Law without Force: The Function of Politics in International Law

by Niemeyer,Gerhart

• ISBN13: 9780765806406
• ISBN10: 0765806401
• Edition: 1st
• Format: Nonspecific Binding
• Copyright: 2001-11-30
• Publisher: Routledge

Summary

A landmark in political and social philosophy, Law Without Force, is as relevant today as when it was first published, and commands the attention of all concerned with the law of nations. The book incisively reviews the relation between traditional international law and the changing structure of international politics -- concluding that the tradition system of law has operated as an agency of disharmony and conflict. It provides in detail the reasoning behind Niemeyer's rejection of a foreign policy based on morality and his distinction between authoritarian and totalitarian governments.

Author Biography

Gerhart Niemeyer was for many years a professor of political theory at the University of Notre Dame.

Table of Contents

Introduction to the Transaction Edition	xi
Preface	xxv
Acknowledgments	xxvii
Introduction: The Unreality of International Law and the Unlawfulness of International Reality	1	(2)
The war and the problem of reconstruction	3	(1)
The breakdown of world order outlined	4	(4)
Passing sickness or organic disease?	8	(6)
Where to look for the cause	14	(2)
The difficulties of remedying the situation	16	(3)
Law without force	19	(8)
PART ONE THE FUNCTION OF LAW IN INTERNATIONAL POLITICS
Historical Introduction: A Genealogy of International Law	27	(1)
Political conditions surrounding the birth of intrenational law	27	(3)
Interstate law: Last bequest of Roman universalism	30	(4)
Spiritual world unity and international law	34	(3)
The European solidarity of the Estates	37	(3)
Ius belli ac pacis	40	(2)
Law in the Interdynastic Politics of Absolutism	42	(16)
The three aspects of Absolutism in politics	42	(3)
The consolidation of centralized power	45	(2)
The interdynastic function of ius gentium	47	(4)
The theory of international law and the ``Third Estate''	51	(7)
The Role of International Law During the Period of Liberalism and Imperialism	58	(18)
The growth of bourgeois world society	58	(6)
Legal formalism in nineteenth century international relations	64	(4)
Peace through law	68	(3)
The function of legal theory in international relations	71	(5)
The Place of Law in the World Politics of Today	76	(58)
International law and social structure	76	(2)
The end of laissez-faire	78	(5)
The authority of the State in international trade	83	(4)
The disruption of international society	87	(2)
The politicization of social life	89	(3)
The new slogan: Freedom of action for governments	92	(5)
The trend of world politics	97	(1)
The misfitting role of the traditional law of nations	98	(7)
PART TWO LEGAL THEORY AND POLITICAL REALITY
Sociological Introduction: The Connotations of Politics	105	(1)
Politics and the State	105	(3)
The elements of organization	108	(3)
The unity of large organizations	111	(2)
Organization is a unit not of men, but of behavior	113	(3)
The specific function of political organization	116	(3)
The specific structure of political organization	119	(6)
The connotations of politics	125	(3)
The extent of political organization in social life	128	(5)
Definitions	133	(1)
Moral Idealism and Political Realism in International Law	134	(39)
Factual and normative approaches in legal theory	134	(2)
The origin of international law as a special discipline	136	(3)
The features of personalistic law	139	(3)
The dualism of subjective reality and objective ideality	142	(6)
The antithesis between international law and international politics	148	(7)
The historical substance of the international ``ideal''	155	(3)
The element of natural law in the theory of positivism	158	(9)
Forms of procedure preferred to norms of justice	167	(4)
The seventeenth century inheritance in our international law	171	(2)
The Sociological Background of International Law	173	(34)
The Humanistic basis of the traditional law of nations	173	(1)
Dualism between public and private interest as a root of international law	174	(3)
The institutional framework of individualism	177	(7)
The decline of individualism	184	(6)
From nationalism to statism, from imperialism to autarky	190	(3)
From Man Independent to Man Coordinate	193	(7)
The organizational orientation of individuals	200	(7)
Making International Law Work	207	(81)
The characteristics of the present system	207	(2)
The untenable position of traditional international law	209	(6)
The end of international law?	215	(5)
Wanted: Order in international politics	220	(6)
Functional approach as a way out	226	(3)
Functional connectedness among states	229	(4)
The way of reconstruction	233	(8)
PART THREE A RECONSTRUCTION OF INTERNATIONAL LAW
Philosophical Introduction: The Significance of Function	241	(1)
The crisis in legal theory: The ideal disconnected from the real	241	(3)
The shortcomings of morality as a basis of law	244	(5)
Overcoming the gulf between the ``real'' and the ``ideal''	249	(7)
The criterion of legal order: function not purpose	256	(9)
Functional structure in social relationships	265	(6)
Functional standards of legal order	271	(6)
Do functional standards represent true values?	277	(3)
``Consumptive'' and ``constructive'' values	280	(5)
Summary of the thesis	285	(1)
Epilogue: The way of ascertaining immanent standards of value	286	(2)
The Notion of the State	288	(38)
The idea of the ``society of nations''	289	(4)
The personification of the State	293	(6)
New views of the nature of reality	299	(5)
The formation of functional concepts	304	(4)
The concept of the State in international law	308	(5)
The notion of State territory in international law	313	(2)
The dual aspect of the State's functions	315	(3)
Sovereignty and ``Reserved Domain''	318	(5)
International Law as a way of fulfillment of political functions	323	(3)
The Conception of the Legal Rule	326	(53)
Ius est quod iussum est	326	(6)
Right and might	332	(4)
The legislative will in international law	336	(4)
The assumption of power behind international law	340	(2)
The binding force of legal rules	342	(3)
The revision of the law	345	(4)
The functional conception of legal rules	349	(7)
The disappearance of the problems of revision and obligatory force	356	(3)
Functional law is a facilitating, not a restrictive type of order	359	(2)
The antithesis between legal order and disorder	361	(2)
The role of legal statutes	363	(8)
The function of politics in international law	371	(3)
Funtcional reconstruction	374	(5)
Organization or Orientation	379	(24)
What is to be done?	379	(3)
The federalistic fallacy	382	(4)
The World State	386	(2)
The perpetual demand for international organization	388	(5)
The revision of basic assumptions	393	(4)
The forms of international order	397	(3)
Not organization but orientation	400	(3)
Index	403