International law is the vanishing point of Jurisprudence. Explain and Illustrate
a. ‘International law has become important’
Debates between international lawyers do not traditionally make newspaper headlines. But on 2 March 2004, readers of The Guardian found a near-full-page article consisting entirely of the differing opinions of seven lawyers on the legality of the British government’s war on Iraq. The Labour Party’s spectacularly mendacious and cack-handed management of this deeply unpopular war has given rise to enormous anger and anxiety: one of the ways this has manifested is in a surge of interest in international law, as it is widely argued that the war and subsequent occupation are illegal. Though, as will become clear, I consider that an inadequate critique, it is to be hoped that the new focus on international law will lead to an increase in critical approaches to the subject. This book seems to have dovetailed with a growing concern: ‘International law has become important politically, intellectually, and culturally To the pile, however, the bulk of this writing consists of textbooks, in which theoretical assumptions are generally unacknowledged and implicit. Many of the fundamental concepts embedded in these texts are at best highly questionable. Purporting to explain how to ‘do’ international law, these writings cannot get to grips with its categories or processes. The triumph of manage-realism and the antipathy to theory in the ?eld mean that these problems are only not addressed, but are often not even perceived as problems.
There are of course books written from more explicit jurisprudential perspectives, where questions of theory and philosophy are acknowledged. Here the situation is better. However, even for many of these writers there are still certain conceptual givens, which obscure indispensable methods of analyzing international law. Many of the ‘debates’ in international law present arguments that
Mutually constitute each other: they are recursive, and unable to examine the fundamental categories they share.
At the core of this book is an attempt to open a black box in the jurisprudence of international law – that of the legal form itself. It is only in grasping the speci?cs of that form that we can address the ?eld’s most recurring co nun-drum: what is the nature of a law between bodies without a super ordinate authority? This question lies at the heart of many other classic debates: on the nature of obligation; monism versus dualism; the binding force of custom; and others. And yet mainstream international-law is a theory circles the fun-damental question endlessly, never successfully engaging with it, because without a theory of legal form, the speci?city of law itself is impenetrable. In what follows, ‘international law’ is used in its conventional sense, to refer to public international law. The speci?cs of ‘private’ international law,’ the body of rules of municipal law which regulate legal relations with a foreign element, such as…contracts of sale or service between persons in different countries’, is beyond my scope, though there are important implications for such law in what follows. It is my contention, as I argue below, that certain of the lacunae in the ?eld exist because although there are writers who are sceptical about international law’s impact on the international system – who claim, for example, that it is merely a moralistic gloss on power-politics – there are very few who take law seriously as a structural component of lived relations, and who yet are fun- dementedly critical of it – and of those, even fewer see it as ‘unreformable’. Foremost, it is more or less taken for granted that if one believes law has an effect, one sees it as a force for stability and order; potentially even emancipator change. Where there is a problem of disorder or violence, it is deemed a failure of law: the main problem about law is that there is not enough of it. It is rare to theorize international law as an important, effective regulatory force, and yet not to defend its normative, or potentially normative, impact. Given that the vast majority of writers on international law are lawyers or jurists, this is perhaps not surprising. Most see the law as effective and broadly positive: at a hyperbolic extreme, it has recently been claimed that ‘[i]t will not be an exaggeration to claim that most of the progressive ideas of con-temporary humanity spring from international law.’
Some see international law as ineffective and wish to ‘rectify’ that. A few see it as effective but his-topically and currently of questionable socially progressive utility, perhaps because it is being ‘misused’ by a hegemonic power, and they wish to ‘reformulate’ it at the service of a radical agenda. But it would be biting the hand that feeds them for international lawyers to say that international law is an effective force, complicit in the worst of today’s social problems, and yet is fundamentally unreformable. This is my conclusion. I envisage two core audiences for this book. One is made up of international lawyers and jurists with an interest in theory, especially critical theories of the ?eld among them there may be some without much background in Marxism. The other consists of Marxists, who may not have much knowledge of key debates in the theory of international law. This lack of common ground means there is a risk that some sections of the book will read either’s opaque or excessively introductory for one or other group. I have tried to avoid this, while keeping both readerships in mind. I have referred to fewer cases than is usual in writing on international law. For some, especially within the ?eld, this will count against me, but I hope it will be considered justi?ed by my focus on the ‘deep grammar’ of international law, so to speak, of which speci?c legal cases are the surface expressions. In the course of the analysis, I reach certain conclusions with rami?cations for long-running debates within Marxism. Although I do not dwell on them, the focus of this book being resolutely on international law itself, I believe that these debates are important. Above all, I have attempted some reconciliation of those traditions of Marxism which can seem quite abstract in their stress on social form, often taking Marx’s analysis of the value-form as a starting point, and those which follow Bukharin and Lenin (among others) in stressing the concrete conjuncture of actually-existing capitalism in history.
