Professor Falk gives special attention to the political setting that shapes international law and to the creation of those intellectual perspectives which would strengthen world order.
Originally published in 1970.
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The Status of Law in International Society
By Richard A. Falk
PRINCETON UNIVERSITY PRESSCopyright © 1970 Princeton University Press
All rights reserved.
Gaps and Biases in Contemporary Theories of International Law
THERE IS, in my judgment, always present a useful temptation to be highly selective in an essay that considers the adequacy of the body of international legal theory now being relied upon in the academic community of the United States. Such a temptation is especially strong at the present time when many procedures of inquiry are being developed by talented scholars. I have decided not to make a synoptic survey of the work now being done by those international lawyers whose work exhibits theoretical interests. Such a decision does not imply that such a survey would not be worthwhile; it is merely an indication of limited intentions on my part.
This chapter will discuss some major gaps and shortcomings that have emerged in international legal theory at its present stage of development in the United States. I shall first examine several aspects of the relation of theory to practice in contemporary thought about international law. This examination will stress the distinction between practice and policy. It is one thing to argue that improved theoretical constructions promote a deeper understanding of international legal phenomena than did earlier approaches; it is quite another to contend that any contemporary theoretical approach is sufficiently perfected to provide government officials and others with an adequate basis for objective or scientific judgment. I shall attempt to show that, because of problems peculiar to international law, international legal theorists simply have not developed criteria that provide adequate guidelines for evaluating particular decisions, although existing theory can be used to improve the rationality of the decision-making process. Since this inadequacy exists, it is especially unfortunate to note the current tendency to argue in legal support of official decisions based on national policies adopted for such essentially nonlegal reasons as national security or the containment of Communism by an appeal to the objective character of the legal analysis. This tendency undermines the necessary objectivity of scholarship and obscures the fact that an adequate theory of international law must take account of global as well as national interests. The scholar who fails to separate legal theory from national policy tends to ignore the systemic properties of international law in the nuclear age.
The current inflamed climate of political opinion in the United States threatens an increasing nationalization of scholarship. This danger will be considered in connection with the relevance of international legal theory to the decisions (as distinct from the decision-making process) of government officials. It is important to bear in mind the difference between using a theory of analysis to clarify and improve the governmental process of decision-making and using a theory to uphold or attack the outcome of the process. In fact, the core of my argument is a plea for emphasis on the former task and avoidance of the latter pretension.
Having considered the necessity for restraint and detachment on the part of international legal theorists, I shall consider certain gaps in our understanding of contemporary international law. These gaps arise in part from a failure to give an adequate account of the distinctive character of international law as a legal system. The central theoretical challenge arises from the persisting need to explain how law is even possible in a social system that lacks strong central institutions and that finds itself in no position to take formal action in order to punish serious violations of its fundamental ordering norms.
A final brief section is devoted to the place of theory in international legal studies today. One should appreciate the fact that the theorist swims against a strong operational current in the mainstream of legal research in the United States. Most international lawyers, whether inside or outside of universities, profess to be antitheoretical. Such a profession is often accompanied, or even justified, by a conviction that theory is a waste of time in legal studies. The serious work of legal research, the argument proceeds, is to organize and analyze the knowledge that has grown up as a consequence of attempts by lawyers, judges, government officials, and other scholars to solve specific legal problems. This hostile attitude toward theory, if ever defensible, certainly appears ill-suited to a proper understanding of law in a social environment that is changing as rapidly and as fundamentally as is the environment of international law. To refuse to reexamine the theoretical basis of inquiry into the international legal order is to be reconciled to an old theory rather than to be rid of theory altogether. The difference between the antitheorist and the theorist is that the former is the servant of implicit theory, whereas the theorist, if competent, is the master of an explicit theory that he refines as an instrument suitable for whatever substantive study he proposes to undertake.
I. On the Need for Humility and Restraint by Contemporary Theorists of International Law in the United States
International legal theory has special problems of its own. The absence of a world government compels theorists to speculate on whether it is plausible to posit the existence of an international society and, if so, of what character. Thus, the social environment within which international law is expected to function cannot be taken for granted to nearly the extent that it might be in investigating the borderlands of the known, knowable, and unknowable in a domestic legal context. For the theorist to assume the social and political environment of international law is to risk other perils, the most frequent of which is implicit reliance upon a model of law transferred from domestic life. Since such a domestically derived model does not fit the international setting, the effect is likely to be a theory of international law that is excessively formal (Kelsen) or simplistically cynical (Morgenthau).
