elusive, i.e. the difficult cases of failed and rogue states and conflict zones

where history does not seem to have ended, as it were. And indeed this may explain the

main transformative tendency in international law today-in the direction of what Ruti

Teitel has called “Humanity Law,” with its emphasis on elaborating or consolidating a

minimum threshold of human protection even in the most extreme situations, and,

correspondingly, on legal accountability for the worst crimes against “humanity.’ As we

shall now see, this orientation or tendency of international law is broadly consistent with

the vision Strauss sketches from Thucydides’ history.

The Interplay of “Motion” and “Rest”: Reconsidering the Relationship of

International Law to Human Progress

Strauss’s critique of the progressive utopian view of international law in the

Introduction to The City and Man frames his reconsideration of the relationship between

international law and human progress in the Thucydides essay. In the Archeology of his

book, Thucydides presents an account of the progress of Greek civilization up to the

Peloponnesian War: the interplay of “motion” and “rest” produced cities of great wealth,

power, and human excellence. But Thucydides also purports to show how this very

progress led to the greatest “motion,” the Peloponnesian War itself, and therewith to the

ultimate self-destruction of Hellenic civilization. If this kind of account of progress,

civilization, and self-destruction were a true account of the human situation, one speculates

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that it would be possible to understand what happened in Germany and Soviet Russia, not

simply in terms of the historical pathologies of German civilization, or of extraordinary

“radical evil”, but rather as a particularly horrific example of the paradox or pathos of

civilization itself. We would have to reconsider the common view that Strauss places the

blame for self-destruction of modern civilization simply on the character of philosophical

modernity; modern “progress” and modern “barbarism” may be rooted in the logic of the

human situation as such.6 Here we note Strauss’s remarkable statement that “Thucydides’

work enables one to understand not only all past and future wars but the past and future

things simply.”(p.156) Is Strauss merely stating what Thucydides claims for himself, or is

he also revealing something of his own perspective?

According to Strauss, the view of historical progress as the interplay of motion and

rest allows us to understand correctly Thucydides’ overall judgment regarding the

alternatives represented by Athens and Sparta-Thucydides’ admiration for Athenian daring,

progress and imagination and his praise of Spartan moderation are equally authentic

components of his estimate of Hellas as a human experiment. Because Thucydides is open

to that which is beyond ordinary political life, wisdom and beauty, and he judges Hellas in

part from such a perspective, he cannot but view Athens as having attained a human peak

unknown to Sparta. But as a historian with open eyes, he also could not but articulate to

what extent Athenian daring, the eventual limitlessness of Athenian striving, and the

loosening of all sacred restraints in Athenian society produced the debacle of Hellas’ self-

destruction.

Interpreting the Archeology or prefatory section of Thucydides’ work, which

sketches the history of Greece up to the time of the Peloponnesian Wars, Strauss observes:

6 Cf Leszek Kolokowski, Modernity on Endless Trial.; Emile Fackenheim, Between Past and Future. And see generally the final chapter of Strauss, Thoughts on Machiavelli.

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“since the development of that antiquity of which we have some direct knowledge to the

present is, on the whole, a progress in security, power and wealth, it becomes sufficiently

clear that at the beginning there was unlimited insecurity, weakness, and poverty. The

reason for this was the unlimited rule in the beginning of unrest, of motion. Very slowly

and sporadically man found some rest. During the periods of rest and security—periods

which lasted much longer than the periods of motion alternating with them—power and

wealth were built up. Power and wealth were built up not in and through motion but in and

through rest. . . . The rise from original and universal insecurity, weakness, and poverty to

security, power, and wealth became in certain places the rise from original and universal

barbarism to what one may call Greekness, the union of freedom and love beauty….Just as

humanity divides itself into Greeks and barbarians, Greekness in its turn has two poles,

Sparta and Athens. The fundamental opposition of motion and rest returns on the level of

Greekness: Sparta cherishes rest whereas Athens cherishes motion. The peak of Sparta and

Athens was reached at the outbreak of the Peloponnesian war. In that greatest motion,

power, wealth and Greekness, built up during a long rest, are used and used up….The

greatest motion weakens, endangers, nay destroys, not only power and wealth but

Greekness as well. It leads soon to that unrest within the city, the stasis, which is re-

barbarization.” (p. 157)

On this account it is rest that is essential to the build up of wealth, power and

excellence that in turn leads to the greatest self-destructive motion. But Strauss goes on to

qualify this reading of the Archeology by suggesting that “present wealth, power and

Greekness” are in fact themselves the product of the interplay of motion and rest (p. 160).

Wealth, power and Greekness depend not simply on peace and stability, but on “craft and

knowledge,” which are nourished by “motion” and have a positive relation to daring, to

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expansive striving.

