The sections on “colonialism” and “globalization” concepts of non-state law are probably of most interest to international lawyers, but Hertogh notes that the non-state law concept entered, at least for a time, the area of “legal pluralism at home”, using such examples as Ellickson’s work on societal norms in Shasta Country (still a favorite among some law and society types or law and econ scholars, etc.).  This is an interesting link to make as perhaps lawyers looking at international legal pluralism, either to support it or to critique it. also need to take more into account legal pluralism at other levels (local, national, etc.), at least to find arguments and ideas to work with (including whether or not more codified law is necessary for “international law” to be more effective).  This exercise might remain useful even if the newer “globalization” notion of non-state law is, as Hertogh argues, significantly different from the “colonialism” and “legal pluralism at home” notions of non-state law.

This is obviously an interesting take, and pokes holes at some of the main realist histories which have taken on a sort of “truth” through sheer repetition.  It is interesting to note though that this article focuses almost exclusively jus in bello (laws of war — how it is engaged in), and there is little mention of jus ad bellum (”Just War Theory”…laws of when wars can be engaged, etc.).  Some scholars, though no means all, are willing to give more of a pass to jus in bello (that things such as the Geneva Conventions are generally binding — note it is a very different question than which particular rules under the Geneva Conventions might be binding in any given situation) as more binding international law than jus ad bellum (such as arguments that the US war in Iraq is legal or illegal).  Was there any Greek thought on jus ad bellum?  On what might or might not be valid reasons to engage or not engage in war?

This is all the more interesting as the Melian dialogue is often used by realists in arguments about jus ad bellum more than jus in bello.  After all, the Melians are basically arguing that their neutrality should be respected under international law.  Athens goes with a “might makes right” approach… “you know as well as we do that right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must” (translated differently, and almost certainly more accurately, in Lanni’s article, but the sentiment is the same).  Therefore the Melians should pay tribute or be destroyed.  This is far more a question of what is a Just War and whether the Athenians can “legally” or justly/rightly attack the Melians at all, rather than a question of the actual conduct of the war once it is decided upon.  

On a separate note, it is also interesting to think how this might tie into later Western notions of laws of war, largely based on Judeo-Christian heritage and thus sometimes dismissed for being simply appeals to a higher power that have no independent or “legal” binding.  But if the Greeks also felt they were restricted in some way, perhaps others did too.  Is this just a question of what any “culture”’s views of such laws might be?  Some authors have pointed to everything from Sun Tzu suggesting limits on the way that wars were conducted, the concept of war crimes in the Hindu code of Manu, the 1305 trial of Sir William Wallace, through Grotius and onwards.  Is it worth looking to see if there are any shared values, no matter their source?  Is this something to work from, at least for jus in bello?  But the Greek values seem different than those classic Western jus in bello ones…  and perhaps many of those were because they were all part of the larger Greek culture (i.e. did the rules apply when Greeks fought non-Greek civilizations?  Could they destroy their temples and/or fight during their religious holidays?  My guess is ‘yes’, but I don’t know)? 

Lots to think about, in any event.

In any event, hopefully re-workings of concepts such as this will help break up some of the camps up in IL scholarship, which so often seem to be overly-simplified versions of IR camps.