The Spirit of International Law

The Spirit of International Law

David J. Bederman
Copyright Date: 2002
Pages: 296
https://www.jstor.org/stable/j.ctt46n77z
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  • Book Info
    The Spirit of International Law
    Book Description:

    As our society becomes more global, international law is taking on an increasingly significant role, not only in world politics but also in the affairs of a striking array of individuals, enterprises, and institutions. In this comprehensive study, David J. Bederman focuses on international law as a current, practical means of regulating and influencing international behavior. He shows it to be a system unique in its nature-nonterritorial but secular, cosmopolitan, and traditional. Part intellectual history and part contemporary review, The Spirit of International Law ranges across the series of cyclical processes and dialectics in international law over the past five centuries to assess its current prospects as a viable legal system. After addressing philosophical concerns about authority and obligation in international law, Bederman considers the sources and methods of international lawmaking. Topics include key legal actors in the international system, the permissible scope of international legal regulation (what Bederman calls the "subjects and objects" of the discipline), the primitive character of international law and its ability to remain coherent, and the essential values of international legal order (and possible tensions among those values). Bederman then measures the extent to which the rules of international law are formal or pragmatic, conservative or progressive, and ignored or enforced. Finally, he reflects on whether cynicism or enthusiasm is the proper attitude to govern our thoughts on international law. Throughout his study, Bederman highlights some of the canonical documents of international law: those arising from famous cases (decisions by both international and domestic tribunals), significant treaties, important diplomatic correspondence, and serious international incidents. Distilling the essence of international law, this volume is a lively, broad, thematic summation of its structure, characteristics, and main features.

    eISBN: 978-0-8203-2639-9
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-viii)
  2. Table of Contents
    (pp. ix-x)
  3. PREFACE
    (pp. xi-xiv)
  4. List of Abbreviations
    (pp. xv-xviii)
  5. 1 Authority and Obligation
    (pp. 1-26)

    International law is those rules of conduct that are binding on international actors in relations, transactions, and problems that transcend national frontiers. As a legal system, international law has been present, in some form, at all times in which an authentic system of self-aware polities has existed in human history.¹ A hundred years ago, a writer considering this subject would have called it the “law of nations”—that body of law governing relations between sovereign states. But public international law can also be the law applied to individuals, relationships, and transactions across national boundaries. International law is also the basis...

  6. 2 Sources
    (pp. 27-48)

    Most international lawyers have accepted that any discussion of the bases of international obligation is likely to be inconclusive. No similar concession has been made for determining the sources of international law. Essential to understanding the nature of international law as a legal system is comprehending the sources of international legal rules. It would be hard to practice within any legal system without knowing, quite literally, where to find the law, and international law is no exception. This is true whether one believes in the positivist nature of international law, that the sources of international law are a neutral and...

  7. 3 Methods and Approaches
    (pp. 49-78)

    As has already been indicated, the “classic” sources of international law only imperfectly describe the actual dynamic of international lawmaking. Focusing on general principles, custom, and treaties—even with their abstruse contours and interrelationships—can sometimes convey the false sense that that is all one needs to understand the formation and application of rules for international conduct. Sources appear to be neutral and objective, and that is intended as part of international law’s claim to legitimacy. The reality of international life is, of course, rather more complex and enigmatic. To understand the essence of international law as a legal system,...

  8. 4 Subjects and Objects
    (pp. 79-93)

    Just as with the bases of obligation, international lawyers historically have had a peculiar preoccupation and fetish with the subjects and objects of the discipline. Many international law treatises (including current ones) are structured around this division between subjects and objects.¹ Yet these two terms have caused substantial confusion among students and practitioners of international law (and even among scholars and judges), so careful definition is necessary. By a subject of international law, I mean an entity that bears international legal rights or duties. Subjects of international law are also known as international legal persons, a phrase that is meant...

  9. 5 Coherence and Sophistication
    (pp. 94-109)

    In this volume, I have continually referred to international law as a primitive legal system. Before proceeding further, it is necessary to explain in more detail what this means. Far from being a pejorative labeling of my topic, characterizing international law in this fashion not only reveals some important features of its system and method but also indicates some of its signal strengths.

    A number of characterizations have been attributed to primitive legal systems.¹ Some of these describe the contents of primitive legal doctrines, most notably the lack of certainty and security of expectation, the limited range of norms, and...

  10. 6 Values and Paradoxes
    (pp. 110-138)

    Only recently have international law actors and commentators come to self-consciously reflect on the policy values and choices that undergird the international legal system. In many primitive legal systems, practices were adopted and maintained for reasons necessary to the community’s coherence and legitimacy, but rarely was this the subject of much speculation or doubt. In a similar fashion, as Thomas Franck has observed,¹ The legitimacy of the primary rules of the international legal system depends on the determinacy of the norms, the symbolic validation they confer, the coherence of rules in commanding compliance, and the ability of actors to adhere...

  11. 7 Confines
    (pp. 139-161)

    One of the characteristic features of international law is that it is tightly constricted. Perhaps unique among modern, secular legal systems, international law is conceptualized and defined as much by what is excluded from its remit and mandate as by what is embraced by the permissible scope of its regulations. Although I have spoken of the huge increase within the past century of the legitimate topics of international law rules, one should not be fooled into thinking that international law is boundless in its conception.

    Indeed, the realm of international law is constrained by no fewer than three frontiers. The...

  12. 8 Formalism and Pragmatism
    (pp. 162-185)

    I have already discussed how the development of international law is typically presented as a progress narrative. There is a prevailing sense that international law has evolved from a primitive regime to a sophisticated legal system. While there is some truth in this, thinking exclusively about international law in an evolutionary way can be deceptive and misleading. Already in this volume I have taken issue with those who would portray international law as fully replicating national legal systems or meeting some millenarian rendezvous with world government. Instead, international law has to be understood on its own terms as reflecting unique...

  13. 9 Enforcement and Compliance
    (pp. 186-203)

    The ultimate test of international law is how well it manages conflict between states and other international actors. So far, this volume has demonstrated that international law, while primitive in some respects, has some attributes of a fully formed legal system—with clear sources and methods, a diversity of subjects and objects, and the ability positively to interact with domestic legal systems. Even so, international law would be a failure if it could not adequately meet the needs of the international community in constructively resolving the problems that arise in international affairs. The only real way to measure the success...

  14. 10 Rectitude and Ambition
    (pp. 204-220)

    Conservatism and progressivism have been oddly paired throughout much of international legal history. As considered in chapter 3, the international community has defined itself in various ways over the past five centuries. This process of definition and self-reflection has meant that international law has had to serve many purposes and achieve numerous objectives. The demands of international life have meant that international law has often been obliged to sacrifice coherence and progressivity on the altar of expedience and expectation.

    There has been a cyclical character for many of the signal developments of international law. As observed in chapter 1, the...

  15. 11 Skepticism and Exuberance
    (pp. 221-226)

    This volume has attempted to chart international law’s trajectory over the past centuries and to describe its current strengths and weaknesses as a legal system. In the final pages, it is worth reflecting on international law’s progress in overcoming substantial obstacles in fashioning a global order based on a rule of law.

    An important theme of this book has been to properly characterize attitudes about international law and to assess its evolution as both a learned discipline and a practical means of influencing international behavior. This effort is complicated because the international legal system periodically has been afflicted with bouts...

  16. NOTES
    (pp. 227-256)
  17. INDEX
    (pp. 257-274)
  18. Back Matter
    (pp. 275-275)