Where does international law fit into the drama of Hellas? According to Strauss, the

answer is this: “Neither rest and Greekness nor even war is possible without treaties among

cities, and the treaties would not be worth keeping if the partners could not be presumed to

keep them; this presumption must at least partly be based on past performance, i.e. on the

justice of the parties. To that extent fidelity to covenants may be said to be by nature right.

But since this bond is for obvious reasons not sufficient men have recourse to divine

sanctions.”(p. 178-179)

This is a critically important statement of the strength and limits of international law

in light of the view of history that Strauss draws from Thucydides’ Archeology.

Civilization would not be possible without the security afforded by treaties. Unrestrained

power politics cannot product stability; a mere balance of power unsupported by legal

constraints and guarantees is not a genuine peace, affording the rest that is required for

civilization. But this very rest allows cities to build up the power and wealth that are

discharged in (ever greater) empires and wars. This is the meaning of Strauss’s

extraordinary remark that ‘even war” is not possible without treaties. International law

contains within itself the pathos of civilization.

But as Strauss further notes, the civilizational function of treaty law could not be

performed except for some degree of trust. This requires the principle of fidelity to

convenants-pacta sunt servanda that itself cannot, without tautology, be derived from a

covenant between cities. Pacta sunt servanda must be an unwritten law not dependent on

convention or volitional agreement; Strauss suggests that it is a matter of natural right.

Natural right captures the idea that performance of treaties is to the benefit of civilized

mankind, indeed necessary for civilized mankind. Unwritten international law-sacral or

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customary law- comprises the necessary foundation of justice required for treaty law to be

effective; since however natural right as a sense of long-term civilizational self-interest is

insufficient in practice to ensure that bargains are kept in the heat of international political

struggle, trust in one’s rivals performance of covenants is thought to depend on a belief-or

at least their belief-in “divine sanctions.” At a minimum, even if not connected to a literal

belief that divine punishment will follow from treaty-breaking (the apparent view of some

Spartans), a certain sense of “sacred” constraint would be needed. This will not always

prevent the breaking of treaties, but should serve to limit such violations to cases where the

necessities of power are overwhelming; and even here legalistic arguments will generally be

given for the conduct in question, so as not to appear contemptuous of the principle of pacta

sunt servanda itself. Thucydides’ statement that the rise of Athenian power was the truest cause of the

war, whereas the cause most spoken of was violation of the treaty between Sparta and

Athens is usually taken by realists or international law skeptics to mean that law is simply a

pretext for actions determined by power political considerations. One of the most brilliant

strokes in Strauss’s interpretation of Thucydides is to argue, contrary to this view, that :

“ . . . when one studies [Thucydides’] account of these avowed causes, one observes that

they are as “true” as the truest cause and in fact a part, even the decisive part, of the latter.”

When a military conflict ensued between Corcyra and Corinth (the latter a Spartan

ally), Athens came to Corcyra’s defense, pursuant to the Athens-Corcyra treaty. As

Strauss pointedly notes, Thucydides suggests that the treaty with Corcyrea “compelled the

Athenians and the Corinthians to come to blows.”(p. 175) If Athens is right and the

“thirty-year” peace treaty between Athens and Sparta permitted Athens to enter into its

treaty of alliance with Corcyrea because it could be considered previously unaligned

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(although claimed as a colony by Sparta), then Athens was faced with a genuine conflict

of obligations.7 According to Strauss: “If it is impossible to decide whether the later treaty

conflicted with the stipulations of the earlier treaty, the earlier treaty might have been

broken without either side having been guilty of a breach of the treaty.”(p. 175)

The notion that Sparta was compelled to go to war because of the growth of

Athenian power is vastly inadequate, in and of itself, as an explanation of the course of

the war: Athenian power had been growing for a long time and yet during this period of

time Sparta had not been “compelled” sufficiently that it bothered to act, even despite the

alarm of some its allies and the concern of some quarters within Sparta itself.

The alliance of Athens with Corcyrea, and the resulting incident with Corinth,

displayed to Sparta not merely the growth of Athenian power, but that the growth of

this power now threatened the coherence and stability of the treaty on which the peace

was based. This was not because the Athenians were necessarily guilty of a technical

violation of the treaty but rather because the Athenians were actually exploiting an

ambiguity—or more pejoratively, a loophole—in the Athens-Sparta treaty to continue to

expand their power. In other words Sparta was only “compelled” to go to war as a

response to the growth in Athenian power because of an evident limitation in the capacity

of the treaty regime to maintain a stable balance of power between the allies. Sparta’s

illegal action in starting the war could be seen as morally legitimate not merely because it

was “compelled,” but it because was “compelled” by a reasonable perception that legality as

represented by the treaty regime was facing a breakdown.

