THE INSTITUTIONAL PROBLEM IN MODERN

INTERNATIONAL LAW
Modern international law is widely understood as an autonomous system of
binding legal rules. Nevertheless, this claim to autonomy is far from uncon-
troversial. International lawyers have faced recurrent scepticism as to both
the reality and efficacy of the object of their study and practice. For the most
part, this scepticism has focused on international law’s peculiar institutional
structure, with the absence of centralised organs of legislation, adjudica-
tion and enforcement, leaving international legal rules seemingly indetermi-
nate in the conduct of international politics. Perception of this ‘institutional
problem’ has therefore given rise to a certain disciplinary angst or self-
defensiveness, fuelling a need to seek out functional analogues or substitutes
for the kind of institutional roles deemed intrinsic to a functioning legal sys-
tem. The author of this book believe that this strategy of accommodation is,
however, deeply problematic. It fails to fully grasp the importance of inter-
national law’s decentralised institutional form in securing some measure of
accountability in international relations. It thus misleads through functional
analogy and, in doing so, potentially exacerbates legitimacy deficits. There
are enough conceptual weaknesses and blindspots in the legal-theoretical
models against which international law is so frequently challenged to show
that the perceived problem arises more in theory than in practice.

Volume 11 in the series Hart Monographs in Transnational and

International Law
 Hart Monographs in Transnational and International Law
Series Editor: Craig Scott, Professor of Law, Osgoode Hall Law School of
York University, Toronto
The objective of this series is to publish high-quality scholarship in public
international law and private international law, as well as work that adopts
‘transnational law’ as its thematic, theoretical or doctrinal focus. The series
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of both public and private international law, and their operation in practice,
including insights drawn from general legal theory;
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Of special interest are explorations of the extent to which these interactions
are structured by higher-order principles and policies, on the one hand, and
by politics and the exercise of various forms of power, on the other hand.
The series is open to work not only by law scholars but also by scholars
from cognate disciplines.
Recent titles in this series
Volume 6: The Payment Order of Antiquity and the Middle Ages:
A Legal History
Benjamin Geva
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Mario Prost
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Luis I Gordillo
Volume 9: Transnational Terrorism and State Accountability:
A New Theory of Prevention
Vincent-Joël Proulx
Volume 10: Transconstitutionalism
Marcelo Neves translated by Kevin Mundy
 The Institutional
Problem in Modern
International Law

Richard Collins

OXFORD AND PORTLAND, OREGON

2016
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 Acknowledgements
This book began life as a doctoral thesis, which was considerably shorter and
slightly different in focus (though no less demanding and time-consuming­to
write). I owe thanks to many individuals during that earlier writing process,
not least of whom was my supervisor, Nigel White, whose patience, encour-
agement, academic engagement and good humour were much appreciated
as my focus shifted and ideas developed. I am also grateful to my two PhD
­examiners, Patrick Capps and Rob Cryer, not only for their thorough treat-
ment of the thesis, but in helping shape the direction that this book has
taken since. I am particularly indebted to Patrick Capps, whose friendship,
academic engagement and support since has been particularly helpful in
sharpening the focus of my work to get it ready for publication. I am also
extremely grateful to Duncan French, who was not only the kindest and
supportive of colleagues in the final stages of completing the PhD and in
preparing for its defence, but also agreed to chair the viva itself (and did so
in the best of spirits), and has since remained a good friend, not to mention
a critical sounding board as the book manuscript took shape.
During the writing process, I have been fortunate enough to work at two
great institutions, the University of Sheffield and, more recently, University
College Dublin. I would like to thank friends, colleagues and former col-
leagues at both institutions for their support and encouragement. I am also
grateful to have been accepted to spend part of my sabbatical semester at
the University of Amsterdam and remain thankful to colleagues there for
engaging in debate on many of the ideas developed here.
In addition to those named above, amongst others who contributed, either
directly or indirectly, to the writing process, my thanks go to Silvia Cecchia
and family, Paul James Cardwell, Etienne Dunant, Matthew Hall, Matthew
Saul, Richard Kirkham, Dimitris Kyritsis, Dimitris Tsarapatsanis, Tawhida
Ahmed, Harriet Godfrey, Sarah Beedham, Tammy Hervey, Cormac Behan,
Russell Buchan, Mike Giudice, Marieke de Hoon, Marija Bartl, Anne van
Mulligen, Ingo Venzke and Catherine (‘Kiki’) Brölmann. I would particularly
like to thank Ali Bohm, who not only proofread chapters for the PhD thesis
and, more latterly, for the book, but has been the kindest, most supportive and
generous of friends throughout the whole writing process. Others to whom
I owe a particular gratitude include Margaret Martin, who not only provided
friendly advice and encouragement but also spent a considerable amount of
time reading and commenting on drafts of many of the chapters, as well as
Jean d’Aspremont, who has been an excellent friend and academic colleague
vi Acknowledgements

throughout the writing process, and whose ideas and approach have had a
considerable impact in shaping (and sharpening) my own approach.
I also owe thanks to Richard Hart for his enthusiasm and support upon
reading the initial proposal, and of course for accepting its publication.
I would also like to thank Rachel Turner and, more recently, Emily ­Braggins
for support and, most of all, much patience during the (long!) writing
process.
I was fortunate enough to publish parts of what follows in some (albeit
often quite modified) form elsewhere. Accordingly, Part I is based, to var-
ying degrees, on the following: R Collins, ‘Modernist-Positivism and the
Problem of Institutional Autonomy in International law’ in R Collins and
ND White (eds), International Organizations and the Idea of Autonomy:
Institutional Independence in the International Legal Order (Abingdon:
Routledge, 2011) 22–47; R Collins ‘Classical Legal Positivism in Interna-
tional Law Revisited’ in J Kammerhofer and J d’Aspremont (eds), Interna-
tional Legal Positivism in a Post-modern World (Cambridge, Cambridge
University Press, 2014) 23–49; and R Collins, ‘The Progressive Conception
of International Law: Brierly and Lauterpacht in the Interbellum Period’, in
R McCorquodale and J-P Gauci (eds), British Influences on International
Law 1915–2015 (Leiden, Brill, 2016, forthcoming). In Part II, Chapter 4 is
based substantially on R Collins, ‘The Problematic Concept of the Interna-
tional Legal Official’, which is forthcoming in Transnational Legal Theory
(2016); and parts of Chapters 5 and 6 draw from R Collins, ‘No Longer
at the Vanishing Point? International Law and the Analytical Tradition in
Jurisprudence’ (2014) 5 Jurisprudence 265–98. Sections of Part III are based
upon or have been influenced by R Collins, ‘The Rule of Law and the Quest
for Constitutional Substitutes in International Law’ (2015) 83 Nordic Jour-
nal of International Law 87–127; R Collins, ‘Non-state Actors in Interna-
tional Institutional Law: Non-state, Inter-state or Supra-state? The Peculiar
Identity of the Intergovernmental Organization’ in J d’Aspremont (ed),
­Participants in the International Legal System: Multiple Perspectives on
­Non-state Actors in International Law (Abingdon, Routledge, 2011) 311–25;
R Collins, ‘Between Contract and Constitution: International Organisations
and the Protection of Global Public Interests’ in C McCorkindale et al (eds),
The Public in Law (Farnham, Ashgate, 2011); and R Collins, ‘Mapping the
Terrain of Institutional “Lawmaking”: Form and Function in International
Law’ in E Fahey (ed), The Actors of Postnational Rule-Making: Contempo-
rary Challenges of European and International Law (Abingdon, Routledge,
2015) 27–46.
Finally, I extend my broadest gratitude to Carolyn Brock, not only for her
love, good humour, support and reassurance over the period of completing
both the doctorate and the book, but without whom what follows would
not have been possible.

