Review Essay: Ositivism And The Power Of International Law

By Anne Orford[*]

 

Custom, Power and the Power of Rules: International Relations and Customary International Law by Michael Byers (Cambridge: Cambridge University Press, 1999) pages i–xxii, 1–250. Price A$34.95 (paperback). ISBN 0 521 63408 3.

Introduction

The break-up of the Soviet Union prefigured major transformations in international law and international relations. With the end of the Cold War, scholars in these disciplines began to make great claims about the potential for achieving a new world order. The end of the stand-off between two major powers, the Soviet Union and the United States of America, which supposedly represented opposing ideologies, was seen by some commentators to offer an opportunity for achieving a liberal alliance of democratic states committed to global free markets and the protection of individual rights.[1] For others, the post-Soviet era threatened abuses of power by international organisations and powerful states and a new freedom for those with the power to impose grandiose visions of a liberal, capitalist order in the absence of any effective opposition.[2]

The end of the Cold War has also led to a less celebrated rapprochement between the two disciplines of international relations and international law.[3] The Cold War fuelled a division between the two disciplines that had depended since the 1930s upon each discipline projecting a negative image of the other — international lawyers criticised realist international relations scholars as apologists for state power, while international relations scholars dismissed international law as hopelessly old-fashioned, dangerous and utopian.[4] In the changed conditions of the post-Cold War period, where liberalism has again been confidently heralded as the end of history,[5] international relations scholars can afford to embrace the normative, while international lawyers can afford to admit that law was the stuff of (liberal) politics all along.

The interdisciplinary project which Michael Byers seeks to develop in his ambitious book, Custom, Power and the Power of Rules: International Relations and Customary International Law,[6] can be located in this post-Cold War climate. The intellectual landscape that shapes Byers’ approach is the world of positivist international lawyers and the realists and regime theorists of Anglo-American international relations. He aims to engage international relations scholars in a conversation about the role of power in the process of creating and changing customary international law rules. Through that conversation, Byers seeks to reveal the way in which pre-existing rules of customary international law that govern the process of rule formation constrain the capacity of powerful states to shape the law in their own image.

Constructivism, Positivism, and Empiricism in International Law

by David J. Bederman

 

From Legal Rules And International Society. By Anthony Clark Arend. New York & Oxford: Oxford University Press, 1999. Pp. ix, 208.

 

Introduction

To paraphrase Tolstoy’s Anna Karenina: All happy disciplines are content in much the same way; disaffected fields are unhappy in their own particular fashion.1 International law and international relations are bickering spouses in a paradigmatic dysfunctional family. Of the two, international law has the older academic pedigree, but international relations emerged as a vibrant discipline at the turn of the twentieth century. It is hard to believe that until World War Two they were unified fields of study, a happy family of contented scholars. Academic international lawyers held appointments in political science and government departments in the United States, the United Kingdom, and in Continental Europe, while non-attorneys often taught international law on legal faculties. Like blissful newlyweds, international law academics and international relations (IR) theorists engaged in a common program of research and shared the same epistemic sense of the world. A suggestion in the 1920s or 1930s that this couple would later be estranged would have been laughable and downright unromantic. But, alas, that is what has come to pass.

Indeed, to say that international law and international relations have had a messy divorce would be a charitable understatement. A marriage counselor might have seen early signs that the relationship was doomed. A marriage where one spouse acts like Peter Pan, and the other like Cruella deVille, cannot be good. After World War Two, international relations theorists became cynical and embittered. The realist bent of much post-War scholarship had no truck for a purported “rule of law” in international relations. After skepticism came detachment; the strong empiricism and quantitative methods of IR were off-putting for almost all international lawyers. On the other side of the ledger, IR theorists thought international law academics were living in a fool’s paradise. For many years-in the 1960s, 1970s, and 1980s-international law academics and international relations theorists quite literally did not converse with each other. They simply had nothing to say.