The Spirit of International Law

The Spirit of International Law

The Spirit of International Law

The Spirit of International Law

Synopsis

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.

Excerpt

It is right and proper that a volume on international law appears in this series on the “Spirit of the Laws,” and I am grateful to Professor Alan Watson for extending me an invitation to essay such a project. Polymath and eclectic as he was, Charles Louis Montesquieu opined about many legal systems in his Spirit of the Laws, and international law (or, as he called it, the “law of nations”) did not escape his encyclopedic attention. He observed, “The law of nations is naturally founded on this principle[:] that different nations ought in time of peace to do one another all the good they can, and in time of war as little injury as possible, without prejudicing their real interests.” Elsewhere in his treatise, Montesquieu considered the role of international law in domestic legal systems but nowhere returned to this elliptical comment made in the opening pages of his book.

This volume answers Montesquieu’s rhetorical challenge and distills the essence of international law as a legal system, its “true principles.” This book offers a broad thematic conspectus of the structure, characteristics, and main features of the international legal system. I do not attempt to provide a doctrinal review of the rules of international law, preferring to leave that to other writers. I recognize, moreover, that there are many blind spots in this volume. Some doctrinal pockets of international law are glossed over or ignored altogether. Most significantly, aspects of the incorporation of international law into domestic legal systems are purposefully sublimated here. I have regarded my charge in writing this book as requiring that I accept international law on its own terms.

Indeed, some readers may regard the structure of this book as strange and counterintuitive. Part intellectual history, part contemporary review, this book reflects on the nature of international law . . .

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