Richard Collins, Dublin, 16 January 2016

 Contents
Acknowledgements����������������������������������������������������������������������������������� v

Introduction���������������������������������������������������������������������������������������������� 1
I. The Institutional Problem: An Explanation��������������������������������������� 5
II. The Limits of Functional Analogy����������������������������������������������������� 9
III. Overview of the Argument and Structure of the Book�������������������� 12
Part I: Origins
1. A Fragile Autonomy: International Law at the
Turn of the Twentieth Century��������������������������������������������������������� 19
I. From Philosophy to Legal Science�������������������������������������������� 22
II. A Fragile Autonomy: The Sovereignty Problem������������������������ 28
A. Deriving Law from Sovereignty����������������������������������������� 29
B. Avoiding the Charge of Moral Utopianism������������������������ 33
III. ‘At the Vanishing Point’: International Law
as Primitive Law����������������������������������������������������������������������� 36
IV. Conclusion������������������������������������������������������������������������������� 39
2. Scepticism and Renewal: International Law
in the Inter-bellum Period����������������������������������������������������������������� 41
I. The Call for Relevance: Hans Morgenthau
and the Realist Turn����������������������������������������������������������������� 45
II. Kelsen and the Neo-positivist Revival��������������������������������������� 50
III. A Middle Way? Lauterpacht, Brierly and the
Renaissance of Natural Law����������������������������������������������������� 53
IV. Conclusion������������������������������������������������������������������������������� 63
3. The Institutional Problem in Modern International Law������������������ 64
I. Explaining the Autonomy of International Law����������������������� 68
II. International Law as a Legal System: The Problem
of Structural Indeterminacy������������������������������������������������������ 74
III. HLA Hart and the ‘Constitutional Deficiency’
of International Law����������������������������������������������������������������� 77
A. The Rule of Recognition and the
Practices of Officials���������������������������������������������������������� 78
B. The Functional Presumptions of Hart’s
Concept of Law����������������������������������������������������������������� 81
viii Contents

IV. An International ‘Rule of Recognition’?

Indeterminacy in the Sources of International Law������������������� 84
A. Customary International Law and
the Opinio Juris Paradox�������������������������������������������������� 87
B. The Institutional Problem in Customary
Law Ascertainment����������������������������������������������������������� 93
V. Conclusion������������������������������������������������������������������������������� 99
Part II: Cause
4. Presuming Hierarchy: The Problematic Concept of
the Legal Official���������������������������������������������������������������������������� 105
I. Officialdom and the Identity of Legal Orders������������������������� 107
II. The Problematic Concept of the Legal Official����������������������� 110
III. Functional Officialdom and the Problem
of Translation������������������������������������������������������������������������� 115
IV. Moving Beyond the State: A Way Forward
for Conceptual Enquiry?�������������������������������������������������������� 121
V. Conclusion: Presuming the Law-State?����������������������������������� 126
5. A Functional Jurisprudence? Methodological
Controversies in Contemporary Legal Theory�������������������������������� 128
I. Methodological Controversy in Legal Theory������������������������ 130
II. The Problem of Value Neutrality in
Conceptual Analysis��������������������������������������������������������������� 133
III. From the Concept to the Rule of Law?
In Search of Law’s ‘Focal Meaning’���������������������������������������� 139
IV. The Practical Viewpoint and the Necessary
Autonomy of Law������������������������������������������������������������������ 142
V. Conclusion����������������������������������������������������������������������������� 148
6. Law’s ‘Creation Myth’: Instrumental Reasoning
and the Necessary Autonomy of Law��������������������������������������������� 150
I. Law’s ‘Creation Myth’: The Autonomy Thesis����������������������� 154
II. The Failure of the Autonomy Thesis��������������������������������������� 159
III. Rescuing the Autonomy Thesis?��������������������������������������������� 162
A. On the Reflexivity of Legal Reasoning���������������������������� 163
B. Morality ‘All the Way Down’?
The Failure of the Interpretivist Challenge���������������������� 166
C. The Autonomy Thesis as a Social
Contract Theory�������������������������������������������������������������� 170
IV. Conclusion����������������������������������������������������������������������������� 171
 Contents ix

Part III: Effect

7. Domestic Analogy, the Rule of Law and the
Relations Between States���������������������������������������������������������������� 175
I. Domestic Analogy and the Discontinuity Thesis��������������������� 179
II. An International Rule of Law?����������������������������������������������� 184
III. The Rule of Law as the Basis of Association in
International Relations: On the Specific Character
of International Law��������������������������������������������������������������� 189
IV. Conclusion����������������������������������������������������������������������������� 193
8. Form and Function in the Institutionalisation of
International Law��������������������������������������������������������������������������� 195
I. Form and Function in the Institutionalisation of
International Law������������������������������������������������������������������� 198
II. The Impact of Institutionalisation:
Straining the System��������������������������������������������������������������� 206
III. On the Complex Character of
International Institutions�������������������������������������������������������� 213
IV. Conclusion����������������������������������������������������������������������������� 221
9. International Law as Governance: An Emerging
Legitimacy Crisis?��������������������������������������������������������������������������� 222
I. Postmodern Anxieties: The Deformalisation and
Fragmentation of International Law��������������������������������������� 225
II. International Law as ‘Governance’?��������������������������������������� 234
III. Re-inventing the Institutional Problem:
International Law as Public Law?������������������������������������������� 240
IV. Conclusion����������������������������������������������������������������������������� 250
Conclusion�������������������������������������������������������������������������������������������� 252

