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The Forms of International Law

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For those who are not familiar with international law, just what it is or how it operates is often a puzzle. Some will doubt whether there even is such a thing, asking if international law really is law. This question was asked emphatically by John Austin in the nineteenth century (Austin 1955: 122–125). To answer this question, one must consider the forms that international law takes and how it functions. This analysis begins with a consideration of how law works in general.

Whether international law really is law is a question about legitimacy, of whether international law and international legal processes are accepted as justifying the prescription and enforcement of norms (Franck 1990). Legitimacy is partly a function of perceived fairness in procedures and partly a function of perceived rightness of result. Societies where governance is perceived as legitimate can carry on for decades or centuries without making particularly good decisions; when societies reject the legitimacy of their institutions, its governance structures collapse rather quickly from what often appear to be rather slight shocks (Dellapenna 2010).

Questions about the legitimacy of international law arise when people have in mind a specific model of how law works in describing something as a law and some claim of right or obligation as legal. This model envisions a legislature acting formally to create a highly determinate rule enforced by a policeman: “The ultimate expression of law isn't order, it's a prison” (Jackson 1972: 119). This notion is called “legal positivism” because it focuses attention solely on “positive” law, law that is formally enacted and formally enforced. John Austin, one of the foremost proponent of legal positivism in the nineteenth century, defined law as “the command of a sovereign” enforced by a sanction (Austin 1955: 133, 201). By this theory, the practice of law pertains to identifying the commands of a sovereign and properly using the commands to achieve a desired result. Austin concluded that international law simply cannot be law, but was merely “positive morality,” because there was no identifiable sovereign issuing commands nor any formal enforcement mechanisms for such commands (Austin 1955: 134–142).
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Document Type: Research Article

Publication date: 01 January 2011

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