The first requisite of an adequate theory of international law is a concern with the distinctive attributes of law in an environment with the characteristics of the international system. Because Myres McDougal has made such a powerful demonstration of his awareness of this starting point for a theory about international law, I regard McDougal as the most important international law theorist of our time. McDougal's position is not jeopardized even if one reaches the conclusion that his method for coping with the extralegal environment is so complicated as to be unworkable. 5 McDougal has demonstrated in great detail the manner in which international law functions, taking into account the special quality of law in a decentralized social system. Because of his insistence upon contexual analysis, McDougal makes the environment of world affairs relevant to any particular decision about the meaning of a legal rule. The necessity for this reference to context suggests that international legal theory is quite undeveloped, for as long as it is necessary to take so much into account in making each legal appraisal, it is evident that there is no agreement about the role and character of law in the social order. The more that can be taken for granted without upsetting the validity of an inquiry, the sharper the focus of knowledge and awareness tends to become. In fact, the primitiveness of a theory can be roughly gauged by the extent to which the environment can be held constant without affecting its application.
A recognition of the implications of this primitiveness seems crucial for developing an improved theory of international law. This issue of primitiveness goes to the heart of whether and to what extent a theoretical explanation provides normative guidance or, stated differently, expresses the relationship between theory and practice. What insight does a theory of international law presently yield with respect to a dispute about whether specific behavior is, was, or will be legal? The arguments about the legality of the 1962 quarantine imposed by the United States to prevent the emplacement of Soviet missiles on Cuban territory are a forceful illustration of how hazardous it is to be confident about what is legal and what is illegal.
Moreover, there are the more general difficulties of using a primitive theory as a basis for engineering applications. It is one thing to state a general conception of international law that takes account of many variables; it is quite another to shift from general levels of conceptual analysis to concrete levels of disputed behavior. It is not that theory is irrelevant to a legal appraisal of behavior, but rather that it is not dispositive at this stage. No theory, impartially and rigorously applied, will reveal whether or not the Cuban quarantine was legal; nor may a theory of international law be relied upon for unambiguous guidance to, or for passing judgment on, an official entrusted with responsibility for acting in accord with law. On the other hand, a theory can contribute to the rationality of the decision-making process by enumerating those variables most relevant to a particular decision. Here again, the work of the McDougal group is very valuable since it systematically enlarges the legal horizon of relevance by pointing to the kinds of considerations that a decision-maker can and should take into account. However, this accounting of relevant factors is done in a manner that is too imprecise and cumbersome to produce uniform application. Thus, equally ardent disciples of the method of legal analysis could come to divergent legal conclusions with regard to any particular legal controversy.
Of course, the difficulty of applying a theoretical approach to a concrete situation is not peculiar to international law. The split decisions of the Supreme Court of the United States suggest that uncertainty continues to torment the operation, as well as the theory, of law even in a relatively stable domestic society. But there is a crucial difference. In a domestic society, there is an official decision-maker regularly available to render an authoritative judgment as to what the law is at a given time and place. With rare exceptions, such an authoritative interpretation is not obtainable in the international system. Again the Cuban quarantine is a useful example. There was no possibility of acquiring a judgment as to whether the quarantine was legal from an official decision-maker acknowledged as authoritative by the world community. Even if one contends that the International Court of Justice has the status to give such a judgment, there is no routine obligation imposed upon disputing nations to have recourse to it; nor is there a consensus in the community that it is proper to settle a legal dispute of this kind by third-party settlement procedures. Adversary interpretations of law are set forth by national officials serving as legal experts in the national bureaucracy. The expectation of the international community is that a political dispute about national rights will lead to a clash of national interpretations of the type which international law allows, just as we in a domestic community expect that a private dispute about rights and duties will lead opposing counsel to develop contradictory interpretations of the relevant legal rules. The domestic clash usually can be authoritatively and effectively resolved, and this prospect often induces a reasonable settlement without recourse to the formal legal system, but the international clash of legal arguments cannot regularly be eliminated by a formal decision. In such a situation, if the legal theorist duplicates the approach taken by the foreign office law expert, then the scholar forgoes an opportunity to play a distinctive role in the international system. And, what is worse, the most cynical disenchantment with law as a regulative process in international relations is vindicated. In this respect, it is unfortunate that members of the Legal Adviser's Office entered scholarly arenas to advance their adversary interpretations of the Cuban quarantine and also that scholars abandoned a detached perspective to become "of counsel" to the United States. The result was the confusion of adversary and scholarly perspectives, as well as a sacrifice of the objectivity and balanced response that might otherwise have come from the legal interpretations given by scholars. One way to compensate for the weakness of central institutions in world affairs is to encourage scholarly specialists to act as imparital judges of the legality of national behavior, thereby giving some objective status to a consensus among scholars.
