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Cases and materials (selected parts
to the Declaration, the General Assembly ‘solemnly’ proclaimed ‘that the peoples of our planet have a sacred right to peace’ and ‘that the preservation of the right of peoples to peace and the promotion of its implementation constitute a fundamental obligation of each State’. Hence, the UN General Assembly announced the start of a new era in which peace should be envisioned as a right. ‘Consequently, the step has been taken from an abstract philosophical ideal to a more concrete political-legal principle.’94
CASES AND MATERIALS (SELECTED PARTS)
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Legal families
Rene David and John E. C. Brierley, Major Legal Systems in the World Today (3rd edn, Stevens & Sons 1985) 22–36.
A first family may be called the Romano-Germanic family. This group includes those countries in which legal science has developed on the basis of Roman jus civile. Here the rules of law are conceived as rules of conduct intimately linked to ideas of justice and morality. To ascertain and formulate these rules falls principally to legal scholars who, absorbed by this task of enunciating the “doctrine” on an aspect of the law, are somewhat less interested in its actual administration and practical application. These matters are the responsibility of the administration and legal practitioners. Another feature of this family is that the law has evolved, primarily for historical reasons, as an essentially private law, as a means of regulating the private relationships between individual citizens; other branches of law were developed later, but less perfectly, according to the principles of the “civil law” which today still remains the main branch of legal science, Since the nineteenth century, a distinctive feature of the family has been the fact that its various member countries have attached special importance to enacted legislation in the form of “codes”.’
A second family is that of the Common law, including the law of England and those laws modelled on English law. The Common Law, altogether different in its characteristics from the Romano-Germanic family, was formed primarily by judges who had to resolve specifi c disputes. Today it still bears striking traces of its origins. The Common law legal rule is one which seeks to provide the solution to a trial rather than to formulate a general rule of conduct for the future. It is then much less abstract than the characteristic legal rule of the Romano-Germanic family. Matters relating to the administration of justice, procedure, evidence and execution of judgments have, for Common law lawyers, an importance equal, or even superior, to substantive legal rules because, historically, their immediate pre-occupation has been to re-establish peace rather than articulate a moral basis for the social order. Finally, the origins of the Common law are linked to royal power. It was developed as a system in those cases where the peace of the English kingdom was threatened, or when some other important consideration required, or
94 Tehindrazanarivelo and Kolb (n 92).
justified, the intervention of royal power. It seems, essentially, to be a public law, for contestations between private individuals did not fall within the purview of the Common law courts save to the extent that they involved the interest of the crown or kingdom. In the formation and development of the Common law- a public law issuing from procedure-the learning of the Romanists founded on the jus civile played only a very minor role. The divisions of the Common law, its concepts and vocabulary, and the methods of the Common law lawyer, are entirely different from those of the Romano-Germanic family.’
‘23. Muslim, Hindu, and Jewish laws
But law may also be seen as a model of ideal behaviour, one not to be confused with the actual rules by which individuals act which courts apply. European universities, in their pre-nineteenth-century tradition, paid very little attention to national or customary laws of the time and taught, almost exclusively, an ideal law constructed on the basis of Roman law. In Muslim countries, in the same way, more attention is given to the model law linked to the Islamic religion than to local custom (treated as a phenomenon of fact) or the laws and decrees of the sovereign (treated as merely administrative measures) and neither of these is thought to possess the full dignity of law. The same can be said of Jewish law and, in a very different context, Hindu law.’
‘24. Far East
The situation in the Far East, especially China is completely different. Here there is no question of studying an ideal law distant from rules laid down by legislators or simply followed in practice: here the very value of law itself has traditionally been put into question.’
‘25. Black Africa and Malagasy Republic
. . . There too, in milieux in which the community’ cohesion prevails over any developed sense of individualism; the principal objective is the maintenance or restoration of harmony rather than respect for law. The Western laws adopted in Africa are often hardly more than a veneer, the vast majority of the population still lives according to traditional ways which do not comprise what we in the West call law and without heed to what is very often nothing more than an artifi cially implanted body of rules.’
Natural law
Thomas Hobbes, Leviathan or the Matter, Form and Power of a Commonwealth, Ecclesiastical and Civil (2nd edn, George Routledge and Sons 1886) 65–67, 71–72.