Bibliography����������������������������������������������������������������������������������������� 256
Index����������������������������������������������������������������������������������������������������� 283
x
 Introduction
To the innocent eye, the formal structure of international law lacking
a legislature, courts with compulsory jurisdiction and officially
organized sanctions, appears very different from that of municipal law.
It resembles … in form though not at all in content, a simple regime
of primary or customary law. (emphasis added)
HLA Hart, The Concept of Law1

I
N AN ESSAY published at the beginning of the new millennium on the
role of law in international politics, the distinguished international law-
yer, the late Sir Arthur Watts, posed the rather bold question of whether
international law was important—and if so, how and why?2 In many ways
this is a peculiar question for, as he noted:
[W]e would not ask the equivalent question: ‘is English law important?’ … We
assume, rightly, that an effective legal system in our own countries is an impor-
tant element in the fabric of society; we take it for granted that such a system,
and the rule of law generally, do exist in practice; and we are generally confident
that, given our democratic systems, the rules of law which go to make up those
systems reflect a fair balance between the competing interests which exist within
our own societies … But at the international level there is a sufficient measure of
doubt about each of these three elements to raise questions about the importance
of international law.3
One can certainly question whether all of these assumptions about state-
based legal orders are as widely shared as Watts claimed, particularly out-
side of the Anglo-American world, but in other respects his observation is
an astute one. Whilst few international lawyers today would doubt the real-
ity of international law as a legal system in the sense described, there remain
persistent doubts and anxieties over the quality of this system, its overall
autonomy from the political realm, and hence its capacity to secure the rule
of law at the global level.4

1 HLA Hart, The Concept of Law, 3rd edn (Oxford, Clarendon Press, 2012) 232.
2 A Watts, ‘The Importance of International Law’ in M Byers (ed), The Role of Law in Inter-
national Politics: Essays in International Relations and International Law (Oxford, Oxford
University Press, 2000) 5–16.
3 ibid 5.
4 See, eg, A Somek, ‘From the Rule of Law to the Constitutionalist Makeover: Changing

European Conceptions of Public International Law’ (2011) 18 Constellations 567. And see
recently many of the contributions to C Ryngaert, EJ Molenaar and SMH Nouwen (eds), What’s
Wrong with International Law?: Liber Amicorum A.H.A. Soons (Leiden, Brill, Nijhoff, 2015).
2 Introduction

These sorts of concern are pathological in the modern discipline—

understandable, perhaps, bearing in mind the long-standing scepticism that
has surrounded international law. For as long as it has been thought of
as a legal system on broadly similar terms to domestic law, international
lawyers have had to defend the reality, efficacy and, indeed, importance of
international law in the conduct of international politics.5 Primarily, this
scepticism has focused on international law’s peculiar institutional struc-
ture, which, when compared to more ‘developed’ domestic legal orders,
lacks any authoritative, centralised means of law-creation, adjudication and
enforcement. It was the recognition of this structural difference during the
early nineteenth century, for instance, that led the English legal philosopher
John Austin to dismiss the rules of international law as a form of ‘positive
morality’,6 just as it caused the German public lawyer Georg Jellinek, some
years later, to re-imagine international law instead as a form of ‘external public
law’ based solely on states’ self-imposed restraint.7 Insofar as twentieth-
century theorists have been able to move past these reductionist accounts
in order to defend international law on the same terms as municipal law,
their efforts have still tended to point towards international law’s ‘primitive’
institutional structure (eg, Hans Kelsen)8 or, more damningly, have denied it
the status of a legal system altogether (eg, HLA Hart).9
In response, of course, the discipline has grown to develop something
of a thick skin, presenting a number of well-rehearsed (though often
also somewhat pragmatic) defences: for example, by paraphrasing Louis
Henkin’s oft-quoted observation that nearly all states obey nearly all of
the rules of international law nearly all of the time10 or, more persuasively

5 A Carty, ‘Why Theory?—The Implications for International Law Teaching’ in P Allott et

al, Theory and International Law: An Introduction (London, British Institute of International
and Comparative Law, 1991) 75, at 80. See further discussion in S Besson and J Tasioulas,
‘Introduction’ in S Besson and J Tasioulas (eds), The Philosophy of International Law (Oxford,
Oxford University Press, 2010) 1, at 6–13.
6 J Austin, Lectures on Jurisprudence or the Philosophy of Positive Law, 4th edn, revised

and edited by R Campbell (London, John Murray, 1873) 188 and passim.
7 G Jellinek, Die Rechtliche Natur der Staatenverträge (Vienna, A Hölder, 1880). How-

ever, I borrow the term ‘external public law’ from Koskenniemi’s reading of Jellinek: see
M Koskenniemi, ‘Legacy of the Nineteenth Century’ in D Armstrong (ed), Routledge Hand-
book of International Law (Abingdon, Routledge, 2009) 141, at 145.
8 For Kelsen’s views on the primitiveness of international law, see H Kelsen, ‘Théorie du

droit international public’ (1953) 84 Recueil des Cours 1, at 31–34 and 131. He expressed
this view most explicitly, perhaps, in his political writings: see, eg, H Kelsen, Law and Peace
in International Relations: The Oliver Wendell Holmes Lectures (Cambridge, MA, Harvard
University Press, 1942), especially at 51–55.
9 See Hart’s discussion of international law in Ch 10 of Hart (n 1) 213–37. The perception

of international law as a primitive or otherwise deficient legal order has been a recurring theme
in international law scholarship. See, eg, A Campbell, ‘International Law and Primitive Law’
(1988) 8 Oxford Journal of Legal Studies 169.
10 L Henkin, How Nations Behave: Law and Foreign Policy, 2nd edn (New York, Columbia

University Press, 1979) 47.

