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Legal Scholarship, Realism, and the Search for Minimum World Order
Published online by Cambridge University Press: 18 July 2011
Extract
In recent years the parlous state of public order in the world community has become an irresistible goad to creative energy by legal scholars. Unfortunately, the significance of many potentially valuable contributions to an improved order has been diluted by the tendency of writers to approach their thesis from the limited perspective of their own discipline as a more or less closed system, or to develop their views while suffering from what Harold Lasswell has referred to as the “syndrome of parochialism.”1 In an era characterized by intensive professional specialization and mounting chauvinism, the international lawyer who can surmount the parochialism of his own profession and his own cultural predispositions is a rarity indeed; the paragon who can do so consistently is even rarer.
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References
1 McDougal, Myres S. and Feliciano, Florentino P., Law and Minimum World Public Order (New Haven 1961), XXIGoogle Scholar.
2 For descriptions of the structure of legal organization in the world community, see Kaplan, Morton A. and Katzenbach, Nicholas deB., The Political Foundations of International Law (New York 1961), 19–29Google Scholar; McDougal, Myres S. and Lasswell, Harold D., “The Identification and Appraisal of Diverse Systems of Public Order,” American Journal of International Law, LIII (January 1959), 1CrossRefGoogle Scholar; and Falk, Richard A., “International Jurisdiction: Horizontal and Vertical Conceptions of Legal Order,” Temple Law Quarterly, XXXII (Spring 1959), 295Google Scholar.
3 Cf. McDougal and Lasswell, “Identification and Appraisal.”
4 London 1958.
5 Critics of The Common Law of Mankind have referred to Jenks as a legal positivist who has regressed. They assert that he not only fails to consider law as operating within the context of its “social environment,” but also has lagged behind those “progressive” positivists who study law as it is applied to concrete cases. See Falk, Richard A. and Mendlovitz, Saul H., “Some Criticisms of C. Wilfred Jenks’ Approach to International Law,” Rutgers Law Review, XIV (Fall 1959), 1Google Scholar. This writer finds that the perceptive criticism of Jenks's approach contained in the Rutgers article is equally applicable to Law, Freedom and Welfare.
6 Jenks is somewhat disdainful of legal scholarship in international law which does not motivate action. (Ibid., II.)
7 See, e.g., Feliciano, Florentino P., book review, Yale Law Journal, LXVIII (April 1959)Google Scholar; and Falk and Mendlovitz, “Some Criticisms.”
8 By “high value intensity” I simply refer to situations in which the participants tend jealously to guard their interests, their values, and their freedom of action. Arms control, disarmament, and the status of West Berlin are classic examples. However, any situation in which important resources or institutions are sought to be subjected to international control or agreement can become of high value intensity once a relationship to cold war politics becomes publicized.
9 E.g., “The primary function of international law in the contemporary world is to outlaw recourse to armed force” (p. 53).
10 The complementarity of legal rules and their “normative ambiguity” are discussed in McDougal and Feliciano, Law and Minimum World Public Order.
11 The most notorious example is the Connally reservation. Declaration by the President of the United States of America, August 14, 1946, Respecting Recognition by the United States of America of the Compulsory Jurisdiction of the International Court of Justice, para. 2(b), 61 Stat. 1218, T.I.A.S. No. 1598.
12 The criticism is not that Jenks fails to recognize the effect of national interests of a non-legal nature on the acceptance of international law, for he states: “National attitudes toward questions of public international law have frequently been, and continue to be, influenced by national conceptions of public policy which have generally had more of the flavour of interests than of that of legal conceptions” (p. 142). Rather, it concerns his failure, in recommending research toward a synthesis of legal traditions, to give sufficient weight to this factor.
Professor Carlston, on the other hand, is fully cognizant of the impact of national policies and values. He states, as essential propositions: “The orientation of a state official toward a rule of international law as a factor in his decision making will be to take action at the outer limits of rationality in the application of the rule when it conflicts with national policy and values” (p. 165). And, “Decision making in the international system is predominantly made by those in authoritative roles who view situations of an international character in the light of their respective national cultures, value systems, and goals” (p. 141).
13 Specifically, he refers to Lippmann, Walter, The Phantom Public (New York 1925)Google Scholar.
14 The relative ineffectiveness of finding a moral basis of obligation as a means of explaining conformity or non-conformity to international law has been asserted by Professors McDougal and Feliciano: “Amorphous, transcendental notions of an ‘inherent binding force’ and ‘basis of obligation’ may be useful in the exhortation of the conscience of peoples. Propositions cast in the solemn terms of ‘binding obligation’ probably do in measure commit and engage peoples’ consciences. The suggestion we make, however, is that the clarification of fundamental policy and the explicit relating of specific alternatives in decision to the basic demands, expectations, and identifications of peoples constitute, again because of the postulate of maximization, much the more effective way of organizing, channeling, and harnessing their perspectives to the implementation of minimum order and as well of international law generally” (p. 278).