‘Chapter XIV. Of the First and Second Natural Laws, and of Contracts
“The right of nature”, which writers commonly call jus naturale, is the liberty each man hath, to use his own power, as he will himself, for the preservation of his own nature; that is to say, of his
own life; and consequently, of doing anything, which in his own judgement and reason he shall conceive to be the aptest means thereunto.
By “liberty,” is understood, according to the proper signification of the word, the absence of external impediments: which impediments may oft take away part of a man’s power to do what he would; but cannot hinder him from using the power left him, according as his judgement and reason shall dictate to him.
A “law of nature,” lex naturalis, is a precept or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life, or taketh away the means of preserving the same; and to omit that, by which he thinketh it may be best preserved. For though they that speak of this subject, use to confound jus and lex, “right” and “law:” yet they ought to be distinguished; because “right,” consisteth in liberty to do, or to forbear; whereas “law,” determineth and bindeth to one of them; so that law and right differ as much as obligation and liberty; which in one and the same matter are inconsistent.
And because the condition of man, as hath been declared in the precedent chapter, is a condition of war of every one against every one; in which case every one is governed by his own reason; and there is nothing he can make use of, that may not be a help unto him, in preserving his life against his enemies; it followeth, that in such a condition, every man has a right to everything; even to one another’s body. And therefore, as long as this natural right of every man to everything endureth, there can be no security to any man, how strong or wise soever he be, of living out the time, which Nature ordinarily alloweth men to live. And consequently it is a precept, or general rule of reason, “that every man ought to endeavour peace, as far as he has hope of obtaining it; and when he cannot obtain it, that he may seek, and use, all helps, and advantages of war.” The first branch of which rule, containeth the first, and fundamental law of Nature; which is, “to seek peace, and follow it.” The second, the sum of the right of Nature, which is, “by all means we can, to defend ourselves.”
From this fundamental law of Nature, by which men are commanded to endeavour peace, is derived this second law; “that a man be willing, when others are so too, as far forth, as for peace, and defence of himself he shall think it necessary, to lay down this right to all things; and be contented with so much liberty against other men, as he would allow other men against himself.” For as long as every man holdeth this right, of doing anything he liketh; so long are all men in the condition of war. But if other men will not lay down their right, as well as he; then there is no reason for anyone to divest himself of his: for that were to expose himself to prey, which no man is bound to, rather than to dispose himself to peace. This is that law of the Gospel; “whatsoever you require that others should do to you, that do ye to them.” And that law of all men, quod tibi fieri non vis, alteri ne feceris.
To “lay down” a man’s “right” to anything, is to “divest” himself of the “liberty,” of hindering another of the benefit of his own right to the same. For he that renounceth, or passeth away his right, giveth not to any other man a right which he had not before; because there is nothing to which every man had not right by Nature: but only standeth out of his way, that he may enjoy his own original right, without hindrance from him; not without hindrance from another. So that the effect which redoundeth to one man, by another man’s defect of right, is but so much diminution of impediments to the use of his own right original.
Right is laid aside, either by simply renouncing it; or by transferring it to another. By “simply renouncing;” when he cares not to whom the benefit thereof redoundeth. By “transferring;” when he intendeth the benefi t thereof to some certain person or persons. And when a man hath in either manner abandoned, or granted away his right; then is he said to be “obliged,” or “bound,” not
to hinder those, to whom such right is granted, or abandoned, from the benefit of it: and that he “ought,” and it is his “duty,” not to make void that voluntary act of his own’.
‘Chapter XV. Of Other Laws of Nature
From that law of Nature, by which we are obliged to transfer to another, such rights, as being retained, hinder the peace of mankind, there followeth a third; which is this, “that men perform their covenants made;” without which, covenants are in vain, and but empty words; and the right of all men to all things remaining, we are still in the condition of war.
And in this law of Nature consisteth the fountain and original of “justice.” For where no covenant hath preceded, there hath no right been transferred, and every man has right to everything; and consequently, no action can be unjust. But when a covenant is made, then to break it is “unjust:” and the defi nition of “injustice,” is no other than “the not performance of covenant.” And whatsoever is not unjust, is “just.”’
