Law Heritage of International Law

International law theorists are largely in agreement when discussing the natural law heritage of International Law. The two were virtually synonymous until the nineteenth century.[1] The conception of International Law as a branch of law is often associated with Hugo Grotius, the celebrated natural law theorist, which is a testament to the undeniable link. This was also due in part to the underdevelopment of international positive law, the relative absence of recognised customary international law and treaties, such as we enjoy today. This void was instead filled by natural law, which had matured over some two millennia. Natural law has often been referred to as – philisophia perennis – by some scholars.[2] Therefore, the common ground that legal systems share has been cultivated under natural law, and similarly, the common ground for the genesis of an international legal system had also been natural law.

By the thirteenth century natural law had reached its zenith with the works of Thomas Aquinas. However, it was not until much later, the middle of the twentieth century to be more precise, until legal positivism became hegemonic. This was a result of post-enlightenment European thought and the rise 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 school of jurisprudence. The criticisms came from within the naturalist tradition due to a divergence from the original ‘lex naturalis’, as well as out with from the positivists.[3] At the beginning of the nineteenth century, attempts to successfully establish international law within the positivist framework proved futile. At first it was decisively excluded from the realm of positivist jurisprudence, following which it sought to reclaim it on its own terms. Lon Fuller has appropriately described this approach as one of ‘icy rejection and [then] an acceptance in a bone-crushing embrace’.[4] The unacceptance of international law by the legal positivists, at least initially, was due to the latter’s unwavering loyalty to legal positivism’s core tenets. Despite numerous attempts by positivists, they were simply dumbfounded at the possibility of an object with so-called juridical character which did not stem from the will of a sovereign.

By the start of the twentieth century the tide had well and truly turned in favour of legal positivism. This ushered in a new era on the jurisprudence of international law, which was rather glibly summed up in a 1926 opinion of the Mexico-United States General Claims Commission:

The law of nature may have been helpful, some three centuries ago, to build up a new law of nations, and the conception of inalienable rights of men and nations may have exercised a salutary influence, some one hundred and fifty years ago, on the development of modern democracy on both sides of the ocean; but they have failed as durable foundation of either municipal or international law and can not be used in the present day as substitutes for positive municipal law, on the one hand, and for positive international law, as recognised by nations and government through their acts and statements, on the other hand.[5]

As the eighteenth century drew to a close, so did the window to what was now a dated philosophy in the field of jurisprudence – natural law. This was largely down to a continental shift toward ‘proper’ science. This new dawn in European civilisation left 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 short space of time international law theorists tipped their proverbial hats to natural law for its immense contribution to the field of international law and gave up conjecture for observation, and analysis in place of evaluation.

Two of the most important figures in the history of legal positivism were Jeremy Bentham (1748-1832) and, his compatriot John Austin (1790-1859). Austin is a distinguished and celebrated figure in the positivist tradition because of his innovations in English legal thought. His works have been praised far and wide, and perhaps by none more so than the Cambridge jurist T.A Walker (1862-1935) who pronounced Austin’s 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 distinction between law and ethics. With said task in mind, Austin provides a succinct account of what defines positive law:

‘The 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. Every positive law, or every 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 independent political society wherein that person or body is sovereign or supreme.’[7]

However, regarding international law, Austin adopts a different tact. In an attempt to offer an explanation to the enigma that is international law, Austin decides to head it under the science of positive morality as opposed to law properly so called. His reasoning stems from international law’s apparent unfulfillment of the criteria put forth by legal positivism. Austin believes international law to be materially lacking in the sense that no laws strictly so called emanate from a sovereign to members of an independent political society. Therefore, since there is no sovereign and independent political community which is in turn subject to said sovereign, then international law is not law so properly called.[8] The need for a sovereign in Austin’s view is largely due to the power it affords the law. He believes the obligatory status conferred 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 entirely mismatched to the characterisation of international as a proper legal system. This concept seeks to preclude the very possibility of any form of real governance of international relations amongst sovereign nations. This rather seems a case of square pegs and round holes. It is perhaps the narrow mindedness of attempting to fit international law in an entirely 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, exercising legal rights and accepting others’ legal rights as well as signing treaties and regarding themselves and others as being bound by those treaties.

