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International Systems and International Law

Published online by Cambridge University Press:  18 July 2011

Stanley Hoffmann
Stanley Hoffmann
Affiliation:
Harvard University
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Extract

The purpose of this essay is twofold. First, it proposes to undertake, in introductory form, one of the many tasks a historical sociology of international relations could perform: the comparative study of one of those relations which appear in almost any international system, i.e., international law. Secondly, this essay will try to present the rudimentary outlines of a theory of international law which might be called sociological or functional.

International law is one of the aspects of international politics which reflect most sharply the essential differences between domestic and world affairs. Many traditional distinctions tend to disappear, owing to an “international civil war” which projects what are primarily domestic institutions (such as parliaments and pressure groups) into world politics, and injects world-wide ideological clashes into domestic affairs. International law, like its Siamese twin and enemy, war, remains a crystallization of all that keeps world politics sui generis. If theory is to be primarily concerned with the distinctive features of systems rather than wim the search for regularities, international law becomes a most useful approach to international politics.

Type
Research Article
Information
World Politics , Volume 14 , Special Issue 1: The International System: Theoretical Essays , October 1961 , pp. 205 - 237
Copyright
Copyright © Trustees of Princeton University 1961

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References

1 See some suggestions in my Contemporary Theory in International Politics, Engle-wood Cliffs, N.J., 1960, pp. 174ff.

2 These adjectives are borrowed from Stone, Julius, “Problems Confronting Sociologi cal Enquiries Concerning International Law,” Recueil des Cours de I'Académie de Droit International, Vol. 89 (1956), 1Google Scholar, and Morgenthau, Hans J., Dilemmas of Politics, Chicago, 1958, ch. 11Google Scholar, respectively. The only additional recent works which try to establish a political sociology of international law are Visscher's, Charles deTheory and Reality in Public International Law, tr. by Corbett, P. E., Princeton, N.J., 1957Google Scholar; Corbett's, Percy E.Law in Diplomacy, Princeton, N.J., 1959CrossRefGoogle Scholar; Landheer's, B. “Contemporary Sociological Theories and International Law,” Recueil des Cours …, Vol. 91 (1957), 1Google Scholar; and, to some extent, Herz's, JohnInternational Politics in the Atomic Age, New York, 1959Google Scholar, and Kaplan's, Morton A. and Katzenbach's, Nicholas “The Patterns of International Politics and of International Law,” American Political Science Review, LIII (September 1959), pp. 693–712CrossRefGoogle Scholar—the last two pieces being more concerned with politics than with law. The present essay, which supplements an earlier piece on “Quelques aspects du rôle du Droit International dans la politique étrangère des Etats” (Association Française de Science Politique, La Politique étrangère et ses Fondements, Paris, 1954, pp. 239–77)Google Scholar, will itself be expanded into a volume on International Law in World Politics.

3 Legal Controls of International Conflict, New York, 1954, p. 1.

4 Such a definition corresponds to accepted definitions of domestic political systems, which are characterized also both by the scope of the ends of politics (the limited state vs. the totalitarian state, the welfare state vs. the free enterprise state) and by the methods of organizing power (constitutional relations between the branches of government, types of party system).

5 Aron, Raymond, “Evidence and Inference in History,” Daedalus, Vol. 87 (Fall 1958), pp. 11–39.Google Scholar

6 The number of violent conflicts does not intervene in these definitions. A stable period may be marked by frequent wars as long as they remain limited in objectives and methods. A revolutionary period may not necessarily be marked by all-out, general war, if the technology of conflict introduces a mutual interest in avoiding die total destruction such a war would entail; but as long as this restraint does not bring back moderation in the purposes and means of conflicts other than all-out war, the system remains largely a revolutionary one, although it disposes of an element of stability—a fragile element, given all the other circumstances.

7 Besides making the fundamental distinction between stable and revolutionary systems, we have to distinguish among stable and among revolutionary ones. Here our criteria should be, in addition to the basic structure of the world and the state of the technology of conflict: (i) in the case of stable systems, the kind of means used by the actors in their competition and co-operation: cf. below, the distinction between the stable system which preceded the French Revolution and the stable system which followed the Congress of Vienna; both were “balance of power” systems, but the latter was more institutionalized than the former; (2) in the case of revolutionary systems, the type of objective for which the conflicts take place (religious allegiance, form of government).

8 See the little-known but brilliant analysis by Papaligouras, Panayis A., Théorie de la Société internationale, Geneva, Graduate School of International Studies, 1941.Google Scholar

9 They do not, by themselves, destroy the balancing system but they make its operation uncertain, and increase the likelihood of “in-system” wars, which may in turn destroy the system if other essential conditions for an ideal balance have also disappeared, or if the logic of war destroys previous limitations on the instruments of conflict.