Natural law
John Locke, Two Treatises of Government (A new edition corrected. published 1821 (MDCCCXXI) by Printed for Whitmore and Fenn and C. Brown) Book II, 189–190, 191–192, 200, 204.
‘Chapter II.
Of the State of Nature § 4. To understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.
A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident, than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties should also be equal one amongst another without subordination or subjection, unless the lord and master of them all should, by any manifest declaration of his will, set one above another, and confer on him, by an evident and clear appointment, an undoubted right to dominion and sovereignty.’
‘§ 6. But though this be a state of liberty, yet it is not a state of license: though man in that state have an uncontroulable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself, or so much as any creature in his possession, but where some nobler use than its bare preservation calls for it. The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not one another’s pleasure: and being furnished with like faculties, sharing all in one community of nature, there
cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another’s uses, as the inferior ranks of creatures are for ours. Every one, as he is bound to preserve himself, and not to quit his station wilfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another. § 7. And that all men may be restrained from invading others rights, and from doing hurt to one another, and the law of nature be observed, which willeth the peace and preservation of all mankind, the execution of the law of nature is, in that state, put into every man’s hands, whereby every one has a right to punish the transgressors of that law to such a degree, as may hinder its violation: for the law of nature would, as all other laws that concern men in this world, be in vain, if there were nobody that in the state of nature had a power to execute that law, and thereby preserve the innocent and restrain offenders. And if any one in the state of nature may punish another for any evil he has done, every one may do so: for in that state of perfect equality where naturally there is no superiority or jurisdiction of one over another, what any may do in prosecution of that law, every one must needs have a right to do.’
‘Chapter III.
Of the State of War § 16. The state of war is a state of enmity and destruction: and therefore declaring by word or action, not a passionate and hasty, but a sedate settled design upon another man’s life puts him in a state of war with him against whom he has declared such an intention, and so has exposed his life to the other’s power to be taken away by him, or any one that joins with him in his defence, and espouses his quarrel; it being reasonable and just, I should have a right to destroy that which threatens me with destruction: for, by the fundamental law of nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred: and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion; because such men are not under the ties of the common-law of reason, have no other rule, but that of force and violence, and so may be treated as beasts of prey, those dangerous and noxious creatures, that will be sure to destroy him whenever he falls into their power.’
‘§ 21. To avoid this state of war (wherein there is no appeal but to heaven, and wherein every the least difference is apt to end, where there is no authority to decide between the contenders) is one great reason of men’s putting themselves into society, and quitting the state of nature: for where there is an authority, a power on earth, from which relief can be had by appeal, there the continuance of the state of war is excluded, and the controversy is decided by that power.’
Lon L. Fuller, The Morality of Law (Revised edn, Yale University Press 1969) 96–98.
Natural law
What I have tried to do is to discern and articulate the natural laws of a particular kind of human undertaking, which I have described as “the enterprise of subjecting human conduct to the governance of rules.” These natural laws have nothing to do with any “brooding omnipresence in the skies.” Nor have they the slightest affinity with any such proposition as that the practice of contraception is a violation of God’s law. They remain entirely terrestrial in origin and application. They are not “higher” laws; if any metaphor of elevation is appropriate they should be called “lower” laws. They are like the natural laws of carpentry, or at least those laws respected by a carpenter who wants the house he builds to remain standing and serve the purpose of those who live in it.’
‘With the positivists certainly no clear pattern emerges. Austin defined law as the command of a political superior. Yet he insisted that “laws properly so-called” were general rules and that “occasional or particular commands” were not law. Bentham, who exploited his colorful vocabulary in castigating the law of nature, was at all times concerned with certain aspects of what I have called the internal morality of law. Indeed, he seemed almost obsessed with the need to make the laws accessible to those subject to them. On the other hand, in more recent times Gray has treated the question whether law ought to take the form of general rules as a matter of “little importance practically,” though admitting that specific and isolated exercises of legal power do not make a fit subject for jurisprudence. For Somlo retroactive laws might be condemned as unfair, but in no sense are to be regarded as violating any general premise underlying the concept of law itself.
With respect to thinkers associated with the natural law tradition it is safe to say that none of them would display the casualness of a Gray or Somlo toward the demands of legal morality. On the other hand, their chief concern is with what I have called substantive natural law, with the proper ends to be sought through legal rules.’
