Law Heritage of International Law

righteousness Heritage of planetary lawexternal honor theorists atomic number 18 gener entirelyy in agreement when discussing the intrinsic police coerce heritage of International police force. The 2 were virtu each(prenominal)y synonymous until the ordinal century.1 The fancyion of International Law as a branch of police of spirit is often associated with Hugo Grotius, the celebrated innate fairness theorist, which is a testament to the undeni satis doery link. This was also cod in department to the down the stairs organic evolution of global overbearing natural law, the relative absence of recognised e re totallyyday outside(a) law and treaties, such(prenominal) as we enjoy today. This void was so ir filled by inwrought law, which had matured over some two millennia. Natural law has often been referred to as philisophia perennis by some scholars.2 Therefore, the frequent g approximately that take aimheaded clays sh be has been cultivated under e ssential law, and similarly, the plebeian ground for the genesis of an planetary court-ordered governance had also been natural law.By the thirteenth century natural law had reached its zenith with the scarpers of interrogativeing Thomas Aquinas. however, it was non until much later, the middle of the twentieth century to be much precise, until statutory favourableness became hegemonic. This was a result of post-enlightenment European thought and the summon of thinkers such as Hobbes and Locke who provided fresh insights into philosophy as well as governance. Fresh thought brought with it fresh reaction for and against the work of the naturalistic drill of jurisprudence. The criticisms came from within the naturalist usance due to a divergence from the airplane pilot lex naturalis, as well as out with from the electropositives.3 At the beginning of the nineteenth century, movements to successfully progress global law within the positivist modelling proved una vailing. At first it was decisively excluded from the realm of positivist jurisprudence, interest which it sought to reclaim it on its own terms. Lon Fuller has appropriately describe this approach as 1 of icy rejection and then an acceptance in a bone-crushing embrace.4 The unacceptance of transnational law by the licit positivists, at least initially, was due to the latters unwavering loyalty to sound positivenesss core tenets. Despite numerous attempts by positivists, they were simply dumb put togethered at the possibility of an object with so-called judicial character which did non stem from the imparting of a self-reliant.By the saltation of the twentieth century the tide had well and truly turned in favour of inwardnessive positivism. This ushered in a new era on the jurisprudence of multinational law, which was kinda glibly summed up in a 1926 opinion of the Mexico-United States General Claims CommissionThe law of nature may gull been helpful, some three cent uries ago, to build up a new law of nations, and the conception of inalienable rights of men and nations may boast exercised a strong influence, some one hundred and fifty years ago, on the development of modern democracy on both sides of the ocean but they have departed as durable psychiatric hospital of either municipal or supranational law and can not be utilize in the yield day as substitutes for positive municipal law, on the one hand, and for positive global law, as recognised by nations and government through their acts and presentments, on the separate(a) hand.5As the eighteenth century drew to a close, so did the window to what was like a shot a dated philosophy in the theatre of jurisprudence natural law. This was largely down to a continental work shift toward proper recognition. This new dawn in European civilisation left-hand(a) little room for conjecture and ideas of a capricious nature. In other words, scholarly credibility lay in forming ideas based on a methodology akin to that of the natural sciences. Over a relatively goldbrick space of time world-wide law theorists tipped their proverbial hats to natural law for its immense contribution to the field of external law and gave up conjecture for observation, and analysis in place of evaluation.Two of the just about crucial figures in the history of licit positivism were Jeremy Bentham (1748-1832) and, his compatriot John capital of Texas (1790-1859). capital of Texas is a distinguished and celebrated figure in the positivist tradition because of his innovations in English legal thought. His whole works have been praised far and wide, and mayhap by none more so than the Cambridge jurist T.A Walker (1862-1935) who marked capital of Texass work as the starting point of all English dissertations on legal science.6 In the hope of extending jurisprudence the same status as that of the natural sciences, Austin was resolute in his stance on the line between law and ethics. With verbalize task in mind, Austin provides a succinct account of what defines positive lawThe essential difference of a positive law (or the difference that severs it from a law which is not a positive law) may be stated thus. Ein truth positive law, or either law simply and strictly so called, is set by a sovereign person, or a sovereign body of persons, to a member or members of the autonomous political caller wherein that person or body is sovereign or supreme.7However, regarding multinational law, Austin adopts a