Thus, according to Strauss’s reading of Thucydides, far from “compulsion”

7 The treaty sought to manage the balance of power between the two imperial cities through prohibiting the colonies of each from changing allegiance. But fatefully it left unresolved situations where a colony asserted its independent or previously unaligned status against one of the imperial cities and then entered into an alliance and then entered into an alliance with theother.

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excluding considerations of “right,” “compulsion” cannot be understood except in

relationship to “right.”

Revisiting the Melian Dialogue

Strauss’s understanding of international law in light of view of human history in the

Archeology of Thuycdides prepares us to grasp the essential differences between his

interpretation of the Melian Dialogue and the power-political interpretations.

In the Dialogue, the Melians claim that Athens’ forced colonization of them would

be an injustice, they assert the principle of self-determination. The Athenian generals

reply that there is no justice between the weak and the strong: the strong take what they

can and the weak bear what they must. This is an iron law of politics. Therefore, the

Athenian generals insist, the discussions with the Melians should be confined to

considerations of power and interest. The Melians defer to this demand, and so their

approach is to question whether the Athenians do in fact have the strength to prevail

that they claim. Thus, the Melians suggest, variously, that outcomes in war are

unpredictable and the apparently stronger side does not always prevail; that the

Spartans can be summoned to their aid; and finally, and perhaps most desperately that

the gods will take their side, because “we stand innocent against men unjust.”(104)

Here the generals dare to suggest that even the gods, the divine, support the right of the

strong to aggress and to dominate. The Melians fail to yield to the Athenian demands,

and in the result the male population is killed and the women and children are enslaved.

Strauss observes that Thucydides’ silence concerning his own judgment of the

Athenian position on Melos can no more be read as an endorsement of that position than

as a rejection of it. (p. 145) Nevertheless, Strauss does accept the conventional view of the

centrality of the Melian Dialogue in Thucydides’ narrative; in various ways, according to

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Strauss, Thucydides himself indicates the “unique importance” of the dialogue. (p. 184).

Strauss articulates the complexity of Thucydides’ judgment on the Melian Dialogue in the

following manner: Thucydides presents the decision of the Melian elite not to yield to the

Athenians as a foolish act. It is a foolish act in the sense that it would be unreasonable-

contrary to common sense moral judgment-to choose “death and extinction” rather than

the “overlordship” by another city. Strauss thus implies that the principle of self-

preservation is a more compelling principle than self-determination or self-rule. And this

is important to the moral perspective of international law itself. But of course the

Melians would only clearly be choosing “death and extinction” if in fact they do not have

a reasonable chance of prevailing against the Athenians, i.e. resistance is only foolish if

the Melians are wrong about the gods. Thus, it would appear that Thucydides endorses

the position of the Athenians to the extent that he does not believe in a divine law

according to which imperial domination is an injustice that is punished by the gods taking

the side of the dominated.

But does this mean that Thucydides endorses the full radicalism of the Athenian

Generals’ position? Strauss makes the remarkable observation that “the principle most

forcefully stated by the Athenians on Melos” is “perfectly compatible” with “fidelity to

covenants”: “it is only incompatible with covenants that would limit a city’s aspirations for

all future times; but such were not the covenants with which Thucydides had seriously

to be concerned.” (P. 191) This statement echoes Strauss’s rejection of the ambition of

post World War II international law to outlaw war forever, a rejection clearly stated, as we

have seen, in the Introduction to the City and Man. International law does not have a solution

to the factual inequality, the relative power of states—the Athenians on Melos are correct

to that extent. At one level, this is a reminder of the obvious, which is however

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neglected in the purely power-political interpretation of the Melian Dialogue: the

principle that there is no justice between the weak and strong implies not the complete

absence of right from international politics but rather that right is only significant in

relations between more or less equal powers. Thus the radicalism of the Athenian

generals that gives the Melian Dialogue its unique importance does not consist in the

denial of right altogether in international relations.

Further, as Strauss suggests, the natural right of the stronger—arguably the

“most forcefully” stated principle of the Athenian generals in that it is stated as a

necessity of nature that binds the gods as well as men—need not imply limitless

expansionism. A strong power’s “natural” impulse to rule can know some limits or

bounds (p. 191). It is not the natural right of the stronger but the assertion of the right

to take more without limit that constitutes the real radicalism of the Athenian generals

on Melos (p. 193). Strauss asks rhetorically: “Can one encourage, as even Pericles

and precisely Pericles does, the city’s desire for “having more” than other cities

without in the long run encouraging the individual’s desire for “having more” than his

fellow citizens?” (p. 193)

Strauss goes on to indicate how the radicalism expressed by the Athenian

generals, the rejection of any limit to having or taking more if one can, is crucial to

