Clearly, the House of Representatives was modeled after the House of Commons, there being no other model to draw upon, since Europe at that time was for the most part absolutist and possessed no such traditions. Further drawing on their understanding of the English model, the founding fathers wanted a second chamber, but had to resolve upon some system other than the House of Lords, which at that time was composed of hereditary peers, which the Americans had decided would not do at all in the new Republic, along with the bishops of the Church of England, also entirely foreign to American way of thinking which was based upon non-conformism and a refusal to countenance an established church. They resolved upon a curious compromise reaching back to the old Roman tradition for the word ?Senate,? but still looking to the English model for representatives from each state.

Oddly enough, the House of Lords has continued to evolve, while the Senate remains more or less fixed as it was set down in the Constitution of 1776, and has by now become in a sense quite anomalous. Hereditary peers have lost all right to exercise any vote in the House of Lords, but the British still have not entirely decided upon the best manner of composing the upper house, which though it has lost all power to the House of Commons nonetheless is preserved as a deliberative chamber with a certain power to delay legislation.

In the years before the great Reform Bill of 1832, many members of Parliament were returned by a mere handful of votes, being returned for what were then termed ?Rotten Boroughs,? because of the clearly inequitable proportion of votes required to return such members, sometimes no more than a dozen. Today in a somewhat amazing reversal of history, one could view many of the states of the Union as rotten boroughs, because they return two Senators in spite of having a disproportionately tiny number of voters. The state of Delaware has far fewer residents than the San Fernando Valley, yet returns two Senators with exactly the same voting powers as the two California Senators who between them represent the fifth largest economy in the world and 30 million people.

At the time of the American Revolution, the House of Lords exercised great powers but those powers have gradually disappeared, whereas today each Senator is in effect a virtual fiefdom. Any Senator can stop any business from being transacted; that is to say, a single Senator from a state with few than one million people can prevent the passage of legislation, even if that legislation has been passed by the House of Representatives. What ever else this may be, it is certainly not anything resembling a true democracy because the Senate today, with incumbents nearly impossible to unseat, is far more like an aristocracy than today?s membership of the House of Lords.

When it came to constructing the judicial system, the founding fathers sought to retain the common law in its entirety, with the single exception of the Constitution, and it must be said that the Constitution is an exceedingly important difference. But as for form and procedure, the old tradition of the common law, already at that time more than 600 years old, prevailed almost without change. But when it came to deciding what should be the highest court, again the founding fathers were on their own, because they could derive nothing but mystery and obfuscation from looking at the English system.

Even today, although the current British government is seeking to change the system, the highest court in the land is said to be the House of Lords, but it is not really the House of Lords at all but a mere committee of the House of Lords composed of a number of senior judges, who collectively are referred to as the Law Lords. But whereas the Justices of the Supreme Court have a magnificent Greco-Roman style building of their own, and frequently appear in resplendent black robes as celebrities in their own right, most people in England would not be able to name of a single Law Lord. Indeed, the House of Lords is so informal that it is hardly a court at all; it meets in a committee room in the upstairs of the House of Lords, and the Law Lords wear no kind of robe but merely appear in lounge suits. The present English government, breaking with a tradition of more than half a millennium, says it intends to replace the House of Lords with a Supreme Court, so perhaps with wonderful irony the highest court of appeal in Britain will finally come to resemble the U.S. Supreme Court.

Charles B. Parselle is a mediator, arbitrator and attorney. He graduated from Oxford University?s Honor School of Jurisprudence and is a member of the English bar, then was admitted to the California Bar in 1983. A practicing attorney, he is a prolific author and sought-after mediator. For a free consultation, please contact him through his website: http://www.parsellemediation.com

The above two maneuvers, although using different strategies, reach a common conclusion that the function of international law is not affected by the absence of central authorities in the world and is not limited to the function as the restraint to state behavior. It can perform a wider range of functions such as communication, justification, reassurance, monitoring and reutilization besides constraint.

In fact, the realists? misunderstanding of the nature and the functions of international law will inevitably cause them to underestimate the influence of international law. If they are right to say that the capacities or power rather than legal norms account for the behavior of states, we should witness the repetitive premeditated and deliberated violation of international law because realists holds that international law fails as soon as national interests diverge from what the law requires.

