At the end of May, the Attorney General — Lord Hermer — attracted a wave of criticism from across the press for a speech he gave to the Royal United Services Institute (RUSI).
Most of the headlines were directed towards Lord Hermer’s comparison between those who’d like to repeal the European Convention on Human Rights (ECHR) and the German political theorist Carl Schmitt. Since Schmitt’s works were often used as an ideological and legal justification for Hitler’s seizure of power in the 1930s, newspapers quickly jumped on one of the more obvious interpretations of Lord Hermer’s statement: that those seeking ECHR repeal were somehow enabling a resurrection of National Socialism.
Jake Scott has written an excellent article looking at the inaccuracies in Lord Hermer’s characterisation of Schmitt — and many of the parallels and ironies Hermer barely conceals. But between thoughtful analyses like these and bold headlines in newspapers, there’s an area that’s seldom been examined. And that is what Lord Hermer actually said. But we should interrogate it: within it, we find the best crystallisation yet of the intellectually incoherent world view that powers the Starmerite project.
A defence of progressive realism
Hermer’s tasks himself in his speech to justify the government’s central foreign policy paradigm of “Progressive Realism.” What exactly is Progressive Realism? Lord Hermer himself does not provide a rigid definition in his speech, though he does allude to it several times.
The term itself arose in force among the current foreign policy establishment with a speech by David Lammy to the Fabian Society last year. In it, Lammy provides a vague definition:
Progressive because our foreign policy will be founded on our values of equality, the rule of law, and internationalism. Realist because we will focus on making practical, tangible progress with the world as it is, not as we wish it to be.
At first glance, the concept seems borderline platitudinous. Would not Blair, Brown, Cameron, May, Johnson, or Sunak describe their foreign policy in a similar way? But the lack of rigour may be the point: Progressive Realism isn’t supposed to be an academic definition, but a rhetorical tool. It’s a tool to both appease and silence the moralists and anti-imperialists that make up much of the rank-and-file Labour membership: to acknowledge their moral legitimacy, but quickly summarise the pragmatic reason why Britain must maintain trade relationships with states that don’t concern themselves with human rights.
The consequence of Hermer’s argument is that a parliament can bind a future parliament through its global agreements
But if this Progressive Realism is just a rhetorical tool, why is Lord Hermer devoting his RUSI speech to justifying its foundations? Because for the most part, Hermer’s not actually defending the compounded concept of Progressive Realism. He only briefly makes mention of the pushback from “romantic idealists” as to the realist part of the equation. Instead, the speech’s focus is clearly on the first word: Hermer’s trying to explain the legal foundations for progressivism in international affairs, against what he dubs the “pseudo-realists” who he likens to Schmitt.
Hermer’s progressivism
After his preamble, establishing how we live in challenging geopolitical times, and stating his objective of providing the foundation for Lammy’s Progressive Realist project, Hermer gets into it. And this is where Schmitt enters the picture.
Hermer begins by alluding to the “siren song” that Britain “abandons the constraints of international law in favour of raw power.” This, he claims, is the central thesis of Carl Schmitt — that “state power is all that counts, not law.”
This is an inaccurate characterisation, but for our purposes that’s not relevant. Because Hermer is invoking Schmitt as a strawman rather than a real person: Schmitt not as a philosopher, but an allusion to any intellectual underpinning for “what followed in 1933.” After the Schmitt of Hermer’s imagination legitimated the horrors of the Second World War, “far-sighted individuals rebuilt and transformed the institutions of international law, as well as internal constitutional law.”
Or, in short, Hermer is using Schmitt to represent the sort of thinking that can’t be allowed to rise again. If this sort of thought legitimated Hitler’s dictatorship, then in Hermer’s mind everything must be done to prevent that from happening again. And this, at the core of it, is the justification of the post-1945 legal order.
Hermer goes on:
Schmitt’s so-called realism has for eighty years been refuted by the fact that these institutions, post ’45 institutions, have provided the basis until now for Western and other states, wildly varied in nature, to interact with each other under conditions of peace and stability, all the while pursuing their own strategic interests.
In Hermer’s mind, the foundation for the peace post-1945 must be legal institutions. Even on the surface, this is laughable. Who makes the rules in a rules-based international order? Given that even the most patriotic American would accept that the US has acted outside of the domain of international law countless times since 1945, the answer is obvious. America decides the rules and gets to enforce them, because it’s the hegemon and such rules facilitated the capital and labour mobility that benefitted it at the peak of its power.
For Herner, the rules-based order is not a product of contingent interests. It has to be the counterpoint to his imagined Schmitt. He says:
It is important to stress the role of Britain in the rebuilding of the post war consensus, in the development of international law and multinational institutions — all a rejection of the discredited Schmitt-ian conception of power.