antithetical tact. In an attempt to offer an explanation to the enigma that is world-wide law, Austin decides to head it under the science of positive worship as conflicting to law properly so called. His reason stems from international laws app arnt unfulfillment of the criteria adjust forth by legal positivism. Austin opines international law to be materially inadequacying in the sense that no laws strictly so called emanate from a sovereign to members of a n independent political society. Therefore, since there is no sovereign and independent political community which is in turn state to said sovereign, then international law is not law so properly called.8 The need for a sovereign in Austins view is largely due to the power it affords the law. He believes the imposed status chatred upon the law is a result of the possible punishment, by the sovereign, that may befall a wrongdoer in case of disobedience the prior of which is not bound by any law and is the source of all law properly so called.The notion of all law being dependent on the will of a sovereign state is one that is only when mismatched to the limning of international as a proper legal scheme. This concept seeks to counter the very possibility of any form of real governance of international relations amongst sovereign nations. This rather seems a case of squargon pegs and round holes. It is perhaps the narrow mindedness of attempting to fit international law in an e ntirely uncompromising mould. This approach fails to connect with the reality of international life. Which is evident in the fact that states continue to respect international law as law through their acceptance of the rulings in the vast majority of cases, through upholding diplomacy, exercise legal rights and accepting others legal rights as well as subscribe treaties and regarding themselves and others as being bound by those treaties.An alternative prospect to the sheer(a) expulsion of international law from the positivist atomic number 18na, is one posited by H.L.A stag. In his view the traffic patterns of international law need only be legitimate as standards of conduct and supported with appropriate forms of social pressure to be regarded as obligatory, binding, legal territorys.9 However, since there is no secondary winding rule which stipulates the criteria of legal validity of rules, their endureence depends on whether they are recognized as a rule or not.10 Inte rnational law therefore consists of rules which constitute not a system but a set of rules.11 Albeit this line of reasoning is more accepting of international law as a binding, obligatory force, it does contain a major caveat. Whilst conceding international does indeed exist as law, Hart does not afford it the same status as that of a municipal legal system, which he considers to be more innovational and acceptable to the standards of positivist thought. This presents a dilemma for international lawyers to accept Harts reductionist methodology or is international law deserving of a more comprehensive designation in the jurisprudential sphere.As discussed previously, international law owes a great deal to natural law for laying the foundation for a system that is now known as international law. However, due to its metaphysical nature it was unable to ground itself as a science properly so called. In the post-enlightenment era, the baton of jurisprudence was passed over to the now fa voured legal positivism. This is where we initiate proceedings into the correct classification of international law.Chapter 2 International Law as Law An Academic Glass astragalus Game?The classification of law is a attention of the ut just about soberness for the international lawyer, as this has the ability to influence perceptions about the field, which is a enormously significant work out in the reaction it invokes when infringed. Perhaps the most dictatorial question on the minds of those who suspect international system as a legal system is the quality of it.12 Too often it is the case that international lawyers adopt an argumentative tact which ultimately proves to be a futile endeavour, because the question remains unanswered.13With the introduction of his celebrated work, The Province of Jurisprudence Determined,14John Austin has yielded great influence over the jurisprudence of international law most notably because of the hold in surmisal. Austin proposed guess was as follows law consists of rules which are coming backd by a sovereign are defined as pretermits, dictatorial orders, or wishes backed by the menace of imposing an evil in the form of a sanction in case of non-compliance with said command, coercive order, or wish.15 In Austins view a material condition for a rule to elevate to a law is that it must be issued by a sovereign who is habitually obeyed by the majority of a society and who himself does not habitually obey another human superior.16 As is evident, the command system precludes international law from the ambit of law. According to Austin international law is not sourced from the command of a sovereign but rather it is set by general opinion and enforced by sanctions that correspond to a mere moral duty.17 Therefore, international law is outside the legal positivist tradition and is reduced to a form of international morality by Austin.18As a result of Harts deedive repudiation of Austins command system,19 which ha d proven to be a formidable