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International Legal Order as an Idea

Published online by Cambridge University Press:  27 February 2017

Nicholas Greenwood Onuf
Nicholas Greenwood Onuf*
Affiliation:
School of International Service, The American University
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Extract

International law, its masters tell us, is “the vanishing point of jurisprudence.” So must be international politics, and all of international relations, for political theory. The recurrent and directing theme in political theory is the problem of order—how it is provided, maintained, altered, and so on. Order resides in orderly relations, that is, patterned and predictable relations, among people, but is abstracted from those relations as any arrangement of norms and institutions that distributes values among people. Among peoples, political theorists favor the alternative premise that anarchy, not order, reigns. By not existing, international order needs no explaining. Evidence to the contrary can be explained away as anomalous or ephemeral, and therefore not of theoretical interest. From this follows the dominance of concern for conflict and disorder and the paucity of theory in the study of international politics.

Type
Research Article
Information
American Journal of International Law , Volume 73 , Issue 2 , April 1979 , pp. 244 - 266
Copyright
Copyright © American Society of International Law 1979

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References

1 Written by T. E. Holland, a turn-of-The-century master, The quoted words preface a major essay by contemporary masters McDougal, Lasswell, & Reisman, Theories About International Law: Prologue to a Configurative Jurisprudence, 8 Virginia J Int'L L 188 (1968).

2 See, in particular, S. Wolin, Politics And Vision 8-11 (1960). The following discussion is much influenced by this book.

3 The often ambiguous meanings attached to The word “order” in many disciplines are surveyed in The Concept Of Order (ed. Kuntz, 1968). No definition can claim consensual acceptance.

4

Whereas men within each state are subject to a common government, sovereign states in their mutual relations are not. This anarchy it is possible to regard as The central fact of international life and The starting-point of theorizing about it. [Note defining anarchy deleted.] A great deal of The most fruitful reflection about international life has been concerned with tracing The consequences in it of this absence of government.

These are the opening words of Bull, Society and Anarchy in International Relations, in Diplomatic Investigations 35 (Butterfield & Wight eds., 1968). Bull's essay develops in more detail some themes discussed herein.

5 Wight, Why Is There No International Theory?, id. at 17-34.

6 Wolin, supra note 2, ch. 10.

7 The view of order based on authority alone survives in contemporary thought. Its more benign form emphasizes The mutually supportive relationship of authority and high civilizational values held and advanced by elites (being authorities on such matters). Of this genre is The current florescence of neo-conservative thought on The threats from The Third World to The international order. See, e.g., Tucker, A New International Order?, Commentary, Feb. 1975, at 38. I find myself in sympathy with this view to The extent that it challenges The prevailing view, noted above, that international relations lack hierarchy. The distribution of power among states is so skewed that we may usefully portray The whole system of relations as implicitly hierarchical, with only The attribute of formal institutionalization missing for sets of stable, unequal relations to be relations of authority.

8

Hence we may ”… describe human kind not as evil, but as a species of rational beings, who are steadily progressing from The evil to The good, striving against hindrances. Thus mankind's intentions (Wollen) are generally good, but The carrying out [of these intentions] is made hard by The fact that The achievement of The purpose does not depend upon The free agreement of individuals, but upon The progressive Organization of The world citizens into a system of cosmopolitan scope.”

These were Kant's last written words, as quoted and translated by C. Fkiedhich, The Philosophy Of KanT, at xliii (1949).

9 See, typically, p. Corbett, law and society in The relations of states, part I (1951); C. D E Visscheh, Theory And Reality In Public International Law, book II (Rev. ed., 1968). On The emergence of The concepts of interest and interests as answers to The problem of taming human passions, see a. Hirschman, The passions and The interests, political arguments for capitalism before its Triumph (1977). Passions mellowed rather than tamed would seem to be The sentiments, as Durkheim used The term in The Division of Labor, on which community is based. “Sentiments” has a separate meaning in Scottish and British writing (for example, Adam Smith's The Theory of Moral Sentiments), which invokes what I take to be inhibition articulated as interest, as a counterweight to passions. In this tradition J.L. Brierly wrote: “Some sentiment of shared responsibility for The conduct of a common life is a necessary element in any society, and The necessary force behind any system of law; and The strength of any legal system is proportionate to The strength of such a sentiment.” The Law Of Nations 43 (5th ed., 1955).