Of course, a special difficulty arises in appraising the legality of international activity if the observer is also a participant. The citizen's role often takes precedence over the scholar's; in other words, the dictates of national patriotism seem to shape judgments about legality to an extent too great to be consistent with the canons of scholarly detachment. This psychological assessment itself counsels against the assertion of scholarly conclusions about what is legal in a controversial international law case that engages national interests. Respect for the impartiality of international law is not engendered if, in the dramatic cases, the legal outcome appears to be more a matter of the national orientation of the analyst than the product of a detached analysis of legal principles. Such partisanship destroys the fragile claim that the standards of international law can provide a basis for common restraint. If international law is unable to establish rules of common restraint, then the normal domestic function of law is so altered in international affairs that we are presented with an unpleasant choice: either to withdraw the label "law" from "the talk about norms" or to redefine law for international affairs in a way so radical that it refers to the rhetoric used by nations to justify their own ways or to state their complaints about the ways of others. Law then becomes primarily a mode of international communication instead of an international system designed to restrain behavior. Stanley Hoffmann has protested against policy oriented analysis precisely because it produces this shift in the meaning of international law: "It is ... essential for the social scientist to understand that law is not merely a policy among others in the hands of statesmen, and that it is a tool with very special characteristics and roles: the social scientist who forgets this and advises the Prince accordingly will debase the instrument and mislead the Prince." This comment underscores the importance of avoiding added uncertainty as to the nature of international law arising as a by-product of a theoretical approach that unconvincingly purports to interpret and guide the practice of sovereign states in authoritative terms. Although, surprisingly enough, McDougal himself has often failed to distinguish between the roles of scholar, citizen, and social engineer in his analysis of controversial questions in international law, he has stated clearly "the fundamentally different standpoint and functions of the scholarly inquirer and the authoritative decision-maker": "The scholarly inquirer assumes an observational stand point relatively apart from the processes of authoritative decision being observed, attempting to free himself in the highest degree possible from the limiting perspectives of internal participants, and seeks effectively to perform certain interrelated intellectual tasks about such processes."
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Table of Contents
- Frontmatter, pg. i
- Introduction, pg. vii
- Acknowledgments, pg. xiii
- Contents, pg. xv
- I. Gaps and Biases in Contemporary Theories of International Law, pg. 7
- II. The Relevance of Political Context to the Nature and Functioning of International Law: An Intermediate View, pg. 41
- III. Some Notes on the Consequences of Revolutionary Activity for the Quality of International Order, pg. 60
- IV. Confrontation Diplomacy: Indonesia’s Campaign to Crush Malaysia, pg. 91
- V. An Argument to Expand the Traditional Sources of International Law with Special Reference to the Facts of the South West Africa Cases, pg. 126
- VI. On the Quasi-Legislative Competence of the General Assembly, pg. 174
- VII. The Authority of the United Nations to Control Nonmembers, pg. 185
- VIII. Unilateral Claims to Use Outer Space and the Development of World Legal Order, pg. 242
- IX. An Explanation of the Extraterritorial Extension of American Antitrust Regulation, pg. 265
- X. Some Thoughts on Identifying and Solving the Problem of Compliance with International Law, pg. 332
- XI. On Treaty Interpretation and the New Haven, pg. 342
- XII. The South West Africa Cases: An Appraisal, pg. 378
- ΧIII. The Sabbatino Litigation and After: The Complexity of the Supreme Court Decision and the Simplicity of the Legislative Epilogue, pg. 403
- XIV. Domestic Courts, International Law, and Foreign Acts of States: Executive Prerogatives and Judicial Imperatives, pg. 426
- XV. Some New Approaches to the Study of International Law, pg. 447
- XVI. Wolfgang Friedmann, pg. 470
- XVII. Morton A. Kaplan and Nicholas deB. Katzenbach, pg. 486
- XVIII. Kenneth S. Carlston, pg. 496
- XIX. The Recently Independent States: A Framework for Systematic Inquiry, pg. 513
- XX. Settling Ocean Fishing Conflicts: The Limits of "Law Reform" in a Horizontal Legal Order, pg. 540
- XXI. The Prospects for World Order: Models of the Future, pg. 554
- XXII. The Quest for World Order, and the Vietnam War: A Second American Dilemma, pg. 570
- XXIII. Observations on Political Loyalty at a Time of World Crisis, pg. 591
- APPENDICES, pg. 611
- Index, pg. 661