 Introduction 3

perhaps, by drawing upon Hart’s empirical claim that, regardless of such

compliance, no state actually denies the binding force of international
legal rules per se.11 Furthermore, with the significant material expan-
sion and growing institutional complexity of international law witnessed
from the latter half of the twentieth century onwards, it has become very
difficult to describe the modern international legal system as in any sense
‘primitive’.12
Nevertheless, it is hard still not to note the remnants of doubt and anxiety
as to the coherence and effectiveness of international law as a legal system. In
comparison to a well-functioning rule of law state, the decentralised institu-
tional architecture of international law appears to leave it structurally inde-
terminate: its rules seemingly more malleable, more open and, overall, more
difficult to disentangle from underlying political forces.13 One need only
open any contemporary international law textbook to be told, on the one
hand, of the significant growth and expansion of international law in recent
years, only then to be warned, on the other, not to expect too much from a
decentralised legal order with its inherent structural weaknesses.14 In fact,
this very expansion, or ‘maturation’, of the international legal order seems,
if anything, to have heightened such concerns, as anxieties over the prolif-
eration of increasingly autonomous institutional structures, regimes and dis-
pute settlement bodies are expressed increasingly through the ‘post-modern’
leitmotifs of ‘deformalisation’ and ‘fragmentation’ of international law.15
None of the above would matter, of course, if all that was at stake was a
purely conceptual, even semantic debate concerning the reality of something
called ‘international law’—as Glanville Williams once claimed, ‘a verbal dis-
pute, and nothing else’.16 However, it is clear that this is not the case. Inter-
national lawyers have, in the main, not remained content to simply defend

11 This, of course, is building on Hart’s simple recognition of the ‘internal point of view’ of

international legal participants themselves. See Hart (n 1) 89–91 (on the internal point of view)
and 231 (applied to international law).
12 See, eg, Besson and Tasioulas (n 5) 8–13.
13 See, principally, M Koskenniemi, From Apology to Utopia: The Structure of International

Legal Argument (Cambridge, Cambridge University Press, 2005).

14 See, eg, M Shaw, International Law, 7th edn (Cambridge, Cambridge University Press,

2014) 4–8; and see in particular M Dixon, Textbook on International Law, 6th edn (Oxford,
Oxford University Press, 2007) 13, under a section on the ‘weakness of the international sys-
tem’: ‘International law lacks many of the formal institutions present in national legal systems.
There is no formal legislative body, no court machinery with general compulsory jurisdiction
and no police force … While this may not be a serious defect because of the different purpose of
international law, there will always be some difficulties, especially if malefactors are perceived
to be able to violate the law with impunity.’
15 See, eg, M Koskenniemi and P Leino, ‘Fragmentation of International Law? Postmodern

Anxieties’ (2002) 15 Leiden Journal of International Law 553; or M Koskenniemi, ‘Global

Governance and Public International Law’ (2004) 37 Kritische Justiz 241.
16 G Williams, ‘International Law and the Controversy Concerning the Word “Law”’

(1945) 22 British Yearbook of International Law 146, at 146.

4 Introduction

the reality of international law as a rhetorical practice or specialised form

of political discourse. Rather, as I argue in this volume, they have attempted
to defend its reality as an autonomous system of rules capable of cohesively
regulating international relations and pre-empting the political freedom of
states.17 This is not just to say that they place value on the ideal of the rule
of law (though clearly many do).18 Rather, my claim is that this kind of rule
of law idealism is implicit within the conceptual models of law or legal order
against which international law is commonly compared and found want-
ing. On these terms, it becomes almost impossible to avoid the conclusion
that international law is somehow deficient or defective at a constitutional
level,19 thus confirming its status as a ‘poor relation of domestic law’.20
This, in short, is the ‘institutional problem’ in modern international law.
This book is an attempt to engage with this problem: to better understand
why it arises, upon what assumptions it is premised, and what effect it has
had on our thinking about the nature and potential of legal norms to struc-
ture or regulate international politics. However, my aim in engaging with
the structural peculiarities of a decentralised legal order is, ultimately, to
argue that this condition should not be thought of as a ‘problem’ at all.
In that sense, the word ‘problem’ in the title, if not exactly a misnomer,
carries a certain ambiguity as to exactly what this problem is and where
it lies. In fact, I will argue that the view that international law is somehow
‘constitutionally deficient’ arises only because of the rather incoherent and
unrealistic expectations that we have of the international legal order. This
is not an argument born from realism or pessimism, suggesting the need
to ‘water down’ our expectations or ideals; rather, I argue that these ide-
als themselves are premised on an assumed paradigm of legality drawn
from domestic experience which itself is increasingly subject to theoretical
challenge and contestation. As Samantha Besson and John Tasioulas have
acknowledged, ‘if international law does not fit the criteria of the concept
of law used at the domestic level, it may not (only) be a problem for the
legality of international law, but (also) for those criteria themselves and
hence for a given legal theory’.21 In a broader sense, therefore, this book is
an engagement between international law and analytical legal theory, aimed

17See Koskenniemi (n 13) passim.

18Indeed, as Blum claims, for many diplomats and international lawyers, the rule of law
appears as ‘the single most important goal of the international system’. See G Blum, ‘Bilateralism,
Multilateralism, and the Architecture of International Law’ (2008) 48 Harvard International
Law Journal 323, 331–2; and see further below in Ch 7.
19 Somek (n 4). On the perception of ‘constitutional deficiency’, see also A Somek, ‘Kelsen

Lives!’ (2007) 18 European Journal of International Law 409, at 432–34.

20 As Tasioulas notes, if ‘it belongs to the essence of law to claim authority, and if the

authority claimed by [international law] is a diluted version of that claimed by domestic law’,
then it seems that international law’s ‘status as a poor relation of domestic law is confirmed’.
J Tasioulas, ‘The Legitimacy of International Law’ in Besson and Tasioulas (eds) (n 5) 97, at 98.
21 Besson and Tasioulas (n 5) 8.
 The Institutional Problem: An Explanation 5

at demonstrating that if the institutional problem is a problem at all, it is

one that inheres more in theory than in practice. Let me now explain this
problem further.

