Hostname: page-component-78c5997874-t5tsf Total loading time: 0 Render date: 2024-11-10T06:33:03.225Z Has data issue: false hasContentIssue false
  • English
  • Français

Law and lawyers in international crises

Published online by Cambridge University Press:  22 May 2009

Nicholas Greenwood Onuf
Get access

Abstract

An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.
Image of the first page of this content. For PDF version, please use the ‘Save PDF’ preceeding this image.'
Type
Review Essays
Information
International Organization , Volume 29 , Issue 4 , Fall 1975 , pp. 1035 - 1053
Copyright
Copyright © The IO Foundation 1975

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 (New York: Basic Books, 1964); New York: Harper and Row, 1969).

2 In fairness it should be said that the notables in the American Society of International Law are not without sympathy for social science scholarship. Having commissioned, and honored, Gould and Barkun's project on the relevance of the social sciences to international law, they seem to feel they have done their duty, quite failing to see how their perennial concerns might be affected. Gould, Wesley L. and Barkun, Michael, International Law and the Social Sciences (Princeton, N.J.: Princeton University Press, 1970)Google Scholar; Social Sciences Literature: A Bibliography for International Law (Princeton, N.J.: Princeton University Press, 1972)Google Scholar. The diminishing interest in international legal studies on the part of political scientists over the last several decades has contributed to this state of affairs. In effect, lawyers have been left alone to treat the phenomenon of international law as a closed system of scholarship characterized by the analytic methods of legal education.

3 Stanley Hoffman's “International Systems and International Law” is surely the most succinct and presently influential example of functional analysis in international law, especially in the United States and among political scientists. Hoffmann's, essay appeared in the same special issue of World Politics devoted to “The International System, Theoretical Essays,” 14, no. 1 (10, 1961): 205–37CrossRefGoogle Scholar, as did McClelland's, Charles A. “The Acute International Crisis”: 182–204Google Scholar. While the latter proved as seminal for the study of crises as the former for functional analyses of international law, the subject of crises has subsequently been more actively studied and now engages the attention of a major community of scholars. The influence of functional analyses of international law is pervasive but far more passive.

4 This is not to suggest that the study of crises has cleared up major conceptual difficulties or developed a consensual view of the nature of the beast. For a survey of the better scholarship in this area see Hermann, Charles F., ed., International Crises: Insights from Behavioral Research (New York: The Free Press, 1972)Google Scholar.

5 Both the Study Panel's members and I are employing an informal definition of role. Among sociologists the term “role” appears to be reserved for “the patterns of expectations which apply to a particular social situation and which normally persist independently of personalities occupying the position.” Lieber, Sam D., “Toward a Theory of Role Accumulation,” American Sociological Review 39, no. 4 (08, 1974): 569Google Scholar. Only persons may have roles in this sense, but (I think) roles need not involve expectations about the performance of functions. In the loose sense used here, role may apply to persons or things and describes a specific function performed by either.

6 Bowie, pp. 114–5; Ehrlich, pp. 120–3; Linde, Hans, “Comment,” in Ehrlich, , pp. 143–5Google Scholar; Chayes in chapter headings and throughout. William D. Coplin provided the basic working version of all such checklists, which always involve some variation of his two-fold functional categorization of law as a communications device and law as means of coercive restraint. “International Law and Assumptions about the State System,” World Politics 17, no. 4 (07, 1965): 615–34CrossRefGoogle Scholar.

7 Scholars concerned with crisis have tended to use the term to denote situations of grave peril or threat, sharply defined in temporal terms. The term has been stretched in popular usage to include chronically distressed situations. We are forced to adopt the latter conception, and consequently forfeit any analytic assistance from scholarship utilizing the former conception, because of the three “crises” under consideration. The Cuban crisis easily falls under the narrow conception and is much studied by that conception's adherents. The Suez crisis might be construed either as one rather drawn-out crisis or a string of closely related crises. But there is no way the ongoing situation in Cyprus from 1958 to 1967 (and of course up to the present) can intelligibly be referred to as a crisis in the narrow sense. Apparently the reference in the Study Panel's name to war-peace crises fails to narrow the popular meaning of the term “crisis.”

8 (Boston: Little, Brown, 1968), pp. xi–xix.

9 For a similar complaint directed toward book reviewers in the American Political Science Review, see Parenti, Michael, “Reviewing the Reviewers: Ideological Bias in the APSR Book Section,” PS 7, no. 4 (Fall, 1974): 370CrossRefGoogle Scholar.

10 Essence of Decision, Explaining the Cuban Missile Crisis (Boston: Little, Brown, 1971)Google Scholar.

11 Onuf, Nicholas Greenwood, Reprisals, Rituals, Rules, Rationales, Research Monograph no. 42, Center of International Studies, Princeton UniversityGoogle Scholar.

