The Historical Foundations of World Order: The Tower and the Arena

900 Pages·2008·5.68 MB·English

by  Douglas M. Johnston

The Historical Foundations of World Order

The Historical Foundations of
World Order
The Tower and the Arena
by
Douglas M. Johnston
LEIDEN • BOSTON
2008
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isbn: 978 9004 161672
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Acknowledgements
On 6 May 2006 Douglas M. Johnston, my father, succumbed to cancer. The concept
of this book had been suggested to him way back in 1959 by Myers McDougal, co-
creator of the New Haven School of Policy Science at Yale University, while he was
a student under that eminent scholar. As the culmination of five years of exhaustive
research and writing, it now stands as the last installment and legacy of an illustri-
ous publishing career. The final chapter was literally completed from his hospital bed
just two weeks prior to his passing, to the amazement of the doctors and nurses in
attendance.
These acknowledgements, therefore, are mine and I sincerely regret if I have ne-
glected anyone that my father would have wished to recognize on this page. I can be
certain, however, that at the top of the list would have been his wife of 47 years, Ju-
dith. Her tireless devotion and support throughout their life together only intensified
along with the urgency to finish this book during the final months of his life. Her role
as typist, fact checker, and research assistant cannot be underestimated.
While the seed was planted in 1959 by Myers McDougal, two close friends of my
father’s can be credited with encouraging him to undertake the effort at the conclu-
sion of his career. These are Ronald Macdonald, his long time writing collaborator,
and Brian Flemming, former colleague, both at Dalhousie Law School. Much of the
research for this book was conducted at various university libraries. The staff and
administrators at the UVic Law Library, the UVic McPherson Library, the Dalhousie
Law Library, and the Yale Law Library, who would have faithfully been at my father’s
service, deserve thanks. At various stages of writing, he sought and received feedback
from various friends and colleagues. These include Professors Aldo Chircop, Zou
Keyuan, Ted McDorman, Bill Neilson, and Andrew Willard and Christian Wiktor,
former Head Librarian at the Dalhousie Law Library.
The posthumous publishing of this book has presented some challenges. My father
did not have the opportunity to make final revisions or participate in the preparation
of elements of the book beyond the introduction, nine chapters, and bibliography. I
personally would like to recognize Peter Bushman and Annebeth Rosenboom (for-
merly) at Martinus Nijhoff Publishers for exhibiting flexibility and patience beyond
the norm in response to these circumstances. I am grateful to Michael Reisman for
contributing the Preface and for the kind words of praise contained therein. Three
of the colleagues mentioned above, Aldo Chircop and Christian Wiktor at Dalhousie
vi Acknowledgements
University and Ted McDorman at University of Victoria, were extremely helpful to
my mother and to me as we worked through the decisions and preparations required
to bring this book to print. Ted also has the eternal gratitude of the entire Johnston
family for the dedicated support he offered without hesitation during the final weeks
of my father’s life, the period after his death, and to the day of this writing.
Keith A. Johnston
Preface
Great history is far more than a chronological narrative. It requires a contextualiza-
tion of events in their cultural, economic and technological milieu and an apprecia-
tion of their contingency. It must account for the impacts of exceptional individuals,
without, as Harold Lasswell put it, rendering them taxidermical specimens. Yet it
must also account for collective actions and path-driven results, the so-called “great
historical forces.” Because the narrator, unlike his scientific counterpart, is the ulti-
mate instrument of perception and appraisal, writing great history requires a precise
sense of self, of standpoint and of role in the reconstruction and appraisal of events.
Above all, through a narrative of particular events, writing great history is a medi-
tation on the human condition which depends upon the intellectual quality of the
writer.
Writing great international legal history is even more challenging, for even the
referent of the term “international law” is controversial. The processes and arrange-
ments to which it has referred have varied through time and across cultures and
classes. No wonder that T.E. Holland could remark in perplexity that international
law is “the vanishing point of jurisprudence.” The international legal historian must
fashion his own heuristic in order to encompass arrangements and processes which
may not have been assigned the sobriquet, “international law,” by the people who
