BOOK REVIEWS

Theory and International Law: An Introduction. By PHIUP ALLOTT, TONY CARTY,

THIS small volume on theory and international law is worth reading by all international
lawyers, even if they disagree with the authors. The reason is not only that there is a dear
shortage of theoretical reflections on fundamental issues of international law, but that
theory (especially what Colin Warbrick calls "grand theory", which tries to ask what part, if
any, international law plays in the actual conduct of international relations (p.50)) in this
period of revolutionary changes in the international system is called upon to guide practical
research into all domains of international law. The book is interesting because of its own
merits and because it represents one of the rather distinctive trends in the current inter-
national law doctrine—critical legal studies.
The authors themselves speak of two trends in the current international legal thought: the
mainstream and critical thought (p.xv). The main difference between them is that whereas
"mainstream" international lawyers operate within the framework of existing international
law and the international system, "critical" lawyers reject this framework as well as the idea
of the State as the major actor of the international system and the State-centred approach to
international law and the international system. "What practically all the critical approaches
share is a shift of emphasis from the political to the social, and, in their international
dimensions, from the State to Society" (p.xvi) and (p.84): "The key strategy has to be,
somehow [but how?—this is the question], to displace State-centred consciousness from the
centre of our consciousness."
In this short review it is not possible to do justice to all aspects of this interesting collection
of essays. Therefore I confine myself to some controversial features of the critical approach
to international law as presented in the book.
I may be wrong, but it seems to me that rather often representatives of the critical
approach in their criticism of "mainstream" international lawyers miss the point in the sense
that the latter not only deal with the same problems and try to answer the same questions as
critical lawyers, but they well understand the limitations of the contemporary international
law and imperfections of the international system. Most of them do not at all glorify the
State and the State-centred international system, neither are they apologists of this system.
But, unfortunately. States and not "teachings of the most highly qualified publicists of the
various nations" create and enforce as well as violate international law.
Sometimes criticism is directed at imaginary opponents who either are non-existent or are
marginal in the mainstream of the international law doctrine. So, Martti Koskenniemi
writes that the "assumption of equivalence, or harmony, however, entails the Utopian
premise that conflicts between Slates are really caused by misunderstandings and that there
is no essential discrepancy or overlap between the rights of States or the interests of a State
and the common interest" (p.34), and that the "social conception and its companion, moral
agnosticism [why moral agnosticism is a companion of the social conception remained
undear for me], necessitate a tragic view of international society; a view under which it
cannot be a priori excluded that the subjective wilb and interests of States are conflicting
and that some of them have to be overruled" (p.35).
But it is difficult to find an international lawyer who is not convinced that there are often
discrepancies between "the rights of States or the interests of a State and the common
interest". Similarly, "a tragic view of international society" is, from my point of view, simply
a realistic view accepted by the majority of international lawyers, most of whom can be

Downloaded from https://www.cambridge.org/core. Nottingham Trent 223University, on 22 May 2019 at 17:38:54, subject to the Cambridge
Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1093/iclqaj/43.1.223
 224 International and Comparative Law Quarterly [VOL. 43
described as "mainstream" lawyers. Equally, many "mainstream" international lawyers
would agree, and I myself certainly do agree, that it is necessary in the theory of inter-
national law to move away from the exclusively State-centred approach to the subject and
some of them (e.g. R. Falk) have advocated such an approach for years. But this is due
mainly to the changes in the international system itself, which is not any more a traditional
Westphalian system, where States were the only actors, rather than to abstract the develop-
ment of the theory of international law. At the heyday of the Westphalian system any
international law theory deviating from the State-centred approach would have been simply
wishful thinking (or maybe still is?).
My second point is concerned with criticism in social, including legal, doctrines generally.
Critical legal theory is negatively critical. It is deconstructive. Only Philip Allott's interest-
ing Utopia on international law in the last chapter of the book slightly reveals what the
desirable international law would look like. Though Utopias may be important elements of
scientific development it is necessary to show how, through what means and based on what
driving forces it is possible to achieve this Utopia or to approximate to it.
Answers to these questions require not only negative but mainly positive criticism of the
existing reality, not only by means of revealing weaknesses of existing viewpoints and
offering their sweeping rejection, but by means of proposing positive alternatives. At the
same time, one cannot say that such a wholesale criticism is completely useless even for
"mainstream" international lawyers. It sometimes helps to see more dearly weaknesses of
existing theories. But certainly this method is not problem-solving. At best, it is problem-
indicating. Social theories (as well as theories in natural sciences) do not develop by means
of the complete rejection or wholesale criticism of existing theories. They most often
include the latter as a particular part of the new theoretical knowledge. New theories
develop building upon existing theories and doctrines. Even a revolution in physics such as
Einstein's theory of relativity was not a rejection of Newton's physics.
Notwithstanding these critical remarks on critical legal thought the reader will find many
interesting and profound ideas in this rather short book. Warbrick's and Carty's reflections
on English international law doctrine are certainly of interest for all international lawyers. It
is obviously necessary to look beyond the State in international law doctrine as well as in
international relations theory. There is certainly tension between subjectivism and objecti-
vism, as Koskenniemi points out, in international law, and proceduralisation may be really
one of the trends of development in international law. One can find many other interesting
and profound insights in this small book.

REIN MULLERSON

International Law in Transition. Edited by R. S. PATHAK and R. P. DHOKALIA. [Dor-

IN the last few decades, profound changes have taken place in the scope and content of
international law. This change has a quantitative as well as a qualitative aspect.
The traditional international law, which has been Eurocentric, had only a limited applica-
tion. Today, it has almost universal application to suit the needs and interests of the modern
world. The membership of the United Nations, which was founded in 1943 with 51 original
members, has already expanded to 181 and continues to expand by reason of the increasing
desire of the remaining dependent territories to be independent.
The majority of the members of the United Nations are neither European nor Western,
but represent former colonies or protectorates of the Western world with completely
different social, economic and cultural backgrounds and their own form of legal values.

Downloaded from https://www.cambridge.org/core. Nottingham Trent University, on 22 May 2019 at 17:38:54, subject to the Cambridge Core
terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1093/iclqaj/43.1.223