12 Corbett, Percy E., Law in Diplomacy (Princeton: Princeton University Press, 1959) p. 275CrossRefGoogle Scholar. Corbett as an early member of the functional school relies on his own largely implicit dichotomy of law as a constraint on diplomatic conduct and law as an adjunct to conduct. McDougal's, framework is available in unadorned form in “Some Basic Theoretical Concepts about International Law: A Policy-Oriented Framework of Inquiry,” Journal of Conflict Resolution 4, no. 3 (09, 1960): 337–54CrossRefGoogle Scholar. Some would argue that justification of policy is integral to McDougal's conception of law and thus informs all of his categories.

13 Hoffmann, , “International Systems and International Law”; Friedman, Wolfgang, The Changing Structure of International Law (New York: Columbia University Press, 1964), ch. 6Google Scholar.

14 The major exception, and thus a favorite illustration for functional analyses, is the principle of non-intervention. See Onuf, Nicholas Greenwood, “The Principle of Nonintervention in the United Nations and the International System,” International Organization 25, no. 2 (Spring, 1971): 209–27CrossRefGoogle Scholar, and the literature cited therein.

15 For a much fuller development of these themes, see my “Law-Making in the Global Community: A Working Paper,” Conference on Law-Making in the Global Community, Center of International Studies, Princeton University, 1974. A revised version, entitled “Law-Making and Legal Thought,” will appear in a symposium volume on law-making in the global community. The sources of inspiration for my work in this area include Karl Llewellyn's comment that what public officials do about disputes is the law itself, and Weber's and Durkheim's masterworks in the sociology of law. With his concern for “law-stuff” and “law-ways” Llewellyn enlarged the legal realist position, that what judges say is the law, in a way that demands recourse to a sociological literature virtually unknown in international legal studies and little appreciated even in legal realism and other major jurisprudential schools.

16 Note that it is the general character of the activity and not stipulated qualities of the results–e.g., being binding or promulgated in set manner–which warrants description as legislation. To focus on artifactual specifics is to be embroiled in the interminable controversy as to whether there is any such thing as international legislation properly speaking.

17 See, however, David S. McLellan's observations on the importance of law for Acheson's “temper of mind,” which he directly contrasts with Morgenthau's, Hans, “The Role of Political Style: A Study of Dean Acheson,” in Hilsman, Roger and Good, Robert C., Foreign Policy in the Sixties (Baltimore: The Johns Hopkins Press, 1965), pp. 253–6Google Scholar.

18 (Garden City, N.Y.: Doubleday, 1954), p. 30.

19 While in this instance the President was not himself a lawyer, it is worth noting that two-thirds of all American Presidents have been lawyers.

20 Biographical data was drawn from various international and national Who's Who. Information on educational background is often quite scanty and difficult to interpret. More adequate biographies are either unavailable or excessively time-consuming to locate. The problem is compounded by the degree to which legal and social studies are integrated in the curricula of European universities.

21 See Ellis, Joseph and Moore, Robert, School for Soldiers (New York: Oxford University Press, 1974)Google Scholar, specifically on the step-by-step, by-the-book problem-solving habits inculcated in cadets of the United States Military Academy.

22 The cliche “tough-minded” is a favored accolade in describing those who are involved in policy or public life at any level in the United States. Compare Barnet, Richard J., Roots of War (Baltimore: Penguin, 1973), p. 109Google Scholar. For an indication of the extent of permissive attitudes in the State Department toward the use of force in a variety of postulated crisis situations, see Etheredge, Lloyd S., “Personality and Foreign Policy: Bullies in the State Department,” Psychology Today 8, no. 10 (03, 1975): 37–42Google Scholar. When Couloumbis and Moore asked a sample of political officers in the United States Foreign Service “to list any person in the academic community who has influenced you …” Kennan, Morgenthau, Galbraith and Kissinger were in that order most often named. We may suppose that such rank and file beliefs are not completely out of step with those of senior officials, even though the proportion of lawyers among the rank and file is much smaller (less than five percent in Couloumbis and Moore's sample). Couloumbis, Theodore A. and Moore, M. David III, “The Influence of Academicians upon Foreign Service Officers,” World Affairs 134, no. 3 (Winter, 1971): 257–60Google Scholar.

23 But see Holsti, Ole R., Crisis Escalation War (Montreal: McGill-Queen's University Press, 1972), pp. 213–7CrossRefGoogle Scholar, who believes that professional diplomats are more likely than military advisers to be able to see the larger complexities of a crisis situation and thus may respond more prudently in their recommendations.

24 For a pioneering effort along these lines, see Modelski, George, “The World's Foreign Ministers: A Political Elite,” Journal of Conflict Resolution 14, no. 2 (06 1970): 135–76Google Scholar. In 1965, 46 percent of the world's foreign ministers (at least the 97 for whom Modelski had biographical information), were lawyers. (Table 6, p. 147, and p. 149) This probably includes those who have some legal training but are not law professionals.