I. THE INSTITUTIONAL PROBLEM: AN EXPLANATION

To say that international law can be understood as an autonomous legal

order begs the obvious question of what one means by law’s autonomy in
this respect. The claim is certainly not without ambiguity.22 However, it is
within this ambiguity that I can perhaps best explain the nature of the insti-
tutional problem (as I have termed it). From one perspective, to recognise
the autonomy of international law is to say simply that the international
legal order possesses the qualities of a legal system.23 Despite the evident
scepticism noted above, the idea that the international legal order can be
thought of as a system in this sense might (now) appear obvious and self-
evident,24 encapsulated in key aspects of the modern discipline such as the
doctrine of sources,25 the idea of ‘secondary’ rules of responsibility26 or
conflicts of norm principles such as lex specialis derogat legi generali or
lex posterior derogat priori.27 In its recent study report on the perceived
problem of ‘fragmentation’ in international law, the International Law
Commission (ILC) has explicitly confirmed such a systemic reading. As the
ILC’s Special Rapporteur, Martti Koskenniemi, has stated:
It is often said that law is a ‘system’. By this, no more need be meant than that the
various decisions, rules and principles of which the law consists do not appear …
randomly related to each other. Although there may be disagreement among

22 See, eg, BH Bix, ‘Law as an Autonomous Discipline’ in P Cane and M Tushnet (eds), The

Oxford Handbook of Legal Studies (Oxford, Oxford University Press, 2003) 975–87; and
R Unger, Law in Modern Society (New York, Free Press, 1976) 52–54. I discuss the ambiguities
surrounding the idea of the autonomy of law at length at the start of Ch 6.
23 See generally E Benvenisti, ‘The Conception of International Law as a Legal System’

(2008) 50 German Yearbook of International Law 393, particularly at 394–95. On the con-
cept of a legal system generally, see J Raz, The Concept of a Legal System, 2nd edn (Oxford,
Clarendon Press, 1980).
24 See, eg, V Lowe, ‘The Politics of Law-Making: Are the Method and Character of Norm

Creation Changing?’ in Byers (n 2) 207, at 207–12.

25 See further below in Ch 3, in section IV in particular.
26 See, eg, International Law Commission, Draft Articles on Responsibility of States for

Internationally Wrongful Acts, with Commentaries (2001), particularly at 31–32, paras 1–5;
available at: http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf.
On the technical and somewhat artificial nature of this distinction in international law, see
E David, ‘Primary and Secondary Rules’ in J Crawford, A Pellet and S Olleson (eds), The Law
of International Responsibility (Oxford, Oxford University Press, 2010) 27–33.
27 For an in-depth discussion of the ordering effect of these principles, see Ch 7 of

J Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to Other
Rules of International Law (Cambridge, Cambridge University Press, 2003) 327–439.
6 Introduction

lawyers about just how the systemic relationship between the various decisions,
rules and principles should be conceived, there is seldom disagreement that it is
one of the tasks of legal reasoning to establish it.28
Accordingly, to recognise that international law can be understood as a
system—and in that sense demonstrates a certain autonomy—is to acknowl-
edge the simple, though no less important, point that international legal
rules are not just ‘rules of thumb’ or—as Tom Franck put this—‘ad hoc
reciprocal arrangements’.29 Rather, they derive their validity from source-
based criteria endogenous to, and determined by, the system itself.30 As self-
evident as this understanding might appear, however, the important point
is that this systematicity is not something in-built or intrinsic to the very
nature of international legal relations. Like any legal system, international
law is a social construct and has come to be understood in this way because
this systemic understanding is deemed meaningful and important to inter-
national legal participants—states, lawyers, diplomats and other actors—as
a basis of association in their mutual relations.31 Indeed, insofar as inter-
national society is very much defined by moral agnosticism and political
pluralism, the international legal system can be seen to provide an inter-
subjective framework—a language or lexicon—by which states and other
actors are able to pursue their often varied, though sometimes also more
coordinate, objectives through the imprimatur of the legal form.32 It is this
form which provides a stable set of objective standards, allowing a basis
of common association (as well as a peaceable means for critical engage-
ment) in the absence of moral and political agreement. In other words, the
apparent objectivity of the legal framework allows one to identify ‘content-
independent’ reasons for action (or inaction)—reasons which necessarily
claim to displace or exclude any other reasons we might have to act, or
refrain from acting, in any given set of circumstances.33

28 International Law Commission, ‘Fragmentation of International Law: Difficulties Arising

from the Diversification and Expansion of International Law: Report of the Study Group of the
International Law Commission, Finalized by M. Koskenniemi’, UN Doc A/CN.4/L.682, 13 April
2006, at 23, para 33 (footnotes omitted). Available at: http://legal.un.org/ilc/documentation/
english/a_cn4_l682.pdf.
29 TM Franck, ‘Legitimacy in the International System’ (1988) 82 American Journal of

International Law 705, at 752.

30 The sources thesis is a key component of the validity of law under theories of legal

positivism, but this view is also shared more broadly amongst a range of contemporary
theoretical perspectives. See, eg, the various contributions to RP George (ed), The Autonomy
of Law: Essays on Legal Positivism (Oxford, Oxford University Press, 1996).
31 See, generally T Nardin, Law, Morality, and the Relations of States (Princeton, Princeton

University Press, 1983).

32 Koskenniemi (n 13) 563–89 and passim.
33 See, eg, N Gur, ‘Are Legal Rules Content-Independent Reasons?’ (2011) 5 Problema 175,

at 178–81 in particular; and see also the discussion in A van Mulligen, ‘Framing Deformalisation
in Public International Law’ (2015) 3–4 Transnational Legal Theory 635.
 The Institutional Problem: An Explanation 7

Insofar as states and other participants place value on this kind of legal
objectivity, it is possible to say that there is, at least at some level, a broad
commitment to the rule of law as a governing principle in international
relations.34 Indeed, as Besson has argued: ‘To identify a society as having a
system of law, as opposed to some other sort of order, is to identify it as sat-
isfying some or all of the requirements associated with the Rule of Law.’35
Nevertheless, just like the notion of legal autonomy that it presupposes, the
rule of law itself is also a notoriously ambiguous, somewhat amorphous
concept.36 Most often, the ideal of an international rule of law is applied in
a more critical, evaluative sense, suggesting the need for law’s autonomy in
a much stronger form, that is, to require legal rules to objectively restrain
or pre-empt the exercise of arbitrary political power.37 This seems to be
particularly the case insofar as international law has increasingly come to be
thought of less as a neutral framework for societal co-existence and more as
a means to secure the realisation of certain agreed-upon goals, for instance,
peace, order, human rights and so on. To speak of the autonomy of law on
these terms, then, is to agree with Oscar Schachter that international law
should function as ‘a means of independent control that effectively limits the
acts of the entities subject to it’.38
Perhaps unsurprisingly, this more demanding rule of law vision seems
perpetually frustrated by the decentralised institutional architecture of the
international legal order, which, as Koskenniemi has most famously argued,
appears largely indeterminate in impacting the political choices of states
and other powerful actors.39 Acknowledging this indeterminacy is not sim-
ply to point to the obvious ‘open texture’ of law generally, as Hart had
occasion to discuss and distinguish some years previously.40 The indetermi-
nacy of international law is rather more structural in nature: fundamental
to its very nature as a decentralised legal system. In other words, the system
is deliberately constructed so as to defer back to states on questions of

