The Philosophyof International Law. (original) (raw)
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Journal of Philosophy of International Law
While ostensibly a response to a critique, the main goal of this Article is to demonstrate how easily conventional wisdom, usually shaped by the media and politics, can corrupt scholarship when it is simply presupposed by those engaged in what should be an academic polemic, yet often also includes ‘activism in scholarship’. The examples of approved narratives in the West on Yugoslavia and Rwanda are used for the sake of this demonstration.
International law and political philosophy: Uncovering new linkages
Philosophy Compass, 2018
Despite a common agenda of normative analysis of the international order, philosophical work on international political morality and international law and legal scholarship have, until recently, worked at a distance from one another. The mutual suspicion can be traced to different aims and methodologies, including a divide between work on matters of deep structure, on the one hand, and practical institutional analysis and prescription, on the other. Yet international law is a key part of the normative practices of states, has a direct effect on state behavior, and, as a methodological matter, can contribute to good theorizing on matters of international ethics. Recently, philosophical work has demonstrated a greater engagement with the moral aspects of international law. One strand of scholarship has treated the rules of international law as a proper subject for philosophical inquiry. Another has used international legal rules to support moral arguments about aspects of the internat...
Into Positivism: Georg Friedrich von Martens (17561821) and Modern International Law
Constellations, 2008
There is a familiar way in which every politics-also international politics-is a politics of law. After all, most politics aims expressly to end up in the legal regulation of something. Such an image presumes the separation of the two, politics and law, like the distance between cause and effect, ends and means. But there is another, more subtle connection between politics and (international) law, a relation not between separate entities, but what is really a relation of identity. For whatever else political power might be, at least it entails the ability to speak authoritatively. And what is an authoritative form of normative speech-what idiom to use, what may be taken for granted and what is in need of proof and so on-is a reflection of legal doctrine and culture, what at any moment is recognised as professional legal speech. 1 Changes in legal culture and doctrine are reflexively linked with political change, indeed, we often recognise the latter by observing the former. As ideas about authoritative speech change, familiar vocabularies lose their persuasive power. Old authorities no longer sound authoritative. A new idiom catches the imagination and new speakers begin to ring true, or right, that is, in possession of something powerful. Modern legal doctrine-legal doctrine since Bodin, Hobbes and Grotius-arose as a response to the loss of persuasive power in old European religious and scholastic vocabularies. Towards the end of the 16 th and beginning of 17 th centuries new forms of scientific and political speech began to articulate the transformation that was taking place in early modern Europe, providing an alternative both to the old verities and to the reactive scepticism that remained unable to carry a solid political form. 2 The spiritual and political crisis peaked in the Thirty Years War out of which emerged a novel language of normative authority-natural law-with its own native speakers, the natural lawyers. Sounding in part like philosophers, in part like lawyers, often exploiting the idioms of mathematics and natural sciences, these men were able to speak persuasively about the role of the new territorial entities in providing security and, in due course, welfare to their populations. The new language made it possible to think the world as naturally divided into separate secular states whose rulers would enjoy supreme authority, both articulated in and limited by the idiom of secular sovereignty. By the end of the 18 th century, this vocabulary had, for its part, become vulnerable to increasing criticism. The monarchic absolutism it had helped to support in practice, and the abstractions about human nature that it produced as theory, now seemed suspect and unpersuasive, its native speakers increasingly sounding like new scholastics out of step with an enlightened era. 3 We recognise some of that critique in Rousseau's attack on the way Grotius had offered "fact" for right and in Kant's indictment of the whole lot of the natural lawyers-Grotius, Pufendorf and Vattel-as "miserable comforters" whose legal principles This article is an expanded version of the following chapter, first
This paper aims to analyze the relative neglect often given to international law under philosophy of law studies. Within this context, the relationship between law and reasoning, in the light of the international realm, is taken in a broader level to understand the role played by this field of knowledge in H.L.A. Hart’s The Concept of Law, among other works of reference. With the consolidation of normative and jurisprudential work of several international fora, such as the United Nations, its affiliate agencies, and many international courts other than the International Court of Justice, international law has given rise to several legal phenomena worth understanding through a philosophical perspective. Regardless of the field of study, whether humanitarian law, international economic law, or transnational justice, the social and political role international law plays nowadays has been growing exponentially.Notwithstanding its importance, there is a current negligence to the philosophy of international law among authors from all over the world. Despite researching fields such as distributive justice, group justice and transnational justice, not enough thought is put into understanding current legal theories behind international law, neither into the possibility of conceiving a moral theory in the context of legal pluralism. In view of these main issues, the article aims not only to examine international law as a viable field of study for the philosophy of law in the context of legal pluralism, but also to further understand its developmental consequences for the international order. Therefore, this article analyzes with remarkable concern the importance of the global expansion of human rights in order to better examine the role that international human rights can play in the definition of an international legal order.