Thucydides’ narrative of the internal decline of Athenian society. Yet, at the same

time Strauss points out that Thucydides does not simply identify the Athenian project

with this ultimately self-destructive radicalism. Strauss notes that the Athenian

generals on Melos assert that the strong take whatever they can, earlier on, the

Athenian ambassadors at Sparta make a claim for the superior justice, or at least

humanity, of the Athenian empire, given the compulsion to rule. While Athens is

compelled to rule, “she exercises her imperial rule in a juster (sic), more restrained,

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less greedy manner than her power would permit her to do and the same power will

lead others in her place in fact to do.”(p. 211) That such choices are possible

constitutes an admission that the realities of power politics, however immediate and

compelling, do not and cannot justify or excuse any and every departure from

humanity, any and every form of barbarism. International law as Humanity Law (in

Teitel’s phrase)8 does not lose its normative significance in the presence of power

politics; on the contrary it is a reminder of the possibility of choosing good over bad

even in the most extreme circumstances, under the harshest power-political constraints

and where the darkest impulse have the greatest force. For this reason alone,

international law’s significance or lack of significance cannot be judged by the extent

of “compliance” in the crudest sense; one of international law’s most important roles

is to teach this possibility even where the breakdown of legality is most probable, and

where the universal standard of human conduct more likely becomes evident, not

through conformity but through ex post accountability for the breach. Strauss’s Grotius: Humanity and the Right of Nations9

The major themes in Strauss’s treatment of international law in The City and

Man pervade his 1964 lectures on Hugo Grotius’ The Law of War and Peace. In his

introductory lecture, Strauss discusses the extent to which Grotius’ work is primarily

concerned with international law as a specialized field and the extent to which Grotius’

intent in giving a “comprehensive and methodical treatment of international law” is of

a broader character. As Strauss notes, among the purposes of providing such a

8 Ruti Teitel, Humanity’s Law (New York: Oxford University Press, 2011).9 I am grateful to Strauss’s literary executor for providing me with the transcript of Strauss’s Grotius course. The transcript is unedited and there are obvious transcription mistakes. No actual tape apparently exists. For this reason, this transcript would not be a sound self-standing basis for an interpretation of Strauss’s view of international law. The discussion that follows is really in the manner of an elaboration of the themes and interpretations in The City and Man, bringing to the fore the sensibility behind those themes and interpretations. This use of the transcript is reinforced by the fact that this course was more or less contemporaneous with the publication of The City and Man.

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treatment is to address those who “deny there is international law at all.” Strauss

observes that the denial of international law is connected to the denial of right or justice

as such, according to Grotius If law is simply the command, the will of the sovereign,

“he who decides” to use the expression of Carl Schmitt, then there cannot be strictly

speaking an international law (to the extent that there is no sovereign in command of all

the nations.) except perhaps as the law of an imperial or dominant power or powers

disguised as universalism(I:5) We are then left with “the variety of legal orders

according to the variety of mores and utilities of the various societies. There is not

natural right.”(I:5) Conversely, if there can be a genuine functional system of

international law, there must be some notion of right that is not simply reducible to “the

variety of mores and utilities of the various societies.” Grotius is above all concerned,

according to Strauss, with the vindication of natural right, and the alignment within the

limits of the possible, of the practices of states with natural right. This explains why,

although international law is central to Grotius’s work, the work is by no means limited

to international law. (I:9)

In the world of Thucydides, the “divine law” is the necessary foundation for

international legality, but properly understanding the problem of the “divine law”

brings one to the question of the law of nature and what if anything is “right” by nature.

In the world of Grotius, divided between conflicting faiths, international law must be a

law “binding not only Christians, but Muslims and pagans” and thus can only be

“approached on the basis of what human reason tells everyone, and therefore there is a

close connection between international law and natural law. In the intra-national

things, you can say there you have the positive law, which is usually specific enough

for most purposes, but in relations between different states or entirely different

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cultures, what common ground can there be, except man’s common humanity, and this

common humanity expressing itself in man’s common reason.”(II: 14) An explicit

separation of natural right from theology is required to ground international law. In

some ways, this explicit separation anticipates Hobbes’ initiation of the modern natural

right teaching; however, according to Strauss, Grotius remains in the tradition of

Aristotle, in asserting there is a natural human sociability—a basis for society and for

peace other than selfish calculation.10

“The greatest obstacle to natural law is war. If right is possible only in peace,

peace cannot be established by lawful means in contradistinction to unlawful means—

Machiavelli’s argument.”(I:16-17). A lawful peace is one that does not simply

consecrate the gains of the victors in the war, leaving grievances or disputes about the

rightfulness of the war and its conduct unaddressed and therefore as open or festering

wounds that can lead to new conflict. As with Thucydides, international law’s core

task and rationale is connected to the preservation of the human or the reminding of the

human in the face of widespread dehumanization. This point is made by Strauss

throughout his course on Grotius, but is perhaps most eloquently illustrated by a

passage from Grotius that he cites in the final lecture: “…violence is most manifest in

war, wherefore the more diligently effort should be put forth that it be tempered with

humanity, lest by imitating wild beasts too much we forget to be human” (XIV: 19,

quoting Grotius, Ch 23, section 3, paragraph 2).