hindrance in recognising international law as law has been largely abandoned. Austin can be considered as the last significant denier of the legal quality of international law and the refutation of one of his most notable theories has provided some much-needed respite to the international law is law camp. However, the debate is still very much alive(predicate) and kicking as there have always been and still are approaches which neither fully discount international law nor accept it as the finished article for the purposes of international politics. The legal realists such as Georg Schwarzenberger and Hans Joachim Morgenthau, represent this well by decreeing it as a reality of the international system but vehemently questioning its ability to kerb power exercised by states.20 To the same effect, Kenneth Waltzs neo-realist account of international relations entirely omits any part played by international law.21 More recently a fresh challenge has been pose d by Jack Goldsmith and Eric Posner in their work The Limits of International Law, who argue that a states interests, above all else, is the determinative factor regarding its compliance with international obligations.22 Thereby claiming that international law in all its might has little to do with state conduct in the international arena.It can be said that the various ways in which the legal quality of international law is brought into question is not ultimately unflinching upon the basis of the jurisprudential question of whether international law really is law properly so called. However, such questions do fuel the fire of doubt which lends itself it to strengthening the coif of commentators who seek to endorse a more suppressive approach to the international legal order. The benefit of clarifying international laws position through an analytical framework is two-fold it can help explain the system better, and perhaps rather more importantly, it can aid the international lawy er in correctly identifying and interpreting the law.23 Thus permitting a seemingly speculative endeavour to yield practical results.The Significance of Hart in circumstanceThe mere fact that analytical jurisprudence is of great importance in fashioning a well-reasoned answer to our proposed question does not alone sexual morality an exhaustive engagement with Harts concept of international law. However, for a multitude of supererogatory reasons it seems a conducive exercise, not least of all from the perspective of international law, to analyse Harts system. As previously stated, Hart carried out the repudiation of Austins attempt to diminish international law to mere international morality. Further to this, positivism is considered by commentators on the subject of international law to be one of the most influential theoretical approaches.24 In the same vein, it seems only natural to examine the works of one who is not only one of the most influential contemporary legal posit ivists, but also one of the very few legal theorists who was concerned with approaching international law from the perspective of analytical jurisprudence.There is a prevalent sentiment that the study of positivism within international law has now reached the set of flogging a dead horse. This notion is somewhat misconceived when Hart is the theorist in question. Whose concept of positivism saw fit to move away from the consideration that one could gauge the validity of a legal system with the will of sovereign states. The late 19th century and early 20th century positivist accounts of international law were essentially voluntarist theories of international law. This is evident in the works of classical positivist such as Georg Jellinek, who viewed the basis for obligations under international law as an act of auto-limitation by states,25 and Heinrich Triepel, who further developed this voluntarist theory replacing the will of the single states with the common will of states.26 T his voluntarist approach found its basis on the landmark Lotus decision of the Permanent hook of Justice in which the court held that international law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law.27 Therefore, positivism not only gives a firm nod of approval toward state sovereignty but also displays a view in the consensual character of international law no state can be bound by a rule of international law unless it has explicitly or tacitly consented to it.The historically strong link between legal positivism and voluntarist conceptions of international law has led umpteen scholars to believe that positivism is essentially a voluntarist approach to international law.28 However this signals a tunnel vision to legal positivism, which in the international law arena does not have to be equated with voluntarism .29 At the crux of legal positivism, there is an assertion that all legal facts are determined by social facts alone.30 However, a point of disagreement arises when the question of what those social facts are is posed. For Jellinek and Triepel it was the will of states, for Kelsen it was the Grundnorm,31 for Hart the rule of recognition. Positivism can be considered a malleable concept of law, as it has the ability to encompass an approach to international law which overcomes the constrictive nuances of voluntarism.Learning from Austins Mistakes A Critique of the Command possiblenessHart believed that the major defect with Austins theory lay in its