D’Amato, Anarchy, and the purpose of international law

In a recent article in the latest American Journal of International Law, Anthony D’Amato examines the structure of international law and claims that its primary purpose is self-preservation, not the regulation of international relations. His characterization of international law along with reference to Schachter’s good old ‚invisible college of international lawyers‘-metaphor may well stir debate. Tom Farer (in a reply in the same issue of the American Journal) for instance already noted D’Amato’s understanding of anarchy as chaos. One may add Kant’s understanding of Anarchy as ‚Law and Freedom without force‘ (see http://en.wikipedia.org/wiki/Anarchy#Kant_on_anarchy). After all, international lawyers in particular are well aware of defending the anarchic, yet nevertheless legal, character of their field (already Jellinek has characterized international law in this manner).

Here is the relevant passage from D’Amato’s article (footnotes omitted):

the general-systems viewpoint here takes an essentialist position in claiming that the rules and processes of international law can be best explained if we start with the selfprotective nature of all aggregative, interconnected entities known as general systems.

International law is not a stack of rules on a library shelf. It is a professional industry, made up of national officials, diplomats and statespersons, international practitioners and scholars, law professors and students, UN officials, judges of international courts and their clerks, professional arbitrators, judges and clerks of bilateral claims commissions, and advocate-members of NGOs, among others—all of whom were well described by the late Oscar Schachter as an invisible college of international lawyers dedicated to a common intellectual enterprise. Because of the time that these persons have devoted to studying and learning international law, they have invested significant human capital in the system’s continued utility and preservation. To be sure, they will often disagree as to whether an alleged rule belongs to the set of accepted rules of international law (especially if it is their job to come out the way that their employers or their governments demand), but even then they have a personal stake in preserving and maintaining the system of international rules. Governments turn to them for advice as to the international legality of a given policy that the government plans to implement—at the very least in order to help predict the reactions of the legally informed international community. These advisers, both official and unofficial, infuse the international legal system with a dynamic sense of purpose and persistence. Thus, to the tens of thousands of persons making up the invisible college around the world, international rules can sometimes seem incorrect but never irrelevant.

The greatest threat to the viability of the international-law system is anarchy. With total anarchy, international law would perish and might be replaced, if peace is restored, by something entirely different (such as a world dictatorship). Thus, when any controversy arises among nations and the relevant rules are in dispute, the international legal system’s bias for self-preservation will tilt toward the rule that offers the greater probability of a peaceful resolution of the controversy and will bend away from the rule that prolongs or escalates it. That is not to say that justice is irrelevant to conflict resolution. But justice does not function in the abstract; rather, it is perceived justice that counts. And most of the time the perceived justice is symbiotic with the resolution that augurs future peace. Arguably, a justly perceived decision, both in domestic and international law, promotes stability. After the temper of a losing side cools down, the just decision may gradually be accepted as the right decision.

Anthony D’Amato, ‚Groundwork for International Law‘ (2014) 108(4) The American Journal of International Law 650, 652-3.

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