LAW AND PHILOSOPHY: Selected Papers in Legal Theory
2014
Foreword [1994] 1–4 LAW AS PRACTICE QUELQUES QUESTIONS MÉTHODOLOGIQUES DE LA FORMATION DES CONCEPTS EN SCIENCES JURIDIQUES [1970] 7–33: 1. Introduction 7 / 2. La particularité de l’objet des sciences juridiques 8 / 3. La particularité de la méthodologie des sciences juridiques 10 / 4. La particularité de la formation des concepts en sciences juridiques: Quelques problèmes 15 [4.1. Le concept du droit 16 / 4.2. Le concept dogmatique du contenu du droit 21 / 4.3. Le concept de la normativité juridique 23 / 4.4. Le concept des lacunes en droit 24] / 5. La particularité de la formation des concepts en sciencesjuridiques: Quelques conclusions 26 / 6. La formation des concepts en sciences juridiques et la réalité: Conclusion finale 29 / 7. Annexe: Des bases d’une classification possible des définitions en sciences juridiques 31 // GELTUNG DES RECHTS – WIRKSAMKEIT DES RECHTS [1978] 35–42 // MACROSOCIOLOGICAL THEORIES OF LAW: A SURVEY AND APPRAISAL [1983] 43–76: I. Issues of the Macrosociological Theories of Law 46 / II. The Role of the Macrosociological Theories in the Social Science Foundation of Legal Thinking 63 // REFLECTIONS ON LAW AND ITS INNER MORALITY [1984] 77–89: 1. Law and Morals As Two Systems of Norms, and the Inner Morality of Law 77 / 2. Law As A Value Bearer and As A Mere External Indicator 78 / 3. The Inner and External Moral Credit of Legislator 83 / 4. The Inner Morality of Law 86 // THE LAW AND ITS LIMITS [1985] 91–96 LAW AS TECHNIQUE DOMAINE »EXTERNE« ET DOMAINE »INTERNE« EN DROIT [1983] 99–117: 1. Le »juridique« et le »non-juridique« 99 / 2. Domaine »externe« et domaine »interne« en tant que groupes de phénomènes 104 / 3. Domaine »externe« et domaine »interne« en tant que points de références 112 / 4. Conclusion 116 // DIE MINISTERIELLE BEGRÜNDUNG IN RECHTSPHILOSOPHISCHER SICHT [1977] 119–139: I. Die prinzipiellen und geschichtlichen Grundlagen der Herausforderung der ministeriellen Begründungen 120 / II. Die möglichen und erwünschten Funktionen der ministeriellen Begründung im sozialistischen Rechts 128 / III. Die ministerielle Begründung und ihr Wert in der Auslegung derRechtsnormen 132 // THE PREAMBLE: A QUESTION OF JURISPRUDENCE [1970] 141–167: I. The Notion of the Preamble 142 / II. Content and Functions of the Preambles 146 / III. Normativity of the Preamble Content 150 / IV. The Problem of the Justifiability of Preamble-drafting in the Light of Socialist Legal Policy 161 // PRESUMPTION AND FICTION: MEANS OF LEGAL TECHNIQUE [1988] 169–185: I. Presumption 169 [1. In the Judicial Process of Establishing the Facts: praesumptio homini vel facti 170 / 2. In the Normative Definition of the Facts: praesumptio juris tantum 170 / 3. In the Normative Definition of the Facts: praesumptio juris et de jure 171 / 4. In a Possible Theoretical Reconstruction 171] On »Presumption« 172 [1. Function 172 / 2. Presumption and Fiction 173 / 3. Irrelevancy of Epistemological Foundation 173 / 4. The Technique of Presumption 174] II. Fiction 175 [1. In the Linguistic Formation of Legal Norms 175 / 2. In the Judicial Application of Legal Norms 175 / 3. In the Doctrinal Processing of Legal Norms 176 / 4. In the Theoretical Reconstruction of Legal Norms 176 / 5. Approaches to and Understandings of Fiction 177] On »Fiction« 178 [1. History and Understandings 178 / 2. Classification 180 / 3. Law as Fiction 181 / 4. Presumption and Fiction 182] // LEGAL TECHNIQUE [1988] 187–198: I. Legal Technique 187 [1. In the Large Sense 1987/ 2. In Legal Practice 189 / 3. In Legal Science 189 / 4. As a Special Technique 190] II. On Legal Technique [1. Definition and Function 190 / 2. Legal Technique and Legal Cultures 192 / 3. Postulates of Legal Technique in the Cultures of Modem Formal Law 195 {a) The Principle of Consequentiality 195 / b) The Principle of Coherency 195 / c) The Principle