This article explores the idea that, at the time of publication, despite several centuries of development, there was no settled conception of international law, whether there was “international law” and if there was, what were its essential characteristics. The author starts with the assertion that international law resembles a municipal legal system, insofar as its subjects are bound, by external sanctions, to its right-creating and power-conferring principles. A State will, in a well-ordered international community, be shaped and guided in its acts and judgments by an internal sense of right and justice; just as the punishment of a child will hopefully give way, in time, to his own mature self-moderation. The author then argues that the orderly scheme of international security and justice unfortunately breaks down under scrutiny, as certain essential characteristics of its municipal analogue are found to be lacking and identifies three particularly prominent problems: first, the effectiveness of war and reprisals as legal sanctions depends on the ability of the wronged State, or of committed allies, to wage sanctions; second, war and limited aggression have become too dangerous, in the light of technological advances, to continue as viable sanctions; third, the State, against which military force is directed, consists at bottom of individuals innocent, if not incognizant, of international offense. The author ultimately concludes that the state of international law rests somewhere between a primitive and an advanced form, both on the structural and moral levels.
Peter L. DeStefano, Jr.,
The Emerging Moral Framework of International Law,
1 Fordham Int'l L.J. 1
Available at: http://ir.lawnet.fordham.edu/ilj/vol1/iss1/1