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PIL PROJECT
INTERNATIONAL LAW IS THE VANISHING POINT OF JURISPRUDENCE- CRITICALLY EXAMINE
Submitted to: Submitted by: Dr.Jasmeet Aditya Dassaur Roll No-206/10 Prinkle Singla Roll No-207/10 4th semester Section-A
CONTENTS
ACKNOWLEDGEMENT WHETHER INTERNATIONAL LAW IS THE
VANISHING POINT OF JURISPRUDENCE?
BIBLIOGRAPHY
ACKNOWLEDGEMENT
I would like to thank my PIL teacher, Ms.Jasmeet, for giving me
an opportunity to work on this project. Without her support and
cooperation, this project would not have been possible. I would
also like to thank the library staff for making available the books
required. In the end, I also want to thank my family and friends
for their support.
WHETHER INTERNATIONAL LAW IS THE
VANISHING POINT OF JURISPRUDENCE?
Given the vast and growing literature on international law,
it is remarkable how few systematic attempts have been made to
uncover the fundamental nature of such law as a social
phenomenon. This poverty of theory has not gone unnoticed.
The ‘vanishing point of jurisprudence’, for example, is how T.E.
Holland described international law. Richard Falk has commented
that ‘most international lawyers, whether inside or outside of
universities, profess to be anti-theoretical’, often contending that
‘theory is a waste of time in legal studies’.
In B.S.Chimni’s formulation, ‘the field of international legal
theory still gives the appearance of a wasteland’. There are
encouraging signs of a growing consciousness of theoretical
issues in the field. The tradition of blindness, even antipathy, to
theory, however, still weighs heavy in international law.
As Koskenniemi points out, though ‘discussion on “theory” about
international law has become a marginalized occupation’, ‘this has
not always been so’.
It is no coincidence that the historic decline of the jurisprudential
science of international law is coterminous with the spread of
internationallaw as a global system.
Early modern writers were theorising and expressing a developing
system, in which new social forces were coming to the fore.
International law was a function of a changing world, and it was
not possible to disentangle policy from social explanation.
Writers such as Vitoria, Suarez or Grotius engaged in an argument
aboutinternational law in which the concrete and the abstract,
description and prescription were not distinguished from each
other.This fact gives early writing its distinct flavour, its sense of
being ‘other’ than the more methodological, or ‘professional’
styles of later scholarship. When this new world-system became
firmly entrenched, its contradictions became – and remain –
obscured. In the post-Enlightenment legal culture which separates
‘theory’ and ‘doctrine’, those contradictions, reflected in
social and legal theories, have for many lawyers been seen as a
problem not of the world, but of ‘theory’ itself. This has made
theory itself seem suspect. The endless and seemingly
inconsequential character of theoretical discourse has forced
modern lawyers to make a virtue out of a necessity and turn
towards an unreflective pragmatism, with the implicit assumption
that the problems of theory and, we can add, history are non-
problems.The modern international lawyer has assumed that
frustration about theory can be overcome by becoming doctrinal,
or technical The turn to doctrine was a function of the embedding
of ‘law-ness’ into the international social fabric in the nineteenth
century. Even though in this period – and indeed throughout the
century – the science of international law lost relatively in
historical significance, state practice in matters of international
law expanded, intensified, and accelerated to such an extent that
the period clearly marks the beginning of a new era. The
formulation that the theory and history of international law waned
‘even though’ the law itself waxed is misleading. The very
historical triumph of international law lay behind the diminution
of international legal science.
Despite – perhaps because of – the absence of international legal
theory or analysis that can address the fundamental question of
international law’s nature, there is no lack of definitions of the
subject matter. These definitions purport to answer the question
‘What is international law?’, but are generally so thin or self-
recursive that they tell the reader very little. Thus for example,
international law ‘is the system of law which governs relations
between states’ – and it is usually defined to include some non-
state actors as well. This ‘rule-approach’ defines a discrete and
bounded arena of international law as a body of rules, thus
insisting on ‘a clear-cut distinction between law and non-law’.