15 Professor Carlston has had better than thirty years of experience in the practice and teaching of international law.
16 A more systematic methodology, which would have ensured that no relevant stone was left unturned, has been developed by Professors McDougal and Lasswell of the Yale Law School and applied, with variations, by a number of contemporary legal scholars. Briefly, it requires examination of all participants, their value objectives, the situations in which they are functioning, their base values, their strategies, the specific outcomes of the process, and the longer-term effects on the participants, their values, and the various communities which are affected. See McDougal, Myres S., “Some Basic Theoretical Concepts About International Law: A Policy-Oriented Framework of Inquiry,” Journal of Conflict Resolution, IV (September 1960), 337CrossRefGoogle Scholar.
17 I.e., chaps, wv and propositions 9 and 10 of chap. VII.
18 Law and Structures of Social Action (New York 1956)Google Scholar.
19 It would not do Jenks justice to suggest that his enthrallment with doctrine entirely excludes concern for underlying policy. Thus, the common law of mankind toward which he directs his effort is seen as a body of law which will advance the widely shared values of “human dignity, economic stability and growdi, and the enlistment of technological change in the service of man” (p. 57). Furthermore, his concept of universality is unquestionably premised on the view that submission to supranational authority by emerging states is dependent upon the degree to which the norms applied by such authority incorporate values shared by such states. In his lecture, “The Challenge of Universality,” for example, he grudgingly agreed with Professor McDougal that “the effective authority of any legal system depends in the long run upon the underlying common interests of the participants in the system” (p. 148). It is, however, his response to the foregoing that is disappointing; he calls merely for “a rigorous analysis of the concepts being compared” as “the first step towards any synthesis [of legal doctrine] of real value” (ibid., italics added).
20 Cf. McDougal, Myres S. and Associates, , Studies in World Public Order (New Haven 1960), 276Google Scholar.
21 This practice is evident in every phase of international legal relations from claims to exercise the right of self-defense, claims to exercise jurisdiction or competence over persons and resources, etc., up to claims relating to the basis of obligation and sources of international law. The writings of some of the Soviet legal theorists, for example, indicate the way in which the sources of international law can be manipulated to serve national policy. See, e.g., Tunkin, G. I., “Remarks on the Juridical Nature of Customary Norms of International Law,” California Law Review, XCV (August 1961), 419CrossRefGoogle Scholar; and Tunkin, , “Coexistence et Droit International,” Hague Academy of International Law, Recueil des Cours, XCV (1958), 1Google Scholar. Incidentally, these articles also point up the almost insurmountable difficulty of getting the Soviet Union to accept, at a doctrinal level, Jenks's views that the will of the world community is replacing consent as a basis of obligation in international law or that interdependence is being substituted for independence as a basic international legal concept.
22 Official statements to the contrary notwithstanding, it is interesting to speculate whether President Johnson's decision of August 4, 1964, to retaliate against North Vietnamese bases for the torpedo boat attacks on United States destroyers would have been of the same intensity if his opponent in the next presidential election had not been urging greater bellicosity against the Communists. To what extent can decisionmakers, acting under the pressures of a demand for immediate decision in a situation of high crisis, exclude such factors from their consideration?
23 See, e.g., Fisher, Roger, ed., International Conflict and Behavioral Science: The Craigville Papers (New York 1964)Google Scholar, and Group for the Advancement of Psychiatry, Psychiatric Aspects of Prevention of Nuclear War (New York 1964)Google Scholar.
24 Cf. Fulbright, J. W., Prospects for the West (Cambridge, Mass., 1963)CrossRefGoogle Scholar.
25 Cf. P. H. Spaak's comment in European Community, LXXII (June 1964)Google Scholar, 7: “Even if we leave aside the problems of Great Britain's possible entry into the Common Market, and the increasingly grave and important question of our relation with the United States, we must accept the fact that at present there is little chance of further progress towards political unity in Europe. The difference in approach is so great and so profound that it is difficult to conceive of anyone proposing a compromise, let alone accepting one. This is just not the time.”
26 McDougal and Feliciano, Law and Minimum World Public Order, 375.
27 Mr. Jenks recognizes that “on major questions of personal freedom, political organisation and economic policy, and above all on matters involving relative power and the strategy of self-protection and self-aggrandizement, there are cleavages of view which it would be idle to minimise” (p. 95). It seems to this reviewer, however, that he does minimize them when he adds: ‘These divisions within the world community inevitably limit and weaken the substantial content of its laws and make the continued existence of the community itself precarious, but they do not in themselves deprive it of its character of a community with a law derived from and supported by its common will.” Or, “The problems which confront the world community, grave as they may be, do not impair its character as a community or the binding nature and potentially reasonably comprehensive ambit of its law” (pp. 95–96).