b. Materialism and dialectics
In what follows, I regularly call to task some position or other for being ‘idealist’, and counter pose it to alternative ‘materialist’ theory. The debates around these issues are, of course, vast – this is only a brief explanatory note. By’ idealist’, I mean a position that is underpinned by a notion of ideas and ideational structures (such as those of law) ontologically distinct from material circumstance – objective reality – and often understood as in some way driving it. As I try to show, such analyses (whether the theorist intends it or not) tend to notions of ideas as self-generating, and cannot give a sense of why those ideas at that time, for the alternative, an excellent introduction to materialist jurisprudences given by Anthony Chase. I follow him in arguing that ‘materialist jurisprudence is concerned with the social and economic forces directing the course of legal development’. Unlike idealism, in Trotsky’s phrase, ‘it does not liberate matter from its materiality’. Marxist materialism is routinely denounced as ‘determinist’, and as dismissing the power of ‘non-economic’ factors in social life. Such attacks can come from within the discipline of international law. Marx would have the reader believe that economic in?uence and material surroundings determine human perspectives, in direct contrast to culture, ideology and mentality….The realm of pure human thought and ideas relegated by the Marxist to a state of jejune non-effectuality. Engel’s stresses the misrepresentation this involves in a response to an early version of this canard. ‘If somebody twists this materialist conception of history] into saying that the economic factor is the only determining one, he transforms that propositions into a meaningless, abstract, absurd phrase’. He makes clear that ideas and ‘systems of dogma also exercise their influence upon the course of historical struggles and in many cases determine their form in particular’. Materialism inheres in the fact that ‘the ultimately deter-mining factor in history is the production and reproduction in real life’. One of the classic metaphors of materialism, ‘base’ and ‘superstructure’, I touch on in Chapter Three.)As Anthony Chase puts it, ‘our materialist roadmap may get us on our way but we cannot advance very far without a compass.’ That compass is the dialectic. Marxist materialism sees the world as a totality, and as dynamic. For thereto is historical motion from within a totality, that totality must contain con-traditions. In the words of two radical scientists, systems destroy the conditions that brought them about in the first place and create the possibilities of new transformations that did not previously exist.’ Understanding that material and social reality is total but not static is key to the Marxist dialectic, the logic of which is the logic of dynamic contradictions within a material totality – the unity of opposites.
c.The structure of the book
In Chapter One, I start by offering an overview of mainstream textbook positions and jurisprudential debates, and formulating a critique of the prevalent notion that international law is a body of rules. However, though I argue that the alternative position of Myers McDougal, that law is a process, is much superior, I show that it leaves unanswered the question of why the processor decision-making takes the legal form. This recurs throughout this work as the central problem for critical scholarship of international law. In the second chapter, I examine two streams of radical international-law scholarship: the Marxist, and that deriving from the school known as Critical Legal Studies (CLS). Most of the self-proclaimed ‘Marxist’ writings of Soviet jurists, I argue, share the inadequacies of mainstream ‘managerial’ writing. The best of the Marxist works available, that of B.S. Chiming, is of a different order in terms of its intellectual seriousness and insight. However, I argue that with regard to the legal form and the question of law as rules, it embeds some of the same fallacious conceptualizations as mainstream international-law jurisprudence. In contrast, the CLS approach offers a truly revelatory look at the internal contradictions of international law, and is a paradigm that gets at the indeterminacy of international law. However, the approach fails to ground its sometimes-brilliant analyses in material reality, and, like McDougal, cannot get to grips with the legal form itself. The CLS attempt to deploy international law at the service of a socially transformative agenda is sharply contradictory of the school’s own insights. I put forward his argument that law – and more spastically the legal form – is an expression of the relations of abstract commodity owners in commodity exchange. Given the central importance of Pashukanis to my argument, I examine his theory and those of his critics at some length, though their focus is on domestic rather than international law. There are problems and inconsistencies within Pashukanis’s work, which I argue can best be answered by reference to the work itself – an immanent reformulation. This theory is a major step forward, which can not only accommodate the CLS insights about indeterminacy, but embed them in a theory of modernity for which material reality and property relations are key. I argue that the most trenchant criticisms of his theory, though answerable, are not directly ger-mane to international law, which in some ways presents an excellent case ofhis model in its simplest form. There is, however, a recurring critique of Pashukanis, which is that he is unable to explain how the legal form is ?lledwith particular norms and social content. This is the problem of politics andcoercion.In Chapter Four I argue that this criticism is misplaced. Pashukanis, with-out addressing speci?c cases, does indeed have a theory of the political, coercive determination of the content of laws. What is more, it is a theory embedded in the very categories of his supposedly ‘formalistic’ legal writings. Reaching it requires losing some common misconceptions about his theory, foremost among them that he ‘derives’ a theory of the state from juridical categories. This chapter is the theoretical heart of the book. I argue not only that the mechanisms of coercion are present in Pashukanis’s commodity-form theory, but that because of its lack of an overarching sovereign, international law is uniquely suitable for illustrating and examining this. As well as being better explained by Pashukanis’s theory than others, international law is an invaluable optic for developing that theory. His frequent references to international law in his major work, and his essay on the topic for the Soviet Encyclopaedia of State and Law make clear that relations between independent agents with-out an overarching state are central to Pashukanis’s work. I attempt to show that the embedded nesses of violence in law, and the contingency of an arbitrating sovereign to the legal