Strauss articulates Grotius’s distinctive approach to remembering the human in

10 See B. Kingsbury and B. Straumann, “State of Nature Versus Commercial Sociability as the Basis of International Law: Reflections on the Roman Foundations and Current Interpretations of the International Political and Legal Thought of Grotius, Hobbes and Pufendorf,” in Besson and Tasioulas eds., The Philosophy of International Law, p. 40: “In Grotius’s elaborate system of natural law and natural rights, the influence of ancient political and legal thought, particularly the influence of Roman Law, is of central importance.”(p. 40)

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international law by posing a paradox in Grotius’s teaching: Grotius’s ius gentium is

extremely permissive of what is allowed in war, extending even to practices whose

inhumanity is contrary to Grotius’s own concept of natural law, according to Strauss,

“Grotius is a very humane man and if he had is way, there would be no more wars.”

(X:17). Why then would he have espoused a law of nations—ius gentium—below the

minimum threshold of humanity demanded by the natural law?

According to Strauss, in order to understand the complicated relationship of

natural law to the ius gentium in Grotius, we must first of all appreciate the ambiguity

of the ius gentium, or dual sense in which Grotius uses the expression. While today

ius gentium is used to refer exclusively to international law, Grotius employs ius

gentium sometimes in this sense but also in the older sense derivative from Roman law,

of a law that is somehow common to different peoples, i.e. applicable across different

cultures and regardless of the obligations undertaken by different states; a kind of

minimum positive legal normativity recognized by all peoples, or at least all civilized

peoples. The ius gentium can therefore in addition to and apart from obligations

between states “create a relation of right among all men, at least among all civilized

men.”(VI: 2) The ius gentium, in this respect, “does not require a formal agreement by

the individual state that they will abide by international law” in order to bind all men,

or at least all civilized men.

Because the ius gentium is a binding positive law it must follow that violations

of this law are punishable. It is important to have such positivity, to provide a clear

sense of some absolute constraint-a line that cannot be crossed, something equivalent to

the notion of sacred constraint evoked by the sacral law in Thucydides. But there is a

problem with making punishable acts other than those clearly and unambiguously

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unacceptable to all men in all circumstances: in international law, there is usually no

superior judge independent of the interests and values of the various peoples, the

various parties to the conflict. Punishment on the basis of self-judging can lead to new

grievances and new conflicts. Strauss explains that Grotius refrains from taking the

approach of his positivist successors to the problem of self-judging, ultimately derived

from the notion of Hobbes that the natural law cannot have effective positivity at all

where there is no higher sovereign —Grotius still wants to have some directly

effective constraint that binds all men in all circumstances, a “positive right that is

accepted by the whole human race”.(IV: 21) Strauss opines: “Grotius, as it were, is

grateful for every line drawn somewhere because it is at least some desire for some law

and limit…. Is not the fundamental calculation this? I am glad about any limitation to

savagery which people acknowledge.”(XI: 19) Strauss suggests: “[On Grotius’s view]

we permit all these terrible things in war in order to have some flooring, however

low.”(XIII:7).

But Grotius also has a strategy for raising the floor over time. Once has the

principle of an absolute floor of what is acceptable even in war , a binding constraint

not just on states but on individual human beings, if there is progress in humanity, there

may be future universal agreement on setting the floor higher. And this goes to the

other dimension or sense of the ius gentium: just as we have seen it does not prohibit

everything that is against natural law, it also prohibits some things that are permitted

under natural law but considered universally dishonorable among sovereigns, such as

assassinations by poison.

Grotius, according to Strauss, sought to make natural law effective not only

through a low floor of ius gentium, but also through counsels of humanity and prudence

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to sovereigns. As counsels of humanity and prudence, natural law principles

concerning constraint in warfare are not punishable in the breach. Here, unlike the

“floor” of the ius gentium, one relies not on some sense of absolute taboo, what is

simply forbidden to humans if they are to remain recognizably human, but on the

enlightened self-interest of sovereigns. This idea of the coincidence of humanity in the

natural law, or natural right, with enlightened or long-term self interest reminds Strauss

of Thucydides (XIV: 12) Grotius stays closer to the ancients than to Hobbes and

Locke, who want to build the whole natural law teaching on utility and dispense with

humanity as an independent, if fragile, ground. Central to the divide between the

modern and the earlier approaches to natural right is the significance of the “realist “

insight common to both that where humanity and utility diverge, humanity is very

likely to yield to utility. The approach of modern natural right is to build the doctrine

around the problem of this divergence; one cannot rely on humanity, because it gives

out in extreme circumstances, therefore one should forget about it. The older

perspective, more congenial to Grotius, is something like this: yes, it is true that when

humanity and utility diverge, utility generally prevails in the behavior of states, but in

many relevant cases, and even sometimes in extreme circumstances, humanity and

utility do not diverge entirely; and in those cases, if statesmen and generals act

reasonably, not blinded by passion and prejudice, humanity can indeed be a real force.

