1 There is already a considerable literature on other aspects of McDougal’s thinking. Consult, inter alia, Anderson, Stanley V., “A Critique of Professor Myres S. McDougal’s Doctrine of Interpretation by Major Purposes,” 57 A.J.I.L. 378–383 (1963)Google Scholar; Moore, John N., “Prolegomenon to the Jurisprudence of McDougal and Lasswell,” 54 Virginia Law Review 662–688 (1968)Google Scholar; Gottlieb, Gidon, “The Conceptual World of the Yale School of International Law,” 21 World Politics 108–132 (1968)Google Scholar; and Falk, Richard A., “Some Thoughts on the Jurisprudence of Myres S. McDougal,” in Richard A. Falk, The Status of Law in International Society 642–659 (Princeton, 1970)Google Scholar.

2 McDougal and his co-workers have produced a large corpus of material elaborating and applying his jurisprudence. In preparing this essay, I have relied primarily on the following works: McDougal, Myres S., “Some Basic Theoretical Concepts about International Law: A Policy-Oriented Framework of Inquiry,” 4 Journal of Conflict Resolution 337–354 (1960)Google Scholar; Myres S. McDougal and Associates, Studies in World Public Order (New Haven, 1960); Myres S. McDougal and Florentino P. Feliciano, Law and Minimum World Public Order: The Legal Regulation of International Coercion (New Haven, 1961); Myres S. McDougal and William T. Burke, The Public Order of the Oceans: A Contemporary International Law of the Sea (New Haven, 1962); Myres S. McDougal, Harold D. Lasswell, and Ivan A. Vlasic, Law and Public Order in Space (New Haven, 1963); Myres S. McDougal, Harold D. Lasswell, and James C. Miller, The Interpretation of Agreements and World Public Order (New Haven, 1967); and Myres S. McDougal, Harold D. Lasswell, and Michael Reisman, W., “Theories about International Law: Prologue to a Configurative Jurisprudence,” 8 Virginia Journal of International Law 188–299 (1968)Google Scholar.

8 The “realist” approach to legal analysis also diverges substantially from the more traditional conception of law. I do not mean to imply, therefore, that McDougal stands alone in his criticisms of the traditionalists.

4 This phrase is from J. L. Brierly, The Law of Nations 1 (New York, 6th ed., 1963).

5 It can be argued that this summation is more reflective of the doctrine than the practice of the traditionalists since most sophisticated legal scholars have concerned themselves in one way or another with the links between the legal system and the broader society in which it operates. Nevertheless, the doctrine of the traditionalists has been widely influential over the years, and it is this doctrine that McDougal attacks most directly.

6 See, inter alia, Myres S. McDougal and Harold D. Lasswell, “The Identification and Appraisal of Diverse Systems of Public Order,” in McDougal and Associates, Studies in World Public Order, op. cit. note 2 above, at 3–41. Note especially the following specific statements:

“Within the decision-making process our chief interest is in the legal process, by which we mean the making of authoritative and controlling decisions.” (P. 13.)

“The conjunction of common expectations concerning authority with a high degree of corroboration in actual operation is what we understand by law.” (P. 14.)

Similarly, they explicitly stress the goal of describing “the legal process in the conv text of the decision process as a whole, and of the social process within the entire S community context.” (P. 37.)

7 There is some ambiguity in McDougal’s conception of the notions of authority 4 and authoritativeness. Basically, he seems to regard a decision as authoritative if it is widely accepted as the act of a legitimate or rightful decision-maker. But this HI formulation itself raises some important problems. For example, how widespread IK must the legitimacy of a decision-maker be in a given community for his decisions B to be authoritative? What is the relationship between authoritativeness and effectiveness, especially over time? And how are we to characterize the decision-making process in social systems, such as the international system, in which several different sets of decision-makers claim authoritativeness for their acts but none actually enjoys anything like universal legitimacy?

8 This discussion follows Lasswell’s basic formulation. For a detailed treatment consult Harold D. Lasswell and Abraham Kaplan, Power and Society 55–102 (New Haven, 1950).

9 Again, this follows Lasswell’s basic formulation. See, for example, ibid. 81, where Lasswell and Kaplan state that “the outcome of the shaping of power in an encounter is a decision” (emphasis in original).

10 Thus, a defeated claim which later gains increased support in the form of subsequent decisions may well be revived at the next opportunity and acquire legal status (in some cases even retroactively).

