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METHODS AND TRENDS

ADEDIRAN HALIMA-SADIA OMOLARA, 37182.


JUNE, 2013

A REVIEW OF THE BOOK- THE SPIRIT OF INTERNATIONAL LAW BY DAVID J. BEDERMAN

The authors main goal in writing this book is to elucidate on the nature of International Law; its structure, characteristics and features as a unique legal system which involves practices and realities which are simply peculiar to it, not just as a concept existing only in theoretical realm. He takes the Readers focus away from theoretical issues to realistic ones. He endeavours to make the Reader understand that International Law on its own (without any theories or doctrines) exists as a phenomenon, which transcends territorial, borders (both physical and otherwise) whilst incorporating the differences found in the various legal systems and is at the same time at ease with them. CONTENT AND ORGANISATION OF THE BOOK It is a Two-Hundred-and-Seventy-Four (274) pages treatise, which is divided into Eleven (11) Chapters addressing different issues, with the Eleventh Chapter serving as the concluding part of all the arguments raised in the preceding Ten Chapters. In explaining the essence or nature of International Law, the Author uses the method of dialectics and raised some research questions which are enunciated as follows: In the first Chapter of the book, the Author considers the historical legitimacy of International Law. He also considered its ethical relevance, given that it has been in existence (in one form or the other) since the time in which forms of civil governments or constitutions have developed together with a consciousness of their own character, will and interaction with other entities that are similar to them. He further considers the importance of the role played by international law in the in international politics and in the affairs of individuals, enterprises and institutions. Against this background, he formulated the research question of why International Law is regarded as being unreal by a vast majority of people, lawyers, policy makers and scholars alike. He considers the criticism of International Law raised by the theories of Austin in 1832 and H.L.A. Hart on the weight and validity of international law and he asks the

question of the basis upon which obligation under international law can be identified ( why does States and other Transnational Actors obey international law rules). In the Second Chapter of the book, Bederman raised the inquiry of what the sources of International Law are; their categories, how they evolved, their interdependency or inter-relatedness and their overall importance in understanding the nature of international Law. He also considers what the primary purpose of these sources is. In Chapter Three (3), he considers the methods employed in the interpretation of the contents of International Law as found in the sources enunciated in the previous chapter. He further examines what approaches are used in the process of international Lawmaking in international relations of contemporary times. In the fourth Chapter, he identifies who the International Legal Actors are and the topics or the objects upon which they act. The research inquiry tackled in Chapter Five is the identification of the methods by which coherence and sophistication is promoted in the doctrines of international law. He examines Harts five broad categories of secondary rules of international law (which he refers to as structural organising principles) under this. Chapter Six examines the internal and external critiques of the values inherent in international law, together with the paradoxes that exists therein. It does not raise any legal questions per se. Chapter Seven endeavours to examine the question of how International Law is compelled to keep out of issues that are sensitive to the different actors on its playing field. For example, politics (which can be interpreted to mean the behaviours of International Actors, which are fundamentally driven by diplomatic and power calculations), on the one hand, domestic legal systems on the other, together with the dichotomy between public and private international law. Chapter Eight raises the question of what mechanisms are involved in the observance of the rules of international Law and the general meaning of Conservatism and Progressivism in the context of international law. Chapter Nine seeks to examine the most appropriate way by which the success of International Law can be measured, given the fact that, according to the Author, the yardstick for measuring this in the context of conflict management has been traditionally distorted. It also addresses questions of identifying what parties can complain of an international law violation.
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Chapter Ten examines the doctrines of Conservatism and Progressivism in International law, thereby, answering part of the questions raised by Chapter Eight. Chapter Eleven which is the concluding chapter reflects upon the progress of international law in overcoming the huge obstacles while struggling to establish a global legal system which is based on the rule of law.

MAIN ARGUMENT The most apparent argument in the treatise is that international law, though appearing to the undiscerning to be firmly established and lacking any need to prove its validity is beset by many challenges and obstacles which over the years, have forced it to have the constant need of reasserting its immense importance to the overall functioning of the whole world. According to Bederman, the ingenuity of International Law has been reflected in its ability to grow and prosper as a distinct legal system and learned discipline in the most inhospitable of practical and intellectual environments. PERSPECTIVES The author addressed the issues raised in this treatise from an array of perspectives, which can be said to be outside of, but connected to Law. He intricately weaves historical, jurisprudential or philosophical (hugely Austins Positivism, Kelsen and H.L.A. Hart) perspectives into the mainstream of what makes International Law unique as International Law. He makes copious use of historical references and criticisms raised by the jurisprudential schools. His style is largely descriptive, yet, analytical. ADVANTGES AND DISADVANTAGES OF THE PERSPECTIVES The benefit of the approach used by Bederman in the book is that it ignites the interest of the Reader by tracing the origins of International Law, thereby, taking him or her down the proverbial memory Lane, therefore, making it easy to trace the emergence of some of the contemporary controversial issues in International Law. Furthermore, analysis of the criticisms raised by Legal Philosophical Scholars serves to remind the reader that the issue at hand has more facets to it than apparently meets the eyes and that these facets are what defines the standing of International Law in contemporary times. Besides, it also serves to reiterate the fact that International Law has come a long way from what it was at its inception. It further stresses that it evolves as an emulation of other domestic legal systems, this defeats

the authors purpose of showcasing international Law as a system with its own unique realities. However, the danger in this approach lies in the fact the description of past events could divert the Readers attention from the pressing issues at hand in todays world. In addition, while it points out the strong points of international Law, the historical perspective also serves to expose its weak points, for example, the fact that it evolved more as a response to a State of anarchy rather as a system fundamentally established to safeguard against such, which makes it appear ineffective. The first ten chapters contain issues, which builds up the interest of the reader and raises analytical questions of why in her or his mind. These chapters in their concluding paragraphs answers part of the questions raised by them and at the same time raises some other questions. The last chapter, which is Chapter eleven sums up all the arguments raised in the preceding chapters and answer the main question in the book, which is the question of what constitutes the nature of spirit of international law. CONCLUSION Notwithstanding its supposed shortcomings, the book has a very good expository layout and the Reader stands to benefit a lot from it if he or she makes sure to keep in mind the Authors caveat, issued by him in the preface to the book; which is to the effect that, he does not attempt to provide a doctrinal review of International Law. There is also the need for the Reader to address her or his mind to the Authors personal acknowledgement of the fact that, there exists many blind spots in the treatise together, with his tone of resignation at accepting International Law on its own terms (of which, I wonder what that means because he still goes ahead to compare International Law to domestic systems) In conclusion, it is a good read, which I got interested in because of its promise to increase my knowledge of what International Law is without being saddled with the extra need to decipher theories and doctrines, which might further becloud my mind. It largely delivered on the promise and it is a quite valuable book. It makes the Reader better understand the intricacies involved in the process of lawmaking and enforcement under International Law, it also makes the notions of obligations and the weight attached to commitments under it clearer. A Reader who is not overly familiar with the subject of International Law would find it interesting as it enunciates both the beauty and unpleasantness in the existence of international Law.
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