International law, Sixth edition
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International Law MALCOLM N. SHAW
New approaches
39 Traditionally, international law has been understood in a historical man- ner and studied chronologically. This approach was especially marked in the nineteenth century as international relations multiplied and in- ternational conferences and agreements came with increasing profusion. Between the world wars, the opening of government archives released a wealth of material and further stimulated a study of diplomatic history, 36 See e.g. F. G´eny, M´ethode d’Interpr´etation et Sources en Droit Priv´e Positif, Paris, 1899, and L. Duguit, Law in the Modern State, New York, 1919, and ‘Objective Law’, 20 Columbia Law Review, 1920, p. 817. 37 Introduction to Legal Philosophy, 1947. See also Hart, ‘Positivism’; Fuller, ‘Positivism’, and Fuller, ‘The Legal Philosophy of Gustav Radbruch’, 6 Journal of Legal Education, 1954, p. 481. 38 See H. Lauterpacht, International Law and Human Rights, London, 1950. Note more gen- erally the approach of J. Rawls, A Theory of Justice, Oxford, 1971, and A. D’Amato, ‘In- ternational Law and Rawls’ Theory of Justice’, 5 Denver Journal of International Law and Policy, 1975, p. 525. See also J. Boyle, ‘Ideals and Things: International Legal Scholarship and the Prison-house of Language’, 26 Harvard International Law Journal, 1985, p. 327; A. D’Amato, ‘Is International Law Part of Natural Law?’, 9 Vera Lex, 1989, p. 8; E. Midgley, The Natural Law Tradition and the Theory of International Relations, London, 1975, and C. Dominic´e, ‘Le Grand Retour du Droit Naturel en Droit des Gens’, M´elanges Grossen, 1992, p. 399. 39 See e.g. B. S. Chimni, International Law and World Order, New Delhi, 1993; A. Cassese, International Law, 2nd edn, Oxford, 2005, chapter 1, and R. M¨ullerson, Ordering Anarchy: International Law in International Society, The Hague, 2000. See also D. J. Bederman, The Spirit of International Law, Athens, 2002; A. Buchanan, Justice, Legitimacy and Self- Determination, Oxford, 2004; International Law and its Others (ed. A. Orford), Cambridge, 2006; S. Rosenne, The Perplexities of Modern International Law, Leiden, 2004, and P. M. Dupuy, L’Unit´e de l’Ordre Juridique International, Leiden, 2003. i n t e r nat i o na l l aw t o day 55 while the creation of such international institutions as the League of Na- tions and the Permanent Court of International Justice encouraged an appreciation of institutional processes. However, after the Second World War a growing trend appeared intent upon the analysis of power politics and the comprehension of interna- tional relations in terms of the capacity to influence and dominate. The approach was a little more sophisticated than might appear at first glance, for it involved a consideration of social and economic as well as political data that had a bearing upon a state’s ability to withstand as well as direct pressures. 40 Nevertheless, it was a pessimistic interpretation because of its centring upon power and its uses as the motive force of inter-state activity. The next ‘wave of advance’, as it has been called, witnessed the successes of the behaviouralist movement. This particular train of thought intro- duced elements of psychology, anthropology and sociology into the study of international relations and paralleled similar developments within the realist school. It reflected the altering emphasis from analyses in terms of idealistic or cynical (‘realistic’) conceptions of the world political order, to a mechanistic discussion of the system as it operates today, by means of field studies and other tools of the social sciences. Indeed, it is more a method of approach to law and society than a theory in the traditional sense. 41 One can trace the roots of this school of thought to the changing con- ceptions of the role of government in society. The nineteenth-century ethic of individualism and the restriction of state intervention to the very minimum has changed radically. The emphasis is now more upon the re- sponsibility of the government towards its citizens, and the phenomenal growth in welfare legislation illustrates this. Rules and regulations con- trolling wide fields of human activity, something that would have been unheard of in the mid-nineteenth century, have proliferated throughout the nations of the developed world and theory has had to try and keep up with such re-orientations. 40 See e.g. H. Morgenthau, Politics Among Nations, 4th edn, New York, 1967, and K. Thomp- son, Political Realism and the Crisis of World Politics: An American Approach to Foreign Policy, Princeton, 1960. See also A. Slaughter Burley, ‘International Law and International Relations Theory: A Dual Agenda’, 87 AJIL, 1993, p. 205, and A.-M. Slaughter, A New Download 7.77 Mb. Do'stlaringiz bilan baham: |
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