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Law and Power

Published online by Cambridge University Press:  20 April 2017

Myres S. McDougal
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Editorial Comment
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American Journal of International Law , Volume 46 , Issue 1 , January 1952 , pp. 102 - 114
Copyright
Copyright © American Society of International Law 1952

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References

1 Morgenthau, Hans J., In Defense of the National Interest: A Critical Examination of American Foreign Policy (New York: Alfred A. Knopf, 1951, pp. xii, 242, $2.65Google Scholar); Kennan, George F., American Diplomacy 1900–1950 (Chicago: University of Chicago Press, 1951, pp. ix, 154, $2.75Google Scholar), reviewed below, p. 184. Our only present interest in these books is as exhibits of this trend. We do not purport to offer comprehensive review on other points. The books will be cited hereinafter as Morgenthau and Kennan.

2 The quoted words are Mr. Kennan’s but Professor; Morgenthau gives Mr. Kennan’s formulations his blessing in a highly favorable review iii New Republic, Vol. 125 (Oct. 22, 1951), at p. 17.

3 Morgenthau, p. 91.

4 Id., p. 4.

5 Id., p. 101.

6 Ibid.

7 Ibid.

8 Ibid.

9 Id., p. 102.

10 Ibid.

11 Id., p. 92.

12 Id., p. 209.

13 Id., pp. 13, 111.

14 Id., p. 112.

15 Id., p. 136.

16 Id., p. 101.

17 Id., p. 132.

18 Id., p. 149.

19 Ibid.

20 Id., p. 147.

21 Id., p. 144.

22 Id., p. 123.

23 Id., p. 33.

24 Id., p. 34.

25 Ibid.

26 Ibid.

27 Id., p. 117.

28 Ibid.

29 Kennan, pp. 95, 96.

30 Id., p. 97.

31 Ibid.

32 Id., p. 96.

33 Id., p. 97.

34 Ibid.

35 Id., p. 98.

36 Ibid.

37 Id., p. 54.

38 Id., p. 98.

39 Id., p. 99.

40 Ibid.

41 Ibid.

42 Id., p. 100.

43 Ibid.

44 Id., p. 101.

45 Ibid.

46 For more detailed development see Lasswell and Kaplan, Power and Society (1950), especially Ch. V.

In his earlier Politics among the Nations (1948), Professor Morgenthau offers an appropriately broad conception of power:

“When we speak of power, we mean man’s control over the minds and actions of other men. By political power we refer to the mutual relations of control among the holders of public authority and between the latter and the people at large.” (p. 13.)

Some of the later refinements even in this book lessen, however, the utility of this broad conception.

47 Brief summary and documentation appear in McDougal and Leighton, “The Rights of Man in the World Community: Constitutional Illusions Versus Eational Action,” 59 Yale Law Journal 60 (1949).

48 Schachter, “The Place of Law in the United Nations,” Annual Eeview of United Nations Affairs, 1950, p. 205, offers suggestion of the rich variety of practices by which policy is formed.

49 For a concise summary, see Eeport of the Collective Measures Committee, United Nations General Assembly, 6th Sess., Supp. No. 13 (A/1891), 1951.

50 Secretary General Trygve Lie’s Introduction to his Sixth Annual Report to the United Nations General Assembly makes eloquent statement of these interdependences. One relevant passage reads:

“I believe it is important to recall that the founding of the United Nations was motivated by a far more fundamental and lasting concept concerning the world than a passing wartime alliance of great powers. This is that the peace and well-being of all nations and peoples have become in the present age so intimately interrelated that it is necessary for them, despite all their differences, to join in a world-wide organization looking toward security from war, freedom and independence for the peoples, and mutual economic and social progress.” (The New York Times, Oct. 12, 1951, at p. 12.)

51 The argument in Williams, “International Law and the Controversy Concerning the Word ‘Law’,” 22 British Yearbook of International Law 146 (1944), that one’s use of the word is largely a matter of taste requires qualification in some degree. When one’s use of “law” and other words to describe significanjt variables in the world power process is either so ambiguous or so idiosyncratic as to confuse both himself and others about the operation of such variables, a community interest in greater clarity may reasonably be asserted. How such words are used may indeed vitally affect the perspectives of decision-makers.

52 Some development of the theme is offered in McDougal, “The Rôle of Law in World Politics,” 20 Mississippi Law Journal 253 (1949).

53 Reference to Professor Morgenthau’s Politics Among the Nations (1948) confirms the impression ]that his notion of law is so limited. : Two illustrations from different parts are:

“Law in general and, especially, international lawjis primarily a static social force. It defines a certain distribution of power and offers standards and processes to ascertain and maintain it in concrete situations.” (p. 64.)

“International law is a primitive type of law resembling the kind of law which prevails in certain preliterate societies, such as the Australian aborigines and the Yurok of Northern California.” (p. 211.)

Suggestions that law and morality are something apart from, and superimposed upon, power processes may also be found in Politics Amonjg the Nations; see Ch. VIII. It may be recalled that Malinowski, in Crime and Custom in Savage Society (1926), questioned the notion of frozen formalism even for primitive society.

54 In an address delivered at the second annual meeting of the American Society of International Law on “The Sanction of International Law,” Elihu Boot wisely insisted that “The force of law is in the public opinion which prescribes it.” This Journal, Vol. 2 (1908), pp. 451–453. In elaboration relevant here, he added:

“Beyond all this there is a consciousness that in the most important affairs of nations, in their political status, the success of their undertakings and their processes of development, there is an indefinite and almost mysterious influence exercised by the general opinion of the world regarding the nation’s character and conduct. The greatest and strongest governments recognize this influence and act with reference to it….

“ … It is difficult to say just why such opinion is of importance, because it is always difficult to analyze the action of moral forces; but it remains true and is universally recognized that the nation which has with it the moral force of the world’s approval is strong, and the nation which rests under the world’s condemnation is weak, however great its material power.” (Ibid., pp. 455, 456.)

Cf. Wright, “International Law and Power Politics,” 2 Measure 123 (1951).

55 De Jure Belli ac Pacis, Prolegomena, in Vol. II, Classics of International Law (Seott ed. 1925), p. 17.