Grotius’s tactic of emphasizing those situations where the counsels of humanity

converge with interests of state is thus of considerable importance to the effectiveness

of his natural right teaching.

But according to Strauss, Grotius’s rational appeal to sovereigns did much less in

practice to humanize war than Rousseau’s appeal to pity or compassion, although we

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owe Grotius “gratitude surely” that the treatment of prisoners and civilians improved

(In the late 18th and 19th centuries and to some extent during the first World War.)”(XII:

7)

Strauss’s ultimate judgment on the international law project of Grotius takes us

back to the themes that predominate in The City and Man, in the Introduction as well as

the essay on Thucydides. While admirable and desirable, the humanization of the

waging of war (especially the treatment of civilians and prisoners) does not represent

secure, irreversible human progress. The humanization in question was dependant not

just on the thought and rhetoric of jurists such as Grotius and philosophers like

Rousseau but certain changes in military technology that made it feasible to distinguish

soldiers-combatants-from civilians and to use weaponry capable of targeting

combatants with some precision. But there are now further changes in military

technology—aerial bombardment and poison gas among them—that destabilize the

distinction between civilians and combatants as a basis for limiting the barbarity of

war. (XII:8) Strauss here anticipates the inherent difficulty of applying humanitarian

law today, whether illustrated by the controversy over the NATO bombings of Kosovo

and Belgrade (civilian deaths might have been avoided had NATO pilots bombed from

lower altitudes that put the pilots themselves at more risk from air defenses) or the

questions raised more recently by the use of certain weapons and techniques by Israeli

soldiers in Gaza.

But there is something deeper reflected in Strauss’s observations—we are back

to the trope of the pathos of civilization, which we saw in Strauss’s explication of the

Archeology in Thucydides. Progress in civilization can be identified with peace, with

greater gentleness and humanity-but it also provides for the evolution of new and

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potentially even greater forces of human destruction and self-destruction. Whatever

ultimate hopes for international law may exist under this account, it has certainly had a

humanizing and civilizing function at various historical periods. Strauss’s final word in

his course on Grotius is sobering. Consistent with his account of the Archeology in

Thucydides, Strauss doubts whether war will ever permanently lose its appeal to a

certain side of human nature: “it is a great question whether… there is something

deeper in man which leads [to war]… the element of danger… and sacrifice, and the

kind of enthusiasm that mean have more for this kind of thing than for others. I mean

say the war against poverty does not arouse the kind of enthusiasm as a war against

Japan does.”(XIV: 22) Yet Strauss does not endorse a la Schmitt this outlook; indeed,

in a clear swipe at Schmitt he speaks of the “delusions” of “critics of modern

democracy” based on nostalgia for aristocratic wars that are imagined to have been

noble and gentlemanly in their conduct. As for the immediate present (we recall that he

gave this class in 1964), Strauss is unremittingly bleak: “today… international law is, I

believe, the least safe support for any man today who wishes to hope” (XII:8). This

reminds us of what Strauss said about the Communists in the Introduction to The City

and Man: the Communist ideology simply is incompatible with any legal constraint

whatever in international relations. In these particular circumstances, during the Cold

War, “The only restraint in which the West can put some confidence is the tyrant’s fear

of the West’s immense military might (City and Man, p. 5).”

There is a further theme present in the Introduction to The City and Man that is

also very important to Strauss’s judgment on Grotius’s international law project. In

the Introduction to the City and Man, Strauss had elaborated the difficulty for justice

created by the abolition of aggressive war in the UN-based postwar framework for

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international law: the implicit consecration of existing boundaries, often themselves

based on injustices, by the outlawing of a just war based on the principle of self-

determination. (VIII: 23) As Strauss notes, Grotius, unlike his successors, does not

simply dispense with the concept of “just war” but narrows it considerably, such that

the criteria of justice become formal (proper declaration of war, etc.) rather than

substantive. The ancients, Strauss suggests, were permissive of wars of

“intervention”, to prevent or punish atrocities. And to the extent that such atrocities are

contrary to natural right, one cannot simply dismiss the argument that such

interventions have an element of justice to them. But there were understandable and

weighty considerations that led Grotius to narrow the concept of “just war” according

to Strauss, above all “The older view is … one which lends itself easily to gross abuse.

You can say it’s a service to humanity but it is obvious … in most cases the conquerors

are very little concerned with improving the morals of the conquered but with

exploiting them.” (IX: 17) Heightening the concern of “abuse” is the absence again of

any impartial judge to decide claims of “just war.”

