International Law and Social Science: A Mild Plea in Avoidance, 66 American Journal of International Law 77 (1972)
It may appear ungracious to respond questioningly to an appraisal so extensive and generous as that offered by Professor Young. The intellectual issues his statement raises transcend, however, ordinary considerations of reciprocal graciousness and generosity: innocent bystanders might be confused and misled. Professor Young purports to criticize our recommended policy-oriented jurisprudence without making explicit his own jurisprudence or the premises and assumptions which underlie his criticisms. Many of the difficulties and obscurities he finds in our work would appear to derive either from the inherent difficulties of inquiry and decision or from obscurities and incomplete notions in his own framework of inquiry. His conceptions, in particular, of "law," "international law," "world public order," "values and norms," "jurisprudence," and "social science" are less than clear. We briefly illustrate.
The conception of law we recommend is that of a process of authoritative decision, in which patterns of authority are conjoined with patterns of control. Professor Young complains that this makes law "a highly changeable or volatile phenomenon," with the result that in some situations "it is apt to become exceedingly difficult to characterize the state of 'the law' in a social system." He adds that our conception includes so much that it is non-parsimonious, creating "a real problem for anyone who sets out to explore the connections between the law of a social system on the one hand, and the changing distribution of power or the evolution of authority relations in the system, on the other." One can only wonder what empirical references he is here giving to the terms "law," "power," and "authority relations" and how he would relate these references to each other. The tenor of most of his questions and many explicit passages suggest that he is working from very conventional Austinian conceptions. Thus, he "cannot think of any major conception of law" which would incorporate "most political rules, social norms, habitual patterns of behavior, and so forth into the category of law." Yet even the Austinian conceptions make a place for "habitual patterns of behavior"! We confess that our concern is not merely for making inquiry easy and parsimonious, but for increasing the effectiveness of both inquiry and authoritative decision in a world which is, unfortunately, complex.
Date of Authorship for this Version
McDougal, Myres S., "International Law and Social Science: A Mild Plea in Avoidance" (1972). Faculty Scholarship Series. Paper 2572.