form, key to the commodity-form theory. In Chapter Five, I examine aspects of the early history of international law, from the late ?fteenth to the eighteenth centuries. This chapter is by no means an exhaustive historical overview of the international system or international legal debates, nor do I attempt to engage with all the voluminous secondary literature. Instead, certain episodes, themes and writers are examined insofar as they illuminate the central claims of this book. I attempt to show that the categories of international law can only be understood as those of mar-ket relations slowly generalizing globally, in the transition to capitalism. However, contrary to the traditions of historical materialism that rigidly counterpoise politics and economics in capitalism, I argue that in these early days(and by extension now) the two were interpenetrative, most particularly atman international level. International law is especially suited to illustrating this. Seeing the categories of international law as those of commodity exchanges no contradiction to seeing it as constituted by and constituting relations of violent colonialism – indeed that that is the only way it can be understood. I try to show that maritime and merchant law, as regulators of the arenas in which market relations were ?rst conducted across polities with any system activity, are critical to the development of international law. As an extended coda, though I argue that disagreement on this point does not invalidate the commodity-form theory developed, I make the case that mercantilism can best be understood as a form transitional to capitalism. The main reason for developing this argument is that it illustrates a central plank of my thesis, that the separation of economics and politics – the market and coercive violence – is not constitutive of capitalism, and that the tendency toward their separation is set about by countertendencies. The economic in the political of mercantilism is the ?ip side of the political in the economic – the commodity – in international law. In Chapter Six, I bring this history up to date, with a focus on the development of categories of colonialism and imperialism in nineteenth- and twentieth-century international law and relations. I argue that contrary to the traditional understanding, the epoch of ‘formal imperialism’ was not the high-point of imperialism’s embedding into international law, but that imperial-ism predated the epoch of formal colonies, and has survived it. There has long been a tendency towards the universalisation of the sovereign state, the fundamental juridical unit of international law, and in a modern ‘ant colonial’ system of international law, imperialism is hidden within law, but I argue that without it, international law could not exist. Drawing on the insights of Chapter Four, I argue that coercive political violence – imperialism – is thievery means by which international law is made actual in the modern inter-national system. Through analysis of the Gulf War of 1990–1, I show that the indeterminacy of international law, the juridical structure of the sovereign state and the consolidation and monopolisation of capitalism in the twentieth century have combined to make an international legal system in which the very law of self-determination operates as imperialism. As an afterward, I critically address notions of ideological contestation in international law, as well as recent writings on ‘global governance’ and ‘lib-eral cosmopolitanism’. The former I argue is, as a radical strategy, at best severely limited, at worst legitimating of the structures it would subject to critique. I argue that the analytical claims of the latter, that the nature of inter-national law is fundamentally changing because of a new regime of humanitarian intervention, are mistaken. The liberal-cosmopolitan writers represent new version of the traditional call for the extension of ‘the rule of law’ in the international arena. I conclude by arguing that such calls, however laud-able the intentions, are predicated on a misreading of the nature of law. The international rule of law is not counter posed to force and imperialism: it is an expression of it. The title to this book comes from Marx’s observation that ‘between equal rights, force decides’. At ?rst sight this might look like a cynical claim that power-politics are the only ultimately determining reality that equal rights collapse before force. In fact, as I try to show, though it is quite true that’ force decides’, the ‘equal rights’ it mediates are really, and remain, truly equal. This is precisely the paradox of international law: force is determining, but determining between relations which cannot be understood except as equal in fundamentally constitutive and constituting ways. The equality and the force determine each other: the equality gives determining force its shape; the force – violence – is equality’s shadow.
2. ‘The Vanishing Point of Jurisprudence’: Internal Law in Mainstream Theory
Ever since Gratis first suggested that desire for esteem from the broader global community motivates States to comply with international law, identifying just how this desire effects compliance has proven illusive. The ability to harness the pull of international society is important to virtually all treaty formation and compliance. It is especially important in the area of human rights regimes where other compliance forces such as coercion, are rarely, if ever, used. Recent empirical evidence, however, suggests that human rights regimes are ineffective. Indeed, in many situations this evidence suggests that the human rights practices of States that ratify such treaties may actually worsen after ratification. The need to understand how, or whether, the pull of international society influences state behaviour, thus, has never been greater. This Article provides an initial detailed model of the forces motivating human rights treaty creation and compliance by drawing on evolving expressive law literature. It begins by setting forth a need-reinforcement model that explains how normative pressure influences rational actors to alter their behaviour and beliefs while seeking regard from other group members. Next, the Article applies this model to State treaty ratification and compliance, and describes how treaties exert expressive effects that lead rational States to change their behaviour because of their desire to be part of and esteemed by the global community. The Article then demonstrates how an expressive theory harmonizes the contributions of divergent international law scholars into a more complete theory of why States enter into and obey international law. In doing so, it provides a framework from which regime design implications can be drawn
1. beyond definition
Given the vast and growing literature on international law, it is remarkable how few systematic attempts have been made to uncover the fundamental nature of such law as a social phenomenon.
