1.3 HISTORY OF POLITICAL THOUGHT AND THE POLITICS OF POWER

One way into the difference I have in mind is by thinking about how different historians of political thought cast the relationship between the discursive and the non-discursive.

To go back, then, to the picture of political languages we were sketching in the previous section, we saw that in the background to the discursive world lie a plethora of non-discursive phenomena. There are institutional sites of political discourse such as palaces and parliaments, and beyond them further sites of socioculturally authoritative discourse such as universities or other institutions of scholarship, places of worship and courts of law. There is also an endless variety of other social and cultural forms in which people produce and consume political meaning, newspapers, letters, cafes, public squares, etc. The explanatory and interpretative salience which these non-discursive aspects are given in particular cases differs from historian to historian along broadly the same lines as in all intellectual history. But history of political thought differs from other kinds of intellectual history, as we have seen, because it must take a decision on what counts as political. One way of taking that decision, associated with the position known as ‘political realism', is to hold that politics is essentially about power.

The bare assertion that politics is about power begs the question, of course, of what exactly is power, and how does it operate. It is the element of extra- discursive, therefore, that specifies the understanding of power we are talking about here: violence, or the use of force. This does not mean that political power, on this construction, reduces to violence or force. It is possible to distinguish power and violence, conceptually speaking, in any context. Political power, especially, must establish its authority, or the power to command voluntary compliance, and that involves legitimacy and legitimation (in the Weberian sense). Nevertheless, such authority must be enforceable, or it is not authority in the relevant, political sense. In the final analysis, then, it is the threat of force or violence (and the credible command of such force) that is the central characteristic of political power as opposed to any other kind of power.^[17] Behind the definitional primacy of the threat of force to politics lies an avowedly Hobbesian picture of the realities of human psychology, human action and human conflict, and likewise a broadly Hobbesian view of the state as a solution to that conflict by constituting a ‘common power, to keep us all in awe', in Hobbes's phrase. It follows that the primary arena of politics is the state, on a distinctively modern understanding of it. International politics is a conceptually secondary form, however import­ant, historically speaking, that arena may become, and however much it may impact back upon domestic politics such that the two become effectively inseparable.

As a solution to a real problem, the state is both a timebound and a local, or in other words a historical, phenomenon. In this way, political realism co-opts history to politics, and here is where it appeals to contextual history of political thought as an approach to political discourse. If we compare the realist vision with Skinner's original Weberian impulse as described above, we can see that there are clear continuities. But there are differences, too. Realism represents a more agent-centred model of politics. Politics is the field of action, and power is pulled into agency, be it of individuals or political institutions or other bodies such as corporations.^[18] Skinner was interested in political action, of course; his appeal to the concept of a speech act makes no sense otherwise. But he was also interested in legitimating language as a phenomenon that constrains as much as enables agency within a shared normative horizon. Realism can, somewhat uneasily, accommodate a broader, social sense of legitimation through an appeal to a collective psychology of belief. But it also wants to keep a narrower understanding of ideology which is closer to the standard twentieth-century use of the term. Ideology is a kind of political illusion, ‘a set of beliefs, attitudes, preferences that are distorted as a result of the operation of specific relations of power', distorted (characteristically) in the sense of presenting such beliefs as connected with universal interests when in fact they serve particular interests. Political philosophy can then either critic­ally reveal that distortion, by exposing its relation to power (‘critical realism'), or itself be ideological in the same sense.^[19]

Political realism stands at one extreme of the interpretative possibilities offered by the basic conceptual architecture of speech acts, and it has a series of consequences for historiography. Not all historians of political thought sympathetic to this understanding of politics would endorse all the premises of the philosophical position.

Like all history of political thought, this interpretative approach has no room for the universal (in the sense of extra-historical and extra-political) truth of the expressions it studies. But political realism does have a distinctive attitude of ‘seeing through' such truth claims, especially moral and religious universals. While such ideals can be pulled into real politics through an appeal to psychological motivation, taken at ‘face value' they are yet further illusions that cloud a correct perception of reality.²² Turning from philosophy to history, this in turn supplies an effective historiographical trope, that of exposure - a bringing to light, an unmasking, of the ideological slant of works that may or may not, on the face of it, look ‘political' in content.

What are the consequences of this specific co-construction of history and politics for law? A broadly realist construction of politics sees law as an act of sovereign power and the primary instrument of political government. The central case of law is therefore the domestic law of the sovereign state, just as it is the focal arena of politics. Judicial interpretation of statute is also law, if that capacity is sanctioned by the constitution as an order of sovereignty; likewise, international treaties or other forms of international law. Law in its formal aspect as an act of sovereign power is not political in the sense of ideological, and to that extent a distinction between law and politics exists. Nevertheless, legislation is inescapably political in content by the very fact that it is the primary instrument of policy, sanctioned by the state but made by those in government, and the historian of political thought will accordingly seek to connect specific pieces of legislation with the ideology of the governing party or regime. As for works of jurisprudence and legal scholarship, including legal history, any such legal discourse that is not formally law is open to being read for ideology, that is, not as law but for what it is politically trying to legitimate.

This conception of the autonomy of the political has a long history, and there is an equally long history of opposition from those who believe that law does not reduce to the political in this way. This includes not only lawyers and legal theorists, working from within law, but moral and religious philosophers who base the legitimacy of law on transcendental grounds, for example the law of God or natural law. But history of political thought in this vein, as we have seen, is strenuously opposed to any idea that universal and transtemporal religious or moral norms or principles govern the legitimacy of politics. It follows that any historical (and indeed contemporary) articulation of or appeal to religious law or moral law in the context of politics is purely ideological. This has nothing to do with sincerity of belief, which is outside the political arena. People may perfectly well be sincere in their belief when they say, for example, that something belongs to natural law. But in the political arena, to say that something is natural is irreducibly political. The same will equally be true of appeals to moral norms or secular ideals, for example the idea of inalienable human rights.

To sum up so far, then, a broadly realist style of history of political thought can provide a powerful analysis of the politics of discourse. It is perhaps most at home in tightly-defined modern domestic political contexts, but it can also extend to both international and imperial contexts - at least as seen from the centre out, or to the extent that empire is politically challenged from the colonies and former colonies in the same sense of ‘political'. Indeed, the modern history of empire is in some ways a perfect space for the analysis of how discursive legitimation in this form operates. Its potential to unmask the ideological bent of imperial legislation gives it a powerful critical edge, in potential synergy with the aims of critical legal scholarship within the global frame of imperial politics. No one can deny, surely, that law is at least to some degree an instrument of policy, and that unmasking its political instrumental­ity is a very effective way of undercutting law's implicit claim to be beyond politics. Moreover, for a long period of its history the main form of inter­national law was natural jurisprudence in one form or another, natural law being, as we have seen, a prime candidate for ideological exposure. But if history of international law adopts the same ‘outside' of power, does that collapse critical history of international law into history of political thought? Can a strictly legal analysis capture ideological slant?

That question can be posed from the text end, too, as we did at the start. Does a piece of early modern natural jurisprudence, analysed as an ideo­logical justification of European imperial practices, lose its nature as law under that analysis? A historian of political thought with an uncomprom­isingly realist viewpoint might be tempted to say yes. Grotius's The Law of War and Peace, for example, may call itself law, may use legal language and appeal to legal principles, but it's not really law. It just positions itself as such for its own political purposes. Such a response, however, is guaranteed to make historians of international law bridle. Who is the historian of political thought to say what is law and what is not? In what follows, then, I outline an alternative approach which is potentially more accommodating to a legal perspective on the texts that it studies.