For Hermer, once again, his chief concern is implementing an architecture to stop his ideal of Schmitt. But again, this is not Schmitt. After all, Schmitt’s ideas didn’t go away because they were “discredited”, but because the regime they legitimised was destroyed in war. So how can he speak of Schmitt as being “discredited”? The answer can be gleaned through looking at Hermer’s moralistic vision of international law.
Law as morality
The Attorney General regards international law as intimately intertwined with morality. We can see this in Hermer’s characterisation of the aforementioned “romantic idealists”, who:
… say that international law, conceived as the reign of moral principle, provides a complete answer to any question. To these idealistic champions, British foreign policy is simple. Follow moral principle wherever it takes us.
At first, this could suggest that Hermer is only characterising the sentiments of this sub-group. But then comes his characterisation of “pseudo-realists”.
… pseudo-realists demand that in these volatile times we must abandon our longstanding commitment to international law and to moral principle.
So at the very least, Hermer believes that moral principle is deeply bound up with adherence to international law. And, in the context it is being said, why invoke morality at all? The only reasonable answer can be that he either sees international law as a vehicle for moral principle. Or, even more radically, that international law is identical to moral principle.
The romantic idealists are not wrong to view international law as the reign of moral principle, in Hermer’s view. Rather, they need to see that a more moral world in closer compliance to international law is better served by states more carefully picking their battles. That is, Hermer himself is barely any different from his romantic idealists — he believes in exactly the same thing. The only difference is that he believes in more tactical application of moralised international law to reduce friction in its ascendency.
For Hermer, the alternative to moral international law is arbitrary rule by might. In his view:
These pseudo-realists advocate for the UK flexing its muscles to make sure it has a seat at the table in the rooms of the powerful where new rules and norms will be forged in the furnace of raw power, rules which may well apply not to all, but only to states in alliances in permanent conflict with other alliances which have chosen to be bound by different rules. There will no longer be a rules-based international order, but rather the war of one against all that Thomas Hobbes famously portrayed as the international state of nature.
There is a dichotomy. Either governance by morally informed international rules, or a descent into Hermer’s characterisation of a Hobbesian state of nature. The idea of a long-term settlement like a Congress of Vienna simply doesn’t occur in Hermer’s world. Nor does the fact that Hobbes himself never really extended his vision of a state of nature to relationships between the states.
Such nuance is incompatible with the central imperative that informs Hermer’s moral thinking — the first principle to which everything else is subordinated to. He believes that, at all costs, we must prevent the possibility of 1933 happening again, anywhere.
History begins in 1945
Once we understand Hermer’s legal and political project as focused on completely preventing a repetition of 1933, much falls into place. For example, he then proceeds to argue:
The argument … the UK can breach its international obligations when it is in the national interest to do so, is a radical departure from the UK’s constitutional tradition, which has long been that ministers are under a duty to comply with international law.
But what international law held domestic sway before 1945? Until the 1800s, it was exclusively observance of Lex Mercatoria — a body of principles governing merchant and trade law. The incentive to observe Lex Mercatoria was couched in pragmatism and self-interest, rather than a belief in the intrinsic morality of merchant law.
It was only with the abolition of slavery that any hint of a moral dimension enters the question of the relationship between domestic and international law. And this was not a case of Britain being party to a global law, but Britain unilaterally deciding to abolish the practice globally and enforcing a ban. Other than that, pre-war jurisprudence only saw international laws and agreements as a tool for interpretation.
Hitler was not the inevitable consequence of the pre-1945 international legal order
This only changed in the early 20th century, and categorically after 1945, with a weakened Britain forced to accept its role as a junior partner to the United States. In this capacity it participated in the development and ratification of the UN Declaration of Human Rights in 1948, one of the central texts that underpins Hermer’s world. And the very second paragraph of the declaration’s preamble makes it clear — this document is intended to prevent a recurrence of 1933:
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people
It was only with the adoption of both the Universal Declaration, followed by the European Convention on Human Rights in 1950, that any contest between domestic and international law shifted from the domain of commercial self-interest to moral principle. But for Hermer, since history only begins in 1945, the era of these conventions isn’t just part of our constitutional history. It’s the entirety of constitutional history.
And this is why he Hermer proclaims:
[Noncompliance with international law] isn’t Conservatism, this is radicalism, which stands completely at odds with that proud constitutional history in this country.
For those with time horizons that go before 1945, it’s obvious this isn’t the case: there’s no general principle of moralistic international law trumping domestic law, beyond the very laws we enacted after the war. But to the Attorney General, there is no time before 1945. Our immediate post-war agreements may as well be our constitution.