Nevertheless, despite these important and understandable considerations, Strauss

suggests that an international legal system that leaves no place whatever for the

possibility of intervention as a response to the most horrible atrocities would strain the

very intuitions about humanity and justice on which any system of international law

must ultimately be founded. The debate over the gap between legality and legitimacy

in the NATO intervention in Kosovo to prevent genocide and the emergence of the

Responsibility to Protect as a concept in international law are reflections of the

difficulty that Strauss identifies, just as the problem of “abuse” that he also recognizes

is reflected in the controversy about the invocation by some of human rights and

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humanitarian considerations in the justification of the Iraq War.

International Law and Perpetual Peace: Strauss’s reading of Kant

Using Grotius as his point of departure, Strauss takes up the theme of “just war”

again in his 1967 Kant seminar.11 He suggests that there are two quite different

sources of the modern rejection of “just war.” The first, and older source, is the

concern about abuse, which arose in response to the horrors perpetuated by the Spanish

in the name of Christianizing the indigenous peoples of the Americas. This led the

Spanish writers such as Vittoria to put in question whether divine right should be

invoked as a basis for a “just war.” “This was then integrated into doctrines of entirely

different origin that asserted the sovereignty and autonomy of states,” doctrines developed

by Bodin and Hobbes. The full modern doctrine holds that there cannot be justice or

injustice between parties who are not subject to a single sovereign. Strauss then goes on

to note that the demise of the modern doctrine can be seen with the Nuremberg trials

and even to some extent prior to that with the affirmation of German war guilt in the

Treaty of Versailles. Once the possibility of a standard of judgment concerning the

injustice of war is admitted to be possible even in the absence of a common sovereign,

then the early modern rejection of “just wars” fought to prevent or stop atrocities

becomes questionable.

Yet what prevents the cynical interpretation of Nuremberg as merely “victor’s

justice”, given that the court in question was constituted by allied powers, by one party

in the conflict? Posing this question gives us a window into the distinctiveness of

Strauss’s overall reading of Perpetual Peace. Unlike some contemporary theorists of 11 The following is based on audio recordings of the seminar available on the website of the Strauss Center at the University of Chicago. A transcript will eventually be available and is being edited by Professor Susan Shell of Boston College.

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“liberal peace” or “democratic peace” Strauss largely dismisses the dimension of

Kant’s argument that suggests that the ordinary people are the natural party of peace

and that this is why republican government is the necessary precondition to perpetual

peace. On this view, the essential feature of republican government is that it represents

the interests of the people, who stand to be the biggest losers from war, whereas the

leaders, who benefit from its glory, are able to stay safely away from the battlefield.

Strauss suggests that Kant was limited by his own experience of the peaceful artisans

and peasants he saw around him, and he did not know, and could not have known, the

more modern experience of the mobilization of mass populations in support of war.

But as Strauss observes, political thinkers of Kant’s epoch (he mentions the Federalist

Papers) surely did know the experience of democratic ancient Athens, where the

citizenry was often war-like, even if they and their own children as citizen-soldiers

bore the most direct and devastating costs of war. To understand therefore the more

fundamental basis for Kant’s insistence on the relationship of republicanism to peace

one must appreciate a key difference between ancient and modern republicanism. For

Kant, according to Strauss, what constitutes republicanism even more fundamentally

than popular representation is the separation of judgment from legislation or political

action as such. As Strauss indicates, he and Kant have as a common ground the

rejection of a “world state” on the basis that it would be a “soulless despotism”,

destructive of human diversity. But this objection to the “world state”, while

indicating the undesirability of the political project of subjecting all peoples to the

commands of a single sovereign, may not necessarily apply to the subjection of all

states to a world court or judicial instance that will arbitrate conflicts between them.

It is in this precise sense, in suggesting that judgment is separate from or independent

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of other elements of sovereignty, that republican constitutionalism evokes the

possibility of a republican federation of states premised on the willingness of states to

submit their disputes to a higher judicial authority.

Yet no such authority now exists and yet until it does exist one would expect a

continuation of the state of war, and in such circumstances a continuing unwillingness

of states to create an institution in whose hands they place the solution of conflicts

affecting vital security interests. Strauss’s differences with Kant and with views of

international law that depend upon progressive philosophy of history emerge when

Strauss considers Kant’s position that there is an inner necessity not just a possibility

that the republican federation will be brought into existence.