However, the real world situation is different from what the realists suppose. As what Chayes argues in New Sovereignty, although we see some worrisome cases of non-compliance such as Iraq?s invasion of Kuwait and North Korea?s refusal to the inspection of International Atomic Energy Agency, such cases are the exception rather than a common phenomenon. The non-compliance, as analyzed by Chayes, may come from the ?ambiguity and indeterminacy of treat language, limitations on the capacity of parties to carry out their undertakings, and the temporal dimension of the social, economic, and political changes contemplated by regulatory treaties?.(Chayes & Chayes 1995, 10) But states do not do it intentionally.

Besides, we also witness a growing influence of the United Nations on international affairs after the Cold War. And the World Trade Organization offers us another good example of compliance. Therefore, realists misunderstand the importance of international law. This point will be further discussed in the following section.

All the above discussion is confined to the field of international legal studies. But after discussing realists? underestimation of the influence international law, we need also to discuss some political response to this misunderstanding. Since the response from the literature of international relations theory is not the focus of this paper, we just discuss them briefly. The first response comes from the regime theory, or the institutionalism. It disagrees with realism on that power is the only independent variables in explaining international interaction. They argue that the international regimes ? sets of principles, norms, rules and decision-making procedures?also shape the states? behaviors and expectations. Realism not only misunderstands the importance of international norms (similar to international law) but also misunderstand the nature of international politics. In fact, institutionalism and international legal studies share a common ontology of the international system: the actors, the structure with which those actors act, and the process of interaction. And both concentrate on the studies of improved institutional design for better efficiency and compliance. While institutionalism attack the ?power as only explaining variable? assumption of realism, liberalism attack the ?state as the unit of analysis? assumption of realism. It emphasizes the interaction between states, domestic civil societies and transnational civil societies. Liberalism may complement institutionalism as the study primarily of law among liberal states, which is also a proposed topic of our course. Other international political theories such as constructivism also provide us insight to the logic of anarchy and self-help of states which is also an important assumption of realism. Since the limit of the space, we just skip it. One possible critique may state that it is not realists who misunderstand the nature, function and influence of international law but the scholars of international legal studies re-conceptualize their understanding of international law in order to response to the realist challenge. This critique is plausible because the realist challenge of international law was before the development of above legal arguments. But I think the purpose of research is not to argue who is wrong or not but to improve our understanding of the complicated international interaction. It is not important whether it is realists? misunderstanding. It is important that we gain new insight into international law and international politics. Another critique may be that in the above discussion we just present several legal approaches? responses to the questions but we do not have a unified approach to account for all the aspects we?ve discussed. I think the possible solution may be the convergence of international legal studies and institutionalism, which will offer us better understanding to both international law and international politics. In the paper, we mainly address three misunderstandings of realism on the nature, function and influence of international law. Instead considering international law as a body of rules of coercion without significance in its own right, we argue that it is a process with multiple functions and importance in its own right. We?ve examined and discussed several important international legal approaches and in the end, extended our discussion to the field of international politics a little bit. Although we still leave some problems unresolved mainly because we do not further the discussion of international law and institutionalism, this paper, as a summary of what we have learned in this quarter, is still meaningful, I believe.

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Clearly, the House of Representatives was modeled after the House of Commons, there being no other model to draw upon, since Europe at that time was for the most part absolutist and possessed no such traditions. Further drawing on their understanding of the English model, the founding fathers wanted a second chamber, but had to resolve upon some system other than the House of Lords, which at that time was composed of hereditary peers, which the Americans had decided would not do at all in the new Republic, along with the bishops of the Church of England, also entirely foreign to American way of thinking which was based upon non-conformism and a refusal to countenance an established church. They resolved upon a curious compromise reaching back to the old Roman tradition for the word Senate, but still looking to the English model for representatives from each state.

