We owe much of our knowledge of legal diversity in Asia to the work of Barry Hooker, who appears early on to have appreciated its intrinsic interest and potentially global significance. His work in the field is, as the French say, incontournable; a nice combination of the unavoidable, the controlling and the greatly respected. These lines are offered in such a spirit of respect, but rather than attempting to emulate the master in richness of exposition, they take refuge in a larger and more abstract perspective, in attempting to situate Asian legal diversity in some broad currents of Asian thought, contrasted in some measure with the European thought which has contributed so greatly to contemporary concepts of states and state law in the world.

Classical European Forms of Logic

States and the law of states have developed in all cases as the result of the particular circumstances of each state, but there are common forms of thought which underlie, in some measure, all states. The most remarkable of these has been the dichotomy, first announced (apparently) by Plato and adopted in a massive manner subsequently by Western thinkers, legal and otherwise. Plato argued that in order to begin to understand the world, one should first divide it conceptually into two. He wrote that “it's not at all difficult to separate into two all of those things that come into being”, and that we should “divide all cases of knowledge in this way”. This initial diaeresis or divisio, moreover, should be followed by others, each yielding more detailed forms of taxonomic division until a point was reached which satisfied the intellectual and practical needs of those effecting the divisions or separations. Platonists today are not thick on the ground, but this simple and crude idea has been the most wildly successful of his proposals, over millennia. In civilian teaching it has been the foundation of the idea of a summa divisio, such as that between public and private law, or patrimonial and non-patrimonial rights, or contractual and extra-contractual liability.

Introduction

A contemporary discussion of ethics in international law generally presumes a binary or dichotomous distinction between ethics and international law. Ethics would thus appear as environmental or human rights claims, for example, within an existing corpus of international law. These disparate ethical claims would be identifiable as alien, or at least distinct, intruders within the larger corpus. This binary distinction between ethics and law is difficult to avoid in the present Western world, without attempting neutral language or neologisms that fail to capture the nature of the discussion. It is possible, however, to blur the dichotomy to some measure (without escaping it entirely) by suggesting that ethical considerations do not somehow exist within international law, as a type of alien intruder, but both underlie and permeate international law itself. It would thus be appropriate to speak of the ethic, in the singular, of international law; this ethic, in the singular, would consist of the set of moral or normative principles that have controlled, and that continue to control, what we have known since Bentham as international law. The underlying ethic of international law is thus found primarily in the normative claim that justice, at the international level, is best defined in terms of the relations of states and not in terms of the relations of individual human beings. It is important, moreover, to recognize this as a normative or ethical claim, and not simply as a statement of the nature of international law. International law and its underlying ethic would thus exist in conflated form, and their ongoing success would depend on the normative grip of both. International law, accompanied by its underlying ethic, is therefore capable of engagement with novel or different normative claims. International law, even seen as positive law, would not constitute a bar or obstacle to the recognition of such claims as law, because its underlying ethic would provide a normative repository for engagement with them. International law would not exist as a normatively mute social fact.