Lehman, David

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Louisiana Law ReviewVolume 18 | Number 1The Work of the Louisiana Supreme Court for the1956-1957 TermDecember 1957TRANSNATIONAL LAW, by Philip C. Jessup.Yale University Press. New Haven, 1956. Pp. 113.$3.00.David LehmanThis Book Review is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted forinclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationDavid Lehman, TRANSNATIONAL LAW, by Philip C. Jessup. Yale University Press. New Haven, 1956. Pp. 113. $3.00., 18 La. L. Rev.(1957)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol18/iss1/46BOOK REVIEWSTRANSNATIONAL LAW, by Philip C. Jessup. Yale UniversityPress. New Haven, 1956. Pp. 113. $3.00.What is proposed in this short study is a new approach tointernational law. This approach would eliminate the stressplaced on the state and nation factor by traditional internationallaw in favor of a broader conception based on the multiplicityof rules emanating from both private and public sources whichregulate the day to day social, economic, and political relation-ships of the "world community." "Transnational Law," the termemployed to describe this approach, is defined by the author as"all law which regulates actions and events that transcend na-tional frontiers." Transnational situations thus "may involvecorporations, states, organizations of states or other groups."The need for such an approach, as the author sees it, arises fromthe inability of traditional international law to cope with thecomplex and interdependent nature of modern international re-lations. "The use of transnational law," the author states,"would supply a larger storehouse of rules on which to draw,and it would be unnecessary to worry whether public or privatelaw applies in certain cases."In the first chapter, the author by a series of "dramas"parallels human problems at different levels of human society -family, corporate, interregional, and international. By pointingout the common elements in these "dramas" he suggests thatsince problems at the international level are after all humanproblems, there is no reason why the legal solutions offeredat the domestic level could not be applied at the internationallevel. The argument continues in Chapter II on the question ofjurisdiction. Here the position is taken that the transnationallawyer would not start from the basis of national sovereigntyand power but rather from the premise that jurisdiction is"essentially a procedural matter that could be amicably agreedto by all nations." Such an agreement, it is held, would notinvolve a radical departure from present practice since thestandard distinctions made between the areas of national andinternational and between criminal and civil jurisdiction have*Research Assistant for the Center for the Study of American Foreign Policy(University of Chicago); Instructor of Government, Valparaiso University.[219]LOUISIANA LAW REVIEWbecome extremely obscure. It is only by means of legal fictionsthat these distinctions have been maintained. In the third andfinal chapter the author makes the observation that even whereit is within the power of national courts to exercise jurisdiction,it may at its discretion decide not to do so; that is, power is notnecessarily the deciding factor. Since transnational law in-cludes all aspects of law-criminal and civil, international publicand private law, and national public and private law - the au-thor sees no inherent reason why a national or internationalcourt should not be allowed to choose those rules which "conformto reason and justice" in the solution of particular controversies.The choice need not be determined, the author concludes "byterritoriality, personality, nationality, jurisdiction, sovereigntyor any other rubric save as these labels are reasonable reflec-tions of human experience with the absolute and relative con-venience of law and of the forum - lex conveniens and forumconveniens."The author, Mr. Iconoclast, thoroughly chastises Mr. Ortho-dox, along with the law schools and graduate schools of politicalscience for nourishing "old dogmas and fictions." Yet it seemsthat Mr. Iconoclast also suffers from one of the traditional ill-nesses of international lawyers - the tendency. to over-con-ceptualize the legal aspects of the relations between states. Itis difficult to see a trend toward the acceptance of transnationallaw without seeing an opposing trend in the direction of a greater"nationalization" of international relations. The national statehas increasingly invaded the social and economic spheres, thusinvesting with a political character relationships once considerednon-political. We live in an age of "total diplomacy" where allaspects of international relations have political relevance. Theauthor underemphasizes the particularistic force of nationalismwhich is essentially a non-rational force generating conflicts andtensions which cannot be compromised by appeals to universalconcepts of reason and justice. This is especially true in a worldwhich is fundamentally divided along ideological lines. As pre-scription, therefore, transnational law does not find a substan-tial basis in contemporary international relations.. Aside from its prescriptive tone, this book offers a hopefulbeginning to the reconsideration of international law as a sepa-rate body of law. If international law is to shrug off the sterileyoke of apriorism, it must begin with the observable complex[Vol. XVIIIBOOK REVIEWSof rules that govern the activities of individuals, groups, andstates which cut across national frontiers. But to see in con-temporary international relationships an "international society"in which all such rules have the status of law would be to returnto an assumption that has plagued international law in thepast - the equation of the international and national legal or-ders. It is necessary to go behind these rules to the social, eco-nomic, political, and moral factors which give rise to particularpatterns of international behavior. In other words, to beginwith "international society" as it exists, not with what it oughtto be.David Lehman*THE ADMINISTRATION OF JUSTICE IN RETROSPECT, edited by Ar-thur L. :Harding. Southern Methodist University Press,Dallas, 1957. Pp. 96. $3.00.The point of departure for the five scholarly essays compre-hended in this brief work is fixed by the delivery of an addressbefore the American Bar Association by the then youthful, butalready eminent, Roscoe Pound, on August 29, 1906, upon thesubject: "The Causes of Popular Dissatisfaction with the Ad-ministration of Justice."Opening with a consideration of the historical address ofDean Pound the essays develop the impact of his "radical" sug-gestions of the need for improvement in the administration ofjustice, and the effect and the ramifications of consequent re-forms over the past half century. Comparisons with phases ofjudicial processes and administration in Canada and LatinAmerica are pointed in two of the essays.The development of the subject comprehends historical,academic and practical considerations, each of which phases willassuredly strike responses of interest and serious contemplationin the mind of the reader. It may be considered that the ap-proach to some of the problems discussed is perhaps unneces-sarily academic, but such criticism does not detract from thepractical value of the expressions of the distinguished scholarswho authored the essays, nor does it lessen the impact of theinescapable conclusion as to the imperative need for further im-provement of our judicial processes.*Judge, Louisiana Court of Appeal, Second Circuit.19571'

TRANSNATIONAL LAW, by Philip C. Jessup. Yale University Press. New Haven, 1956. Pp. 113. $3.00.

https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=2569&context=lalrev

TRANSNATIONAL LAW, by Philip C. Jessup. Yale University Press. New Haven, 1956. Pp. 113. $3.00.

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