This kind of classic, textbook definition represents ‘a widely
held perception’ and the ‘classical view’, and it tells us almost
nothing of the underlying nature of international law.
Occasionally, hints of a more systematic theory are implicit in
these definitions. Shearer, for example, defines international law
as ‘rules of conduct which states feel themselves bound to
observe, and therefore, do commonly observe’. Here the law is
defined as deriving from states’ practice, implying a positivist
theory of the non-absolute nature of law: if a state suddenly
decided it no longer felt bound to observe a particular law, then
according to Shearer’s definition it would cease to be law.
Malanczuk is one textbook writer who seems aware that
apparently innocent definitions imply philosophical positions. He
points out, for example, that the classic (pre-World War I)
definition of international law as ‘the law that governs the
relations between states amongst each other’ implies the positivist
doctrine ‘that only states could be subjects of international law’,
which did not reflect reality even at the time. Without apparent
censure or approval, he points out that some textbooks avoid these
issues in that they ‘refrain from any attempt to define international
law and enter directly into the discussion of its “sources”’ –
indeed, Malanczuk himself avoids defining
his subject matter, limiting himself to observations about its
scope. Malanczuk’s hesitancy about providing a definition comes
in his updated version of Akehurst’s classic textbook, which in
contrast opened with a definition. It is interesting that the reader
learns nothing more, less or different from Malanczuk’s
description of the subjects and scope of international law, than
from Akehurst’s definition of international law itself. These
definitions, in other words, generally answer the question ‘What
are the subjects of international law?’ rather than ‘What is
international law?’
Of course, within the very textbooks that print these wan
definitions are often discussions of the classic arguments in
international law, between the monists and the dualists, the
deniers and the utopians, the positivists and the naturalists, and so
on. These are debates that do pertain to the nature of international
law, and will be addressed below. But to a large extent, they
leave the fundamental question unanswered. Thus we might agree
with one writer or another on these various debates –
for example, picking positions at random from the classic debates,
that international law is a fundamentally different phenomenon
from municipal law, that it is law properly so-called, that it
derives its obligatory nature from the practice of states – and yet
still have no idea why international law takes the shape it does.
Claims that international law is, say, ‘composed of the principles
and rules of conduct’ of states, are essentially claims about what
international law does (regulates interaction), not what it is, as
law. There is no theory of why it is law that does the job of
regulation. In this approach, as Hedley Bull puts it,
it is not the case that international law is a necessary or essential
condition of international order. The functions which international
law fulfills are essential to international order, but these functions
might in principle be carried out in other ways.... [T]he basic
rules of coexistence might be stated, and a means provided for
facilitating compliance with agreements, by a body of rules which
has the status of moral rules or supernatural rules.
Thus, the standard definitions of international law encountered in
the textbooks leave the fundamental ‘law-ness’ of international
law completely unexamined. International law is defined by its
alleged regulatory effect, which could be wrought by some other –
non-legal – body of rules. Nor should readers be misled by the
mere mention of ‘law’ in the various definitions of international
law: Schwarzenberger, for example, says that international law is
‘the body of legal rules which apply between sovereign states’.
But without an analysis of law itself, mentioning the ‘legal’
nature of the ‘rules’ of international law is merely tautologous.
The substantive element of the definition is its description of
international law as rules of behaviour inhering between states.
Bull is perspicacious on this point: ‘International law may be
regarded as a body of rules which binds states and other agents in
world politics in their relations with one another and is considered
to have the status of law.’
Here, what makes international law something to be analysed at
all – a phenomenon with social effects – is its status as a body of
rules: what makes it law is merely the fact that it is so considered.
This implies a radical contingency in the legal nature of
international law. ‘That modern international society includes
international law as one of its institutions is a consequence
of...historical accident’.