This poverty of theory has not gone unnoticed. The ‘vanishing point of jurisprudence’, for example, is how T.E. Holland described international law. Richard Falk has commented that ‘most international lawyers, whether inside or outside of universities, profess to be anti-theoretical’, often contending that’ theory is a waste of time in legal studies’. In B.S.Chimni’s formulation, ‘the ?eld of international legal theory still gives the appearance of a wasteland’. There are encouraging signs of a growing conscious-ness of theoretical issues in the ?eld. The tradition of blindness, even antipathy, to theory, however, still weighs heavy in international law.
As Koskenniemi points out, though ‘discussion on “theory” about inter-national law has become a marginalized occupation’ ‘[t]his has not always been so’. It is no coincidence that the historic decline of the jurisprudential science of international law is coterminous with the spread of international law as a global system.
Early modern writers were theorizing and expressing a developing system, in which new social forces were coming to the fore. International law was a function of a changing world, and it was not possible to disentangle policy from social explanation.
Writers such as Victoria, Suarez or Grotius engaged in an argument about international law in which the concrete and the abstract, description and prescription were not distinguished from each other….[This fact] gives early writing its distinct favour, its sense of being ‘other’ than the more methodological, or ‘professional’ styles of later scholarship.
When this new world-system became grimly entrenched, its contradictions became – and remain – obscured. In the post-Enlightenment legal culture which separates ‘theory’ and ‘doctrine’,those contradictions, rejected in social and legal theories, have for many lawyers been seen as a problem not of the world, but of ‘theory’ itself
This has made theory itself seem suspect. The endless and seemingly icon-sequential character of theoretical discourse has forced modern lawyers to make a virtue out of a necessity and turn towards an unreceptive pragmatism, with the implicit assumption that the problems of theory [and, we canadd, history] are non-problems….The modern international lawyer has assumed that frustration about theory can be overcome by becoming doctrinal, or technical. 
The turn to doctrine was a function of the embedding of ‘lowness’ into the international social fabric in the nineteenth century ?exing of interdisciplinary muscles’ (p. 459). Though the theoretical resurgence is mostclear in writers in?uenced by ‘critical legal studies’ (see Chapter Two, below), Simpson makes the interesting argument that traditional debates have also and in parallel been’ invigorated’ by liberal international lawyers who have ‘reached out’ to International Relations scholarship, for a more interdisciplinary approach (p. 439).
Even though in this period – and indeed throughout the century – the science of international law lost relatively in historical signi?cance, state practice in matters of international law expanded, intensive, and accelerated to such an extent that the period clearly marks the beginning of a new era.
The formulation that the theory and history of international law waned ‘even though’ the law itself waxed is misleading. The very historical triumph of inter-national law lay behind the diminution of international legal science.
Despite – perhaps because of – the absence of international legal theory or analysis that can address the fundamental question of international law’s nature, there is no lack of dentitions of the subject matter. These de?nition spurport to answer the question ‘What is international law?’, but are generally so thin or self-recursive that they tell the reader very little. Thus for example, international law ‘is the system of law which governs relations between states’ and it is usually de?ned to include some non-state actors as well. This ‘rule-approach’ de?nes a discrete and bounded arena of international law as a body of rules, thus insisting on ‘a clear-cut distinction between law and non-law’, This kind of classic, textbook de?nition represents ‘a widely held perception’ and the ‘classical view’, and it tells us almost nothing of the underlying nature of international law.
Malanczuk is one textbook writer who seems aware that apparently inno-cent de?nitions imply philosophical positions. He points out, for example, that the classic (pre-World War I) de?nition of international law as ‘the law that governs the relations between states amongst each other’ implies the positivist doctrine ‘that only states could be subjects of international law’, 18 which did not re?ect reality even at the time. Without apparent censure or approval, he points out that some textbooks avoid these issues in that they’ refrain from any attempt to de?ne international law and enter directly in to the discussion of its “sources”’ indeed, Malanczuk himself avoids de?ningh is subject matter, limiting himself to observations about its scope.
Malanczuk’s hesitancy about providing a dentition comes in his updated version of Akehurst’s classic textbook, which in contrast opened with dentition. It is interesting that the reader learns nothing more, less or dif-ferent from Malancz uk’s description of the subjects and scope of international law, than from Akehurst’s de?nition of international law itself. These de?nitions, in other words, generally answer the question ‘What are the subjects of inter-national law?’ rather than ‘What is international law?
Of course, within the very textbooks that print these wan de?nitions are often discussions of the classic arguments in international law, between the monists and the dualists, the deniers and the utopians, the positivists and the naturalists, and so on. These are debates that do pertain to the nature of international law, and will be addressed below. But to a large extent, they leave the fundamental question unanswered. Thus we might agree with one writer or another on these various debates–for example, picking positions at random from the classic debates, that inter-national law is a fundamentally different phenomenon from municipal law, that it is law properly so-called, that it derives its obligatory nature from the practice of states – and yet still have no idea why international law takes the shape it does. Claims that international law is, say, ‘composed of the principles and rules of conduct’ of states, are essentially claims about what inter-national law does (regulates interaction), not what it is, as law. There is no theory of why it is law that does the job of regulation.