34 Nardin (n 31) passim.

35 S Besson, ‘Theorizing the Sources of International Law’ in Besson and Tasioulas (eds)
(n 5) 163, at 172.
36 See, perhaps most extensively, BZ Tamanaha, On the Rule of Law: History, Politics,

Theory (Cambridge, Cambridge University Press, 2004) 91–113; and see the discussion below
in Ch 7, section II, at nn 46–47 in particular.
37 As Hurd argues, whether applied in a domestic or international setting, it is commonly

assumed that ‘the rule of law is an alternative to the arbitrary exercise of power; and that the
ultimate product of a rule-of-law system is the choice by the law’s subjects to comply with the
rules’. I Hurd, ‘The International Rule of Law and the Domestic Analogy’ (2015) 4 Global
Constitutionalism 365, at 367.
38 O Schachter, ‘The Nature and Process of Legal Development in International Society’ in

R St J Macdonald and DM Johnston (eds), The Structure and Process of International Law:
Essays in Legal Philosophy, Doctrine, and Theory (The Hague, Martinus Nijhoff, 1983) 745,
at 747.
39 Koskenniemi (n 13) passim.
40 ibid 36–41, making reference to Hart (n 1) 124–28.
8 Introduction

the existence, validity, applicability and, ultimately, enforceability of legal

norms. Thus, in the absence of any ‘single legislative will’ behind interna-
tional legal rules, the ‘conflicting motives and objectives’ of states cannot
be resolved definitively. Indeed, such particular purposes may very well be
advanced through the legal framework, which provides a means of legiti-
mising as much as condoning state behaviour.41 As Colin Warbrick has
commented:
The very lack of density to the rules of international law … their uncertainty, their
incompleteness and … sometimes their incoherence one with another, increases the
opportunity for imaginative interpretation for whoever takes on the task. The line
between the legal and the political is drawn in a different place in the international
legal system than it is in a developed, domestic legal order.42 (emphasis added).
How should we respond to this apparent structural indeterminacy? It is
certainly not self-evident that it should be treated as a problem as such—a
fault, defect or deficiency—so much as a central aspect of international
law’s legitimacy and acceptability for states and other legal participants.
Indeed, in the context of the kind of political relations that pertain at the
international level, any other view of legal order would not only appear
conceptually problematic, but arguably also empirically unrealistic and
politically divisive.43 Nevertheless, structural indeterminacy will necessar-
ily (and logically) appear problematic if one presumes that international
law must secure determinate resolution of particular normative problems or
disputes. The problem—the institutional problem—therefore arises specifi-
cally not only because this kind of presumption is pervasive in the modern
discipline, but, more critically, because it is arguably implicit within many
of the most dominant modes of conceptual and normative enquiry about
law and legal systems more generally—that is, exactly the kind of paradig-
matic understandings against which international law is held up to such
anxious scrutiny. As I will show at length in Part II, in fact, the dominant
analytical approach to jurisprudential enquiry has helped to sustain a view
of law which presumes a certain structural hierarchy and functional pur-
port to legal systems, which one might plausibly describe as ‘governmental’
in character and which therefore appears prima facie incompatible with a
decentralised legal system such as international law.44
Recognising the pervasiveness of this mode of thinking about law
does not, of course, demonstrate that this kind of presumption is wrong.

41
International Law Commission (n 28) para 34.
42
C Warbrick, ‘Brownlie’s Principles of Public International Law: An Assessment’ (2000)
11 European Journal of International Law 621, at 626–27.
43 Koskenniemi (n 13) 591.
44 I comment on this specifically in Ch 4, and elsewhere in R Collins, ‘The Problematic

Concept of the International Legal Official’ (2015) 3–4 Transnational Legal Theory 608.
However, a similar concern to some degree propels Brian Tamanaha’s work: see, eg, B Tamanaha,
A General Jurisprudence of Law and Society (Oxford, Oxford University Press, 2001).
 The Limits of Functional Analogy 9

However, it should at least cause us to question the coherence of this para-

digm when confronted with clear evidence of international law’s existence
and operability as a functioning legal system. Furthermore, bearing in mind
many of the developing internal debates, critiques and ‘globalising’ trends
witnessed in contemporary analytical legal philosophy,45 it seems that many
of these presumptions, even in the domestic context, are now themselves
subject to internal disciplinary critique.46 In this respect, in what follows
I want to argue that much of what is often deemed general and universal
about the nature of law is not only inadequate and misleading when applied
to make sense of international law as a legal system, but is also methodo-
logically problematic and conceptually incoherent on its own terms. Spe-
cifically, in Part II, I will argue that legal theory has essentially fixated on
the historically and socially contingent problems of state-based author-
ity, thereby co-opting state institutional features as necessary (rather than
contingent) aspects of law in general.
I mount this challenge as I believe that rather than challenge jurispruden-
tial paradigms, international lawyers, in the main, have most often attempted
to try to make international law fit this incoherent structural mould. This
tendency has resulted in a rather unconvincing and, I believe, self-defeating
effort to explain how, despite its apparent weaknesses, international law can
nonetheless function as a coercive legal order capable of effectively regulat-
ing the conduct of international relations. Most often, this kind of defence
has involved ‘co-opting’ states themselves, or—now more likely—the insti-
tutions, courts and other bodies they have created, as functional ‘organs’ of
an increasingly organised (though partly imagined) international commu-
nity. This response is, I believe, deeply problematic. It not only risks distort-
ing understanding of the peculiar institutional characteristics of international
law, but it also potentially bestows a legitimacy and authenticity on state
actions and intergovernmental institutional structures which extends well
beyond their rather more limited, delegated legal form. In doing so, as I now
further explain, this response only serves to further exacerbate or intensify
already-existing rule of law concerns.

