The New International Law: Toward the Legitimation of War

Abstract

THE methodology of social studies is a notoriously dangerous and controverted subject. Rather than discuss the variegated theories existing on this matter, it would be more productive to rely on the simple dichotomy of the and approaches to the study of social science. Stanley Hoffmann has observed that all American theories of international relations start either from general concepts illadapted to the meaning of foreign policy behavior or else from deductive models that are not only abstracted but also dissociated from political reality.' From the perspective of such theories, the usefulness of international law in international studies is far from evident. Our concern, however, lies with an alternative approach to the study of social science which has been primarily advocated in England. It has been said that all behavior which is meaningful (therefore, all specifically human behavior) is ipso facto rule-governed. In this comment, Peter Winch, in his excellent book, The Idea of a Social Science, differs from practically all U.S. theories of international relations.2 It has long been urged that in the study of social science we ought to follow the methods of natural science rather than those of philosophy. This, it was said, is the key to significant progress. It is not fruitful to dispute the concept of social studies as science. Such a method of investigation is undeniably both apt and productive in a proper context. What must be emphasized, however, is the so-called internal approach to social studies generally. That is, to stress that what the student of international relations is studying as well as his study involves a human activity and is therefore largely carried on with the guidance of rules, purposes, and policies. In this respect, we are building upon a philosophical base erected by Wittgenstein in his Philosophical Investigations,3 elaborated by J. L. Austin and also by Ryle in The Concept of Mind,4 developed by Winch for social science theory, and finally by Hart for legal philosophy.5 Hart thus indicates that when a social group has certain rules of conduct this fact permits us to make all sorts of different assertions. It is possible to be concerned with these rules either merely as an observer who has not himself accepted them from an point of view or as a member of the group which accepts and uses them as guides for conduct from an point of view. Statements made from the point of view may, however, take cognizance of the fact that some other people are concerned with rules from an point of view. In the alternative, an observer could be content to record the external regularities of observable behavior in which deviation from conformity with rules can be observed in terms of hostile reactions or sanctions. This point of view, however, does not give a proper account of the manner in which the members of the group who accept the rules of conduct view their own regular behavior: A parrot may be observed to shout, Police! whenever it sees a man in uniform; it certainly does not mean that the parrot has learned the use of the word police. On the other hand, if a child utters the word police in the same