11 The rôle of community expectations in legal processes, which McDougal stresses throughout his work, is particularly important in this context. In any social system, individuals and organized groups will attempt to formulate expectations concerning the probable outcomes of current and potential confrontations about the distribution of values in order to make purposive decisions about their own behavior. In highly stable societies, expectations of this kind will be relatively easy to arrive at and will not change much over time. As change becomes more rapid, extensive, and unpatterned within a social system, however, the difficulties involved in formulating and adjusting expectations about effective and authoritative decisions in a meaningful fashion will mount steadily.

12 It seems reasonable to argue that sophisticated legal thinkers have, in fact, always taken an interest in issues of this kind. McDougal’s jurisprudence raises these issues directly and explicitly, however, whereas many of the traditional conceptions of law tend to avoid them, at least in doctrinal terms.

13 On this point see McDougal, Lasswell, and Reisman, “Theories about International Law,” foe. cit. note 2 above, at 260–275.

14 It would require a large volume to document this conclusion thoroughly. Nevertheless, let me offer several specific examples. First, I have searched McDougal’s writings in vain for references to most of the principal works of modern decision theory. For convenient lists of citations in this field consult Ward Edwards and Amos Tversky (eds.), Decision Making (Middlesex, England, 1967). Second, much the same can be said of the massive contemporary literature on political elites. For a sample of the radically different perspectives associated with the analysis of elites, see Peter Bachrach (ed.), Political Elites in a Democracy (Chicago, 1971).

15 Lasswell worked closely with McDougal during the 1940’s when the approach to legal analysis under discussion in this essay was originally formulated. And he has figured as a co-author of a number of McDougal’s works in more recent years.

16 For a brief and clear discussion of the problem of definitional circularity see Levy, Marion J. Jr., “ ‘Does it Matter if He’s Naked,’ Bawled the Child,” in Knorr, Klaus and Rosenau, James N. (eds.), Contending Approaches to International Politics 99–101 (Princeton, 1969)Google Scholar.

17 For an elaboration of Easton’s conception of political science, consult David Easton, The Political System, esp. Ch. V (New York, 1953).

18 For a well-known discussion of the distinction between “nominalism” and “essentialism” in the context of the social sciences, see Karl R. Popper, The Poverty of Historicism 26–34 (New York, 1964).

19 In fact, it can be argued that this conclusion follows logically from the basic premises of McDougal’s conception of law. As a practical matter, however, I am not sure whether McDougal himself would be willing to embrace this conclusion.

20 In a sense, this raises the classic philosophical problem of identifying phenomena that are “becoming” rather than “become.”

21 This often occurs, for example, where different economic, ethnic, or racial groups are involved. That is, it is now widely recognized as incorrect to suppose that the average social system or community is fully homogeneous with respect to the administration of justice.

22 In fact, evidence is mounting steadily in support of the generalization that position in the social hierarchy is a major determinant of the outcome of one’s claims concerning the allocation of values in American society. And this is no doubt true, to a greater or lesser degree, of all societies, whether or not the results are widely accepted as authoritative or legitimate.

23 For an extended discussion of these characteristics of the international system, see Young, Oran R., “A Systemic Approach to International Politics,” Research Monograph No. 33 (Princeton Center of International Studies, 1968)Google Scholar.

24 Like many other students of international law, McDougal seems to be heavily influenced by implicit analogies to domestic or intra-national society. Thus, his basic conception of law yields distinctly more clearcut conclusions when it is applied to relatively well-integrated domestic systems than when it is used to characterize the highly decentralized international system.

25 For an interesting and well-balanced discussion of these issues, see Bull, Hedley, “Society and Anarchy in International Relations,” in Butterfleld, Herbert and Wight, Martin (eds.), Diplomatic Investigations 35–50 (London, 1966)Google Scholar.

26 See, for example, McDougal and Lasswell, “The Identification and Appraisal of Diverse Systems of Public Order,” loc. cit. note 6 above, at 21–36.

27 One possible escape route, which McDougal has also alluded to, is to argue that the international system as a whole does exhibit an embryonic system of public order even though it is highly underdeveloped by contrast to the systems of public order in other communities. But a simple enunciation of this position is not sufficient. What, for example, are the minimum requirements for the existence of a system of public order? And what are the differences between embryonic and highly developed systems of public order with respect to the links between the legal system and the broader social system in which it operates?