Strauss expresses what seems like qualified or tentative agreement with Kant

that the hope for an end to war is a moral requirement, determined by the idea of

humanity being subject to Right. He also tends to agree with Kant that belief in moral

progress-the notion that human beings would eventually cease to be subject to violent

or antisocial impulses-is philosophically unjustifiable. However, as Strauss observes,

Kant thinks that progress in legality is possible without moral progress. This is because

history will eventually teach man through war itself, that war is incompatible with self-

interest: only instrumental reason is needed for this conclusion to be accepted by

mankind as a whole. Thus, the famous line in Perpetual Peace that the problem of

politics could be solved by a community of devils. While there is an inner necessity by

which, according to Kant, learning from the experience of war itself will bring about

perpetual peace, Strauss also observes that Kant views progress toward perpetual peace

as “infinite.” In other words, recognition of the necessity in question does not allow us

to predict when or after what events the lesson required for perpetual peace will be

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learned. As Strauss hints, only a catastrophic war that destroys humanity as such

would be enough to ensure that human beings recognize the imperative to end all wars.

And then it would be too late. On the other hand, can we really be sure that decades or

centuries of peace would not result in human beings (who we must remember

according to Kant are not morally more perfect than they ever were) unlearning the

rational lesson from the experience of war?

Thus the notion of infinite progress toward perpetual peace conceals and at the

same time reveals a difficulty. The gradualism implied by this notion entails steps that

on their own might reasonably contribute to a more just world, making war more

humane, making it rarer (through acceptance of the provisional articles of perpetual

peace and through increasingly subjecting disputes to international arbitration-but how

do we know that these steps might not be reversed or eliminated by some set of

unpredictable events? Thus getting sovereigns to move away gradually from

Machiavellian Realpolitik requires that they take a sort of leap of faith-trusting that

other sovereigns will not merely exploit their willingness to be subject to legality for

their own wicked purposes. Strauss suggests that such acts of trust may not be

reasonable in the circumstances of the Cold War. Indeed he indicates here explicitly

that this is what divides him from the view that is common to the liberals, or liberal

pacifists, of his time.

But Strauss does not believe that the trust upon which conventional international

law normally depends (above all in matters of peace and security) is always or usually

unreasonable given the nature of power politics (recall his discussion of treaties in

Thucydides). This sets him apart, we again note, from certain kinds of conservative

“realist” critics or skeptics concerning international law. Indeed, Strauss considers the

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most powerful aspect of Kant’s argument in Perpetual Peace to be the anti-

deterministic aspect that he deploys in addressing the cynics or skeptics: there is no

intrinsic reason that human possibility is exhausted or limited by the empirical

evidence about human society and human conflict hitherto, by the social facts of the

past and present. Ultimately the determinist stance of the cynic reposes on a dogma

that there can be nothing new under the sun, and Kant exposes this dogmatism. Where

Kant strays according to Strauss is in offering an opposite determinist narrative, which

is itself vulnerable to the objection of dogmatism. Moreover (and this is an issue that

goes beyond the scope of this paper) Strauss observes that the philosophy of history

that supports the hope of perpetual peace is connected to Kant’s moral theory but has a

very complex relation to it, and especially the central idea of freedom. In any case,

Kant is persuasive in showing that it is not per se unreasonable, or that the skeptic

cannot demonstrate it is per se unreasonable, to hope for gradualist progress toward

perpetual peace, and to take the intermediate steps of strengthening international law.

What is not reasonable according to Strauss is for political leaders today to take

immediate risks based on a sense of certainty or conviction that they are contributing to

necessary and irreversible progress toward perpetual peace.

Conclusion

Especially in America in recent years, being “for” international law has often

been considered a liberal position, and skepticism concerning or hostility to

international law a conservative one. Some scholars have gone so far as to suggest that

proposals to strengthen international law, and that its constraints on state behavior be

taken seriously, are little more than progressive rhetoric, the abuse of the language of

law to permit a vision of a universal egalitarian society that liberals favor out of

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ideological prejudice. Strauss, and some of the thinkers with whom he was

preoccupied, especially Thucydides, are often taken by the right and the left as the deep

intellectual sources of conservative resistance to “progressive” international law.

Strauss was indeed a conservative to the extent that he questioned the narrative

of historical progress through enlightenment that has been central to the vision of

liberals and other progressives since the 18 th century, and he had fundamental doubts

about the desirability and possibility of a political and social order that would be

secular, egalitarian and neutral among conceptions of the good. By and large, I do not

share his conservatism, thus understood. Yet the human and humane sensibility that

emerges in Strauss’s engagement with international law, and his account of its

constructive and preservative role in civilization, reveals another side of Strauss, which

is open to liberalism, or at least the original liberal concern with making human society

less cruel, severe, and fanatical. While Strauss’s vision was deeply marked, and

darkened, by the 20th century experiences of fascism and communism, and he was often

inclined to view liberal hopes as reckless and dangerous illusions, Strauss’s encounters

with Thucydides, Grotius and Kant display his persistent concern with finding a

support for humanity in a world shaken by fanaticism, catastrophe and atrocity on an

unprecedented scale. Within the limits of the possible, international law holds the

promise of being one such support, fragile but essential.

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