Legal positivism
Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (Oxford: Clarendon Press, MCMVII) 18, 324, 326–327, 329
‘1 6. A great multitude of people are continually talking of the Law of Nature; and then they go on giving you their sentiments about what is right and what is wrong: and these sentiments, you are to understand, are so many chapters and sections of the Law of Nature. 7. Instead of the phrase, Law of Nature, you have sometimes, Law of Reason, Right Reason, Natural Justice, Natural Equity, Good Order. Any of them will do equally well. This latter is most used in politics. The three last are much more tolerable than the others, because they do not very explicitly claim to be any thing more than phrases: they insist but feebly upon the being looked upon as so many positive standards of themselves, and seem content to be taken, upon occasion, for phrases expressive of the conformity of the thing in question to the proper standard, whatever that may be. On most occasions, however, it will be better to say utility: utility is clearer, as referring more explicitly to pain and pleasure.’
‘XXIII. Now law, or the law, taken indefinitely, is an abstract and collective term; which, when it means any thing, can mean neither more nor less than the sum total of a number of
individual laws taken together. It follows, that of whatever other modifications the subject of a book of jurisprudence is susceptible, they must all of them be taken from some circumstance or other of which such individual laws, or the assemblages into which they may be sorted, are susceptible.’
‘2 In most of the European languages there are two different words for distinguishing the abstract and the concrete senses of the word law: which words are so wide asunder as not even to have any etymological affinity. In Latin, for example, there is lex for the concrete sense, jus for the abstract; in Italian, legge and diritto; in French, loi and droit; in Spanish, ley and derecho; in German, gesetz and recht. The English is at present destitute of this advantage.
In the Anglo-Saxon, besides lage, and several other words, for the concrete sense, there was the word right, answering to the German recht, for the abstract as may be seen in the compound folc-right, and in other instances. But the word right having long ago lost this sense, the modern English no longer possesses this advantage.’
‘XXV. In the second place, with regard to the political quality of the persons whose conduct is the object of the law. These may, on any given occasion, be considered either as members of the same state, or as members of different states: in the first case, the law may be referred to the head of internal, in the second case, to that of international jurisprudence.
Now as to any transactions which may take place between individuals who are subjects of different states, these are regulated by the internal laws, and decided upon by the internal tribunals, of the one or the other of those states: the case is the same where the sovereign of the one has any immediate transactions with a private member of the other: the sovereign reducing himself, pro re natâ, to the condition of a private person, as often as he submits his cause to either tribunal; whether by claiming a benefit, or defending himself against a burthen. There remain then the mutual transactions between sovereigns, as such, for the subject of that branch of jurisprudence which may be properly and exclusively termed international.
With what degree of propriety rules for the conduct of persons of this description can come under the appellation of laws, is a question that must rest till the nature of the thing called a law shall have been more particularly unfolded.
It is evident enough, that international jurisprudence may, as well as internal, be censorial as well as expository, unauthoritative as well as authoritative.’
‘XXVIII. Fourthly, in point of expression, the laws in question may subsist either in the form of statute or in that of customary law.
As to the difference between these two branches (which respects only the article of form or expression) it cannot properly be made appear till some progress has been made in the defi nition of a law.
XXIX. Lastly, The most intricate distinction of all, and that which comes most frequently on the carpet, is that which is made between the civil branch of jurisprudence and the penal, which latter is wont, in certain circumstances, to receive the name of criminal.’
Legal positivism
John Austin, The Province of Jurisprudence Determined (London: John Murray, Albemarle Street 1832) 5, 6–7, 11–13, 18, 29.
‘Having stated the essentials of a law or rule, I shall distinguish laws established by political superiors, from laws set by men to men (but not by political superiors), and from that Divine law which is the ultimate test of human.
Having distinguished laws established by political superiors, from the laws (properly so called) to which they are related by resemblance, and from the laws (improperly so called) to which they are nearly related by a strong analogy, I shall advert to the improper applications of the term law which are merely metaphorical or fi gurative.
Every law or rule (taken with the largest signification which can be given to the term properly) is a command. Or, rather, laws or rules, properly so called, are a species of commands.