announcement of understanding law as a set of rules which had been issued by a sovereign. Based on this contention Hart began his work, by refuting both Austins theory on rules and his proposed theory on sovereignty. Respectively, Hart was unsatisfied with the explanation of labelling all legal rules as coercive orders. Whilst the fac t was true that such a theory could provide the basis for understanding original branches of the law, namely nefarious law and delict/tort, it fails to take into consideration power-conferring rules. The latter of which do not stop individuals, but rather they are utilised in finding and repair legal relations or granting powers to public officials.32 Hart believes that homogenising power-conferring rules with orders backed by threats has given rise to a misnomer commands which has distorted the difference.33 An additional concern with this portrayal is that it provides no explanation for a scenario in which the sovereign can issue law which binds himself.34 Lastly, Hart states that it would be baseless to suppose that all legal rules can source their origin to a wilful act of a legislator, especially with regards to customary law.35The role accorded to a sovereign in Austins theory is highly disputed by Hart. Who finds the concept to be overreaching in the sense that the sove reign issues orders, which are habitually obeyed, and who himself obeys no one else. The issue, as Hart states, arises with respect to the continuity of law. This common ideal cannot be upheld under habitual obedience.36 That is to say, Austins theory fails to explain the effect of a new law fuddlers contingent powers because the basis of his theory rests on the normative supposition of habitual obedience, which it is not. This in turn cannot lend itself to a successful transfer of law reservation powers to the new legislator. Therefore, Hart posits that past habitual obedience is no warranty of future habitual obedience to a new sovereign.37Further to this, the command theory also neglects to clarify the persistence of law.38 Which begs the question if a command by a person who was habitually obeyed is no farsighteder in power, what legal value does the command retain, if any at all. Hitherto, it is one of the defining features of a legal system that laws passed by a legislator retain their power long after the legislator waives his position. Lastly, the influence granted by Austins theory to the sovereign disregards legal limitations flavourd by a legislature.39 Austin suggests that the legislator may only face legal limitations if said legislator is under obligation to another legislator. This has the undesired effect of not only undermining the sovereignty of a legislator but rather removing it on the whole due to his subjection to another sovereign.40 Therefore, removing the possibility of law being soundless as the will of a sovereign.41Chapter 3 Harts Fresh Start Law as the Union of Primary and Secondary RulesFrom the criticism of Austin, Hart forges a fresh approach in the form of primal election and secondary rules. The neediness of explanation offered by Austin on the subject of power-conferring rules acts as a catalyst for Hart to introduce and explain the difference between chief(a) and secondary rules.42 At the crux of it, ancient rules impose duties on individuals. Whereas secondary rules provide the basis for creating, altering and defining the ambit of uncreated rules and are more commonly known as power-conferring rules.In his endeavour to face the requirement of secondary rules, Hart puts forth the example of a early society, which although follows certain customary rules, it does not fulfil the requisites for a legal system.43 The system in such a society will no doubt have rudimentary regulations that facilitate its governance, but it will ultimately lack the power or means to authoritatively alter rules and resolve disputes arising from said rules. In Harts view, such a system would only be able to satisfy a relatively cognate society, and would not be benignant if replicated on a larger scale.44 The system of rules would suffer from rigidity in the face of social change as there would be no identifiable way to authoritatively alter them uncertainty would arise environ the effectiveness of rules as th ere would be no means to monitor lizard their efficiency. To address the issues facing primary coil rules, Hart proposes a system in which they are accompanied by secondary rules.45 Harts rule of recognition would ebb uncertainty and problems in authoritatively identifying primary rules. Further to this, rules of change would make the system more adept by vesting power in an individual or a group of individuals to readily create new primary rules when necessary. Lastly, the rules of adjudication would grant the representative powers to adjudicate authoritatively on possible violations of primary rules, thereby overcoming the inefficiency of a primitive system.The rule of recognition can be described as the defining characteristic of Harts concept of law. He believed it to be at the core of a legal system, as it lends authority to primary rules.46 In contemporary legal systems, the rule of recognition dictates the precedence afforded to vary cadence.47 The supreme criterion among st them, must be one that overarches all other sources of law. Therefore, the rule of recognition, is the ultimate decider in a legal system.48 Thereby