Review Essay: Theory of /or Theory instead of/ International Law Anthony Carty1 Higgins, Rosalyn. Problems and Process: International Law and How We Use It. New York: Oxford University Press, 1994. Pp. xxvii, 267. Index. $19.95. 1. Introduction It is traditional for textbooks to begin with a chapter on the nature of international law, to move on to the sources and, then, to march merrily into the real heart of the subject, all of the rules! If the nature of international law is that it is a process, a system of authoritative decision-making and not just the neutral application of rules, this must affect the whole treatment of the subject. Such is what Higgins claims in the concluding page of her work. The answer to a legal problem depends upon one's view of sources, and that in turn depends upon one's legal philosophy. 'There is no separating legal philosophy from substantive norms when it comes to problem solving in particular cases.'2 This is a very strong statement for the place of theory. It will be the theme for reflection on Higgins' work. It is not the reviewer's intention to claw pedantically through Higgins' text to see whether she in fact turns every issue which might appear to be a matter of rule application into a matter of policy. Higgins' approach to such bodies as the World Court, the International Law Commission and the Security Council is so iconoclastic3 that even where the general opinion may be that a matter is definitely regulated, she will be likely to question the policy rationale of the established consensus. Instead, it will be asked how Higgins grounds the authority for the policy process which she espouses, and whether in fact she is able to push her way through the dead weight of institutional convention. Is the reference to 'How We Use it' in the subtitle to the book also a euphemism for the inevitability of legal pragmatism? 1 University of Derby 2 Higgins, Problems and Process, 267. Hereinafter, simple page references will be bracketed in the text itself. 3 For instance, the bracing treatment of the ILC's work on the question of state responsibility (146 et seq.) for failing to confine itself to questions of attributability; the dismissive treatment of the obiter dictum of the World Court in the Chorzow Factory Case on the question of compensation for loss of profits of an expropriated property (144); the highly critical review of the Court's appli-cation of equitable principles to maritime boundary disputes (219-28); the critical review of the Security Council encroaching on the judicial function with respect to Iraq after the war of 1991 (181-4).
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