of Conceptual Economy 196 / d) The Principle of Non-redundancy 196}] LAW AS LOGIC MODERNE STAATLICHKEIT UND MODERNES FORMALES RECHT [1982] 201–207: 1. Die Klassifizierung als logisches und als gesellschaftswissenschaftliches Verfahren 202 / 2. Typologie der staatlichen und rechtlichen Erscheinungen 202 / 3. Der moderne Staat und das moderne formale Recht: Frage der Zusammenhänge und Entwicklungsalternativen 204 // HETEROGENEITY AND VALIDITY OF LAW: OUTLINES OF AN ONTOLOGICAL RECONSTRUCTION [1986] 209–218 // LEIBNIZ UND DIE FRAGE DER RECHTLICHEN SYSTEMBILDUNG [1973] 219–232: 1. Aktualität von Leibniz 219 / 2. Der Gedanke der universalen mathematischen Methode 221 / 3. Die logischen Konzeption der Rechtswissenschaft 224 / 4. Die geometrische Vision der rechtlichen Systembildung 227 / 5. Das Scheitern der Leibnizschen Idee und seine Lehre 230 // LAW AND ITS APPROACH AS A SYSTEM [1975] 233–255: 1. The Logical Structure of Law as a Historical Product 233 / 2. Tendencies of Formal Rationalization in Legal Development 234 / 3. Historical Development of the Approach to Law as a System 239 / 4. Present State of the Attempts at a Logical Reconstruction of Law and Legal Reasoning 243 / 5. Question of the Axiomatic Conception of Law 248 / 6. Heuristic Value of the Approach to Law as a System 250 // LOGIC OF LAW AND JUDICIAL ACTIVITY: A GAP BETWEEN IDEALS, REALITY AND FUTURE PERSPECTIVES [1982] 258–288: 1. Historical Background 259 / 2. Ideals 264 / 3. Reality 270 / 4. Future Perspectives 277 // KELSEN’S PURE THEORY OF LAW – YESTERDAY, TODAY AND TOMORROW [ms] 289–293, THE NATURE OF THE JUDICIAL APPLICATION OF NORMS: SCIENCE- AND LANGUAGE-PHILOSOPHICAL CONSIDERATIONS [ms] 295–314: 1. Presuppositions 295 / 2. The Context of the Application of Norms 300 [2.1 Actualisation in Concrete Meaning 300 / 2.2 Linguistic Undefinedness 304 / 2.3 Lack of Logical Consequence in the Normative Sphere 308] LAW AS EXPERIENCE ON THE SOCIALLY DETERMINED NATURE OF LEGAL REASONING [1971] 317–374: 1. Interrelation of the Creation and Application of Law 317 / 2. The Socially Determined Nature of the Application of Law 332 / 3. The Socially Determined Nature of Legal Reasoning 337 / 4. The Question of Perspectives 363 // TOWARDS THE ONTOLOGICAL FOUNDATION OF LAW: SOME THESES ON THE BASIS OF LUKÁCS’ ONTOLOGY [1983] 375–390, IS LAW A SYSTEM OF ENACTMENTS? [1984] 391–398: 1. Working Models of Law 391 / 2. Senses of ContExtuality in Law 393 / 3. Jurisprudential Approach and Socio-ontological Approach 394 / 4. Conclusions 396 [4.1. Law as Historical Continuum 396 / 4.2.Law as Open System 396 / 4.3. / Law as Complex Phenomenon with Alternative Strategy 396 / 4.4. Law as an Irreversible Process 397 / 4.5. The Genuinely Societal Character of Law 397] // EUROPEAN INTEGRATION AND THE UNIQUENESS OF NATIONAL LEGAL CULTURES [1992] 399–411: 1. The Philosophical Framework 399 / 2. Law as Tradition 403 / 3. European Integration and the Preservation of the Uniqueness of National Legal Orders 407 // INSTITUTIONS AS SYSTEMS: NOTES ON THE CLOSED SETS, OPEN VISTAS OF DEVELOPMENT, AND TRANSCENDENCY OF INSTITUTIONS AND THEIR CONCEPTUAL REPRESENTATIONS [1991] 413–424: I. A Logic of Systems 413 / II. Ideal Types and Historically Concrete Manifestations 416 / III. Ideal Type As A Normative Ideology 418 / IV.Objectivity and Contingency of Systems 420 / V. Limits and Bonds, ConsEquEntiality and Practicability of a System 423 LAW AS HISTORY FROM LEGAL CUSTOMS TO LEGAL FOLKWAYS [1981] 427–436, ANTHROPOLOGICAL JURISPRUDENCE? LEOPOLD POSPÍŠIL AND THE COMPARATIVE STUDY OF LEGAL CULTURES [1985] 437–457: 1. Rule, Fact and Principle in the Concept of Law 438 [a) Abstract rules 439 / b) Abstracts from actual behaviour 439 / c) Principles Upheld by Legal Decisions 440] 2. Attributes of Law 445 [a) Authority 446 / b) Intention of Universal Application 446 / c) Obligatio 447 / d) Sanction 447] 3. Law