International Law-making: A Process of Communication

Abstract

Who can argue with the proposition that lawyers advising clients, judges responding to litigants' claims, and countless individuals risking their treasure or their lives need to know, or at least are marginally better off if they know, what the law is? For the U.S. municipal lawyer, finding the law has apparently become so routinized a task that it rarely excites inquiry about howlaw is prescribed. Ifit did, the municipal lawyer would respond, probably with asperity, that law is made by, or by delegation from, the legislature, with someinterstitial supplementingby the courts; and that the legislative and judicial production is accurately and conveniently reported by a small, specialized industry using advanced technologies of information processing. Accurate or not, this view is so widely shared that, with the exception of those who function, in whole or in part, as lobbyists in political capitals, most domestic lawyers give little professional attention to lawmaking. Few law schools teach lawmaking or legislation; such courses as there are tend to focus on questions of authorization to legislate and on interpretation. For almost a century now, theoretical interest has been sporadic and slight. The great historicists in Germany and England were fascinated with lawmaking, though the self-imposed terms of their very mystical approach virtually excluded the possibility of international law. Since John Austin, lawmaking or the process of prescribing norms has not been a major concern of jurisprudence in the English·speaking world: it is relegated to the domain of "politics," sharply distinguished from "law."