Now since the term command comprises the term law, the first is the simpler as well as the larger of the two. But simple as it is, it admits of explanation. And, since it is the key to the sciences of jurisprudence and morals, its meaning should be analyzed with precision.’
‘If you express or intimate a wish that I shall do or forbear from some act, and if you will visit me with an evil in case I comply not with your wish, the expression or intimation of your wish is a command. A command is distinguished from other significations of desire, not by the style in which the desire is signified, but by the power and the purpose of the party commanding to inflict an evil or pain in case the desire be disregarded. If you cannot or will not harm me in case I comply not with your wish, the expression of your wish is not a command, although you utter your wish in imperative phrase. If you are able and willing to harm me in case I comply not with your wish, the expression of your wish amounts to a command, although you are prompted by a spirit of courtesy to utter it in the shape of a request. . . .
A command, then, is a signification of desire. But a command is distinguished from other signifi cations of desire by this peculiarity: that the party to whom it is directed is liable to evil from the other, in case he comply not with the desire.
Being liable to evil from you if I comply not with a wish which you signify, I am bound or obliged by your command, or I lie under a duty to obey it. If, in spite of that evil in prospect, I comply not with the wish which you signify, I am said to disobey your command, or to violate the duty which it imposes.
Command and duty, are, therefore, correlative terms: the meaning denoted by each being implied or supposed by the other. Or (changing the expression) wherever a duty lies, a command has been signified; and whenever a command is signified, a duty is imposed.’
‘It appears, then, from what has been premised, that the ideas or notions comprehended by the term command are the following. 1. A wish or desire conceived by a rational being, that another rational being shall do or forbear. 2. An evil to proceed from the former, and to be incurred by the latter, in case the latter comply not with the wish. 3. An expression or intimation of the wish by words or other signs.
It also appears from what has been premised, that command, duty and sanction are inseparably connected terms: that each embraces the same ideas as the others, though each denotes those ideas in a peculiar order or series.
“A wish conceived by one, and expressed or intimated to another, with an evil to be inflicted and incurred in case the wish be disregarded,” are signified directly and indirectly by each of the three expressions. Each is the name of the same complex notion.
But when I am talking directly of the expression or intimation of the wish, I employ the term command: The expression or intimation of the wish being presented prominently to my hearer; whilst the evil to be incurred, with the chance of incurring it, are kept (if I may so express myself) in the background of my picture.
When I am talking directly of the chance of incurring the evil, or (changing the expression) of the liability or obnoxiousness to the evil, I employ the term duty, or the term obligation: The liability or obnoxiousness to the evil being put foremost, and the rest of the complex notion being signifi ed implicitly.
When I am talking immediately of the evil itself, I employ the term sanction, or a term of the like import: The evil to be incurred being signified directly; whilst the obnoxiousness to that evil, with the expression or intimation of the wish, are indicated indirectly or obliquely.
To those who are familiar with the language of logicians (language unrivalled for brevity, distinctness and precision), I can express my meaning accurately, in a breath. Each of the three terms signifi es the same notion; but each denotes a different part of that notion, and connotes the residue.
Commands are of two species. Some are laws or rules. The others have not acquired an appropriate name, nor does language afford an expression which will mark them briefly and precisely. I must, therefore, note them, as well as I can, by the ambiguous and inexpressive name of “occasional or particular commands.”
The term laws or rules being not unfrequently applied to occasional or particular commands, it is hardly possible to describe a line of separation which shall consist in every respect with established forms of speech. But the distinction between laws and particular commands, may, I think, be stated in the following manner.
By every command, the party to whom it is directed is obliged to do or to forbear.
Now where, it obliges generally to acts or forbearances of a class, a command is a law or rule. But where it obliges to a specifi c act or forbearance, or to acts or forbearances which it determines specifi cally or individually a command is occasional or particular. In other words, a class or description of acts is determined by a law or rule, and acts of that class or description are enjoined or forbidden generally. But where a command is occasional or particular, the act or acts, which the command enjoins or forbids, are assigned or determined by their specific or individual natures, as well as by the class or description to which they belong.
The statement which I have now given in abstract expressions, I will endeavour to illustrate by apt examples.
If you command your servant to go on a given errand, or not to leave your house on a given evening, or to rise at such an hour on such a morning, or to rise at that hour during the next week or month, the command is occasional or particular. For the act or acts enjoined or forbidden, are specifically determined or assigned.