It is not the case that international law is a necessary or essential condition of international order. The functions which international law ful?lls are essential to international order, but these functions might in principle be carried out in other ways….The basic rules of coexistence might be stated, and a means provided for facilitating compliance with agreements, by a body of rules which has the status of moral rules or supernatural rules.
Thus, the standard de?nitions of international law encountered in the text- books leave the fundamental ‘law-ness’ of international law completely unexamined. International law is de?ned by its alleged regulatory effect, which could be wrought by some other – non-legal – body of rules. Nor should readers be misled by the mere mention of ‘law’ in the various de?nitions of inter-national law: Schwarzenegger, for example, says that international law is’ the body of legal rules which apply between sovereign states’. But without an analysis of law itself, mentioning the ‘legal’ nature of the ‘rules’ of inter-national law is merely tautologies. The substantive element of the de?nition is its description of international law as rules of behaviour inhering between states. Bull is perspicacious on this point: ‘International law may be regarded as a body of rules which binds states and other agents in world politics in their relations with one another and is considered to have the status of law.’
Here, what makes international law something to be analysed at all – phenomenon with social effects – is its status as a body of rules: what makes it Law is merely the fact that it is so considered. This implies a radical con-tangency in the legal nature of international law. ‘That modern international society includes international law as one of its institutions is a consequence of…historical accident’.The ‘law-ness’ of international law is thus historically absolutely arbitrary.
Inasmuch as international law is ‘the vanishing point of jurisprudence’, inasmuch as its nature as law remains opaque while its role as a regulatory mechanism is retained, this historical contingency is inevitable. International society regulates itself in various ways, it is claimed, and in the modern age we happen to call that regulation ‘law’. It is to Bull’s credit that unlike so many writers, he sees this implication clearly and does not shrink from it.
Most mainstream writers simply do not see the radically undermining effect of their own positions vis-à-vis the legal nature of international law. Even in the course of defending international law as law, for example, Malanczuk claims that what distinguishes the rules and principles of international law from ‘mere morality’ is that they are accepted in practice as legally binding by states in their intercourse because they are useful to reduce complexity and uncertainty in international relations.
The ‘rules’ of international behaviour are taken as given, Tran historical. Inasmuch as they are law, this is simply because they are ‘accepted…as legally binding’ – they are law only because we say they are law, rather than because of their form or essence. Rules, here, are deemed central: their ‘law-ness’ is epiphenomenal.
It should be pointed out that this thin conception of law is not con?ned to writers of textbooks, who are mostly concerned with the technical-regulatory rules, or to writers such as Bull, writing from outside international law. Even writers such as Hans Kelsen and H.L.A. Hart, precisely concerned with the jurisprudence of international law, agree on the basic formulation.
Thus for Hart, as for the textbook writers, international law is law – despite its lack of centrally organised sanctions or ‘secondary’ rules that specify procedure for adjudication
 as a set of rules of conduct that are ‘generally observed and regarded as valuable’ by states. Although it differs greatly from municipal law, what Hart sees as crucially shared is ‘[t]he idea of” ought”…the idea of law as a form of social regulation’.
International law is clear – he calls international laws ‘social rules’ the’ law-ness’, however, is unexamined.
Similarly, Kelsen defends the ‘law-ness’ of international law inasmuch as it is a coercive order,…a set of norms regulating human behaviour by attaching certain coercive acts (sanctions) as consequences to certain facts, as delicts, determined by this order as conditions, and if, therefore, it can be described by sentences which…may be called “rules of law”.
Again, the substance of the dentition here revolves around international law’s regulatory behaviour. Its law-ness, however, is deemed distinct from this, and derives from the fact that it is called law. As one critic says, ‘Kelsen provides no methodology for analysis of the difference between a moral or ale gal social order’.
In all of these de?nitions, what is evident is a failure to systematically analyse – or even take seriously – the speci?city of the legal form. Hart makes this explicit in his claim that the analogy between international and municipal law ‘is one of content not of form’– the content here being the shared normative obligation contained in both sets of ‘social rules’. If the legal form is not shared between international and municipal law, then they have no legal essence in common, and the only thing that makes them both ‘law’ is that they are both called law.
A belief in the historical contingency of the ‘lowness’ of international regulation is the result of a historicism. For Bull, there is a Tran historical necessity to have ‘a body of rules’ ‘essential to international order’: international law is merely one of its forms.
It is my contention that this historicism is wrong. There
Is something inescapably ‘legal’ about international law, and its historical emergence is part of a process of historical transformation. I will argue that the development of international law is inextricably tied to the political economy of the post feudal world, and that such law’s units of analysis are Legal units. The framework for interaction between polities in the modern international legal system, its modus operandi, is fundamentally different from previous orders’.
To avoid the a historical contingency of Bull and others, jurisprudence must examine the fundamental nature of international law as law , to open up the black box at the centre of international law. As against Hart and others, I will try to show that for any systematic theory of international law, the fundamental unit of analysis must be the legal form itself.
2. Classic writers and debates
This ‘fundamentalist’ project does not imply a refusal to engage with the classic debates in international law – far from it. It must involve an attempt to locate oneself with reference to these and an uncovering of the assumptions and implied theory in the various positions. I will attempt this through an examination of authors associated with some of the most important and contentious classic positions.
2.1. Disentangling denial
While many discussions of international law bleed it of its speci?cally and uniquely legal nature, a few explicitly deny it any lawness. Lachs calls those of this theoretical persuasion ‘deniers’, for whom ‘the prevailing lawlessness offered no evidence of any rule of law among nations’. But this classi?cation blurs an important distinction. Lachs includes as deniers Austin, who famously denied that international law was law ‘properly so-called’, asserting that it was only ‘positive morality’, along with Morgenthau, who asserts the law will give way to politics. These are, of course, two different, though related, positions, as Malanczuk puts it, ‘[t]he controversy…has often confused the question of whether international law is “law” with the problem of the effectiveness and enforcement of international law’.
Morgenthau is clear that international law does exist as a system of binding legal rules. Even Lachs acknowledges this The tendency to lump together writers who deny the existence of international law as law with those who allege that it is not an ultimately determining force in international affairs is highly misleading A third related position is also imputed to exist within the same camp. When Lachs says that ‘at the opposite end of the spectrum’ from the deniers are the utopians, those utopians are writers who envisage ‘an ideal State or world’ brought about by international law. They are therefore, in fact, the’ opposite’ neither of those who do not believe that international law is law, nor those who believe that international law has a negligible effect on states’ actions, but of those who believe that international law can never systematically be used to improve the world. When Oscar Scatter considers ‘the sceptics of international law’ it is this third strand of denial that he focuses on: he is concerned with ‘those who doubt…that international law can con-tribute signi?cantly to international order’. It is vital to disentangle these arious forms of ‘denial’. One can after all imagine being a ‘denier’ in one, two or all three of these senses, and not in any remaining (see ?gure).
2.1.1. The will of the sovereign:
How far can collective decision-making provisions in sovereign bonds be used to facilitate debt workouts? Another way of asking this question is to inquire whether, and to what extent, these clauses can be used to replicate the features of an international bankruptcy code applicable to sovereign debtors along the lines recently proposed by the First Deputy Managing Director of the IMF, Anne Krueger.49 As articulated by Ms. Krueger, the principal objectives of an international bankruptcy system would be:
· To shield the sovereign debtor from disruptive litigation by individual creditors while the debt workout is underway (the “automatic stay”
· to ensure that a debt restructuring plan that is acceptable to the large majority of creditors will bind any dissenting minority (the “cram down” feature);
· to facilitate the sovereign’s ability to attract new financing from private sector sources during the workout period (the “debtor-in-possession” or “DIP financing” feature); and
· to permit a greater level of coordination among the different types of creditors (banks, bondholders, bilateral creditors, trade creditors and so forth) caught up in a sovereign debt problem (the “coordination” feature).
2.1.2. The triumph of politics:
Science and politics approach the issues of wilderness allocation differently. From the perspective of science, a good wilderness area is an ecosystem where nature takes its course without human manipulation or interference. For that to happen, you have to have all the ecosystem’s natural plants and animals, and you have to have them in numbers great enough to support healthy genetic diversity. If a good wilderness area is complete and undisturbed, a good wilderness system includes representative examples of each ecosystem type. In short, individual wilderness areas should be natural. The composite wilderness system should be ecologically representative.
From the perspective of politics, a good wilderness area is one that garners more support if preserved in a relatively natural state than if devoted to some other use. A good wilderness is an area that has high value for primitive recreation and scenic appreciation, and low value for alternative uses like mining, power generation, farming, timber harvest, livestock grazing and golf. From the perspective of politics, a good wilderness system includes those areas which are more valuable when preserved as wilderness than when devoted to some other use. So, which kind wilderness system do we have? The scientists’ representatives are sample of completed natural eco-systems? Or the politicians’ collection of are as not very valuable for anything else? To anyone acquainted with the National Wilderness Preservation System, the answer is obvious. Some years ago, George Davis, a leading advocate of ecological representation in the wilderness system, answered the question with some precision. Davis found the wilderness system adequately represented 81 of the nation’s 233 ecosystems (Davis 1984). In their state-of-knowledge presentation, “The Contribution of Wilderness Areas to Conservation Goals—Now and in the Future,” Barbara L. Dugelby and Dave Forman, reported that 157 of 261 ecosystems are now represented in the wilderness system, but only 50 of them in wilderness areas greater than 100,000 hectares. These data all confirm what history teaches: Wilderness areas have been designated from what is left over after areas valuable for other purposes have been exploited. As a result, our National Wilderness Preservation System is anything but systematic in its representation of American geology and biology. In short, wilderness allocation in the United States reflects the prescriptions of politics over the sensibilities of science
2.1.3. A third way:
An important item of agreement between the ‘new’ economic geography and economic geography ‘proper’ is the role of increasing returns in regional economic development. This provides a focal point for the model proposed in this paper, which suggests a ‘third way’ somewhere between the analysis provided by these ‘two’ competing modes of explanation. The paper provides empirical evidence supporting the proposed model using data on manufacturing productivity growth across 178 NUTS2 regions of the European Union. The paper also includes expressions for an equilibrium implied by the fitted model and argues that this helps to identify the proposed `third’ way as an approach which is clearly different from the first two ways.
2.2. Monism, dualism, positivism, naturalism
While the recent proliferation in philosophical discussions in International Relations indicates a welcome increase in the discipline’s conceptual sophistication, a central issue has gone relatively unremarked: the question of how to understand the relationship between scholarly observers and their observed objects. This classical philosophical problem has a number of implications for the conduct of inquiry in the discipline, and raises particular challenges for the status of knowledge-claims advanced by constructivists. I clarify these issues and challenges by distinguishing between ‘dualist’ and ‘monist’ ontological standpoints, in the hope of provoking a more focused philosophical discussion. Recent years have seen a marked resurgence of debate about the philosophical foundations of empirical inquiry throughout the social sciences. From efforts to clarify the status of comparative case studies1 to sustained arguments in favor of statistical or critical research, the conceptual sophistication of the study of politics has certainly been on the increase. Within International Relations (IR), this increased sophistication is perhaps most visible in the debate surrounding Alexander Wendt’s efforts to merge an ontology of social construction with the epistemological practices of so-called ‘positivist’ science, drawing on Bhaskarian notions of scientific realism in his efforts. Although generally taking place at a very high level of abstraction, these debates hold the potential for fundamentally reshaping the epistemological and ontological foundations on which empirical work in IR rests.
2.3. The high point of formalism:
We present a short review on the tensorial formalism developed by the Dijon group to solve molecular spectroscopy problems. This approach, originally devoted to the rovibrational spectroscopy of highly symmetrical species (spherical tops) has been recently extended in several directions: quasi-spherical tops, some symmetric and asymmetric tops, and rovibronic spectroscopy of spherical tops in a degenerate electronic state. Despite its apparent complexity (heavy notations, quite complex mathematical tools), this group theoretical tensorial methods have a great advantage of flexibility: a systematic expansion of effective terms for any rovibrational/rovibronic problem up to a given order is automatically generated. Inclusion of all possible interaction terms for any payload scheme is therefore easy. This makes such an approach suitable for many types of molecular problems, not only the most symmetric ones.
2.4 From rules to process:
In recent years there has been a welcome increase in the attention paid by behavioural scientists to the legal system. A great deal of it-like much jurisprudential thought-has been process oriented. Theorists have been concerned with the way in which decisions are made-in whether precedent, race, education, social background, personality, or some other factor predisposes a judge toward one side or another in particular controversies. Scholars have, of course, been extremely interested in the output of legal institutions, but they have often limited their definition of output to results or decisions and have not concerned themselves with another kind of formal output-rules of law. A decision (or result) is a unique application of pre-existing rule. A rule is a general statement capable (or at least apparently capable) of application to more than one concrete situation. Rules may be as important a product of legal institutions as decisions. A great number of institutions make up the legal system (including courts, legislatures, and administrative bodies); these institutions are engaged in making and applying law, in producing both decisions and rules. Some fresh attention to rules-how they change, what institutional regularities they exhibit, what their relationship is to actual behaviour of institutions, and what life-cycles they follow-may illuminate some social characteristics of legal institutions left dark in the course of research and theory devoted to the decision making process.
3. International Law of Jurisprudence
This article analyses H.L.A. Hart’s concept of international law from the perspective of analytical jurisprudence and in light of the state of contemporary international law. The article challenges Hart’s view that international law is ‘law’ but not a ‘legal system’. Hart arrives at this conclusion on the basis of a comparison of the international legal order with the municipal legal system. This comparison is distorted by Hart’s general focus on private law and criminal law and becomes less convincing when constitutional law is added to the equation. As a consequence, Hart’s methodological approach is inconsistent and should be modified. Rather than asking whether international law resembles municipal law in form, it should be asked whether international law encompasses legislative, executive, and judicative structures which are able to perform the same functions as the legal order of a nation state, and which thereby overcome the defects of a primitive social order. Against the background of this modified analytical framework, Hart’s analysis is revisited in light of recent developments and changes in the structure of international law at the beginning of the 21st century.
3.1 International Law is the Vanishing Point of Jurisprudence
This is a largely critical review of Professor Aaron Fichtelberg’s philosophical analysis of international law. The centre piece of the book’s affirmative agenda, a “non-reductionism” definition of international law that purports to elide various forms of international law scepticism, strikes the reviewer as circular, misguided in general, and, in its application to substantive international legal issues, difficult to distinguish from a rote form of legal positivism. Law at the Vanishing Point’s avowed empirical methodology and critical agenda, while largely unobjectionable, offer little that has not been said before, often with equal if not greater force. I commend the author’s effort to bring the professional philosopher’s toolkit to bear on the perennial questions about international law’s reality and efficacy, and the author’s philosophical aptitude emerges clearly in the work. But I doubt that many readers will find the non-reductionism definition particularly helpful in this regard: it is unclear what the philosophical excursions in Law at the Vanishing Point add to the continuing debates about international law. The need for serious and legally informed philosophical attention to the manifold questions subsumed by international legal skepticism has sadly remained, with few and partial exceptions, unchanged since H.L.A. Hart explored the issue in his canonical 1961 work, The Concept of Law, only to see it largely neglected by a subsequent generation of legal philosophers.
3.2 Law at the Vanishing Point, by Aaron Fichtelberg
The Department of Sociology and Criminal Justice at the University of Delaware, has a dual agenda: first, to discredit certain commonplace skeptical claims about international law; and second, to defend a “non-reductionist” definition of international law,1 one that seeks to disarm these forms of skepticism, avoid reference to international law’s functions, and “show that there is a limited need for ‘theoretical foundations’ for international law”. The two parts of this agenda, of course, interrelate. Yet the latter, I think, proves deficient in several respects, while the former partially succeeds but owes its force more to relatively familiar replies to international legal skepticism than to the non reductionist definition, which, in practice, proves difficult to distinguish from a form of legal positivism.
The author’s replies to international legal skepticism, in contrast, strike me as strongly redolent of constructivism in international relations scholarship and the views of Louis Henkin and Harold Koh in international legal scholarship. Skepticism about international law—its existence, nature, efficacy, explanatory value, predictive power, and normative force, all distinct issues despite their frequent conflation into a confused indictment of the entire field—is a perennial albatross for international lawyers. A student treatise aptly informs those new to the field that “[n]o other area of law is compelled to justify its very existence, and yet, international law seems condemned to perpetually do so.” It is not, of course, an anthropomorphic international law that is saddled with the Sisyphean task of replying to these oft recycled and superficially repackaged skeptical critiques; it is international lawyers and, almost always, academics. It is telling that few practitioners of international law suffer from an existential professional crisis—for this particular reason at any rate. From one perspective, the author may therefore be right to say that for “most functioning legal systems, theory is a sideshow, separate from the practical activity of actual lawyers”.
There is something to be said, for example, about who should bear the burden of proof as to most forms of international law skepticism; the simple fact is that thousands of people, in diverse sociopolitical contexts, legal systems, and professional settings, practice international law daily—and get paid, often handsomely, for it. The U.S. State Department, too (and hardly alone among foreign ministries), sees fit to employ hundreds of international lawyers to advise it on how to create, influence, apply, and interpret international law or obligations. These facts about the world would seem to require a compelling alternative explanation if it were true, as a strong version of descriptive realism maintains, that international law is only “epiphenomenal”
In the second term of President George W. Bush’s tenure, for example, within an administration often criticized for its dismissive attitude toward international law, John Bellinger III, legal adviser to the State Department, and William Haynes II, general counsel to the Defense Department, chose to invest government resources in producing a joint letter-brief to the International Committee of the Red Cross (ICRC), 9 a sui generic international nongovernmental organization (NGO). They did this in part to record the administration’s disagreement with the ICRC’s proffered evidence of, and methodology for discerning, customary international humanitarian law (IHL).
We think, the foreign relations depend on legal order, operate within a legal framework, and require legal principles and concepts that influence policy and limit choices. To be sure, the United States derives benefits from international legal rules and agreements with other states. Legal rules keep international society functional, contribute to economic order and political stability, and provide a basis for common ventures and mutual intercourse. Given that international law serves to limit the actions of all governments, it therefore enhances the security and independence of the United States in its dealings with other states. International legal rules establish common standards where they are deemed by states to be desirable and make more predictable what behaviour to expect from states in their relations with each other. That is no less true for the United States in this age of globalization and increasing interdependence.
But international law also limits the freedom of the United States to act in its foreign affairs. The United States is obligated to certain restraints, irrespective of what its government might like to do when the time comes to act. Political arrangements legitimized by formal agreements are more difficult to unravel or modify. The predictability of state behaviour established by international law means that the United States is not free to be disorderly or promote changes on its own whim. To foster the security and independence of its own territory and limit the conduct of other governments, the United States must accept corresponding limitations on its own behaviour. To secure the confidence accrued from law, the United States must consent to being restricted in its ability to frustrate the expectations of other states. U.S. foreign policy therefore evolves in tandem with how international legal rules are regarded. Each successive administration builds its foreign policy on the legal framework constructed by its predecessors. Since World War II, U.S. foreign policy has moved slowly but perceptibly away from pragmatic, nationalist principles toward a more legalist, international doctrine. With the end of the Cold War, this tendency has accelerated. In the early twenty-first century, U.S. foreign policy was moving toward more universal values, bound by increasing legal commitments in formal multilateral agreements.
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