Professor Anthony D'Amato's "Groundwork for International Law" (Groundwork) is an extremely pedagogical project. Despite its apparent simplicity, each rereading reveals a new layer of complexity, reflecting the depth of his lifelong engagement in the scholarship of international law. Moreover, from a certain perspective, his reexamination of the foundations of international law expresses a radicalism that reaches beyond the analysis of legal forms to provoke reflection on the nature and purpose of the international legal system. (1)
Analytical studies have demonstrated that every conception of international law harks back to certain ethical, political, and scientific agendas. (2) That is to say, there is no neutral system of international law. Rather, neutrality is a concept that belongs to natural sciences and to political science. From a natural-law perspective, law is either just or unjust. (3) A positivist perspective on international law leads to one finding legal categories convenient to specific policy goals. (4) But one cannot claim to apply a law that is truly neutral, based on either perspective. In our positivist era, this idea boils down to the fact that the set of relevant issues that the system ought either to regulate or to obviate often depends on which conception of international law one has chosen to represent. (5) Security, increases in global trade and financial flows, global food supplies, democracy and participation, communication, equality, environmental justice, global education, the responsibility to protect (R2P), scarcity of goods, control of human life, movements of peoples, and solidarity between countries are some of the issues that require regulation under our current system of international law. (6) There is little difficulty in adopting as a general principle that the more it addresses the cares and needs of the global population, the better the positivist system will function. However, more debatable is the assertion that our current system of international law is now evolving towards inclusiveness. (7)
From the outset, Groundwork appears to be an ambivalent attempt to combine two currently competing conceptions of international law. It seeks to integrate the law created by international lawyers with an impersonal system of international law, despite these entities making for uneasy bedfellows, unless it is the lawyers who build the system through their role as legal and political agents. Just as those theories seek to explain law as being the result of political actors' actions by focusing on aspects of responsibility, rationality, and freedom--that is, their reliance on politics for their account of the production of rules and decisions--doctrines about the objectivity and autonomy of the system of international law sustain their premises by distinguishing the way in which a rational being acts from the way in which a system functions.
As an overview of current theories of international law shows, the system of lawyers certainly coexists with a rich concept of politics. These theories range from the realists' politics of interest, through more liberal idealist standpoints, to positions in favor of the virtue ethics of global governance that place the political human being at the center of the production and application of law. (8) Alternatively, focusing on the objective foundations of the system has served not only to maintain the system of law whose foundation is thought to enable, even if not ideal, at least appropriate international politics--a position arguably buttressed by Groundwork--but paradoxically also to further the formulation of counter-hegemonic strategies through the instrumentalization of a system of international law that is considered objectively hegemonic. (9)
This article argues that, in its efforts to preserve a system that evolves into a desired system of peace through law, Groundwork is an American near-relative of European twentieth-century positivist international law. With his interest in systems theory, D'Amato might surprise the European reader who expects him to develop a Luhmannian systems theory of sorts. (10) But on closer inspection, one misses the aspect of conflict that defines this type of sociological theory given that, far from destroying it, in that theory conflicts build the international legal order. (11) Moreover, one discovers essential links with the legal theory of the international order's impersonal universalism, in the style of Hans Kelsen and other European and (a few) American positivists. (12) This connection both explains its instrumental use of methods from the natural sciences and accounts for the impossibility of maintaining the tension--inherent in the theory that D'Amato describes--between the objectivism of the positivist system and the ever-absent subjectivism of international lawyers.
Moreover, D'Amato pushes the biological method and analogy to an extreme that previous positivists have deliberately avoided. In this vein, he attributes an independent vitality or natural movement to the system of international law that is scarcely conceivable without examining the central role played by human beings. However, in a manner similar to that of the twentieth-century positivists, his objectivist move is relevant because it draws our attention to the notion that, no matter how objective the method chosen may be, one's legal theory will always be connected to a certain political agenda.
The next pages contain an overview of the aspects of Groundwork on which this article focuses, followed by their "family resemblances" to Kelsen's positivist legal theory of European origins. (13) The article then voices skepticism about choosing Kelsenian theory, as I will argue that D'Amato does, without at the same time endorsing Kelsen's atomist politics and philosophy. This attempt of adopting, so to say, only half of Kelsen's project has consequences. In particular, it produces an overambitious employment of biology. Biology functions in D'Amato's text both as a method to reflect a normative design and as an ontology to describe the reality of the international law system. I conclude with a plea for a clear articulation of the identity of the political actors of the international law system as opposed to the biological-ontological component of Groundwork.
ONE SYSTEM OF INTERNATIONAL LAW
Accepting a variety of conceptions of international law is not the same as claiming that they all aspire to similar political goals or that they all have the same depth as an enterprise for legal science. The arguable source of Groundwork--that is, impersonal universalism, or the project of positivism in international law--was one of the most ambitious conceptions of international law in the twentieth century. It was characterized by an absolute commitment to the universal system of international law. In the last century, this commitment did not entail perpetuating the system but, instead, involved bringing it into existence. This commitment was wedded to a scientism that completed a reconceptualization of law from the division between national and international into a single concept and assumed a strict separation between law and morality. Furthermore, the political project propelling the scientific enterprise both struggled against the statism of national law and underpinned the individualist premises of neoliberal capitalism. (14)
But probably the most novel element of that positivist project was its description of international law as having a sort of independent epistemological, mechanical, or biological status, ultimately not traceable to human freedom. (15) On the contrary, some recent objectivist projects frame the system of international law first within the domain of agency--concerned with who is doing international law and how she or he is doing it. (16) Second, the purpose of these objectivist projects gives the system of international law their normative value, whether achieving a common international political order or promoting solidarity, or even sociability, among human beings. (17) In this latter sense, recent constitutionalist, sociological, or governance theories seek to overcome the individualism embedded in the positivist project of international law, which is a system dominated by individual actors collaborating and competing against each other. (18)
Despite its commitment to the system of international law, D'Amato's article engages with neither of the two principles of agency and purpose described above. That absence marks the difference not only between D'Amato's article and the projects listed above but also between his project and what may be found in earlier European and even American positivist writings of the twentieth century of which, nevertheless, his article is a true heir. Hence, D'Amato renounces a description of the system of international law in a manner that acknowledges the prominent role of its agents, either as legal actors or as participants in the system's underlying politics. In writing from the viewpoint of the general systems, D'Amato "takes an essentialist position in claiming that the rules and processes of international law can be best explained if we start with the self-protective nature of all aggregative, interconnected entities known as general systems." (19) From this perspective, he formulates his first foundational axiom towards a theory for explaining the (current) composition of international law: "The primary purpose of the international legal system is not to regulate international relations but to preserve itself." (20)
However, the role of human beings, who imbue D'Amato's "autopoietic system" with life, is also central. Jurists and practitioners--in a word, Oscar Schachter's famous "invisible college of international lawyers"...