But if you command him simply to rise at that hour, or to rise at that hour always, or to rise at that Pour till further orders, it may be said, with propriety, that you lay down a rule for the guidance of your servant’s conduct.’
‘A law is a command which obliges a person or persons.
But, as contradistinguished or opposed to an occasional or particular command, a law is a command which obliges a person or persons, and obliges generally to acts or forbearances of a class.
In language more popular but less distinct and precise, a law is a command which obliges a person or persons to a course of conduct.
Laws and other commands are said to proceed from superiors, and to bind or oblige inferiors.’
‘Like other signification of desire, a command is express or tacit. If the desire be signifi ed by words (written or spoken), the command is express. If the desire be signified by conduct (or by any signs of desire which are not words), the command is tacit.
Now when customs are turned into legal rules by decisions of subject judges, the legal rules which emerge from the customs are tacit commands of the sovereign legislature. The state, which is able to abolish, permits its ministers to enforce them: and it, therefore, signifies its pleasure, by that its voluntary acquiescence, “that they shall serve as a law to the governed.”
My present purpose is merely this: to prove that the positive law styled customary (and all positive law made judicially) is established by the state directly or circuitously, and, therefore, is imperative. I am far from disputing, that law made judicially (or in the way of improper legislation) and law made by statute (or in the properly legislative manner) are distinguished by weighty differences.’
Herbert Lionel Adolphus Hart, The Concept of Law (2nd edn, Clarendon Press 1994) 214, 236–237
Legal positivism
‘International law presents us with the converse case. For, though it is consistent with the usage of the last I so years to use the expression ‘law’ here, the absence of an international legislature, courts with compulsory jurisdiction, and centrally organized sanctions have inspired misgivings, at any rate in the breasts of legal theorists. The absence of these institutions means that the rules for states resemble that simple form of social structure, consisting only of primary rules of obligation, which, when we find it among societies of individuals, we are accustomed to contrast with a developed legal system. It is indeed arguable, as we shall show, that international law not only lacks the secondary rules of change and adjudication which provide for legislature and courts, but also a unifying rule of recognition specifying “sources” of law and providing general criteria for the identification of its rules. These differences are indeed striking and the question “Is international law really law?” can hardly be put aside. But in this case also, we shall neither dismiss the doubts, which many feel, with a simple reminder of the existing usage; nor shall we simply confirm them on the footing that the existence of a union of primary and secondary rules is a necessary as well as a sufficient condition for the proper use of the expression “legal system”.’
‘Bentham, the inventor of the expression “international law”, defended it simply by saying that it was “suffi ciently analogous” to municipal law. To this, two comments are perhaps worth adding. First, that the analogy is one of content not of form: secondly, that, in this analogy of content, no other social rules are so close to municipal law as those of international law.’
Pure theory of law
Hans Kelsen, Pure Theory of Law Max Knight (tr) (University of California Press 1967) 320, 323, 214–217.
a) The Legal Nature of International Law
According to the traditional definition, international law is a complex of norms regulating the mutual behavior of states, the specific subjects of international law.
In accordance with the concept of law here accepted, so-called international law is “law,” if it is a coercive order, that is to say, a set of norms regulating human behavior by attaching certain coercive acts (sanctions) as consequences to certain facts, as delicts, determined by this order as conditions, and if, therefore, it can be described in sentences which – in contradistinction to legal norms – may be called “rules of law”.’
International law, as a coercive order, shows the same character as national law, i.e. the law of a state, but differs from it and shows a certain similarity with the law of primitive, i.e. stateless society in that international law (as a general law that binds all states) does not establish special organs for the creation and application of its norms. It is still in a state of far-reaching decentralization. It is only at the beginning of a development which national law has already completed. General norms are created by custom or treaty, which means: by the members of the legal community themselves, not by a special legislative organ. And the same is true for the application of the general norms in a concrete case. It is the state itself, believing its rights have been violated, which has to decide whether the fact of a delict exists for which another state is responsible. And if this other state denies the asserted delict, and if no agreement can be reached between the two parties concerned, no objective authority exists competent to decide the conflict in a legally regulated procedure. And it is the state whose rights have been violated which is authorized to react against the violator by reprisals or war as the coercive acts provided for by international law. The technique of self-help, characteristic of primitive law, prevails.’