Oddly enough, the House of Lords has continued to evolve, while the Senate remains more or less fixed as it was set down in the Constitution of 1776, and has by now become in a sense quite anomalous. Hereditary peers have lost all right to exercise any vote in the House of Lords, but the British still have not entirely decided upon the best manner of composing the upper house, which though it has lost all power to the House of Commons nonetheless is preserved as a deliberative chamber with a certain power to delay legislation.

In the years before the great Reform Bill of 1832, many members of Parliament were returned by a mere handful of votes, being returned for what were then termed Rotten Boroughs, because of the clearly inequitable proportion of votes required to return such members, sometimes no more than a dozen. Today in a somewhat amazing reversal of history, one could view many of the states of the Union as rotten boroughs, because they return two Senators in spite of having a disproportionately tiny number of voters. The state of Delaware has far fewer residents than the San Fernando Valley, yet returns two Senators with exactly the same voting powers as the two California Senators who between them represent the fifth largest economy in the world and 30 million people.

At the time of the American Revolution, the House of Lords exercised great powers but those powers have gradually disappeared, whereas today each Senator is in effect a virtual fiefdom. Any Senator can stop any business from being transacted; that is to say, a single Senator from a state with few than one million people can prevent the passage of legislation, even if that legislation has been passed by the House of Representatives. What ever else this may be, it is certainly not anything resembling a true democracy because the Senate today, with incumbents nearly impossible to unseat, is far more like an aristocracy than todays membership of the House of Lords.

When it came to constructing the judicial system, the founding fathers sought to retain the common law in its entirety, with the single exception of the Constitution, and it must be said that the Constitution is an exceedingly important difference. But as for form and procedure, the old tradition of the common law, already at that time more than 600 years old, prevailed almost without change. But when it came to deciding what should be the highest court, again the founding fathers were on their own, because they could derive nothing but mystery and obfuscation from looking at the English system.

Even today, although the current British government is seeking to change the system, the highest court in the land is said to be the House of Lords, but it is not really the House of Lords at all but a mere committee of the House of Lords composed of a number of senior judges, who collectively are referred to as the Law Lords. But whereas the Justices of the Supreme Court have a magnificent Greco-Roman style building of their own, and frequently appear in resplendent black robes as celebrities in their own right, most people in England would not be able to name of a single Law Lord. Indeed, the House of Lords is so informal that it is hardly a court at all; it meets in a committee room in the upstairs of the House of Lords, and the Law Lords wear no kind of robe but merely appear in lounge suits. The present English government, breaking with a tradition of more than half a millennium, says it intends to replace the House of Lords with a Supreme Court, so perhaps with wonderful irony the highest court of appeal in Britain will finally come to resemble the U.S. Supreme Court.

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By the 1880s, the British had lost economic supremacy to the United States and Germany, and then were severely weakened by the carnage of 1914-18, resulting in a power vacuum such that the twentieth century is already looked upon as the most destructive period in human history. Germanys challenge had failed by 1917 both on the high seas and in the trenches of Flanders, while the United States maintained its isolationist stance, but the British were nonetheless forced off the Gold Standard and unable to influence the rise of fascism in Italy and Germany. With no one at the helm the world drifted towards disaster.

Protected by two oceans and with colossal economic potential, the United States recovered from Pearl Harbor within six months to smash the Japanese carrier fleet at the Battle of Midway, effectively putting the Japanese into a defensive position from which they were never able to recover. In the European theatre, the German military machine was crushed between Russian armies in the north and east, American and British armies in the south and west, with the great bulk of the fighting falling on the Russians. Although the British Empire survived the war intact, that 500-year saga had effectively come to a close, and in the next 30 years the British entirely dismantled that empire which had once encompassed about a quarter of the world. As Europe lay in a kind of devastation not seen since the Black Death in the first half of the fourteenth century, the Soviet Union and the United States challenged each other for hegemony of the world, a struggle that ended in 1989, marked by the collapse of the Berlin Wall with complete victory to the United States. This event marked the effective ending of the dismal twentieth century, at the same time the shortest and the bloodiest century in human history. It is from that legacy that the world today is recovering.