10 The contemporary formulation of this position combines a critique of The Realist assertion that considerations of power are always paramount with a differentiation of international relations into issue-defined sets characterized by distinctive constellations of interests and techniques for pursuing them. R. Keohane & j. Nye, power and interdependence (1977).

11 Obviously, I am separating Hegel's categories—family, civil society, and state, as developed in Philosophy of Right—from The dynamic, that is, dialectic, relationship he imputes to them. The dialectic forces Hegel to conclude:

Order in civil society cannot be maintained by The same methods as in The tribe; there is a need felt for a quite different structure of authority, and when this need is met we have what is called The State. A community of producers and consumers of The kind described by The classical economists cannot long subsist where there is no State. Thus, though civil society precedes The State historically, it does so by only a small interval.

The quoted words are by Plamenatz, on whose critical appreciation of Hegel I have depended. 2 Man And Society 234-35 (1963). See generally chs. 3 and 4. Hegel could not have countenanced The view of international society developed here by reference to his categories, but it is quite in keeping with numerous strands of 19th-century social thought to which Hegel contributed without being central. See Wolin, supra note 2, at 357-63.

12 Similarly, Corbett, at 40, an example being De Visscher, at 89-100; both supra note 9. “The Grotian conception of international society,” according to Bull in an essay of that title in Diplomatic Investigations, supra note 4, at 51, depends on The solidarity of The society's members. Whether such solidarity is mechanical or organic, to use Durkheim's distinction, is crucial to The existence, respectively, of community and society. Failure to make some such distinction allows The interchangeable use of The two terms, but pays for it with vacuity. Among contemporary writers Georg Schwarzenberger most actively insists on a clear distinction between The two. The Rule of Law and The Disintegration of The International Society, 33 Ajil 56-77 (1939). In an argument similar to The one found in these pages he notes that “whatever community may have existed during The initial stages of The law of nations, it has gradually been transformed into a society” (p. 75). See also J. stone, legal controls of international conflict, ch. II (Rev. with supp., 1959), for a learned review of this and related issues.

13 There are a number of lawyers in The functionalist group as well. “The international system” is largely a product of American scholarship, and a functionalist view of law, or politics, is far more esteemed in Anglo-American circles than on The Continent, even though The functionalist lineage dates back to 19th-century conceptions of society in The manner of Hegel's civil society, popularized by Saint-Simon, Proudhon, Comte, and other Continental founders of sociology. In like fashion, The study of regional integration in functionalist terms, though dominated by Anglo-American scholarship, is inspired by developments in late industrial European society. See infra note 23.

14 See Gidon Gottlieb's provocative contrast between an “authority model” and an “acceptance model” of law. While in The authority model control is accepted to yield authority expressed through law, The acceptance model has law, meaning rules and policies, rather than control, as The thing accepted. The difference comes from not prejudging whether rules reflect The realities of control or some more diffuse process of ordering behavior. The Nature of International Law: Toward a Second Concept of Law, in 4 The Future Of The International Legal Order 331, 362-74 (Black & Falk, eds., 1972). Confusion arises when Gottlieb says that a legal order based on acceptance involves “a process of authoritative decision-making” (emphasis in original). “Authoritative” ceases to be an adjectival form of The noun “authority” as Gottlieb uses it in The authority model and becomes instead The term found in McDougal's celebrated formula, “authoritative and controlling decisions.” In The first instance authority incorporates control; in The second authority and control stand apart. If The hallmark of all law is acceptance, whether of control expressed through rules or of rules and policies expressing more complicated relationships than those of authority, The better word to designate The consequences of acceptance is legitimacy, not authority. Gottlieb is on firmer ground when he speaks of “principled decisions.” See also infra note 18.