II. THE LIMITS OF FUNCTIONAL ANALOGY

The argument (or, at least, part of the argument) that I pursue in this book
then is that the effort to explain the autonomy of international law as a
means of restraining political power typically leads international lawyers

45 See, eg, Tamanaha (n 44); W Twining, General Jurisprudence: Understanding Law from a

Global Perspective (Cambridge, Cambridge University Press, 2009); K Culver and M Giudice,
Legality’s Borders: An Essay in General Jurisprudence (Oxford, Oxford University Press,
2010).
46 I discuss this trend further in R Collins, ‘No Longer at the Vanishing Point? International

Law and the Analytical Tradition in Jurisprudence’ (2014) 5 Jurisprudence 265, at 274–75.
10 Introduction

into what we might term a form of ‘functional compensation’. This form

of response to the institutional problem has a descriptive and a normative
element: on the one hand, suggesting ways in which contemporary inter-
national law functions to compensate for its formally decentralised struc-
ture, whilst, on the other hand, arguing for necessary institutional reforms
in order to strengthen the autonomy of international law in opposition to
state sovereignty. This type of argument is, I believe, not only theoretically
problematic, but in its dislocation of function and form, it also overlooks
the structural and constitutional limitations imposed on the functioning of
the international legal system by its purposefully decentralised legal form.
In other words, the attempt to overcome decentralisation by ‘reading in’
a constitutional or institutional hierarchy, or to simply bestow a greater
authority on certain bodies, processes or institutions than they otherwise
possess, can only serve to highlight, or further exacerbate, certain legitimacy
deficits. This is what Alexander Somek means when he describes a ‘chain of
substitutions’ arising out of the desire to respond to the apparent weaknesses
of a decentralised legal order, as each attempt to circumvent the problem
actually only causes it to resurface in a slightly different form elsewhere.47
This claim might sound somewhat ambiguous, so an explanation and some
examples may help to better illustrate what I mean.
One means of response to international law’s perceived deficiency has
been to explain how in a decentralised legal order, states themselves can
be understood as fulfilling necessary ‘constitutional functions’ in order to
sustain the coherence of the system overall. Relying on a conceptual device
like Georges Scelle’s notion of dédoublement fonctionnel, or ‘role-splitting’,
this argument would suggest that states are able to act both as subjects and
‘officials’ of the system at the same time.48 Accordingly, not only can we
picture states as bound by the law, but also as being tasked with the role of
sustaining and administering the system overall—authoritatively determin-
ing its meaning, policing potential breaches and ensuring its enforcement
in the last measure. However, this kind of reading only seems to re-describe
the structural condition of international law, highlighting its inevitable
indeterminacy, as it is precisely because the system defers back to states as
authoritative actors in this way that concerns have arisen over the open-
ness and malleability of international legal rules in the first place. As Terry
Nardin has argued, whilst states may have an ‘authoritative’ role in apply-
ing, interpreting or enforcing the law, they cannot be seen as authoritatively
representative—as ‘organs’—of the system in any meaningful sense, that
is, in the sense that their determinations would be opposable to all other

47 Somek (n 4) 568.
48 See, eg, G Scelle, ‘Essai de systématique de droit international (Plan d’un cours de droit
international public)’ (1923) 30 Revue Générale de Droit International Public 116.
 The Limits of Functional Analogy 11

international actors (including other states).49 Antonio Cassese makes a

similar point, noting how the effort to bestow functional ‘officialdom’ on
states is something of a misleading analogy:
Clearly, in relation to the international community, one cannot speak of functions
proper: when making law, settling disputes, or enforcing the law, States do not act
in the interest and on behalf of the international community; they do not fulfil an
obligation, but primarily pursue their own interests … Of particular significance
is the fact that each State has the power of ‘auto-interpretation’ of legal rules, a
power that necessarily follows from the absence of courts endowed with general
and compulsory jurisdiction.50
For this reason, then, it is hardly surprising that the costs or externalities of
this kind of state-based ‘administration’ are usually seen to be compensated
for, to some degree, by the development—or potential development—of
authoritative international institutions, dispute settlement bodies or other
regimes, which together impose certain compliance pulls on states. From
the very beginning, particularly since the ‘move to institutions’51 in the wake
of the First World War, intergovernmental institutions have often been seen
as a means to compensate for the perceived inadequacies of a decentral-
ised legal order, not necessarily mirroring precisely the kinds of constitu-
tional organs found at the state level,52 but certainly seen to be ‘gap-filling’
in their absence.53 Again, however, the functional analogy is misleading.
Whilst undoubtedly the effect of international law’s institutionalisation has
been to radically transform the day-to-day functioning of the international
system—particularly in terms of how norms are created, compliance with
the law is secured etc—to read these institutions as fulfilling the kind of
constitutional roles which, in the state context at least, are seen as having a
certain a priori authority over legal subjects seems inherently problematic.54
Of course, it may well be the case that we need to look beyond the intergov-
ernmental treaty form of the institution to make sense of the contemporary
role and functioning of universal organisations such as the United Nations
(UN), but this is quite different from suggesting that these institutions can
be described in terms of the kind of official roles one commonly finds at the

49 Nardin (n 31) 162–63.

50 A Cassese, International Law, 2nd edn (Oxford, Oxford University Press, 2005) 6.
51 D Kennedy, ‘The Move to Institutions’ (1987) 8 Cardozo Law Review 841.
52 See, eg, J Crawford, ‘The Charter of the United Nations as a Constitution’ in H Fox (ed),

The Changing Constitution of the United Nations (London, British Institute of International
and Comparative Law, 1997) 3–16; or ND White, ‘The United Nations System: Conference,
Contract or Constitutional Order?’ (2000) 4 Singapore Journal of International and Compara-
tive Law 281.
53 Cassese (n 50) 21.
54 Arangio-Ruiz makes this point most critically in G Arangio-Ruiz, The UN Declaration on

Friendly Relations and the System of the Sources of International Law (Alphen aan den Rijn,
Sijthoff & Noordhoff, 1979) 199.
12 Introduction

state level. The inherent constitutional limitations in any intergovernmental

organisation suggest limits to such functional expressions of authority in
international law. Unlike at the state level, the authority of international
organisations remains ultimately grounded in the inter-state constitution,
therefore deliberately limiting their capacity to act authoritatively, either on
behalf of the international community as a whole or as agents or organs of
the international system.
As such, and as I will outline at length in Chapters 8 and 9, whilst there
has been an undoubted transformation in international law in recent years,
brought about largely, even if not exclusively, through the ‘institutionalisation’
of the international legal system, it seems increasingly that this kind of
‘global governance’ has given rise to quite serious accountability deficits
and legitimacy concerns. With a clear preponderance and proliferation of
increasingly centralised and autonomous regimes, introducing innovative
compliance mechanisms and dispute settlement bodies, one witnesses grow-
ing anxieties over the impact of institutionalisation on the overall systemic
coherence of international law.55 Not only does this kind of functional
authority appear inadequate to effectively uphold and protect global public
goods or community interests, suggesting a certain level of ‘ad hocism’ in
global governance,56 but any claim to authoritatively represent these inter-
ests seems precluded by the underlying (pluralist) tenets of the international
legal order.57 Institutionalisation has thus not resulted in any enhanced hier-
archy or authority of international law overall, but an increasingly disor-
dered array of non-state and inter-state regimes competing for authority
with states, and with their own structural biases and political preferences.
The rule of law concern resurfaces again in another form; Somek’s chain of
substitutions moves on another step.

