LEGAL RULES AND INTERNATIONAL SOCIETY by Anthony Clark Arend. New York: Oxford University Press, 1999. 197pp.
Reviewed by Sanford R. Silverburg, Department of Political Science, Catawba College
By their very nature legal systems are structured guides designed to spell out acceptable behavior for a political community. In the international political community, Western legal authorities historically have directed the authorities that have defined appropriate behavior at the international level and the particular rules about state interests and specific issues. LEGAL RULES AND INTERNATIONAL SOCIETY represents another contribution in a growing body of literature that argues --normatively and empirically -- a symbiotic relationship exists between international relations and international law. These particular arguments in this book build upon themes presented in an earlier volume to which Arend contributed (Beck et al. 1996).
For Arend, international law is "a set of legal rules that seek to regulate the behavior of international actors," (p. 26). This definition or approach can be contrasted to an alternative, the Yale approach. The Yale approach holds that international law is a process of authoritative decisions. Rules that are legal in nature create obligations within the international community and are applicable to "international actors," or states and other actors that are not so well defined (p. 28). At the outset of this book what I find strikingly important is the use of the conjunction "and" in the title, not "in," thus implying a duality or separateness of the two approaches.
Arend first sets out to examine the role of international law in the post-Cold War era or New World Order system. However, I find that these two historical-political concepts lack concreteness or a systematic definition. Second, he promises to see what an empirically based international law can be. Hence he intends to look at international law in a clearly structured setting.
A straightforward argument is then offered. To understand international relations, one must understand international law, understood to be the institutionalized international legal rules by which the system operates in an orderly fashion (p. 5). To this end Arend calls for a comparative analytic evaluation. The evaluation is not an arcane analysis glued to a recondite argument. Rather, it is an assessment of the actual behavior of international political actors according to international law.
Interestingly, while there is reliance on a host of legal theorists and secondary literature, there is no mention of the current work of Francis A. Boyle (1985) or Kenneth A. Abbott (1989), both of whom have contributed to the substance of this evaluation. In any case, the next stage in Arend's examination a determination of who develops international rules and how they have evolved. He first looks at the notion of entitlements, the sense of obligations and responsibilities, and the traditional sources that serve to undergird the entire legal
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system. His understanding, which appears somewhat simplistic, is that as international society changes so should the rules that govern its existence. However, the presence of newly constructed societies, predominantly non-western, has resulted in a positivistic approach to international legal creation and has provided an additional problem to contemplate.
What is an international rule at any given time? In an earlier point in time it was natural law. Today positivism takes the stage, augmented in some quarters by the Yale approach and the intertwining of legal development with social processes. For Arend the crux of the matter is the development of a newly proposed methodology in which the legal system is based on the existence of the unitary actor. For there to be an international system, there must be some sort of an authority, which emanates from OPINIO JURIS, reflected by state practice. This is basically an adaptation of the Yale approach sans the humanistic demand that the ultimate goal for the international system is the adjudication of conflicts within the human species. To do this, however, is to fail to appreciate a realist approach taken by states that do not employ a universally held view of morality. How then do we determine the existence of some sort of authority? Arend says, we look to see how authority is manifested at the international level, determine how universal the authority is accepted, how significant is the manifestation, and determine whether there is opposition to the control factor of the authority. Serious consideration must also be given to the frequency of violations of rules, the universality of the violations, and their seriousness. These features become one side of a matrix with the other side a clean basis for empirical analysis and testing with existing databases. All this provides a relationship of international legal rules with international politics.
For many the substance of the issue is the enforcement feature. Although no one questions whether or not the law on murder should be vitiated because some offenders are not prosecuted, nevertheless, the principle NON CRIME SINE POENA remains one to be considered. What is the relevance to the purpose of rules? Here Arend wrestles with the question at the macro level. Here also is the chink in the author's armor. We are dealing with a theme that to be truly persuasive requires a rigorous approach. Instead, the author relies on academicians' theories, beginning with structural realism, rationalist institutionalism, and constructivism.
His example of the nexus between rule and the political system is the Law of the Sea Treaty promulgated in 1982. Since the convention encompassed so many states, Arend argues, "states became empowered" (p. 143). This legitimized the process and the substance of the treaty. At that point, as a result of state participation, the treaty realized particular state interests.
What is not particularly clear or fully explicated is the assertion "that the FUNDAMENTAL nature of [the international political] system has not yet changed. It is still a system of sovereign states" (p. 165). However, not too much later on we read that, "a host of trends point to the emergence of a very different kind of international system" (p. 184). It is the very nature of the change in the structure of the international political system and international legal rules that deserve analysis. With this said, the way is nevertheless paved, according to Arend, to a number of alternative scenarios. These include greater structured centralization with
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the United Nations Security Council assuming an even more strenuous role in guaranteeing international stability. Another scenario would be for international organizations to empower binding regulatory decisions. Still another scenario, resurrected from Hedley Bull (1977), suggests that that the emergence of a multiplicity of political actors who, in turn, could provide the functional equivalent of the state as a feudal manor.
LEGAL RULES AND INTERNATIONAL SOCIETY is certainly a contribution to the emerging genre of literature that recognizes the obvious. There are profound changes occurring in the international political system. Second, this book extends the clarion call for a returned emphasis on international law as it relates to the study of international politics.
Abbott, Kenneth W. 1989. "Modern international relations theory: a prospectus for international lawyers." THE YALE JOURNAL OF INTERNATIONAL LAW 14:335-411.
Beck, Robert J., Anthony Clark Arend, and Robert D. Vander Lugt, Ed. 1996. INTERNATIONAL RULES: APPROACHES FROM INTERNATIONAL LAW AND INTERNATIONAL RELATIONS. New York: Oxford University Press.
Boyle, Francis Anthony. 1985. WORLD POLITICS AND INTERNATIONAL LAW. Durham, NC: Duke University Press.
Bull, Hedley. 1977. THE ANARCHICAL SOCIETY: A STUDY OF ORDER IN WORLD POLITICS. New York: Columbia University Press.
Copyright 2000 by the author, Sanford R. Silverburg.