It’s time once again to teach public international law. As I’m wont to do before the start of the new semester, I re-read my notes on Rosalyn Higgin’s book. Problems and Process: International Law and How We Use It, the first two chapters of which I discuss with my class in great detail for the first two meetings of the semester. In this book, Dame Higgins famously advanced the view that international law is not rules but process — in fact, according to her it is a process involving a normative system of “authoritative decision-making”; In so doing, she wished to avoid the rigidity that is perceived to attach to international law conceived as rules.
Dame Higgins’s definition, drawing from her Yale mentor Myres McDougal’s policy-oriented approach, emphasizes the dynamic and formative process set in motion by various institutions to arrive at binding international legal norms. It appears to me that from a reformational view, this method surfaces two aspects, the kinematic and the historical. Process implies movement; authoritative decision-making implicates institutions that give form to the norms of international law. What it fails to grasp is that international law itself must not be seen as a “thing” but as part of the jural dimension of reality.
While Dame Higgins’s definition is able to capture the dynamic movement that yields international legal norms, that is, through various actors in international law (hence, it also involves the historical, formative competence that gives positive shape to principles, as expressed legal norms), it does not see that these aspects form part of the necessary conditions — the constitutive elements — of the international legal norms themselves. They form part of the “structural building blocks” of any legal order; they are presupposed, to begin with, by the idea of an international legal order.