Shadows across the Path 453components of it. It is this perception of legitimacy that, to Franck, gives
international law its binding force.
Central to Franck’s consensus approach to international law was a down-
playing of coercive sanctions in favor of a system of free and voluntary
compliance. It is vital, in Franck’s view, that international law be volun-
tarily adhered to by states. In this regard, Franck was the clear legatee of
nineteenth- century neo- Kantian thought. Evident, too, is the heritage of
certain functionalist writers of the interwar period, who had opposed a
coercive, sanctions- based system of international law. Clearest of all is the
infl uence of the New Haven School, with its optimism that consensus is pos-
sible and that it will be based on broadly liberal principles of fair play. In this
regard, Franck expressly invoked the work of the infl uential American po-
liti cal theorist John Rawls in support of a basically demo cratic and egalitar-
ian system.
Another addition to the expansive solidarist stable— also animated by a
pronounced consensus outlook— was an approach known as constitutional-
ism. In some respects, constitutionalism is simply the most recent synonym
for solidarism. Th at is, it is the thesis (together with its many ramifi cations)
that the interests of the community as a whole should prevail over the rights
and obligations of individual states vis-à-vis one another. Th e law that em-
bodies this general community interest is seen as a sort of public law (or
constitutional law) of the society, in contrast to the private law (or contract-
like) character of the bilateral relations of the states with one another. A
particularly clear and thorough pre sen ta tion of this thesis was made by the
German lawyer Bruno Simma, a professor at the University of Munich (and
future World Court judge), in a course of lectures at the Hague Academy in
1994. Th ese can well be regarded as the classic statement of the solidarist
philosophy of international law.
Constitutionalism was not newborn in the late twentieth century. It had
roots in the interwar period (as its proponents were well aware). In the 1920s,
Verdross had advanced the idea of a constitutional order for the international
community. (Signifi cantly, Simma had collaborated with Verdross in aca-
demic writing early in his career.) In Britain, Arnold McNair had spoken
of certain treaties as creating a “constitutional international law.” In the
early post– World War II period, Quincy Wright had proclaimed the advent
of a “new international law” in which the various states formed “a world