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The Concept of International Law

QEJIL 1999*Fellow of Trinity College and Reader in International Public Law, Cambridge University, Cambridge CB21TQ, United Kingdom. The present essay reflects ideas contained in various of the author s works,including Eunomia New Order for a New World(1990) and Eutopia The Return of the Ideal(forthcoming).It is based on a paper given at a symposium on The Role of International Law in International Politics,heldunder the auspices of the International Law Association (British Branch) at Oxford University in Concept of InternationalLawPhilip Allott*AbstractThe social function of International law is the same as that of other forms of law. It is a modeof the self-constituting of a society, namely the International society of the whole humanrace, the society of all societies.

The Concept of International Law33 the consciousness of actual human individuals. Social consciousness flows from and to individual consciousness, forming part of the self-consciousness of each society-

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Transcription of The Concept of International Law

1 QEJIL 1999*Fellow of Trinity College and Reader in International Public Law, Cambridge University, Cambridge CB21TQ, United Kingdom. The present essay reflects ideas contained in various of the author s works,including Eunomia New Order for a New World(1990) and Eutopia The Return of the Ideal(forthcoming).It is based on a paper given at a symposium on The Role of International Law in International Politics,heldunder the auspices of the International Law Association (British Branch) at Oxford University in Concept of InternationalLawPhilip Allott*AbstractThe social function of International law is the same as that of other forms of law. It is a modeof the self-constituting of a society, namely the International society of the whole humanrace, the society of all societies.

2 Law is a system of legal relations which condition socialaction to serve the common interest. Law is a product of social processes which determinesociety s common interest and which organize the making and application of law. Theinternational legal system integrates all subordinate legal systems ( International consti-tutional law) and regulates the International public realm and the interaction of subordinatepublic realms ( International public law). National legal systems (including privateinternational law) are part of the International legal system. International law takes acustomary form, in which society orders itself through its experience of self-ordering, and alegislative form (treaties). The state of International law at any time reflects the degree ofdevelopment of International society.

3 Recent developments in International society havemade necessary and inevitable the coming-to-consciousness of International law as the fullyeffective law of a fully functioning International society, but that development faces a numberof problems and impediments which must be Social Function of , including International law, has a threefold social function. (1) Law carriesthe structures and systems of society through time. (2) Law inserts the commoninterest of society into the behaviour of society-members. (3) Law establishes possiblefutures for society, in accordance with society s theories, values and 10 (1999), 31 is a presence of the social past. Law is an organizing of the social present. Lawis a conditioning of the social are eight systematic implications of such an idea of the social function of lawin general, and of International law in particular.

4 (1)Law forms part of the self-constitutingof a society. A society is a collectiveself-constituting of human beings as society-members, co-existing with theirpersonal self-constituting as human individuals. International society is thecollective self-constituting of all human beings, the society of all law is the law of International society.(2)The legal self-constituting of society (the legalconstitution) co-exists with othermeans of social self-constituting: self-constituting in the form of ideas (the idealconstitution) and self-constituting through the everyday willing and acting ofsociety-members (the realconstitution).(3)Law is generated, as a third thing with a distinctive social form, in the course of theideal and real self-constituting of society, but law itself conditions those otherforms of constituting.

5 (4)Law is a universalizingsystem, re-conceiving the infinite particularity of humanwilling and acting, in the light of the common interest of society.(5)Law is a particularizingsystem, dis-aggregating the common interest of society sothat it may affect the infinite particularity of human willing and acting.(6)Law requires that society have adequate means for determining the commoninterestof society, in accordance with society s values and purposes. Politics, inthe widest sense of the word, is the will-forming struggle in the ideal and realconstitutions, the struggle to influence the determination of the common interestof society and to influence the making and application of law.(7)Law requires that society have theorieswhich explain and justify law withinsocial consciousness (the public mind) and within individual consciousness (theprivate mind, including the social consciousness of subordinate societies).

6 Suchtheories reflect and condition society s values and purposes. They may becustomary, religious or philosophical theories: for example, theories of revealedtranscendence, charismatic authority, natural law, sovereignty, constitutional-ism, naturalism. They are generated and re-generated in the public mind ofsociety in the course of its ideal and real self-constituting.(8)Law thus presupposes a societywhose structures and systems make possible themutual conditioning of the public mind and the private mind, and the mutualconditioning of the legal and the non-legal. These two reciprocating andreinforcing processes offer a limitless dynamic potentiality for human self-evolving through social and Social and law exist nowhere else than in the human mind.

7 (1) They are productsof, and in the consciousness of, actual human beings. But a society generates a socialconsciousness, a public mind, which is distinct from the private mind, distinct fromThe Concept of International Law33the consciousness of actual human individuals. Social consciousness flows from andto individual consciousness, forming part of the self-consciousness of each society-member. (2) The psychology of the public mind is a manifestation of the psychology ofthe private mind. The constitution of a society and the personality of a human personare both the product of human consciousness. Social psychology is a form, but amodified form, of personal psychology. But social consciousness functions indepen-dently from the private consciousness of every society-member, and is retained informs (the theories, structures and systems of self-constituting society) which are an other in relation to the self of the self-constituting of any particular society-member.

8 (3) Society wills and acts collectively, as the output of systems (including law-makingsystems) which aggregate the willing and acting of individual human beings. But theintervention of those systems creates a new mind-world, a new form of human reality,a new form of human world. The public mind is society s private mind. The publicmind of International society is the private mind of the human peculiar relationship, separate but inseparable, between personal and socialpsychology means that all the systematic functions of personal psychology are presentin social psychology, but functioning in a special way. For its own purposes and in itsown way, society uses emotion, memory, rationality and morality. And society s use ofthese functions affects their functioning in the psychology of individual society-members.

9 Public emotion, especially the emotion of the crowd, flows from and toprivate emotion. Society s collective memory, its so-called history, flows from and toprivate memory. Society s collective deliberations, using the self-ordering functions ofthe human brain, including language and logic, flow from and to our privatedeliberating. Society s self-regulating in terms of its values and purposes flows fromand to our private self-regulating in terms of duty. Beyond the systematic functions ofindividual psychology, there is the power of unconscious consciousness, the residuesof our biological inheritance and of our life-experience, which do not functionsystematically but which intervene in every aspect of our personal self-constitutingand must intervene in every aspect of the collective self-constituting of society.

10 Socialconsciousness is also a collective individual human beings, the integrating of the processes of the mind in themoment-to-moment self-constituting of personality is an unceasing struggle. Thestruggle of self-integrating can lead to crises which may be seen as pathological, in thesense that they threaten the survival or general well-being of the person concerned, orof other persons. Society-members contribute their psychic states to social conscious-ness, including pathological psychic states. Society-members with exceptional socialpower may even impose their own psycho-pathology on the society they dominate. Soit is that a society may experience episodes of social psycho-pathology, when a societymay be said, in crude terms, to go mad; it may become alienated, with its potentialityof self-creating distorted by symptoms of self-wounding and self-destroying.


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