And this is fully shown with some of Hermer’s most egregious suggestions:
And in this country, I believe that the vast majority of people believe that if you make a promise you should keep it — if you enter a contract you should comply with it. Our decency and reliability are our hallmarks as a nation.
While not fully stating it, there seems only one logical consequence that could arise from this position: a parliament can bind a future parliament through its global agreements. Although he gives himself some wiggle room to say he was speaking normatively, Hermer’s direction of travel is obvious — a complete rejection of parliamentary sovereignty.
The role of British interests
Let us transport ourselves to Hermer’s world, and assume relevant constitutional history begins after 1945. Why exactly should we continue to buy into this system?
Hermer claims:
… international law is a key vehicle by which states can both pursue their strategic interests and at the same time give effect to the norms and values that they hold dear. States can amplify and project their hard power, for example, by entering into legally binding treaties creating powerful military alliances … At the same time, states can also use international law to protect certain values they hold dear; security of our borders, human rights, equality and the rule of law. There is no inherent contradiction between international law and determined pursuit of national strategic objectives.
Here, Hermer conflates the concept of association with other states with his general endorsement of international law. Once again, there’s little in the way of nuance present in this analysis — no world where we pursue agreements when they reflect our interests, and spurn them when they do not. An either-or is presented to us: the post-1945 order of international law, or the abandonment of diplomacy itself.
Once again, we can understand this through the lens of Herner’s preoccupation with preventing 1933. For him, the very idea that expansionist powers can redraw borders through warfare undermines the concept of state sovereignty:
Let me put to bed the notion that international law is somehow an affront to state sovereignty. To the contrary, international law is founded on the idea of state sovereignty. And without international law, there would be no state sovereignty, only the emptiness of that word in a world where hunks could be ripped off borders and every dispute be settled by the force of the strong.
That Britain existed as a coherent state with relatively stable borders for centuries does not matter. All that matters to Hermer is that in 1945, the UN Charter said the right of conquest was illegitimate. Once again, the Attorney General’s limited time horizon comes into play: he cannot conceive of a state that existed outside of UN Charter’s framework. His assumption is always that a rejection of the post-1945 order will inevitably enable a repeat of the horrors of the Third Reich.
For Hermer, correlation is causation. The fact that international law has predominated since 1945 and has so far prevented the creation of another Axis is what justifies it. Whether we really can give international law so much credit is debatable, but Hermer is clearly a true believer:
So, allow me if you will, to channel Reg, the leader of the People’s Front of Judea in Life of Brian and ask rhetorically what has international law ever done for us? Well, the answer is that it has helped give us peace, security and prosperity.
What motivates Hermer?
To close out his speech, Hermer cites a story from a recent visit to Ukraine:
As part of my visit, I travelled to the outskirts of Kyiv, first to Babyn Yar to pause at the memorial to the thousands of Jews who were murdered there over two bloody days by the Einsatzegruppe in 1941 and then onwards to the town of Bucha, which in the early days of the current conflict marked the furthest point of Russian advance.
Aside from trying to draw an equivalence between Putin and Hitler, Hermer once again reveals a continuing theme throughout his speech. Never again. The greatest moral imperative is the prevention of 1933. And this is all that ultimately backs Hermer’s legal philosophy — a post-hoc attempt to contort the constitution to completely remove any possibility of any regime like Hitler’s making a return.
We know that Hermer was an active anti-fascist during his undergraduate years, which means that for well over forty years he’s held the same fundamental objective for his career. There is no price he will not pay, no sacrifice he will not make, no humiliation he will not inflict: 1933 must never happen again. And since, in his view, the post-1945 international legal order, which he sees as the only reliable means to stop another 1933 from returning.
If this dichotomy between international law and Hitler seems asinine, that’s because it is. Hitler was not the inevitable consequence of the pre-1945 international legal order, or of “realist” political theoreticians like Schmitt — historians have written millions of words trying to explain the hundreds of factors that allowed Hitler to rise. But for Hermer, that doesn’t matter. The theoretical possibility of Hitler is itself the worst evil, and so international law arises to remove said theoretical possibility.
The last recorded words of Hitler before his death were directed to his valet, Heinz Linge. Linge asked Hitler for whom he should fight. To this, Hitler said: “For the coming man.”
It’s now been over eighty years. The last hazy living memories of that time will be gone in a few years. The material, technological, and geopolitical conditions that birthed fascism and National Socialism are long gone. But Hermer and Starmer can’t abandon their vigil. They are the last, best defence against that coming man.