28 The most systematic statement of Lasswell’s conceptual framework appears in Lasswell and Kaplan, op. cit. note 8 above.

29 Lasswell divides the eight values into four deference values (i.e., power, respect, rectitude, and affection) and four welfare values (i.e., well-being, wealth, skill, and enlightenment).

30 The seven categories are: intelligence-gathering, recommendation, prescription, invocation, application, appraisal, and termination. McDougal argues that intelligence-gathering and recommendation are particularly important functions of policy-oriented legal, analysis.

31 It can be asked whether the Lasswellian conceptual apparatus is a necessary part of McDougal’s jurisprudence. This is a rather complex issue, and I cannot deal with it adequately within the scope of this essay. There are, however, two brief points concerning this issue which I would like to emphasize. First, there is no doubt that some aspects of McDougal’s jurisprudence, such as his basic conception of law, could be sustained in the absence of the Lasswellian conceptual apparatus. Second, it is nevertheless true that the conceptual apparatus has become such an integral part of McDougal’s jurisprudence that it is highly doubtful whether it makes sense to divorce the apparatus from the other aspects of his legal thinking for purposes of evaluation.

32 For a discussion of some of the issues involved in this controversy, consult Oran R. Young, Systems of Political Science (Englewood Cliffs, 1968), esp. Chs. 1 and 7. And for a highly critical evaluation of the use of conceptual frameworks on the part of political scientists see Bernard Crick, The American Science of Politics (Berkeley, 1959). Note also that this question is related to a recurring controversy in Western thinking which focuses on the notion of rationalism. That is, one of the predominant motives underlying the introduction of self-conscious and carefully elaborated conceptual frameworks is the idea that this procedure will encourage systematic thinking, rational assessments of clearly defined issues, and scientific thinking.

33 Compare, for example, McDougal and Feliciano, Law and Minimum World Public Order, note 2 above, with other modern efforts to deal with the regulation of force in the international system, such as Ian Brownlie, International Law and the Use of Force by States (New York, 1963); Hans Kelsen, Law and Peace in International Relations (Cambridge, 1942); and Julius Stone, Legal Controls of International Conflict (New York, 1954).

34 In formal terms, a theory can be defined as a set of general statements such that: (1) some of the statements (the assumptions or premises) logically imply the others (the theorems), and (2) the theorems can be cast in the form of falsifiable predictive statements about the real world. In fairness, it should be noted that other conceptual frameworks have not done notably better in sustaining the development of theories in the areas of Lasswell’s interests. Nevertheless, this does not alter the fact that the failure to sustain theory is a distinct weakness of Lasswell’s apparatus.

35 For a good introduction to the problems of developing theories, see Carl G. Hempel, Philosophy of Natural Science (Englewood Cliffs, 1966).

36 The collaborative works on the regulation of international coercion, the law of the sea, and space law all exhibit this quality to a greater or lesser degree.

37 Much the same comment can be made about the use of other conceptual frameworks that have been developed by social scientists and legal scholars. Once again, however, the fact that McDougal’s conceptual apparatus displays some general similarities to other conceptualizing efforts does not alter the force of the point under discussion here.

38 Given McDougal’s highly critical view of traditional legal scholarship, the fact that he employs his knowledge of the case materials so vigorously constitutes something of a paradox. I do not think that anyone who has seen McDougal in operation, however, would argue with the conclusion that his knowledge of the case materials is an important source of his strength in legal argumentation.

39 Clear-cut examples would include Richard A. Falk, Rosalyn Higgins, and (probably) W. Michael Reisman.

40 This section focuses on what McDougal describes as “minimum order.” Several aspects of “optimal order,” which involves questions of values and justice, are discussed in the next section of this essay.

41 The notion of protection is somewhat ambiguous in this context. While it is possible to say that the maintenance of certain features of a social system is implied by a given pattern of decisions, it seems peculiar to argue that it is the stream of decisions itself which actually protects these features of the social system.

42 See, inter alia, McDougal and Lasswell, “The Identification and Appraisal of Diverse Systems of Public Order,” loc. cit. note 6 above, at 15–16.

43 The meaning of the term “unauthorized” in this formulation requires some interpretation. As mentioned in a previous section of this essay, it is not clear whether the international system as such actually has a decision-making process that is widely accepted as authoritative.

44 See, for example, McDougal, “Some Basic Theoretical Concepts about International Law,” loc. cit. note 2 above.

45 Bull has stated this view most clearly in a lecture at Princeton University on Dec. 4, 1970.

46 The idea of eliminating or regulating large-scale coercion raises the so-called “order-justice problem” since the control of coercion in the absence of arrangements for the achievement of peaceful change is apt to produce a host of new problems.

47 This issue also arises in connection with the work of other scholars in this field. For example, it seems to me exceedingly difficult to pin down the exact meaning of the adjective “legal” in the phrase “the future of the international legal order” as employed by Richard A. Falk and Cyril E. Black. For further details, consult Richard A. Falk and Cyril E. Black (eds.), The Future of the International Legal Order, 5 vols. (Princeton, 1970).

48 For a helpful discussion of these issues see Michael Barkun, Law Without Sanctions (New Haven, 1968).

49 There is some tendency among international lawyers to incorporate most political rules, social norms, habitual patterns of behavior, and so forth into the category of law. I cannot think of any major conception of law which fully supports this tendency, however, and I think this procedure is a serious source of conceptual confusion. For an interesting discussion of political rules, which do not have any explicit legal standing, see Inis L. Claude, Jr., The Changing United Nations, Ch. 4 (New York, 1967).

50 For an interesting discussion of this proposition see Masters, Roger D., “World Politics as a Primitive Political System,” 16 World Politics 595–619 (1964)CrossRefGoogle Scholar.

51 Another approach to this problem would be to try and distinguish something called the “international legal system.” Presumably, this system would be differentiated from the international political system, the international social system, and the international economic system. It is not clear just what criteria are to be employed in making this distinction. For a discussion of the notion of the international legal system, however, see Richard A. Falk, The Status of Law in International Society, op. cit. note 1 above.

52 The ambiguities embedded in McDougal’s conception of world public order are not peculiar to him; on the contrary, they exemplify a widespread inability to define the concept “world order” in a genuinely fruitful fashion.

53 This comment is equally (if not more) relevant to the work of a number of McDougal’s followers.

54 For a relatively clear statement of McDougal’s own views in this area see, for example, Harold D. Lasswell and Myres S. McDougal, “Legal Education and Public Policy: Professional Training in the Public Interest,” in McDougal and Associates, Studies in World Public Order, op. cit. note 2 above, at 59–91.

55 Among other things, the transaction costs associated with decision-making under this rule may seriously detract from the resources available for the production of new values. This is one of the classic problems involved in the idea of participatory democracy.

56 For example, this general posture is not particularly helpful in coming to grips with the redistributive problems underlying the emerging North-South confrontation or with the costs arising from the revolution of rising expectations and the impetus to headlong modernization in the countries of the third world.

57 See, for example, McDougal and Lasswell, “The Identification and Appraisal of Diverse Systems of Public Order,” loc. cit. note 6 above, at 3–10.

58 For an extended analysis of the situation of the developing countries which is particularly sensitive to their problems in the existing international system, see Falk, The Status of Law in International Society, op. cit. note 1 above.

59 For relevant examples of McDougal’s views on these issues consult, inter alia, McDougal, Myres S. and Schlei, Norbert A., “The Hydrogen Bomb Tests in Perspective: Lawful Measures for Security,” in McDougal and Associates, Studies in World Public Order 763–843 Google Scholar; McDougal, Myres S., “The Soviet-Cuban Quarantine and Self- Defense,” 57 AJ.I.L. 597–604 (1963)Google Scholar; and John Norton Moore and James L. Underwood in collaboration with Myres S. McDougal, The Lawfulness of United States Assistance to the Republic of Viet Nam, mimeographed, May, 1966.

60 On this point, see also the comments of Rosalyn Higgins in her article “Policy and Impartiality: The Uneasy Relationship in International Law,” 23 International Organization 914–931 (1969).

61 For evidence of the impact of the atmosphere of the period see Lasswell and McDougal, “Legal Education and Public Policy,” loc. cit. note 54 above, which was published originally in 1943.

62 For Lasswell’s own views on these matters consult Lasswell and Kaplan, op. cit. note 8 above, esp. pp. x-xiv.

63 Thus, Lasswell draws a clear distinction between the “manipulative standpoint” (which is policy-oriented) and the “contemplative standpoint,” and he stresses the important r61es of both orientations. On this distinction, see ibid, xi-xiii.

64 For evidence on this point consult Lasswell and McDougal, “Legal Education and Public Policy,” loc. cit.