Charlotte Ku and Paul F. Diehl noticed that at first sight, ‘International' and ‘Law' sound contradictory: “how can one imagine a structured and developed legal system functioning in a political environment that is diffused, disparated, unregulated and conventionally described as anarchic?” Indeed, the ‘instinctive' breaking down of the term tends to confirm that. In modern Western democracies, law is seen as a ‘set' of legislatures, police and courts which create law, enforce it and punish those who violate it whereas ‘International' is associated with the United Nations, the global level and economic, cultural and political differences. Is this impression of incompatibility justified? Can it be overcome? Considering “the extent to which international law (IL) is law, or ‘really law' or ‘law properly-so-called'” requires, firstly, defining what is meant by international law, law, ‘really law' and ‘law properly-so-called'. Secondly, it calls for attempts to relate these terms to each other. Both stages entail a critical analysis of some prejudices and surface discrepancies. This is the purpose of this essay.
[...] Semantic attempts to frame the development of International law- related realities A wide range of realities vs narrow definitions: a search for the happy medium Rules, legal system, primary rules Determining to what extent IL is law remains difficult partly because of the ambiguity or the vagueness of related terms. Are rules elements of law like atoms make up a molecule? Which kind of rules etc ? The underlying issue of these definitions is the delimitation of IL. ‘Rule' is ambiguous: one may find five meanings for this word. [...]
[...] Law is "set" by the "sovereign" (i.e., the person or persons to whom a society renders habitual obedience and who render no such obedience to others). With Martin Koskenniemi's and M.W. Janis' articles, we saw that sovereignty and statehood become fuzzy notions. The sovereignty can be pooled as in the EU. States governments, i.e. the traditional ‘owners' of sovereignty, can delegate sovereignty in a lot of different ways, with different intensity (delegation dimension). The dialogal model implies the look for compromise, for states, it means that they can't take as hard lines as before with the other states. [...]
[...] At the beginning of the 21st Century, International law seems to stand for a much wider range of concepts and phenomena than it used in 1961, when Hart said that IL was a “simple form of social structure, consisting only of primary rules of obligations, which, when we find it among societies of individuals, we are accustomed to contrast with a developed legal system”. Hart claimed that IL was not a ‘legal system', that it was a set of ‘primary rules'. [...]
[...] Indeed, deciding on the extent to which IL is law or ‘really law' or properly so-called' leads us to the observation that the evolution of IL challenges the consensus on the very concept of law. I. Positivist Views on International Law: Rise and Fall of the Predominant Paradigm From Bentham's Introduction to the Principles of Morals and Legislation to H.L.A. Hart's The Concept of Law Late 18th century early 19th century: the emergence of the concept of International Law by Blackstone, Bentham and Story Our starting point will be Lord William Blackstone's work. [...]
[...] to decide a legal question, by a court, as in: rule that the plaintiff is entitled to the goods and damages for delay in the sum of $10,000." v. to make a judicial command, such as: find that George Gonzo is the parent of Larry Gonzo and rule that he must pay support of $150 per month to the mother" for the support of Larry. n. any regulation governing conduct. n. one of the regulations of covering legal practice before a particular group of courts, collectively called "rules of court" adopted by local judges. [...]
Online readingwith our online reader
Content validatedby our reading committee