FIXING THE BROKEN MIRROR: DIVERSITY AND SURVIVAL IN THE GLOBAL VILLAGE.

• Date: 01 June 2020
• Author: Akhavan, Payam
• Published date: 01 June 2020
• Author: Akhavan, Payam

The truth was a mirror in the hands of God. It fell to earth and broke into pieces. Everyone took a piece, saw their own reflection, and thought they had the truth. (1) Rumi Rumi was a medieval jurist and mystic, born in what is now Afghanistan, in the closing years of the Islamic Golden Age. His family fled the Mongol invasions of 1215, wandering westward in search of refuge. Ripped away from his home, Rumi's childhood journey took him along the Silk Route, through the cosmopolitan cities of Baghdad and Damascus, to the Anatolian lands of the Byzantine Empire, an odyssey of wondrous sights, and bewildering diversity. (2) His poem on the broken mirror was a meditation on shared meaning in a world of loss and suffering.

A thousand years later, grappling with the horrors of totalitarianism, Jurgen Habermas would introduce "the intersubjectivity of mutual understanding" to critical social theory. (3) A leitmotif of the Frankfurt school, it would be celebrated by postmodern thinkers as a cutting-edge concept, oblivious to the roots of pluralism in ancient wisdom.

The relationship between past and present, tradition and modernity; the cultural self-understanding of our place in history is a befitting point of departure in exploring diversity in international law.

We in Canada are Indigenous and immigrants, francophone and anglophone. We have embraced a multicultural postnational identity and a rule-based international order. It was a philosopher among us--a certain Marshall McLuhan--who popularized the term "global village" in the 1960s. (4) Half a century ago, it described a technology-induced transcendent consciousness, a prescient vision of the hyperconnected internet world of today, where we can explore the delicate boundaries of "self' and "other" through Instagram selfies and Twitter tantrums!

There is of course another, less appealing side to Canada: our Indigenous brothers and sisters struggle with the legacy of colonialism; in Quebec there is the hijab hysteria known as Bill 21, in the shadow of the 29 January 2017 massacre at Quebec City's Islamic Cultural Centre; and there are ominous undercurrents of racism, misogyny, and homophobia, just beneath the surface. "Canada's New Far Right," the Globe and Mail reported, is "actively recruiting new members, buying weapons and trying to influence political parties." (5) Where at the end of the Cold War, Western liberalism celebrated the "end of history," (6) today we live in an age of rage, gripped by a hateful populism, battering the ethos of diversity and multilateralism that we once took for granted. We are witnessing, it seems, a prolonged episode of infantile regression in that reality TV show we call politics.

Whether we are critical theorists or progressive practitioners, we condemn these sinister forces of xenophobia and isolationism. But if we stare long enough in the mirror what do we see? Beyond liberal platitudes, have we embraced the more profound meaning of pluralism? And why should it matter at this particular point in the evolution of humankind?

The idea of international law is inherently cosmopolitan. Put differently, it is a response to a traumatic historical experience arising from the violent negation of diversity. The Westphalian peace treaties of 1648 that first recognized the sovereign equality of states emerged from the catastrophic Catholic-Protestant wars. The natural justice proclaimed by Hugo Grotius was conceived amidst the Dutch War of Independence against Spanish rule. The contemporaneous Thirty Years War, between the House of Habsburg and the Kingdom of France, had resulted in an estimated eight million deaths, mostly in the Holy Roman Empire. "Throughout the Christian world," Grotius wrote in 1625 in The Law of War and Peace, "I observed a lack of restraint in relation to war, such as even barbarous races should be ashamed of." (7) For him, the ideal of religious tolerance was not a philosophical abstraction; it was born from intense suffering.

