International Law: 'A Relatively Small and Unimportant' Part of Jurisprudence?
Files
Description
CHAPTER X OF Hart’s book, devoted to the subject of international law, presents a frustrating combination of insight and obtuseness. The insights are to be found in Hart’s discussion of national sovereignty and in his consideration of the significance of the absence of organised sanctions to support law in the international realm. The obtuseness—some of it perhaps more obvious to us now, 50 years after the publication of The Concept of Law, than it was in 1961—has to do with Hart’s attempt to apply the apparatus of secondary rules and, in particular, the idea of a rule of recognition to the international realm, and, as a consequence, his characterisation of international law as, in many respects, more like a system of ‘primitive’ law than like a municipal legal system. Hart is not prepared to dismiss out of hand the question of whether international ‘law’ really is law. He thinks it is an open question whether international law is sufficiently like the standard case of law to be described as law, and his comments have led a number of international jurists to suppose that Hart must have been a sceptic about this subject. Maybe that judgment is made too quickly. But it is clear that theorists of international law have not found much in this chapter to help them with their enterprise. Nor have Hart’s followers found much here to discuss or elaborate. One can’t help thinking that the feel of this chapter—it seems like an afterthought, it departs quite markedly from the flow of the main argument of the book’s later chapters, and it is not revisited at all in the 1994 Postscript—has contributed to sense among analytic jurists in the positivist tradition that jurisprudential issues associated with international law are issues of marginal significance, mostly not worth the attention of serious legal philosophers. Hart notes at the beginning of The Concept of Law that ‘only a relatively small and unimportant part of the most famous and controversial theories of law’ are concerned with issues about the propriety of using the term ‘law’ to describe normative arrangements in the international realm. And both Hart and his supporters seem happy to follow his famous predecessors in that regard. The agenda set out at the beginning of The Concept of Law was ‘to advance legal theory by providing an improved analysis of the distinctive structure of a municipal legal system’. Analysis of issues involving international law was always going to be a distraction from this task, and Hart did not venture in the chapter to consider the possibility that we would regard international law as a paradigm of law along with the law of a familiar municipal system; he was unwilling to raise that possibility and unwilling to consider how different our philosophical analysis would have to be if both of these were treated as paradigms instead of only one. So international law was treated from the outset as a borderline case. And although Hart acknowledged that such borderline cases generate not only semantic hesitations (about the proper use of the word ‘law’) but also challenging problems, he announced pretty firmly that his discussion of these problems ‘at various points’ is at best ‘only a secondary concern of the book’. Little wonder that his followers seem to have been encouraged to infer the instruction—if encouragement were needed—‘Don’t waste your time on these topics’. All of this is a great pity, because in recent decades the nature and status of international law has emerged as one of the issues in jurisprudence with greatest importance for real-world political debates. Responses to the terrorist attacks on the United States in 2011 and events at the United Nations leading up to the American-led invasion of Iraq led many American lawyers and to question the significance and politicians sometimes even the existence as law of what was called ‘international law’. Very few of the legal philosophers working in the field defined by Hart’s The Concept of Law saw fit to participate in this debate. No leading modern positivist saw fit to try to map onto these controversies what Hart had said in of chapter X the book. Whether this has been due to embarrassment at the chapter’s inadequacies or to a broader indifference would be difficult to say. (The former explanation is probably implausible, for it would presume a degree of alertness to the detail of Hart’s account, and a knowledge of international law, sufficient to be able to identify the inadequacies of the chapter that positivist jurisprudence has seldom disclosed.) Either way the silence is deafening. Analytic legal philosophy has been disgracefully bereft of good writing on international law, and on adjacent issues such as the rise of global law and global standards (such as human rights) for the legitimacy of national law. That is beginning to change, though it has to be said that there is still no leadership in this regard from Hart’s most prominent followers.
Source Publication
Reading HLA Hart's The Concept of Law
Source Editors/Authors
Luís Duarte d'Almeida, James Edwards, Andrea Dolcetti
Publication Date
2013
Recommended Citation
Waldron, Jeremy, "International Law: 'A Relatively Small and Unimportant' Part of Jurisprudence?" (2013). Faculty Chapters. 1567.
https://gretchen.law.nyu.edu/fac-chapt/1567