III. OVERVIEW OF THE ARGUMENT AND STRUCTURE OF THE BOOK

Ultimately, I will show how the failure of this form of response to the insti-
tutional problem stems from the falsity of the presumption upon which it is
based—a presumption, as I have suggested, widely shared by legal theorists
and international lawyers alike—that international law should act to
somehow ‘govern’ the conduct of the international community overall.
I maintain instead that the purpose of any legal order has to be understood
within the context of the kinds of political relations which pertain in the

55 Compare JHH Weiler, ‘The Geology of International Law—Governance, Democracy and

Legitimacy’ (2004) 64 Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht 547
and M Koskenniemi, ‘Global Governance and Public International Law’ (2004) 37 Kritische
Justiz 241.
56 Cassese (n 50) 66–67.
57 See, eg, M Koskenniemi, ‘International Law in Europe: Between Tradition and Renewal’

(2005) 16 European Journal of International Law 113, at 116.

 Overview of the Argument and Structure of the Book 13

society or community in question. To see the purpose of international law

as one of regulating or governing international politics is to misconstrue
the nature of the political relations which pertain at the international level,
which are fundamentally different from the relations of political subordina-
tion that exist within the state. The overall ‘institutional purpose’ of law
within a plural, ‘horizontal’ society (such as arguably exists at the interna-
tional level) must instead be understood in a way which is meaningful to
the participants in that society. As such, by engaging head-on with these
presumptions from a legal-theoretical perspective, I show how if the inter-
national rule of law, and the autonomy of law it presupposes, has mean-
ingful explanatory purchase, it must at the very least presuppose a formal,
institutional framework capable of securing a non-arbitrary means for
mutual co-existence and cooperation under conditions of political plurality.
Rather than reflecting any kind of constitutional deficiency, therefore, the
decentralised legal form of the international legal order can be seen as both
reflective and protective of this fundamental purpose and as a key aspect of
the legitimacy of international legal rules.
To reach this conclusion is not at all to suggest that states and other actors
cannot create ambitious hierarchical institutional forms within the interna-
tional legal order, or that international law itself is incapable of change—
this is not a position of conservatism or overtly realist scepticism. In fact, as
the argument of the book progresses, I will explain how the international
legal order has transformed itself quite dramatically, in both substantive
and structural terms, as a result of the proliferation of a range of increas-
ingly powerful institutions and regimes. However, my argument is also
that a great deal of the legitimacy concerns that have arisen as a result of
this transformation, where the kinds of functional autonomy and author-
ity exerted by many global regimes seems to largely escape accountability,
can be explained by the inherent—and important—tension this functional
autonomy creates in its relation to international law’s decentralised legal
form. The system overall and the institutions created on its terms have to
be understood at least in part by reference to their legal form, which in turn
is justified as important and meaningful due to the kind of legitimacy pulls
inherent within the international community.
My argument therefore follows from a view of the task of legal theory,
and of the legal theorist specifically, which begins from the need to develop,
understand and, ultimately, defend a view of law or legal order that is
meaningful to international legal participants.58 However, in beginning in
this way, I will suggest that such an approach still requires informed moral

58 In that sense, my argument and methodology have been greatly influenced by Patrick

Capps’ recent work. See P Capps, Human Dignity and the Foundations of International Law
(Oxford, Hart Publishing, 2009). It should be noted, however, as will be clear in Ch 6 in par-
ticular, that Capps and I part company on the ultimate function of law and international law
in particular.
14 Introduction

judgement from the legal theorist: we cannot simply presume that certain
institutional structures or functions of law are universally shared, based
simply on shared legal and political experience of the state context. Any
claim to understand what is important and necessary about law, in general
or in particular contexts, must seek to understand, evaluate and defend the
importance of law’s key institutional features in a way which is defensi-
ble from the point of view of the kind of political and social relations in
which law is present and from within which it takes on specific meaning. As
such, whilst the question of international law’s meaning and potential in the
context of contemporary international relations remains somewhat contro-
versial, the legitimacy of the system overall potentially pulling in different
directions, I will seek to defend a view of international law’s necessarily
decentralised institutional architecture that remains meaningful precisely in
its ability to facilitate more ambitious cooperation at the international level.
This defence does not seek to present a complete account of the nature of
contemporary international law—or, indeed, of the myriad, more special-
ised forms of ‘global law’ now arguably in existence59—but it does act as
a clear normative defence of the international legal system’s core structural
architecture, understood as a necessary framework upon which much of
this more ambitious global governance activity finds some foundation, and
against which some form of legal accountability can be secured.60
Accordingly, in developing this argument, my aim in this book is to make
an important intervention in methodological debates in legal theory as much
as an interjection into contemporary debates about the evolving character
of international law and global governance. I have divided the book into
three discrete parts, each of which is further divided into three chapters.
Whilst there is clearly narrative continuity between the three parts, each has
a somewhat distinct focus, method and ambition. I have labelled them in
turn—perhaps over-enigmatically—‘Origins’, ‘Cause’ and ‘Effect’.
Part I (Origins) is historical, sociological and, to some degree, deconstruc-
tive in focus. It explains the emergence of the ‘modern’ discipline (in Chapter 1)
in terms of a collective ambition to reconstruct or re-invent international
law from a philosophical to a broadly institutional practice. I explain this
transformation in terms of a broad disciplinary effort to account for inter-
national law as an autonomous system of positive legal rules on similar
terms to state-based legal orders. In charting the scepticism that interna-
tional lawyers have faced in explaining international law on these terms

59 See, eg, recently N Walker, