Hostname: page-component-586b7cd67f-g8jcs Total loading time: 0 Render date: 2024-11-23T22:08:06.637Z Has data issue: false hasContentIssue false
  • English
  • Français

The Identification and Appraisal of Diverse Systems of Public Order

Published online by Cambridge University Press:  28 March 2017

Myres S. McDougal  and
Harold D. Lasswell
Myres S. McDougal
Affiliation:
Of the Board of Editors
Harold D. Lasswell
Affiliation:
Yale Law School
Get access Rights & Permissions [Opens in a new window]

Extract

It is a commonplace observation that the world arena today exhibits a number of systems of public order, each demanding and embodying the values of human dignity in very different degree.

Type
Research Article
Information
American Journal of International Law , Volume 53 , Issue 1 , January 1959 , pp. 1 - 29
Copyright
Copyright © American Society of International Law 1959

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Criteria have not been elaborated for even preliminary identification of existing international systems, which vary in territorial spread from two-Power arrangements upward toward demanded or asserted universality. Suggestions are variously made in the literature of possibly useful classifications of systems in such terms as Western European (and North Atlantic), American (North, South), Soviet (European, Asian), British Commonwealth, Islamic, Hindu, Burmese, Southeastern Asian, and so on. An excellent introduction to the problem may be found, with abundant references, in Jenks, The Common Law of Mankind, Ch. 2: “The Universality of International Law” (1958). Other representative recent writings include Northrop, “Contemporary Jurisprudence and International Law,” 61 Tale L.J. 623 (1952); Aaron and Eeynolds, “Peaceful Coexistence and Peaceful Cooperation,” 4 Political Studies 281 (October, 1956); Snyder and Bracht, “Co-existence and International Law,” 7 Int. and Comp. Law Q. 54 (1958); Fifield, “The Five Principles of Peaceful Coexistence,” 52 A.J.I.L. 504 (1958); Triska, “A Model for Study of Soviet Foreign Policy,” 52 Am. Pol. Sci. Eev. 64 (1958); Berlia, “International Law and Busso-American Coexistence,“ 79 Journal du Droit International 307 (1952); Kunz, “Pluralism of Legal and Value Systems and International Law,” 49 A.J.I.L. 370 (1955); Wilk, “International Law and Global Ideological Conflict: Beflections on the Universality of International Law,“ iS'ibid. 648 (1951); Schwarzenberger, “The Impact of the East-West Rift on International Law,” 36 Grotius Society Transactions 229 (1950); Hazard, Law and Social Change in the U.S.S.B., Ch. 11 (1953); Kulski, “The Soviet Interpretation of International Law,” 49 A.J.I.L. 518 (1955); Schlesinger, Soviet Legal Theory, Ch. 10 (2d ed., 1951); Taracouzio, The Soviet Union and International Law (1935); Kelsen, The Communist Theory of Law (1955). The program for the April-May, 1959, meeting of the American Society of International Law is built about the theme of “Diverse Systems of World Public Order Today.“

2 The common assumption is thus stated in Sauer, “Universal Principles in International Law,” 42 Grotius Society Transactions 181 (1957): “It goes without saying that the notion of present-day international law implies universality because this law means a law for all nations of the world.” Dr. Sauer notes a certain shrinkage, however, and observes “that the present condition of universal international law is a Had one.” Ibid. 184. The “universality” asserted or demanded, too often in attempted self-fulfilling description, by different writers and spokesmen exhibits of course many varying nuances in reference. Sometimes reference is made to the range of participants alleged to be subject to authoritative prescription and it is insisted that a single international law governs Western and non-Western, Christian and non-Christian, or Communist and non-Communist, states alike. On other occasions the emphasis in reference is upon alleged uniformity in application of prescriptions—that is, that the same results are achieved in the same or comparable contexts when the only difference lies in the identity of the parties to the controversy. Still again “universality” may merely express a demand that all states accept and implement the same set of policies relating to their external interactions. On rare occasions, the reference is explicitly and candidly to mere words, accompanied by demands that future interpretations of the words be made to conform to the requirements of a projected world order. Cf. Dickinson, Law and Peace 122 (1951).

3 For depiction and analysis, see Katzenbach, , “Conflicts on an Unruly Horse: Beciprocal Claims and Tolerances in Interstate and International Law,” 65 Yale L. J. 1087 (1956);Google Scholar Yntema, “The Objectives of Private International Law,” 31 Canadian Bar Bev. 721 (1957).

4 For background and development of social process analysis with special reference to law and politics see, among other studies, Lasswell, and McDougal, , “Legal Education and Public Policy: Professional Training in the Public Interest,” 52 Tale L. J. 203 (1943);Google Scholar Lasswell and Kaplan, Power and Society (1950).

5 We recognize of course that authority and control may overlap and it is indeed precisely this overlap that we recommend as the most useful reference of the word “law.” The asking of separate questions about authority and control may, we hope, promote realism in inquiry about their interrelations.

6 Cf. Lipson, “The New Face of Socialist Legality,” 7 Problems of Communism (No. 4, July-Aug. 1958) 22, 29: “What the reformers have not touched and trill not touch ia the political basis that necessarily prevents ‘socialist legality,’ Soviet-style, from meeting the standards of legality upheld by other countries. There will be no sure legal guarantees that the troikas and purges will not recur, that the cult of (some other) personality will not again become the religion of the state, and that terror will not lay waste another generation of Soviet citizens; indeed, there can be none as long as the party, and the elements of Soviet Society striving for supremacy through or against the party, remain unwilling to grant effective autonomy to the legal system, keeping it above the political struggle as a safeguard of general order and liberty.“

7 It is convenient to use the traditional words, “general community of states,“ without imputation of universality, to refer to the largest grouping seeking common values.

8 Jenks, note 1 above at 120.

9 These questions are developed in more detail in McDougal, and Burke, , ‘ ‘ Crisis in the Law of the Sea: Community Perspectives Versus National Egoism,” 67 Yale L. J. 539 (1958);Google Scholar McDougal, and Lipson, , “Perspectives for a Law of Outer Space,” 52 A.J.I.L. 407 (1958).Google Scholar

10 The distinction between persuasion and coercion may be clarified in terms of the number and cost of alternatives open to a participant. By persuasion we refer to interactions which leave open a number of alternatives with expectations of high gain and low cost. By coercion we refer to interactions which leave open few alternatives, with expectations of little or no gain and high costs. We assume that the participants consciously pursue a range of realizable alternatives in representative situations in the social process. This assumption is necessary to indicate that people who have been trained to demand and expect few alternatives are not free.

11 More detailed inquiry is outlined in McDougal, and Felieiano, , “International Coercion and World Public Order: The General Principles of the Law of War,” 67 Yale L. J. 771 (1958).CrossRefGoogle Scholar

12 Compact summaries of the methods and findings of contemporary social science can be found in UNESCO's International Science Bulletin. See further Lasswell, “The Scientific Study of International Relations,” 12 Yearbook of World Affairs 1 (1958).