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The Reality of International Law

Published online by Cambridge University Press:  18 July 2011

Richard A. Falk
Affiliation:
Ohio State University
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Extract

Machiavelli begins his Discourses by observing that “the curious nature of men, so prompt to blame and so slow to praise, makes the discovery and introduction of any new principles and systems as dangerous almost as the exploration of unknown seas and continents.” The Political Foundations of International Law runs this hazard, as it is both a splendid pioneering venture and vulnerable to all sorts of criticism. Although it most suggestively studies the theoretical interaction of law and politics, it provides scant doctrinal support. Although it brilliantly applies systems analysis and prudently uses decision-making theory, structural functional approaches, institutional studies, and a subtle form of historicism, it flirts outrageously with the relevance of game theory to the role of law in international affairs. Although it advances its views of international jurisdiction with unprecedented sophistication, it resorts to amateurish simplification when it discusses the United Nations Charter or the major European regional organizations. In sum, Political Foundations is at once profoundly provocative and frustratingly unrealized. However, its achievements are so much greater than its defects that it warrants high praise and mild rebuke.

Type
Review Articles
Copyright
Copyright © Trustees of Princeton University 1962

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References

1 Yale Law Journal, LXV (1956), pp. 1087–1157.

2 A legal order is vertical if it possesses a hierarchical arrangement of norms backed by an institutional hierarchy that assures effective implementation. Modern non-federal states possess vertical legal orders. A legal order is horizontal if implementation of norms usually depends upon self-help and self-restraint on the part of formally equal participants in the legal order. That is, there is no compulsory procedure for resolution by appeal to a higher level in the legal system. This is generally the case in international law. Of course, the distinction between horizontal and vertical is a gross first approximation. It is useful, however, to highlight a contrast between international law and developed systems of domestic law.