28 Jenks asserts that “we must seek a basis of obligation which will hold effectively the allegiance of mankind” (p. 88) and “a concept which has the simplicity, the authority and the dynamic quality necessary to establish the obligation of international law in the hearts and minds of the people” (p. 89).
29 The quoted phrase is deemed to be the basis of a “commercial morality” which is similar to “the morality necessary to sustain an effective system of international law” Ibid.). While it is no doubt true that the desire for certainty and order plays a large part in the development of universal norms of commercial law, the realizable hope for profit or, in the behaviorist's terms, the maximization postulate is probably the major factor.
30 Careful examination of these factors might have led to a more realistic conclusion that the norm which uniformly requires “prompt, adequate and effective compensation,” as those terms are generally defined by lawyers in developed countries, is not necessarily the norm best designed, in the current state of world conditions, to result in the widest realization of values. Compare Dawson, Frank G. and Weston, Burns H., “Banco Nacional de Cuba v. Sabbatino: New Wine in Old Bottles,” University of Chicago Law Review, XXXI (Autumn 1963), 63CrossRefGoogle Scholar; and “Prompt, Adequate and Effective: A Universal Standard of Compensation?” Fordham Law Review, XXX (April 1962), 727Google Scholar.
A more comprehensive methodology for exploring difficult legal problems of contemporary importance is applied in McDougal, Lasswell, , and Vlasic, , Law and Public Order in Space (New Haven 1963)Google Scholar.
31 It does not matter much if the proposals actually do constitute intervention, in any of the senses in which that term has been used, or do entail a limitation of freedom of action (loss of sovereignty), etc., so long as this is not publicized and exploited to the point where the authoritative decision-maker is forced by political pressures to abandon them. Thus the way in which words, slogans, and symbols are manipulated becomes relevant. For example, chances for ratification by the United States of the consular treaty with the USSR will be improved if it is popularly treated as “a gain for democracy and the open society” rather than as a “strengthening of diplomatic ties between the United States and the Soviet Union.” Unfortunately, the latter approach has already been inaugurated by opponents of the treaty. Sec New York Times, June 12, 1964Google Scholar.
32 Their views seem to be in general accord with the sophisticated but practical technique of “fractionating conflict,” recently developed by Professor Fisher. (Fisher, Roger, “Fractionating Conflict,” Daedalus [Summer 1964], 920Google Scholar.) He proposes that the scope of the issues submitted to international negotiations can be narrowed or broadened in order to enhance the possibility of agreement.
33 Falk, Richard A. and Mendlovitz, Saul H., “Towards a Warless World: One Legal Formula to Achieve Transition,” Vale Law Journal, LXXIII (January 1964), 399Google Scholar.
34 See New York Times, July 5, 1964, IV; July 7Google Scholar, 1964.
35 Cf. Kirk, Grayson, “World Perspectives, 1964,” Foreign Affairs, XLIII (October 1964), 1CrossRefGoogle Scholar. Mr. Kirk suggests that, partly as a result of the nuclear “balance of frustration,” the relative status of the United States and the USSR in the world has been declining. He takes support for his position from Senator Fulbright's statement in Old Myths and New Realities (New York 1964), 54Google Scholar: “By their acquisition of nuclear weapons the two great powers have destroyed the traditional advantages which size and resources had placed at their disposal.” Other knowledgeable commentators have also noted this phenomenon. See, e.g., Harsch, Joseph C., “Changing Times at Berlin Wall,” Christian Science Monitor, September 21, 1964Google Scholar; Reston, James, “Saigon and U.S. Power,” New York Times, August 311, 1964Google Scholar; and Crankshaw, Edward, “East and West Enter a New Phase,” New York Times Magazine, August 30, 1964Google Scholar.
36 The establishing and financing of a United Nations peace force through the General Assembly, rather than the Security Council, might seem to be a simple solution, but the Soviet Union's recorded opposition, based on legal and political factors, is too well known to permit a reversal in the near future. Furthermore, it is probably true that exercise of the Security Council veto against peace-keeping operations, at least in situations in which the danger of escalation is not serious, will remain an important strategy of the Soviet Union.
37 Cf. Fisher, Roger, “Should We Veto the Troika?” New Republic, August 21, 1961, 11–14Google Scholar, reprinted in Legal and Political Problems of World Order, ed. by Mendlovitz, Saul H. (New York 1962), 276Google Scholar.