How is the United States doing as the hegemonic power? As a military power it is wholly unrivaled and indeed unchallengeable. The United States operates eleven carrier battle fleets, each of which constitutes a greater concentration of destructive power than all ordnance expended in World War II. Unlike the British who only ruled the waves, the United States rules all the oceans and the whole of the worlds airspace. How many carrier battle fleets exists in opposition to Americas eleven? The answer is none. In addition, the United States continues to maintain a nuclear arsenal more than adequate to destroy human civilization as we know it, because in an interdependent world the use of nuclear weapons would indeed be a shock as disastrous for the perpetrator and for the victims.

Yet accompanying this unparalleled military might, there are signs of weakness that give cause for concern. The United States has become the worlds largest debtor nation, in marked contrast to the nineteenth century British who always maintained its position as a net exporter of capital until the start of World War I. Two-thirds of the US economy relies upon consumer demand, and the goods that the consumer demands are overwhelmingly now manufactured in Asia. Wal-mart estimates that six out of every seven items sold in its stores are manufactured in China. General Motors recently announced plans to layoff another 25,000 workers, and Moodys recently lowered Ford Motors borrowing capacity to junk bond status. The Peoples Republic of China, a supposedly communist state, just bid to purchase Unocal. This trend will continue. Notwithstanding strategic concerns, foreigners now own so large a percentage of U.S. government debt that American control of its own destiny is in jeopardy. The United States remains preeminent in some areas, particularly computer software, chip design, and of course military hardware. But the manufacturing center of the world is now Asia, particularly China.

Meanwhile, the nations of Europe have accomplished what amounts to a peaceful revolution of world importance. After ceaseless fighting each other since time immemorial, in 1945 the heartland of Europe lay in ruins. It seemed as if the Europeans had finally done it to themselves once and for all. The rebuilding of Europe into a semi-coherent political body and functioning economic body has been so successful that todays European Union, consisting of 25 nations with as many or more different languages, is today a slightly larger economy than the United States, in spite the fact that nearly all European countries are socialist. Notwithstanding the recent no vote of the French and Dutch on the next stop forward toward political unity, no one in Europe is suggesting taking a step backwards, and the forward progress has been very remarkable indeed. It is today as inconceivable that France will go to war against Germany as that Idaho will go against war against Nebraska.

The United States maintains 725 overseas military bases. Yet it is encountering increasing difficulty in maintaining its far-flung commitments. As historian Niall Ferguson wrote recently [Colossus, 2004, the United States suffers from three deficits, a manpower deficit, an economic deficit and an attention deficit. The military is having difficulty maintaining even its commitment in Iraq, with numerous units required to serve four or more recurring tours of duty. Politicians are starting to call for a return to the draft.

Americans have always tended to be inward looking with isolationism as a respected attitude, understandable considering the massive size of the continental U.S. This is neatly illustrated by comparing two different songs, the American anthem with its refrain From sea to shining sea, with the English song Rule Britannia, Britannia rules the waves. The different perspectives are unmistakable. Yet the United States shouldered its worldwide commitments, starting with its extraordinary success in World War II, followed by its long commitment to confronting the Soviet empire, leading finally to todays hegemonic status. It is of great interest to world civilization that the United States uses its term in office to the best possible effect.

Today the world has shrunk while the population has soared. It took nearly complete destruction for the Europeans finally to conclude that the day of the nation-state is effectively over, and that the only way forward is closer and closer cooperation. That also is the only way forward for the entire world, because serious fighting in todays world is increasingly like fighting in ones own backyard, and with todays weaponry this is risky indeed.

That is why it is disturbing to notice the current U.S. trend back into a kind of isolationism in terms of international cooperation. American withdrawal from the Kyoto Treaty evidences an ostrich-like attitude towards the worlds accelerating environmental problems. The catch phrase The economy comes before the environment, poses an entirely false choice not only the economy but our entire lives are embedded in and dependent upon preservation of the environment. Disdain towards other nations, withholding of United Nations dues, refusal to recognize the International Criminal Court, outright rejection of the International Land Mine Treaty, and a host of similar isolationists decisions bodes ill for a country whose very economic system is heavily dependant for viability upon foreign investments.