An alternative perspective to the absolute expulsion of international law from the positivist arena, is one posited by H.L.A Hart. In his view the rules of international law need only be accepted as standards of conduct and supported with appropriate forms of social pressure to be regarded as obligatory, binding, legal rules.[9] However, since there is no secondary rule which stipulates the criteria of legal validity of rules, their existence depends on whether they are accepted as a rule or not.[10] International 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 advanced and acceptable to the standards of positivist thought. This presents a dilemma for international lawyers: to accept Hart’s 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 favoured legal positivism. This is where we initiate proceedings into the correct classification of international law.

Chapter 2:

International Law as ‘Law’: An Academic Glass Bead Game?

The classification of law is a concern of the utmost gravity for the international lawyer, as this has the ability to influence perceptions about the field, which is a hugely significant factor in the reaction it invokes when infringed. Perhaps the most imperative question on the minds of those who doubt 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.[13]

With the introduction of his celebrated work, The Province of Jurisprudence Determined,[14]John Austin has yielded great influence over the jurisprudence of international law: most notably because of the ‘command theory’. Austin proposed theory was as follows: law consists of rules which are issued by a sovereign; are defined as commands, coercive orders, or wishes; backed by the threat of imposing an evil in the form of a sanction in case of non-compliance with said command, coercive order, or wish.[15] In Austin’s 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 theory 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 equate 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.[18]

As a result of Hart’s effective repudiation of Austin’s command theory,[19] which had 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 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, illustrate 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 Waltz’s neo-realist account of international relations entirely omits any part played by international law.[21] More recently a fresh challenge has been posed by Jack Goldsmith and Eric Posner in their work The Limits of International Law, who argue that a state’s 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 decided 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 position of commentators who seek to endorse a more restrictive approach to the international legal order. The benefit of clarifying international law’s 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 lawyer in correctly identifying and interpreting the law.[23] Thus permitting a seemingly theoretical endeavour to yield practical results.

The Significance of Hart in Particular

The mere fact that analytical jurisprudence is of great importance in fashioning a well-reasoned answer to our proposed question does not alone merit an exhaustive engagement with Hart’s concept of international law. However, for a multitude of additional reasons it seems a conducive exercise, not least of all from the perspective of international law, to analyse Hart’s theory. As previously stated, Hart carried out the repudiation of Austin’s 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 positivists, 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 belief that the study of positivism within international law has now reached the stage 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 19^th century and early 20^th 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 individual states with the common will of states.[26] This voluntarist approach found its basis on the landmark Lotus decision of the Permanent Court of Justice in which the court held that ‘[i]nternational 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 belief 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 affiliation between legal positivism and voluntarist conceptions of international law has led many 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 Austin’s Mistakes: A Critique of the Command Theory

Hart believed that the major defect with Austin’s theory lay in its promulgation 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 Austin’s 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 fact was true that such a theory could provide the basis for understanding certain branches of the law, namely criminal law and delict/tort, it fails to take into consideration power-conferring rules. The latter of which do not encumber individuals, but rather they are utilised in finding and altering 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 characterisation 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.[35]

The role accorded to a sovereign in Austin’s theory is highly disputed by Hart. Who finds the concept to be overreaching in the sense that the sovereign 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, Austin’s theory fails to explain the effect of a new lawmaker’s particular 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 making powers to the new legislator. Therefore, Hart posits that past habitual obedience is no guarantee of future habitual obedience to a new ‘sovereign’.[37]Further 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 longer 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 Austin’s theory to the sovereign disregards legal limitations faced 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 altogether due to his subjection to another sovereign.[40] Therefore, removing the possibility of law being understood as the will of a sovereign.[41]

Chapter 3: Hart’s Fresh Start: Law as the Union of Primary and Secondary Rules

From the criticism of Austin, Hart forges a fresh approach in the form of primary and secondary rules. The lack 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 primary and secondary rules.[42] At the crux of it, primary rules impose duties on individuals. Whereas secondary rules provide the basis for creating, altering and defining the ambit of primary rules and are more commonly known as power-conferring rules.