The legal character of international law
Andrew Clapham, Brierly’s Law of Nations: An Introduction to the Role of International Law in International Relations (7th edn, Oxford University Press 2012) 77–78, 79, 80.
‘It has often been said that international law ought to be classified as a branch of ethics rather than of law. The question will clearly depend on the definition of law which we choose to adopt; in any case it does not affect the value of the subject one way or the other, though those who deny the legal character of international law often speak as though “ethical” were a depreciatory epithet. In fact it is both practically inconvenient, and contrary to sensible legal thinking to deny the legal character of international law.
It is inconvenient because, if international law is nothing but international morality, it is certainly not the whole of international morality, and it is diffi cult to see how we are to distinguish it from those other, admittedly moral, standards which we apply in forming our judgments on the conduct of states. Ordinary usage certainly uses two tests in judging the “rightness” of a state’s act, a moral test and another one which is somehow felt to be independent of morality. Every state habitually commits acts of selfishness which are often gravely injurious to other states, and yet are not contrary to international law; but we do not on that account necessarily judge them to have been “right”. It is confusing and pedantic to say that both these tests are moral. Moreover, it is the pedantry of the theorist and not of the practical person; for questions of international law are invariably treated as legal questions by the foreign ministries which conduct our international business, and in the courts, national or international, before which they are brought. Legal forms and methods are used in diplomatic controversies and in judicial and arbitral proceedings, and authorities and precedents are cited every day in argument.’
‘It is only in quite modern times, when we have come to regard it as natural that the state should be constantly making new laws and enforcing existing ones, that to identify law with the will of the state has become even a plausible theory. We can agree that today the only essential conditions for the existence of law are: the existence of a political community, and the recognition by its members of settled rules binding upon them in that capacity. International law seems generally to satisfy these conditions.’
‘The best view is that international law is in fact just a system of customary law, upon which has been erected, almost entirely within the last century, a superstructure of ‘conventional’ or treaty-made law, and some of its chief defects are precisely those that the history of law teaches us to expect in a customary system.
It is a common mistake to suppose that the most conspicuous defect of international law is the frequency of violations. Actually international law is normally observed because, as we shall see, the vast majority of demands that it makes on states are not exacting; and states generally fi nd it convenient to observe the law. This fact receives little notice however, because the interest of most people in international law is not with the ordinary routine of international legal business, but in the rare and often sensational occasions on which it is flagrantly broken. Such breaches generally occur either when some great political issue has arisen between states, or in that part of the system which professes to regulate the conduct of war. So our diagnosis of what is wrong with the system will be mistaken if we fail to realize that most customary rules and the great majority of treaties are, on the whole, regularly observed in international relations. And this is no small service to international life, however far it may fall short of the ideal by which we judge the achievements of the system. If we fail to understand this, we are likely to assume, as many people do, that all would be well with international law if we could devise a better system for enforcing it.’
The legal character of international law
David Harris and Sandesh Sivakumaran, Cases and Materials on International Law (8th edn, Sweet & Maxwell 2015) 5, 10–11.
‘1 INTRODUCTION Notes 2 The Austinian Handicap. “Is international law ‘law’?” is a standard question asked of international lawyers. Its sometimes irritating persistence is very largely the responsibility of John Austin, an English jurist of the first part of the nineteenth century and a familiar friend of any student who has taken a course in jurisprudence
He defines laws “properly so-called” as commands and “positive law”, which he regarded as the “appropriate matter of jurisprudence”, as the commands of a sovereign. A sovereign he defined as a person who received the habitual obedience of the members of an independent political society and who, in turn, did not owe such obedience to any other person. Rules of international law did not qualify as rules of “positive law” by this test and, not being commands of any sort, were placed
by Austin in the category of “laws improperly so-called”. This uncompromising and unhappily phrased rejection of international law’s claim to be law of the same order as municipal law has, to this day, upset international lawyers and placed them on the defensive. Although international law is still not “law” according to Austin’s test, most international lawyers would at least dispute that that test is more helpful than certain others (e.g. that of Pollock, quoted by Brierly) by which international law could be said to be “law”.’