10 See Corbett, , op.cit., especially chs. 1–3.Google Scholar

11 See Schwarzenberger, George, Power Politics, New York, 1951, ch. 13Google Scholar; and Morgenthau, Hans J., op.cit., pp. 228–29.Google Scholar

12 Scholars may argue that important mutual interests still exist'and that states have little to gain by turning the zone of predictability into a battlefield. The trouble is that what seems irrational to the scholar from the viewpoint of international society seems rational to the statesman from the viewpoint of his own national calculation, given the peculiar logic of such calculations in fiercely competitive situations. An “objective” common interest might not be perceived by the antagonists and, even if it is, mere remains an abyss between such understanding and a formal legal agreement which would sanction it. On these points, see Waltz, Kennem, Man, the State, and War, New York, 1959, pp. 192ff.Google Scholar

13 See Kaplan and Katzenbach, op.cit.

14 For a more detailed analysis, see the audior's Organisations Internationales et pouvoirs politiques des Etats, Paris, Colin, 1954, part 1.

15 It was in 1871 that Russia denounced the Black Seas provisions of the Paris Treaty, in 1908 that Austria annexed Bosnia-Herzegovina.

16 The Legal Community of Mankind, New York, 1954.

17 Many of the difficulties of the UN operation in the Congo stem from the attempt to distinguish between the domestic and the international aspects of the crisis—an exercise in fiction.

18 We speak of a “loose bipolar system” in which “bloc actors” tend to become more important than unit actors—but at the same time the rate of obsolescence of strategies and the diffusion of nuclear power challenge such a view. Inversely, we refer to the fragmentation of the old frontier into multiple new sovereignties—but at the same time the necessities of the struggle against colonialism and for development might lead to the gradual emergence of “bloc actors” there. We discuss the atomic age but, as Herz has observed, many interstate relations are still in a pre-atomic phase. We have both a revolutionary system, and a tacit agreement on one rule of the game—the avoidance of total war.

19 See, for instance, the arguments of Bowett, D. W. in Self-defense in International Law, New York, 1958, pp. 145ff.Google Scholar, and Stone, Julius in Aggression and World Order, Berkeley, Calif., 1958Google Scholar, ch. 5. Contra, Kunz, Joseph, “Sanctions in International Law,” American Journal of International Law, LIV (April 1960), pp. 324–47.CrossRefGoogle Scholar

20 Similarly, during the period which preceded the peace of Westphalia, every legal development was ambiguous, for it destroyed the previous unity of the Civitas Christiana and the secular authority of the Church, but at the same time brought into shape the modern territorial state through a succession of wars.

21 See Emerson, Rupert, From Empire to Nation, Cambridge, Mass., 1960, ch. 6.CrossRefGoogle Scholar

22 For a recent discussion of those points, see the Proceedings of the American Society of International Law, 1959, pp. 21–45.

23 The statesmen have images of world order which are mutually exclusive, and in which the highest power remains the state; the individual citizens have no way of breaking the statesmen's monopoly: the citizens' efforts at promoting their transnational common ends through law rarely succeed in transcending the borders of the state, which continues to fulfill most of their needs and to be seen as the best protection against outside tempests. Indeed, the development of contemporary law has occurred especially in those areas where individuals raised demands which the state could not satisfy alone: hence the law of international functions and economic integration, whose binding force seems quite strong.

24 For a sharp analysis, see Rees, W. J., “The Theory of Sovereignty Restated,” in Laslett, Peter, ed., Philosophy, Politics and Society, New York, 1956.Google Scholar

25 The best combination of change over time and ambiguity is provided by the concept of domestic jurisdiction. On the one hand, the area regulated by international law has been drastically expanded in the present system. On the other hand, this increasing “legalization” of interstate relations could become an effective restraint on states only if there existed institutions capable of preventing states from extending the plea of do mestic jurisdiction to issues where it does not apply—as well as institutions capable of preventing states from rejecting the plea in those cases where it is still justified. Instead, we find that states successfully invoke the argument even in areas clearly regulated by law (cf. the Interhandel dispute), and refuse to listen to it whenever a problem is of international concern, although it may not be regulated by law (cf. the attitude of the General Assembly of the UN).

26 On the impact of such concentration, see Perroux, François, La coexistence pacifique, 3 vols., Paris, Presses Universitaires de France, 1958.Google Scholar