The status of law in world society

Kratochwil's The status of law consists of eight contemplative exercises on the subject of law in international society. Fundamentally, it is a critique of the usual suspects in International Relations: positivism, disciplinarity, progress; and it bases that critique on practice—how the law is actually used. The method is that of a ‘conversation’, in the heuristic sense. It's like Hermann Hesse's The glass bead game, where ideas tumble about and the player follows them, constructing links between them, in changing kaleidoscopes. The result is a lot of insight, but not much direction. The reader is invited to play the game and to understand that the law is a tool, not a programme. If international law is part of a conversation, it weaves its way through several distinct discourses. One of these is the contemporary German enthusiasm for ‘constitutionalizing’. Kratochwil points out that the original meaning of ‘constituting’ was the bringing together of different families and clans under a new law, Aristotle's synoikismos—and hence its possible application to international relations. This new ‘constitutional’ law then becomes the reference point for further changes in the normal ‘regulative’ law, providing us with ‘an authoritative map’ by which to orient ourselves in the context of change. The British constitution aside, however, he points out that the hoariest problems might—and often do—lie outside the constitution, and require war or domination to determine. Furthermore, practical solutions to problems frequently proceed without reference to ‘codification’ or to disputed constitutional principles, the European Union being an example. The point, first, is that you cannot neatly separate constitutional questions from day to day normal law testing and, second and following on, that much ‘normal’ law-making may have constitutional implications. The relation to international law and international order becomes at once obvious. It is no longer possible to view international law solely in contractual terms. It is constantly laying down some basic rules or constituting positions, but it is doing so in a fragmentary, disorganized and multiprocedural manner. Trying, then, to locate the basic constitutional principles in such an order—locating the ‘constitution’ in the United Nations Charter or the World Trade Organization agreements—the two major contenders—will seem arbitrary, to say the least. Too many requisites of a constitution remain outside both orders, for example human rights

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