The Relation of Theories of Jurisprudence to International Politics and Law

In this essay we shall be concerned with the real world relevance of theories of international law; that is, with the question of the theories themselves as a factor in international decision-making. To do this it is first necessary to review briefly the substance of the jurisprudential debate among legal scholars, then to view some basic jurisprudential ideas as factors in international views of "law," and finally to reach the question of the operative difference a study of these theories might make in world politics. Tags: Jurisprudence, International Politics, International Law, International Decision-Making [pg257]** International law is studied these days in the real context of international politics,FN1 but jurisprudence—or theories about law—tends to be studied in a vacuum. Jurisprudence may be one step removed from law itself, but does this mean that it is of purely theoretical interest? A political scientist has recently drawn a sharp distinction between "the most important aspect of the law—its operation in the international environment" and "jurisprudence per se.”FN2 Of course, part of the reason for the seeming remoteness of jurisprudence is the highly ramified and artificial atmosphere in which it is discussed by some scholars. Glanville Williams has called the entire history of jurisprudence a mere "verbal dispute," acknowledging however that "it requires perhaps some temerity to suggest that a discussion carried on over many generations has been wholly unreal."FN3 Professor Ehrenzweig characterizes jurisprudence as a "tragedy of waste," a "Great Name-calling," a battle between "truly great minds" fighting each other "in seemingly hostile 'schools' of thought, storming the heavens in their Tower of Babylon."FN4 We might be somewhat skeptical of Williams and Ehrenzweig, however, inasmuch as they are both legal scholars with their own pet jurisprudential theories.FN5 In this essay we shall be concerned with the real world relevance of theories of international law; that is, with the question of the theories themselves as a factor in international decision-making. To do this it is first necessary to review briefly the substance of the jurisprudential debate among legal scholars, then to view some basic jurisprudential ideas as factors in international views of "law," and finally to reach [pg258] the question of the operative difference a study of these theories might make in world politics. I.THE VIEWPOINT OF THE LEGAL SCHOLAR Legal scholars have traditionally concerned themselves with discovering "the" meaning of law and the necessary preconditions for its "validity." Classically this endeavor has led to the construction of grandiose logical theories to which empirical instances of laws had to conform at the expense of otherwise being declared invalid by the theorist. To John Austin, for example, law is a command backed by sanction; without these elements, an alleged rule of law is not "really" law. Thus at one stroke he consigned all international law to the dust heap of "positive morality" since it did not conform to his domestic-law model.FN6 To St. Thomas, law is the reflection of right reason; all laws which do not conform, even if they happen to be commands backed by sanction, are presumably invalid. Professor H.L.A. Hart today would argue that if there is no "rule of recognition" enabling us to distinguish laws from other standards of social conduct, there is no "law."FN7 Not quite wanting to dismiss international law in the way Austin