International Law and Assumptions about the State System

Abstract

Most writers on international relations and international law still examine the relationship between international law and politics in terms of the assumption that law either should or does function only as a coercive restraint on political action. Textbook writers on general international politics like Morgenthau, and Lerche and Said, as well as those scholars who have specialized in international law like J. L. Brierly and Charles De Visscher, make the common assumption that international law should be examined as a system of coercive norms controlling the actions of states. Even two of the newer works,The Political Foundations of International Lawby Morton A. Kaplan and Nicholas deB. Katzenbach andLaw and Minimum World Public Orderby Myres S. McDougal and Florentino P. Feliciano, in spite of an occasional reference to the non-coercive aspects of international law, are developed primarily from the model of international law as a system of restraint. Deriving their conception of the relationship between international law and political action from their ideas on the way law functions in domestic communities, most modern writers look at international law as an instrument of direct control. The assumption that international law is or should be a coercive restraint on state action structures almost every analysis, no matter what the school of thought or the degree of optimism or pessimism about the effectiveness of the international legal system. With an intellectual framework that measures international law primarily in terms of constraint on political action, there is little wonder that skepticism about international law continues to increase while creative work on the level of theory seems to be diminishing.