15 See Onuf, further N., Reprisals: Rituals, Rules, Rationales (Research Monograph No. 42, Center of International Studies, Princeton University, 1974).Google Scholar

16 H. Kelsen, Principles Of International Law 414 (1952).

17 Similarly on public, see Wolin, supra note 2, at 9-10.

18

Within The decision-making process our chief interest is in The legal process, by which we mean The making of authoritative and controlling decisions. Authority is The structure of expectation concerning who, with what qualifications and mode of selection, is competent to make which decisions by what criteria and what procedures. By control we refer to an effective voice in decision, whether authorized or not.

Less straightforward, and possibly tautological, is this: “Since The legal process is among The basic patterns of a community, The public order includes The protection of The legal order itself, with authority being used as a base of power to protect authority.” The last sentence is one of The very few references to legal order in McDougal's work. McDougal & Lasswell, The Identification and Appraisal of Diverse Systems of Public Order, in mcdougal & associates, studies in world public order 3, 13-14, 15 (1960).

19 The idea is Georges Scelle's, whom McDougal acknowledges The many times he uses it. See, e.g., M. mcdougal & f. Feliciano, Law and Minimum World Public Order 39-40 (1961).

20 This position (McDougal & Lasswell, supra note 18, at 10-12, 15-16) is innovative because it permits a number of international communities, and public orders, to exist at once. Its weakness lies in The lack of content for any such community, including a postulated world community, so as to make The basis of its order evident. Listing processes, types of participants, and values does not help.

21 McDougal, , Lasswell, , & Reisman, , The World Constitutive Process of Decision, in 1 The FUTURE OF The International Legal Order (1969)Google Scholar, supra note 14, at 73.

22 This was Falk's first intellectual task. International Jurisdiction: Horizontal and Vertical Conceptions of Legal Order, 32 TEMPLE L.Q. 295 (1959). See also Gottlieb, supra note 14, at 331-39.

23 Falk, The Interplay of Westphalia and Charter Conceptions of The International Legal Order, in 1 The Future OF The International Legal Order, supra note 14, at 34. “Actual behavior” means generally behavior that does not reflect a stable pattern of control. Stable patterns that do emerge, like major powers’ spheres of influence, are not matched by perceptions that they are appropriate. Falk perhaps underestimates The extent of Anglo-American control matched with doctrinal dominance during international law's so-called golden age of stability and acceptance. See also Falk, , A New Paradigm for International Legal Studies: Prospects and Proposals, 84 YALE L.J. 969, 975-92 (1975).Google Scholar

24 See Onuf, , The Principle of ‘Nonintervention, The United Nations, and The International System, 25 Int'L Organization 209 (1971)Google Scholar, on The way new principles and old are related to convey The impression that a new order is in The making. The Declaration on The Establishment of a New International Economic Order (GA Res. 3201 (VII)) most forcefully directs attention to The new order's novel elements. 68 Ajil 798 (1974).

25 The role of learning, and of “perceptual conditions” generally, in The passage of authority from lower to higher institutional levels is a theme that permeates The literature on regional integration, especially that extensive literature influenced by functionalist ideas. See Keohane, further & Nye, , International Interdependence and Integration, in 8 Handbook Of Political Science 381-82 (Greenstein & Polsby, eds., 1975);Google Scholar Haas, ,Turbulent Fields and The Theory of Regional Integration, 30 Int'L Organization 173, 186-98 (1976).Google Scholar

26 Falk uses The metaphor of a helix to convey his view of progress in general. “In this view, The future is neither a projection of The past, nor a series of repetitions, but is rather a sequence of ascending spirals which exhibits a complex interplay of recurrence and innovation.” Nuclear policy and world order: why denuclearization 28 (World Order Models Project, Working Paper No. 2, 1978). In The context of a Charter-based transformation of The international legal order, The image of The double helix comes to mind. Chapter I and The rest of The Charter are separate, entwined spirals, The former being strengthened as The latter is diminished.

27 Consistent with Falk's view of The Charter in terms of its functional possibilities is his functionalist view of international law per se. His treatment of The functions of law is among The most sophisticated to be found anywhere. The Relevance of Political Context to The Nature and Functioning of International Law: An Intermediate View, in R. Falk, The Status Of Law In International Society 41 (1970). This essay also exposes Falk's debts to Kelsen and McDougal. Hence The intermediate view. No single work fully develops Falk's view of The functional possibilities built into The Charter order, although coming closest is The United Nations: Constitutional and Behavioral Tendencies, in Falk, A Global Approach To National Policy 169 (1975). Additional materials by Falk on constitutional and organizational trends can be found in The Status of Law, but missing, for example, is his important essay, The Beirut Raid and The International Law of Retaliation, 63 Ajil 415 (1969).

