PIL PROJECT

INTERNATIONAL LAW IS THE VANISHING POINT OF JURISPRUDENCE- CRITICALLY EXAMINE

Submitted to: Dr.Jasmeet

Submitted by: 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.Chimnis formulation, the eld of international legal theory still gives the appearance of a wasteland. There are encouraging signs of a growing consciousness of theoretical issues in the eld. 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 avour, its sense of being other than the more methodological, or professional styles of later scholarship. When this new world-system became rmly entrenched, its contradictions became and remain obscured. In the post-Enlightenment legal culture which separates theory and doctrine, those contradictions, reected 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 unreective pragmatism, with the implicit assumption that the problems of theory and, we can add, history are nonproblems.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 signicance, state practice in matters of international law expanded, intensied, 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 laws nature, there is no lack of denitions of the subject matter. These denitions purport to answer the question What is international law?, but are generally so thin or selfrecursive 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 dened to include some nonstate actors as well. This rule-approach denes 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 denition 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 denitions. Shearer, for example, denes international law as rules of conduct which states feel themselves bound to observe, and therefore, do commonly observe. Here the law is dened 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 Shearers denition it would cease to be law. Malanczuk is one textbook writer who seems aware that apparently innocent denitions imply philosophical positions. He points out, for example, that the classic (pre-World War I) denition 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 reect 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 dene international law and enter directly into the discussion of its sources indeed, Malanczuk himself avoids dening his subject matter, limiting himself to observations about its scope. Malanczuks hesitancy about providing a denition comes in his updated version of Akehursts classic textbook, which in contrast opened with a denition. It is interesting that the reader learns nothing more, less or different from Malanczuks description of the subjects and scope of international law, than from Akehursts denition of international law itself. These denitions, in other words, generally answer the question What are the subjects of international law? rather than What international law? Of course, within the very textbooks that print these wan denitions 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 is

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 fullls 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 denitions of international law encountered in the textbooks leave the fundamental law-ness of international law completely unexamined. International law is dened 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 denitions 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 denition 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 Bulls 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--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 conned 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 denition here revolves around international laws 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 denitions, what is evident is a failure to systematically analyse or even take seriously the specicity 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 historical emergence is part of a process of is something inescapably legal about international law, and its 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 laws 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 must contingency the of Bull and others, of jurisprudence examine fundamental nature

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