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