fashioned them; yet from the perspective of a disengaged observer, it will be apparent
that these processes and arrangements functioned as the struts of world or regional
order in specific contexts. The quality of the legal theory or jurisprudence of the legal
historian is thus a critical component in the success of his venture. But this poses a
dilemma. The legal historian who would write for the lay members of the world com-
munity – the people who will ultimately survive or perish depending on the effective-
ness of international law and its contribution to world order – finds himself caught
perilously between the Scylla of precision of professional language and the Charybdis
of dialogue with a tiny group of experts.
Like the renowned Lassa Oppenheim, who hoped that his own treatise would
open international law to the intelligent lay person, Douglas Johnston has written
an historical account of a dynamic international law and made it accessible to every
intelligent reader. Johnston writes that
viii Preface
“If a history of world order is to be written at all for a non-technical readership, it seems es-
sential . . . that it be disengaged from the mainstream of legal terminology. “Legalese” has a
lethal effect on those who read for pleasure as well as information. Admittedly, legal jargon
is widely regarded as indispensable within the profession. ... But the public needs to know
much more about the issues and opportunities confronting the international legal commu-
nity in our time. The growth of world order norms and institutions since the mid-twentieth
century has been spectacular, and the drama shows every sign of increasing. To convey the
scope of these challenges, an unusual effort deserves to be made to present the structure of
world law in modern, innovative terms.”1
“The functionalist, multi-model approach to the theory of international law,” John-
ston writes, “commits the historian – and his reader – to a long story of slow and
uneven human development: to a cross-cultural history of legal, moral, political and
psychological maturation.”2 In the bulk of this book, Johnston tells that “long story”
in rich, comprehensive and multi-cultured detail. But he introduces the material in
an unusual and brilliantly successful fashion. Through the device of very detailed
case studies, Johnston introduces the reader to some of the basic concepts of inter-
national law. These introductory “vignettes” provide the reader with a “preliminary
sweep over six areas of international law ... to convey the range of norms, concepts,
institutions and processes but contribute to its complexity and importance in the
modern world.”3
This extraordinary book brilliantly achieves its objective. “The Historical Founda-
tions of World Order” is a magnificent achievement. Other historical accounts of in-
ternational law pale in comparison. The general reader, no less than the international
lawyer, will find here the most detailed account of the history of international law.
Johnston has given us a rich tapestry of the efforts of human beings in different civi-
lizations from the earliest to the present, to establish arrangements that could secure
the key civic values which each civilization pursued.
This is a book which every international lawyer and student of international law
can read profitably; it is worth emphasizing the words “can read,” for, for all of its so-
phistication, it is readable and delightful throughout. Johnston opens his book with
the words “Public International Law has always suffered from public anonymity.”
Thanks to his breadth of knowledge, wisdom and engaging style, this book will go a
long way toward rescuing international law from that anonymity.
If I may permit myself a personal note: I have awaited this book with great antici-
pation. When Douglas Johnston came to my office at Yale five years ago to describe
the project and give me the first two chapters, I knew that a major contribution to
international law was in gestation. The honor which I feel in introducing it now is
tinged with sadness because its author died shortly after its completion. Douglas
Johnston was one of the great international legal scholars of his generation. He had
published more than 30 books which ranged over the entire field of international
1 Page 132.
2 Page 147.
3 Page 111.
Preface ix
law, from its history, its constitutional structure, treaty practice, the law of the sea,
environmental law and his special interest in China and Chinese practice. This schol-
arly achievement would have entitled Douglas to more than a measure of pride, but
he was always modest and unassuming, a gentle and witty companion and a trusted
friend. International law has lost a great scholar and a champion of human dignity.
The college of international lawyers which admired and honored Douglas can con-
sole itself with his legacy of this magnificent book.
W. Michael Reisman
Myres S. McDougal Professor of
International Law, Yale Law School
New Haven, Connecticut
August 31, 2007