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The juridical basis of international law

If, then, we accept that international law is 'law', albeit a very different kind of law from that which we find in national legal systems, from where does it derive its legal validity? What is the juridical origin or source of international law? Why is it law? These are questions that have vexed jurists for many years and a number of theories have been developed. These are considered below.

1.6.1 The command theory

John Austin was one of the greatest legal philosophers of the nineteenth century. His view of 'law' was that it comprised a series of commands or orders, issued by a sovereign, and backed by the threat of sanctions (enforcement) if the commands were disobeyed. Consequently, unless the rules of a system amounted to a collec­tion of orders backed by threats, emanating from a sovereign, they were not 'posi­tive law'. This theory has had a profound and, perhaps, unwarranted impact on the search for the juridical origin of international law. According to Austin, 'inter­national law' is not 'positive law' because it does not result from the commands of a sovereign. Customary law, for example, develops through state practice and treaty law develops through consent. Thus, international law, because it is not made up of commands, is properly to be regarded as a species of 'positive morality' and is not within the province of jurisprudence.

The nature of international law and the international system

As a general description of what law is, this theory has now been largely discredited. The picture of law as a series of commands issued by a sovereign and backed by threats does not even describe national law accurately, let alone inter­national law. Moreover, Austinian theory may be dismissed in so far as it suggests that international law is the same sort of animal as national law. The sovereignty theory misinterprets the function of international law because its primary purpose is not to coerce or command states, but to enable them to interact freely by laying down orderly, predictable and binding principles. Austinian theory cannot explain why states themselves regard international law as binding even when there is no 'sovereign'.

Date: 2014-12-21; view: 4008

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