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Published online by Cambridge University Press: 18 July 2011
Most international lawyers are committed to the belief that law, rather than being a mere fig leaf for the raw thrust of national power, is an independent variable exerting, in Tony D'Amato's apt phrase, a certain pressure on national decision-makers. This fraternal consensus fractures, however, as soon as discussion turns to the questions, what is die exact nature of the phenomenon generally called law which influences decision, and how or why does it achieve the asserted effect
1 See generally Hart, H. L. A., The Concept of Law (Oxford 1961).Google Scholar
2 See, e.g., Judge Manley O. Hudson's formula for the derivation of a customary rule of law prepared at the request of the International Law Commission, in International Law Commission, Yearbook, II, 1950 (New York 1957), 26.Google Scholar
3 Ibid.
4 The principal published works of the Yale School of International Law are as follows: McDougal, Myres S. and Associates, Studies in World Public Order (New Haven 1960)Google Scholar; McDougal, and Feliciano, Florentino P., Law and Minimum World Public Order (New Haven 1961)Google Scholar; McDougal, and Burke, William T., The Public Order of the Oceans (New Haven 1962)Google Scholar; McDougal, , Lasswell, Harold D., and Vlasic, Ivan A., Law and Public Order in Space (New Haven 1963)Google Scholar; McDougal, , Lasswell, , and Miller, James C., The Interpretation of Agreements and World Public Order: Principles of Content and Procedure (New Haven 1967).Google Scholar For other books reflecting the Yale approach, see Lasswell, and Kaplan, Abraham, Power and Society (New Haven 1950)Google Scholar; Johnston, Douglas M., The International Law of Fisheries: A Framework for Policy-Oriented Inquiries (New Haven 1965)Google Scholar; Murty, B. F., The Ideological Instrument of Coercion and World Public Order (New Haven 1967)Google Scholar; Reisman, W. Michael, Nullity and Revision: The Review and Enforcement of International Judgments and Awards (New Haven 1971).Google Scholar
5 “The realistic function of … rules, considered as a whole, is, accordingly, not mechanically to dictate specific decision but to guide the attention of decision makers to significant variable factors in typical recurring contexts of decision, to serve as summary indices to relevant crystallized community expectations, and, hence, to permit creative and adaptive, instead of arbitrary and irrational, decisions.” McDougal, , Law and Minimum World Public Order (fn. 4), 57.Google Scholar
6 See, e.g., McDougal, and Associates, Studies in World Public Order (fn. 4), 169–70.Google Scholar
7 Reisman, (fn. 4), 4.Google Scholar
8 Ibid., 5.
9 Ibid., 172.
10 McDougal, and Associates, Studies in World Public Order (fn. 4), 167.Google Scholar
11 For a luminously perceptive critique along these lines see Gottlieb, Gidon, “The Conceptual World of the Yale School of International Law,” World Politics, XXI (October 1968), 108–32.CrossRefGoogle Scholar
12 Cf. Ehrlich, Thomas, “The Measuring Line of Occasion,” Stanford Journal of International Studies, in (June 1968), 27.Google Scholar
13 Cf. Gottlieb, (fn. 11), 116Google Scholar: “The principal intellectual weakness in the theory and practice of interpretation recommended by McDougal and his associates is their failure to conceive of legal language in rules and agreements as a device for the guidance of processes of inference leading to choices, decisions, judgments, and the like, rather than as a device for bringing subjective facts to the focus of attention of decision makers.”
14 McDougal, and Associates, Studies in World Public Order (fn. 4), 170.Google Scholar
15 Cf. Tocqueville, Alexis de, Democracy in America, Bradley, P., ed. (New York 1945), II, 13Google Scholar: “General ideas are no proof of the strength, but rather of the insufficiency of the human intellect; for there are in nature no beings exactly alike, no things precisely identical, no rules indiscriminately and alike applicable to several objects at once. The chief merit of general ideas is that they enable the human mind to pass a rapid judgment on a great many objects at once; but on the other hand, the notions they convey are never other than incomplete, and they always cause the mind to lose as much in accuracy as it gains in comprehensiveness.”
16 McDougal, and Feliciano, , Law and Minimum World Public Order (fn. 4), 237n.Google Scholar
17 In this connection, see my critique of McDougal's and Feliciano's interpretation of Article 51 of the U. N. Charter: “Law and War,” in Black, Cyril E. and Falk, Richard A., eds., The Future of the International Legal Order, Vol. Ill, Conflict Management (Princeton 1971), 36–40.Google Scholar
18 Alternatively, it may evidence belief that a consensus with respect to certain behavior is so solidly rooted and uniform that codification is unnecessary.