Dear Readers, apologies for the radio silence. The last few months have been eventful. But I am back in the saddle and getting ready for my graduate seminar on the politics of international law. Skepticism about international law is old but it seems to me Syria, Ukraine, Gaza, and other events deepened the cynicism. “International law isn’t even law in the proper sense. It doesn’t really matter.” I heard statements like this from my students already in our first class last week, at APSA, at the airport bar, and on the flight back home. It is encouraging to see people become more interested in international law regardless of where they stand. Let me contribute to the dialogue by trying to cast doubts on some of the recurring doubts.
‘International law isn’t law because it isn’t centrally enforced.’ This is the John Austin logic. Because international law lacks centralized enforcement, it isn’t law but “positive morality.” What is wrong with this view? A lot, actually. And here is the main problem potently explained by H.L.A. Hart and Michael Barkun. Equating law with sanctions reduces the law to a “gunman” (Hart) and relegates a legal order to system of punishing “social pathologies” (Barkun). Legal systems are not gunmen. International law is no exception.
‘But even H.L.A. Hart called international law as “immature”.’ True but perhaps it is time to revisit his conclusion. Hart defines law as the “union of primary and secondary rules.” Primary rules are those that impose duties either by prescribing or proscribing certain actions. Secondary rules are those that specify the rules and procedures through which primary rules can be created, changed, adjudicated, and enforced. The rule of recognition is the crucial one for Hart (see e.g. Scott Shapiro’s article) It is the secondary rule that specifies the criteria for the legal validity of primary rules. It is similar to Hans Kelsen’s Grundnorm. Hart did not see international law as the proper union of primary and secondary rules. For him, international law is a system of primary rules but lacks the necessary secondary rules. He rejects pacta sunt servanda as a substitute rule of recognition because treaties are contractual. He is concerned that there is no supranational legislature and/or judiciary in the international system. International law is surely different from domestic law in many ways but a lot has changed since Hart’s Concept of Law. I agree with Mehrdad Payandeh that the contemporary international legal system includes “legislative, executive, and judicative structures which are able to perform the same functions as the legal order of a nation state.”