Theories About International Law: Prologue to a Configurative Jurisprudence

Abstract

Theories about international law, like the forms of action in Maitland's conception, have unhappily the power of ruling us from their graves. "There is a subtle interaction," wrote the late Professor Brierly in his own somewhat quixotic search for "the basis of obligation in international law," "between theory and practice in politics, not always easy to trace because the actors themselves may easily be unconscious of their theoretical prepossessions which, nevertheless, powerfully influence their whole attitude towards practical affairs; and at no time has it been so important, as it is today, that we should see the facts of international life as they really are, and not as they come to us reflected in false or outworn theories." It is the purpose of this essay, through selective canvass of our inherited theories about international law, to consider the potential contributions of such theories to a comprehensive jurisprudence of international law which will not impede, but creatively facilitate, the thinking of all whose choices and activities must affect the quality of emerging international law and public order. In the course of this canvass of past theories we will explore the need for a more viable jurisprudence of international law, the appropriate criteria for evaluating such a jurisprudence, the trends in approximation to such criteria exhibited by past theories, the factors which have affected past achievement, possible future developments, and some conceivable alternatives for a more configurative, hence viable, jurisprudence.