granting it the unequalled position of not having to source its origins back to any other rule in a legal system, unlike every other criterion which is subject to the rule of recognition. In short, it serves as the standard bearer for every other rule and is perpetual in its existence.In order to establish a workable template for a legal system that amalgamates primary and secondary rules, Hart lays out the foundational aspects for such a system.49 An elemental criteria gibe to Hart, is one of general obedience to the primary rules by the citizens. On the other hand, Hart rejects the assumption of secondary rules being obeyed by public officials, to whom they are addressed. This seems an amicable stance, as it would be unintelligible to class their conformity to the rules which confer law making powers on them as obedience or when they fail to conform, as disobedience. Let us consider the example of a judge, who in his duty of identifying and applying a statue, obeys the rule of recognition. It hardly seems an appropriate description of his task. Consequently, the rule of recognition requires unanimous acceptance by public officials according to Hart.50 Whereas primary rules need only be accepted by the citizens to be considered licitly valid, the rule of recognition is reliant on the fact that public officials believe it to be the general standard of legal validity and enact it to that degree.51 canonical Elements of Harts archetype of International LawOn the basis of his general theory Hart develops his concept of international law in Chapter X of The Concept of Law. In this chapter Hart approaches the question whether international law constitutes law or international morality. Only in the last section of Chapter X does Hart ask whether international law is sufficiently analogous to the municipal legal or der to be qualified as a legal system.International Law as Law?According to Hart, international law lacks certain features which place it outside the fold of a developed legal system. He believes this ascription to be merited on the basis of lack of an international legislature, absence of courts with sufficient authority, and the inadequacy of centrally organised sanctions.52 In his estimation, such shortcomings ultimately consign international law to the position of a impartial form of social structure, found in primitive societies. Thereby braggart(a) rise to Harts claim that international law is largely made up of primary rules with little in the way of secondary rules.Hart goes on to examine the consequence of a lack of centralized sanctions, more notably, the effect this has on the classification of international law as law. In his view, not only are there no such sanctions under international law, United Nations Security Council attempts to establish them under Chapter VII of the UN Charter would be an exercise in futility as the veto would prove to be an unclimbable challenge.53On the other hand, Hart does not believe sanctions are the elemental factor in states satisfying their obligations under international law. Such a doctrine would stem from the command theory obligations being backed by the threat of sanctions in case of disobedience which Hart had already refuted.Similarly, Hart argues that in establishing primary rules which prohibit the free use of force and providing rules for the use of force on official grounds as a sanction, are essential traits for all municipal legal systems. Such a system derives logical system from the fact that human beings are based in communities, are of virtually equal strength, and have innumerable opportunities to harm their counterparts, all of which requires an approach that goes beyond relying on mere natural deterrents.54 On the other hand, the international stage presents a different situation altoget her. International acts of aggression are very well documented compared with those that occur on a domestic level between individuals. The possibility of third parties getting involved and the unpredictable nature of war, more often than not, acts as reason enough for states to avoid violence. Moreover, all states are not equal with regards to power and strength.55 That is to say, sanctions would offer little in the way of acting as a deterrent for powerful states or forcing such states to obey the rules.56 The absence of sanctions from the international level is of little concern to the legal quality of international law.1 Sir Fredrick Pollock, Essays in the Law (1922) 63.2 Philosophia perenis This term has been used to denote the collective works of, most notably Aristotle, the stoics, Augustine, the scholastics, and more late the neo-scholastics and the neo-thomists, referring to the body of philosophical truths common across ages and civilisations. See Heinrich A. Rommen, The N atural Law A Study in Legal and Social History and philosophy (1946 1998 edition translated by Thomas R. Hanley) 27-2, note 21.3 Sir Fredrick Pollock remarking on the prostitute done by some scholars in the Enlightenment period post-Rousseau to natural law Modern aberrations have led to a widespread belief that the Law of Nature is only a cloak for arbitrary dogmas or fancies. Essays in the Law (1922) 32.4 Lon L. Fuller, The Morality of Law (1969 revised edition) 232.5 North American Dredging Company of Texas (USA) v. Mexico, 4 RIAA 26, at 29-30 (1926).6 T.A Walker, The Science of International Law *1893) 4.