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The Dorsey Comment: A Modest Retrogression, 82 American Journal of International Law 51 (1988)

Abstract

It seems to me, with all respect, that the Comment by Professor Dorsey exhibits a minimum understanding both of the contemporary world and of the theory and intellectual procedures recommended by Harold Lasswell and his associates for inquiry about the role of international law in that world. Certainly Professor Dorsey and Lasswell and associates observe very different worlds, have very different conceptions of international law, and recommend very different methods of inquiry. It is not clear that Professor Dorsey is constrained by empirical observation and modern scientific methods of inquiry.

For Professor Dorsey, as developed in this Comment and in his book, there is no global community of humankind in the sense of an interdetermination and interdependence in the shaping and sharing of values. All he can observe is an aggregation of nation-states, each characterized by a unique, impermeable "culture" that stops short at national boundaries. "The nation-state system," he explains, "is a cultural system." "This means," he adds, "that the members have much the same beliefs about the world, human nature, what is worth having, how to know, who can know, and have much the same values and purposes." He nowhere explains why beliefs, natures, values and purposes cannot transcend the inherited, and continuously changing, boundaries of nation-states. According to Dorsey, the individual human being and his many associations other than the nation-state cannot act directly in world social process; the nation-state must act for them. It would be treason for the individual to act, since in violation of "obligation" to the nation-state. For some incredible reason, for individuals to act directly in world social process would be to reject "the basic proposition of the Universal Declaration of Human Rights that '[a]ll human beings are . . . endowed with reason and conscience . . . .'" It seems that rational human beings can only organize in exclusive communities with people who think and talk exactly as they do; hence, people "endowed with reason" must opt for tribal and smaller units and cannot participate in a transnational social process. While he offers no map of a comprehensive, global process of effective power, Professor Dorsey does repeatedly insist that the bases of effective power are to be found in assets irretrievably locked within the boundaries of nation-states and that it is futile to try to change the situation. The conception of international law projected by Professor Dorsey is that of the positivist paradigm: a body of rules that regulates the interactions of, expresses the "sovereignty" of, nation-states, without applying directly to the activities of individual human beings and their various associations. In his book he states concisely: "International Law . . . is the body of rules for distributing among states the authority to govern human activities." A contrasting conception of transnational expectations and decisions about authority and control, relating to the activities of all participants in a global community process, would be dangerously conducive of a destructive universality.

Date of Authorship for this Version

1988

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