Beyond the Christian family of nations, jurists were also beginning to grapple with early colonial encounters. In his lecture of 1539 entitled De Indis, Francisco de Vitoria, founder of the school of Salamanca, invoked divine justice to condemn the atrocities of the conquistadores. A Dominican friar, he maintained that the Indigenous peoples of the Americas had "true dominion" over their affairs "just like Christians." (8) The Aztec, Mayan, and Inca Empires that Hernan Cortes subjugated were sophisticated civilizations. They had complex normative systems, including international laws regulating war and commerce. In the rapacious pursuit of colonial riches, however, instead of Dominican universalism, international law legitimized the conquest of Indigenous peoples by portraying them as "barbarians" and "savages."

The so-called Spanish discovery of the New World in 1492 had coincided with the conquest of the Emirate of Granada in Al-Andalus. The European Renaissance of Vitoria's time though was deeply influenced by the intellectual centres of Islamic Iberia, long after the Moors retreated to North Africa. Amidst the Dark Ages in Christendom, the Great Library of the Caliphate of Cordoba--founded by a legendary woman named Lubna--boasted 400,000 volumes. Before the Mongol siege of Baghdad in 1258, the Grand Library of the Abassid Caliphate was a thriving cosmopolitan academy. There, the eighth-century theologian Abu Hanifa pioneered the discipline of jurisprudence, including Siyar, the Islamic equivalent of international law, with principles on the sanctity of treaties, the treatment of aliens, freedom of the high seas, diplomatic protection, and expropriation of property.

The Laws of War by Anglo-Italian jurist Alberico Gentili, published in 1598, signaled a shift in the early modern period from theology and natural law to positivist theories based on state consent. (9) The Oxford publicist derived his ideas from the jus gentium of classical antiquity, regulating relations between the Roman Empire and others known as "barbarians." These included the Germanic, Celtic, Gaulish, and Iberian tribes: the ancestors of present-day Western Europeans. History is full of unexpected twists and turns. Yesterday's "savage" can become tomorrow's saviour, and vice versa.

Jus gentium too had earlier antecedents. In 2550 BC, the limitrophe kingdoms of Lagash and Umma had concluded a boundary agreement in Mesopotamia, the oldest known expression of treaty law. Today, it sits in the Musee du Louvre in Paris, a clay pillar with inscriptions in cuneiform script. Even more impressive is the Cyrus Charter, a cuneiform text on a clay cylinder from 439 BC in the British Museum in London. It was arguably the first human rights declaration in history, granting religious freedom to subjects of the multinational Persian Empire. (10) It inspired Thomas Jefferson in drafting the US Constitution of 1787. (11)

The origin story always begins with the European "fathers" of international law; but there is nothing new, nothing unique, about the search for harmony through transcendent norms. Diversity is the very story of human-kind, integral to our communal existence from time immemorial, across all cultures and civilizations. Even if we confine ourselves to the European narrative, the paternity of international law would still be in doubt. In 1410--two centuries before Grotius--the French writer Christine de Pizan had published Livre de faits d'armes et de chevalerie on the laws of war. (12) Apparently, the mother of international law did not have a good publicity agent!

From the eighteenth century onward, positivism became the dominant theory of international law. This coincided with the acceleration of European modernization. The Industrial Revolution created unprecedented prosperity, and urbanization transformed traditional social structures. Radical ideals of democracy and equality gradually spread, privileging individual autonomy over communal bonds. The intimate identity of the village was replaced by abstract belonging to this imagined community called a nation.

The vehicle of this progress was the modern bureaucratic state. "Nasty, brutish, and short"; it sounds like a law firm, but that is what Thomas Hobbes described in the Leviathan as the "war of every one against every one" that would prevail without centralized authority. (13) The rise of nationalism coincided with the decline of religious belief: the substitution of faith with reason. State-centric positivist theories of international law were shaped by the Hegelian premise that the rational alone is real; (14) beyond the command of the sovereign, there was no mystical authority from which transcendent norms could be derived. There was no such thing as morality or "soft law"; only hard law based on the objective reality of state consent. The seminal Precis du droit des gens moderne de l'Europe, pubhshed by Georg Friedrich von Martens in 1789, reflected this rigorous methodology. (15)

Modernity, Max Weber said, "is characterized by rationalization and intellectualization and, above all, by the 'disenchantment...