28 Falk, The Interplay, supra note 23, at 61.

29 See, typically, D. Bowett, The Law Of International Institutions, passim (3d ed., 1975). Commonly, The General Assembly is said to be a deliberative body, “not invested with legislative powers,” because its resolutions are not binding. It is nonetheless assumed that The General Assembly is modeled after a legislative organ in all respects save that of being able to make law directly. Such deviations from typical forms are accounted for by The “rudimentary character” of The Organization. A discussion in these terms, and The source of The quoted words, is Lauterpacht, 1 L. Oppenheim, International Law: A Treatise 423-24 (8th ed. H. Lauterpacht, 1955).

30 On The practicality of revising The Charter to achieve world government or drafting a new treaty for world government nonetheless supplementing “existing machinery of The United Nations,” see G. Clark & L. Sohn, World Peace through world law, Introduction (3rd ed., 1966), which justifies The latter expedient, earlier editions having preferred The former. The real break from The traditional format would have to be The treaty signed in 1951 establishing The European Coal and Steel Community. It is greatly limited, of course, in its area of substantive concern and in The preservation of a classical institution of The Westphalian order, The Council organ. The Council exists to provide state members collectively with oversight, steering, and a safety valve. Nonetheless, The High Authority, Assembly, and Court organs are defined in terms of executive, incipiently legislative (deliberative), and judicial functions, respectively. The subsequent development of The European Community and its major organs is another story, far too complicated to be traced here. We are properly warned not to look for institutional tidiness that has long disappeared or for an emergent, single center of authority in The institutional jumble we do find in Europe. Haas, supra note 25, at 212.

31 This is most egregiously The case with G. Almond & G. B. Powell, Comparative Politics: A developmental Approach (1966). This influential book expressly links its functional theory with liberal political theory's concern over The separation of powers.

32 To say that authority is divisible would be a more conventional formulation, but it improperly suggests that authority must be located in territory (sovereignty); and if it is not to be found in The larger unit of territory, then it resides in The divided units. Thus, authority can never disappear, no matter how often territory is divided. The formulation used here parallels Haas, supra note 25, at 206-08, although he refers to The decomposition (and recomposition) of issues and concomitant “asymmetrical overlap” in institutional vehicles of authority.

What does an “asymmetrical overlap” look like? It does not resemble a federal government because it lacks a clear-cut division of competences between The center and The member units; both share in The management of crucial fields of social and economic action. It does not resemble a federal or a confederate government because there is no single center of authority; several authoritative institutions co exist with ill-demarcated boundaries between them, each with primary responsibility for some item in The package of linked issues [emphasis in original].

33 An example of a pocket of authority is The International Civil Aviation Organization, as revealed in T. Buergenthal, Law-Making In The International CIVIL Aviation Organization 57-122 (1969). ICAO's promulgation and implementation of “technical legislation” are enhanced by The fact that it has no formal authority to bind states with its International Standards. Acceptance of these standards comes rather from The elaborately technical and comprehensive character of The standards themselves. States that ignore them imperil their effective participation in international civil aviation, not to mention The joint stake of collaborating national and international personnel and The bureaucratic advantages accruing to The former in persuading their states to comply. The effectiveness and formality of ICAO's authority thus appear to be inversely related qualities, making The locus of authority all The more difficult to assess in The traditional terms of political and legal theory. Buergenthal refers to executive and legislative activity in ICAO in a way which further supports The conclusion that authority, though incompletely formalized, is securely fixed at The operational level. The creation of an international seabed authority, should it come to pass, would be a giant step in The direction of recomposing authority by unifying attributes of formality, effectiveness (control), and substantive consequentiality in a single international institution.

34 This is admittedly an unconventional position, despite a pedigree that includes Weber. I attempt an elucidation and defense in Global Law-Making and Legal Thought, in Law-Making In The Global Community (Onuf ed., forthcoming).