25 Although any suggestion of a magic number or universal proportion–e.g., one quarter to one half with three-eighths the norm-is ill-conceived, it is nonetheless interesting to note that lawyers consistently constitute about 40 percent of all delegations, whatever their size, the United States sends to law of the seas conferences. N. G. Onuf and Robert O. Slater, “Law-Experts and the Making of Formal Oceans Policies,” paper delivered to the 1974 Annual meeting of the American Political Science AssociationGoogle Scholar.

26 For such a pursuit by a political scientist, with telling analytic results, see Paige, Glenn D., The Korean Decision (New York: The Free Press, 1968)Google Scholar. Even a crisis study as thorough as Paige's is uneven in its treatment of all possible aspects of the situation. Since Paige was relatively uninterested in normative factors, the work has less value than one might hope in the study of international law and institutions. In a brief comparative study of Korea and the Cuban missile crisis, Paige has shown signs of broadening his concerns in a normative direction specifically because these factors were more evidently at work in the Cuban case. Taking another look at Korea, Paige concludes that “the shared desire to avoid world war by strengthening the United Nations takes on new importance as an explanation for the strong consensus behind military resistance in Korea in 1950.” “Comparative Case Analysis of Crises Decisions: Korea and Cuba,” in Hermann, , p. 49Google Scholar.

27 It is also reminiscent of the analytical orientation of an early twentieth century school of legal thought in Germany called the Jurisprudence of Interests, and of anthropologists working in the tradition of Malinowski.

28 The more frequent association is between power and money. The limitations and implications of identifying power as analogous to money is superbly treated by Baldwin, David A., “Money and Power,” Journal of Politics 33, no. 3 (08 1971): 578–614CrossRefGoogle Scholar. Baldwin aptly suggests that power is not suitable as a medium of exchange because it is impossible to measure conveniently. If we follow Baldwin and take political power as analogous to purchasing power, then it would seem that law as a formalization of power has at least crude and limited commensurability. Economic transactions are not just either directly bartered or facilitated through the medium of money. There is a continuum from direct exchange to the instantly recognizable, perfectly measurable and infinitely exchangeable medium (approximated by gold). Law would seem to fall near the barter end of the continuum, as befits a relatively primitive social order.

29 I cannot actually find the term in Falk's written work, although he has articulated the sense of it in many places. The debt to American legal realism is obvious.

30 Schelling, Thomas C., The Strategy of Conflict (Cambridge: Harvard University Press, 1960)Google Scholar, ch. 3 and 4. Hoffman, in his “Introduction,” p. xivGoogle Scholar used the term in reference not to adversaries but to allies and saw a rule of law the focal point and not the law crystallizing around an objective feature of the situation.

31 Edwin C. Hoyt in his “Comment” appended to the Ehilich book also expressly utilizes Schelling's notions as they relate to legal doctrines serving as “salient points at which compromise can be reached” (p. 136).

32 As Paige demonstrates in The Korean Decision, it is an effect which if recognized can be substantially overcome.

33 Reprisals … The same kind of rules may have been operating in the pattern of adversary interaction over Cyprus, as described above in connection with guidance criteria. The resort to guidance criteria and the appearance of rules for geographically and historically confined “games” may be different phases of a single process or possibly even different aspects of the same or related phenomena at work. The analytic problem is one of clusters of phenomena which have been associated with discrete, separated points on a continuum actually overlapping each other. Thus we have a poorly defined border between guidance criteria and rules of the game for discrete subsystemic patterns of behavior.

34 Readers may find in this intimations of “the level of analysis problem in international relations” made famous by J. David Singer's essay of that title appearing in the same landmark issue of World Politics in which Hoffman's and McClelland's seminal pieces appeared. While the ends of the continuum are comparable to Singer's two levels of analysis, the schematization employed here is not simply an expansion or adaptation to the subject matter of international law. I believe that the law-types are different things (units of analysis), not just different observational stances toward the same thing. While several law-types may be inextricably mixed together in concrete situations and thus distinguishable only by imputation, this does not mean they are not objectively separate. Further development of this argument is beyond my epistemological competence.

35 See generally the special issue of the Georgia Journal of Comparative and International Law 2, Supp. 2 (1972)Google Scholar, devoted to “Diverging Anglo-American Attitudes to International Law.” In light of the new-found reticence in American intellectual life to contemplate the use of force, it is interesting that American writers, reflecting attitudes prevalent a few years earlier, have led the way in a permissive construction of norms relating to the use of force on humanitarian grounds. See Brownlie's, Ian comments on the critical reception such efforts receive among scholars and public officials elsewhere in “Thoughts on Kind-Hearted Gunmen,” Lillich, Richard B., ed., Humanitarian Intervention and the United Nations (Charlottesville: University of Virginia Press, 1973)Google Scholar. Among the Study Panel's members whose Comments are appended to the volumes under review, Hans Linde voices a concern that Ehrlich's study, and presumably the others as well, insufficiently attend to “the forms of law performing genuine functions of law as a source of authority and a constraint on discretion …” (p. 158). Linde allows that this position “casts doubt on some cherished modes of thought in the American tradition that combines policy premises with legal realism” (p. 159).