The ‘law-ness’ of international law is thus historically absolutely
arbitrary. In as much as international law is ‘the vanishing point
of jurisprudence’, In as much as its nature as law remains opaque
while its role as a regulatory mechanism is retained, this historical
contingency is inevitable. International society regulates itself in
various ways, it is claimed, and in the modern age we happen to
call that regulation ‘law’. It is to Bull’s credit that unlike so many
writers, he sees this implication clearly and does not shrink from
it. Most mainstream writers simply do not see the radically
undermining effect of their own positions vis-à-vis the legal
nature of international law. Even in the course of defending
international law as law, for example, Malanczuk claims that what
distinguishes the rules and principles of international law from
‘mere morality’ is that they are accepted in practice as legally
binding by states in their intercourse because they are useful to
reduce complexity and uncertainty in international relations. The
‘rules’ of international behaviour are taken as given, trans
historical. In as much as they are law, this is simply because they
are ‘accepted . . as legally binding’ – they are law only because
we say they are law, rather than because of their form or essence.
Rules, here, are deemed central: their ‘lawness’ is epiphenomenal.
It should be pointed out that this thin conception of law is not
confined to writers of textbooks, who are mostly concerned with
the technical-regulatory rules, nor to writers such as Bull, writing
from outside international law. Even
writers such as Hans Kelsen and H.L.A. Hart, precisely concerned
with the jurisprudence of international law, agree on the basic
formulation.
Thus for Hart, as for the textbook writers, international law is law
– despite its lack of centrally organised sanctions or ‘secondary’
rules that specify procedure for adjudication – as a set of rules of
conduct that are ‘generally observed and regarded as valuable’
by states. Although it differs greatly from municipal law, what
Hart sees as crucially shared is ‘the idea of “ought”... the idea of
law as a form of social regulation’. The ‘rule-ness’ of
international law is clear – he calls international laws ‘social
rules’: the ‘law-ness’, however, is unexamined.
Similarly, Kelsen defends the ‘law-ness’ of international law in as
much as it is a coercive order,...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 by sentences
which... may be called “rules of law”.
Again, the substance of the definition here revolves around
international law’s regulatory behaviour. Its law-ness, however, is
deemed distinct from this, and derives from the fact that it is
called law. As one critic says, ‘Kelsen provides no methodology
for analysis of the difference between a moral or a
legal social order’. In all of these definitions, what is evident is a
failure to systematically analyse – or even take seriously – the
specificity of the legal form. Hart makes this explicit in his claim
that the analogy between international and municipal law ‘is one
of content not of form’ – the content here being the shared
normative obligation contained in both sets of ‘social rules’. If the
legal form is not shared between international and municipal law,
then they have no legal essence in common, and the only thing
that makes them both ‘law’ is that they are both called law.
A belief in the historical contingency of the ‘law-ness’ of
international regulation is the result of ahistoricism. For Bull,
there is a transhistorical necessity to have ‘a body of rules’
‘essential to international order’: international law is merely one
of its forms.
It is my contention that this ahistoricism is wrong. There is
something inescapably ‘legal’ about international law, and its
historical emergence is part of a process of historical
transformation. I will argue that the development of international
law is inextricably tied to the political economy of the post-feudal
world, and that such law’s units of analysis are legal units. The
framework for interaction between polities in the modern
international legal system, its modus operandi, is fundamentally
different from previous orders’.
To avoid the ahistorical contingency of Bull and others,
jurisprudence must examine the fundamental nature of
international law as law, to open up the black box at the centre of
international law. As against Hart and others, I will try to show
that for any systematic theory of international law, the
fundamental unit of analysis must be the legal form itself.
BIBLIOGRAPHY
China mievelle,Between Equal Rights,Brill
Leiden,Boston,2005
H.O.Aggarwal,International Law and Human
Rights,Chanchal law
publications,Allahbad,2004
http://www.google.co.in/
http://en.wikipedia.org