and its Social Functional Definition 450 [(1) Law is a Global Phenomenon 451 / (2) Law is a Phenomenon Able to Settle Conflicts of Interests 451 / 3) Law is a Phenomenon Prevailing as the Supreme Controlling Factor 452] 4. Conclusion 454 // LAW AS A SOCIAL ISSUE [1985] 459–475: I. The Social Prestige of Law 459 / II. The Social Nature of Law 463 / III. Law and Language in the Service of Social Mediation 466 (1. Passive Mediation and Active Intervention 468 / 2. The Dilemma of the Mediation of Values 472) // LAW AS HISTORY? [1986] 477–484: 1. Understandings of the Term »Law« 477 / 2. Law and History 478 / 3. Law as History 481 // RECHTSKULTUR – DENKKULTUR: EINFÜHRUNG ZUM THEMA [1988] 485–489 Curriculum Vitae 491 / Bibliography 493 // Index 515 / Index of Normative Materials 523 / Index of Names 525
The American Journal of International Law, 1987
Tony Carty criticizes public international law on the basis of its own theoretical foundations. He does not condemn international law for political naivety, Eurocentrism or imperialist sympathies. He neither bemoans its historical infancy nor chastises its moral failures. Since international law cannot sustain its claims to comprehensiveness without jettisoning its predominant theory of the state, Carty argues, international society is best thought of as a Hobbesian state of nature. Carty's argument is difficult to untangle because he advances a number of organizing themes for the divergent issues pursued in his seven short chapters. Carty's most telling criticisms are directed at international law's claims to "completeness." He argues that international law claims to "define comprehensively the rights and duties of States towards one another" and to produce a complete geographic allocation of state jurisdictions. Carty traces these notions of normative and territorial completeness to two schools of European jurisprudence-the German historical school (e.g., Savigny) and the pure theory of law (e.g., Kelsen). Carty associates these notions of completeness with a theory of the state as a legally ordered system of competences. This state theory, anchored in 1 9th-century European nationalism, relies upon an unsustainable jurisprudence. The law that orders its competences cannot also regulate its coming into being. Once the state exists, moreover, it cannot fully regulate the coming into being of the law if it is to remain a system of legally regulated competences. As a result, Carty argues, "the completeness of the legal order is nothing more than a hypothesis" (p. 10). International law must choose between its theory of the state and its comprehensive jurisprudential claims. Several exemplary doctrines sharpen the contrast between state theory and jurisprudence. The inadequacies of self-determination doctrines developed to regulate the coming into being of international legal subjects expose international law's dominant state theory. Absent some doctrine relating the people and territory to the state (a relationship not sustained by selfdetermination doctrine), state theory must rely upon jurisprudence to complete the normative and territorial order of jurisdictions. Carty finds the doctrines that might establish these jurisprudential claims inadequate. Just as doctrines about self-determination signaled the inability of international law to regulate the coming into being of its own subjects, so also sources doctrine about non liquet signals the inability of legal subjects comprehensively to regulate the coming into being of their law. Similarly, doctrines about territorial jurisdiction, designed to complete the grid of sovereign authority, remain little more than "hypotheses" about a pattern of authority that must be established by states. Carty's critical method is familiar and powerful. One identifies two elements of legal consciousness-here a theory of the state and a theory of 1987]