In his endeavour to demonstrate the requirement of secondary rules, Hart puts forth the example of a primitive 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 Hart’s view, such a system would only be able to satisfy a relatively cognate society, and would not be agreeable 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 surrounding the effectiveness of rules as there would be no means to monitor their efficiency. To address the issues facing primary rules, Hart proposes a system in which they are accompanied by secondary rules.[45] Hart’s rule of recognition would mitigate 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 Hart’s 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 varying criterion.[47] The supreme criterion amongst 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 unique 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 according 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 legally 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]

Basic Elements of Hart’s Concept of International Law

On 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 order 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 ‘simple form of social structure’, found in primitive societies.  Thereby giving rise to Hart’s 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 unsurmountable challenge.[53]On the other hand, Hart does not believe sanctions are the elemental factor in state’s satisfying their obligations under international law. Such a belief 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 logic from the fact that human beings are based in communities, are of roughly 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 altogether. 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 latterly the neo-scholastics and the neo-thomists, referring to the body of philosophical truths common across ages and civilisations. See Heinrich A. Rommen, The Natural 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 damage 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.

[7] John Austin, The Province of Jurisprudence Determined (1832; 1995 edition edited by Wilfred E. Rumble) 165.

[8] Ibid, at 171.

[9] H.L.A. Hart, The Concept of Law (2nd edn, 1994) 234.

[10] Ibid., at 235.

[11] Ibid., at 236.

[12] M.N. Shaw, International Law (6th edn, 2008), at 2; S.D. Murphy, Principles of International Law (2006), at 6; P. Malanczuk, Akehurst’s Modern Introduction to International Law (7th edn, 1997), at 5.

[13] Williams, ‘International Law and the Controversy Concerning the Word “Law”‘, 22 BYBIL (1945) 146, at 163.

[14] J. Austin, The Province of Jurisprudence Determined (ed. W.E. Rumble, 1995).

[15] Ibid., at 21-22.

[16] Ibid., at 165-166.

[17] Ibid., at 171.

[18] Ibid., at 112, 124, 175

[19] See Hart, supra note 9, at 18-78.

[20] Morgenthau, ‘Positivism, Functionalism, and International Law’, 34 AJIL (1940) 260; H.J. Morgenthau, Politics Among Nations (6th edn, 1985); G. Schwarzenberger, The Frontiers of International Law (1962).

[21] K. Waltz, Theory of International Politics (1979).

[22] J. L. Goldsmith and E. A. Posner, The Limits of International Law (2005).

[23] Ratner and Slaughter, ‘Appraising the Methods of International Law: A Prospectus for Readers’, 93 AJIL (1999) 291; S. J. Shapiro, Legality (2010), at 26-30.

[24] Ibid., at 293 (characterizing positivism as ‘the lingua franca of most international lawyers, especially in continental Europe’).

[25] G. Jellinek, Die rechtliche Natur der Staatenverträge (1880), at 2, 48-49

[26] H. Triepel, Völkerrecht und Landesrecht (1899), at 32, 81.

[27] S.S. Lotus, 1927 PCIJ Series A, No. 10, at 18.

[28] Ratner and Slaughter, supra note 23, at 293.

[29] Simma and Paulus, supra note 7, at 304, 307.

[30] Shapiro, supra note 23, at 26.

[31] H. Kelsen, Reine Rechtslehre (2nd edn, 1960), at 196.

[32] Hart, supra note 9, at 27-29.

[33] Ibid., at 38-42.

[34] Ibid., at 42-44.

[35] Ibid., at 44-48.

[36] Ibid., at 51-61.

[37] Ibid., at 59-60.

[38] Ibid., at 61-66.

[39] Ibid., at 66-71.

[40] Hart further rejects Austin’s proposition that legal obligations of the legislator are possible if one conceives of the people as the sovereign: ibid., at 71-78.

[41] ibid., at 82-91.

[42] Ibid., at 80-81.

[43] Ibid., at 91.

[44] Ibid., at 92-94.

[45] Ibid., at 94-98.

[46] Ibid., at 100-101.

[47] Ibid., at 105-106.

[48] Ibid., at 107-110.

[49] Ibid., at 112-117.

[50] Ibid., at 115.

[51] Ibid., at 116-117.

[52] Ibid., at 3-4, 214.

[53] Ibid., at 217.

[54] Ibid., at 218-219.

[55] Ibid., at 198-199.

[56] Ibid., at 219.