¹ The paper may be read as an effort to restat e and defend some of the arguments of Terry Nardin, Law, Morality, and the Relations of States (Princeton, 1983).

² Oakeshott, Michael, On Human Conduct (Oxford, 1975)Google Scholar. Oakeshott is especially concerned with two forms of association implicit in the modern state which he labels ‘enterprise’ and ‘civil’ association. But applying these terms to international relations encounters the difficulty that international relations on the basis of international law is not, strictly speaking, ‘civil’ association because the word implies an institution to make and apply rules (a state) and such an institution is, by definition, lacking in the international system. So I have chosen instead to speak of ‘practical association’ (association on the basis of common practices or rules, whether o r not those rules are really ‘laws'), and ‘purposive association’ (association in order to promote shared purposes). All these expressions refer to ideal types, which means that actual, historic states or international systems may not fit entirely into a single category.

³ Consequentialism includes the kind of thinking, common today, that judges policies and institutions according to their contribution to producing a state of affairs identified as just. For examples of this kind of consequentialism in the international ethics literature, see Beitz, Charles R., Political Theory and International Relations (Princeton, 1977)Google Scholar; Fain, Haskell, Normative Politics and the Community of Nations (Philadelphia, 1987)Google Scholar; Keohane, Robert O., ‘Closing the Fairness-Practice Gap’, Ethics and International Affairs, 3 (1989), pp. 101–16CrossRefGoogle Scholar; and Pogge, Thomas W., Realizing Rawls (Ithaca, 1989)Google Scholar, chs. 5 and 6.

⁴ It may be objected that we must also postulate the existence of purposes, for cooperation in fact presupposes a rich background of both rules and purposes—we never begin from a state of nature or original contract. Of course it is true that people enter cooperative agreements because they have purposes which they think cooperation will serve, but one could never say of these purposes, as one might of the rules of contract, that cooperation postulates their antecedent authority.

⁵ Michael Oakeshott offers a theoretical investigation of the idea of the rule of law in terms of the concept of ‘authenticity’ in ‘The Rule of Law’, in On History and Other Essays (Oxford, 1983).

⁶ See Brown, Chris, ‘Ethics of Coexistence: The International Theory of Terry Nardin’, Review of International Studies, 14 (1988), pp. 213–22CrossRefGoogle Scholar. While the fact that it constitutes an international order based on coexistence could be used to construct a purposive rationale for international law as an institution, it is not my intention in making this point to offer such a rationale.

⁷ Most of the criticisms that have been made of my own effort to analyze international law using Oakeshott's categories have also been made against the original. For discussion of these objections and some possible responses, see Franco, Paul, The Political Philosophy of Michael Oakeshott (New Haven, 1990), pp. 222–9Google Scholar.

⁸ The Critical Legal Studies movement has revived the challenges of the American legal realists to a ‘rule conception’ of society and to the idea of the rule of law. I have discussed these challenges, under the labels ‘rule skepticism’ and ‘instrumentalism’, at some length in Law, Morality, and the Relations of States, ch. 8. For discussion of criticism within Critical Legal Studies of the idea of the rule of law, see Altaian, Andrew, Critical Legal Studies: A Liberal Critique (Princeton, 1990)Google Scholar.

⁹ Mervyn L. Frost, ‘Internationa l Society: Purposive Association or Authoritative Practice?’, unpublished paper, Department of Political Science, University of Natal, South Africa, p. 4. Frost does not object to the purpose-practice distinction itself, but only to basing it on a distinction between two types of rules.

¹⁰ Frost, ‘International Society’, p. 4.

¹¹ Nichomachean Ethics, 1094a3–6; 1139bl–4; 1140a2–l IAOM. My account of the distinction follows Alasdair Maclntyre, After Virtue: A Study in Moral Theory, 2nd edn (Notre Dame, 1984), pp. 187–8.

¹² Altman, Critical Legal Studies, pp. 12–13.

¹³ As Oakeshott puts it in ‘The Rule of Law’, p. 161, this freedom ‘does not follow as a consequence’ of the rule of law but is ‘inherent in its character’. Oakeshott's analysis is therefore quite different from that of liberal theorists who conceive the relation between liberty and the rule of law to be a contingent rather than a conceptual one. The quotation from Andrew Altman's liberal critique of the Critical Legal Studies movement suggests how easy it is to slide into instrumentalism even while criticizing it.

¹⁴ Frost, ‘International Society’, p. 10. For the ‘constitutive theory’ on which this point is based, see Frost, Mervyn, Towards a Normative Theory of International Relations (Cambridge, 1986)CrossRefGoogle Scholar. Frost would stress even more than I do here that whereas in purposive association the identities of the participants are independent of the transactions in which they engage with one another, in practical association these identities are constituted by the practice itself.

¹³ ‘In the end, we will always be dealing with some form of a purposive association. The important question then becomes what kind of purposive association, what kind of society is desirable’. Hoffman, Mark, ‘States, Cosmopolitanism and Normative International Theory’, Paradigms, 2 (1988), p. 66CrossRefGoogle Scholar. Note the consequentialist assumption here that moral concerns reduce to ‘desirability’. Hoffman is criticizing Chris Brown's argument in ‘Not My Department? Normative Theory and International Relations’, Paradigms, 1 (1987), pp. 104–13. For Brown's rejoinder see ‘Cosmopolitan Confusions: A Reply to Hoffman’, Paradigms, 2 (1988), pp. 102–11.

¹⁶ Nicholas G. Onuf, review of Law, Morality, and the Relations of States, American Journal of International Law, 78 (1984), p. 941.

¹⁷ Onuf, Review, p. 941.

¹⁸ According to Charles Beitz, to assert the priority of international law is to recommend ‘resistance to reformist proposals aimed at increasing respect for a wide range of human rights and at redressing the extremely unequal international distribution of wealth’. Review of Law, Morality, and the Relations of States, Political Theory, 12 (1984), p. 454. For Thomas Pogge, the argument displays ‘systematic indifference to & human rights, to roughly equal chances for political participation, to a greater diffusion of educational opportunities and material resources, and to the effective and uniform rule of law’. Pogge, Thomas W., ‘Liberalism and Global Justice: Hoffman and Nardin on Morality in International Affairs’, Philosophy and Public Affairs, 15 (1986), p. 80Google Scholar.

¹⁹ Beitz, Review, p. 456. A similar criticism is made by Pogge: ‘If we are not to recognize any ulterior values or principles in terms of which to assess alternative sets of practices, then we are left with no grounds at all for preferring any one set of practices over any other & We must pledge allegiance to a set of procedural practices for the adoption of which we do not have any substantive reasons.’ Pogge, ‘Liberalism and Global Justice’, p. 77.

²⁰ Pogge, ‘Liberalism and Global Justice’, p. 78, note 12.