IILJ Working Paper 2003/1 (History and Theory of International Law Series)

The International Legal Order

Benedict Kingsbury

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Controversiae (disputes) is the first word in book I of Hugo Grotius’ foundational text De Jure Belli ac Pacis (The Law of War and Peace, 1625). Much modern scholarship in international law has followed this strand of Grotius’ thought in orienting the subject to the problem of managing disputes. Since the late nineteenth century, generations of leading scholar-practitioners have shaped a view of international law which emphasizes legal doctrines and materials related to disputes: the specific rules one party to a dispute may invoke against another, the sources (e.g. treaty, custom) to which an international court will look to identify international law rules, the general principles (e.g. acquiescence, abuse of rights) that international courts have borrowed from national legal systems to help deal with international cases, the foundational principles of international law (e.g. state responsibility) enunciated by courts, the precedential implications of a specific decision or a specific settlement agreement. This focus owes much to the sociological model of the successful international lawyer as it developed in the English and French traditions of international law over the past century: that of the academically respected practitioner, primarily the world–wise professor-counsel or the erudite lawyer–civil servant, whose career involved both scholarship and representing litigants in the management of disputes, and might eventually culminate in becoming a judge or arbitrator in an international tribunal and an author of learned general courses and essays. Naturally these scholar-practitioners are committed also to the enunciation of general norms and the assertion of community values. But the interwoven practice and scholarship of settlement of international disputes has tilted the subject toward specific questions of whether one state has become bound by a particular rule which the other state may invoke (the question of opposability of particular norms between the parties), and away from what might otherwise have been an overwhelming preoccupation with the construction of a global normative order. Similarly, a focus on dispute settlement gives higher priority to solving bilateral problems than to vindicating other kinds of community interest. It has tended also to encourage legal-positivist scholarship that emphasizes materials already generated by recognized sources of law (treaties, the custom-creating legal practice of relevant actors, judicial decisions, scholarly opinions, and so on), and strictly separates statements of the lex lata from suggestions for reform de lege ferenda.