All the problems that we face both as Americans and citizens of the world are manmade. The United States is the hegemonic power of the world for the foreseeable future. It remains possessed of massive resources, its people have immense energy and resourcefulness, and it is still in a position to exert tremendous influence on the outcome of world affairs. But does it have the will to do so? An isolationist mind-set is no longer an option because everything the U.S. does or fails to do has repercussions worldwide. All of us have to start thinking both internationally and holistically. International lawyers may have a vital role in the next twenty-five years.

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The above two maneuvers, although using different strategies, reach a common conclusion that the function of international law is not affected by the absence of central authorities in the world and is not limited to the function as the restraint to state behavior. It can perform a wider range of functions such as communication, justification, reassurance, monitoring and reutilization besides constraint.

In fact, the realists misunderstanding of the nature and the functions of international law will inevitably cause them to underestimate the influence of international law. If they are right to say that the capacities or power rather than legal norms account for the behavior of states, we should witness the repetitive premeditated and deliberated violation of international law because realists holds that international law fails as soon as national interests diverge from what the law requires.

However, the real world situation is different from what the realists suppose. As what Chayes argues in New Sovereignty, although we see some worrisome cases of non-compliance such as Iraqs invasion of Kuwait and North Koreas refusal to the inspection of International Atomic Energy Agency, such cases are the exception rather than a common phenomenon. The non-compliance, as analyzed by Chayes, may come from the ambiguity and indeterminacy of treat language, limitations on the capacity of parties to carry out their undertakings, and the temporal dimension of the social, economic, and political changes contemplated by regulatory treaties.(Chayes & Chayes 1995, 10) But states do not do it intentionally.

Besides, we also witness a growing influence of the United Nations on international affairs after the Cold War. And the World Trade Organization offers us another good example of compliance. Therefore, realists misunderstand the importance of international law. This point will be further discussed in the following section.

All the above discussion is confined to the field of international legal studies. But after discussing realists underestimation of the influence international law, we need also to discuss some political response to this misunderstanding. Since the response from the literature of international relations theory is not the focus of this paper, we just discuss them briefly. The first response comes from the regime theory, or the institutionalism. It disagrees with realism on that power is the only independent variables in explaining international interaction. They argue that the international regimes sets of principles, norms, rules and decision-making proceduresalso shape the states behaviors and expectations. Realism not only misunderstands the importance of international norms (similar to international law) but also misunderstand the nature of international politics. In fact, institutionalism and international legal studies share a common ontology of the international system: the actors, the structure with which those actors act, and the process of interaction. And both concentrate on the studies of improved institutional design for better efficiency and compliance. While institutionalism attack the power as only explaining variable assumption of realism, liberalism attack the state as the unit of analysis assumption of realism. It emphasizes the interaction between states, domestic civil societies and transnational civil societies. Liberalism may complement institutionalism as the study primarily of law among liberal states, which is also a proposed topic of our course. Other international political theories such as constructivism also provide us insight to the logic of anarchy and self-help of states which is also an important assumption of realism. Since the limit of the space, we just skip it. One possible critique may state that it is not realists who misunderstand the nature, function and influence of international law but the scholars of international legal studies re-conceptualize their understanding of international law in order to response to the realist challenge. This critique is plausible because the realist challenge of international law was before the development of above legal arguments. But I think the purpose of research is not to argue who is wrong or not but to improve our understanding of the complicated international interaction. It is not important whether it is realists misunderstanding. It is important that we gain new insight into international law and international politics. Another critique may be that in the above discussion we just present several legal approaches responses to the questions but we do not have a unified approach to account for all the aspects weve discussed. I think the possible solution may be the convergence of international legal studies and institutionalism, which will offer us better understanding to both international law and international politics. In the paper, we mainly address three misunderstandings of realism on the nature, function and influence of international law. Instead considering international law as a body of rules of coercion without significance in its own right, we argue that it is a process with multiple functions and importance in its own right. Weve examined and discussed several important international legal approaches and in the end, extended our discussion to the field of international politics a little bit. Although we still leave some problems unresolved mainly because we do not further the discussion of international law and institutionalism, this paper, as a summary of what we have learned in this quarter, is still meaningful, I believe.

More articles at articles database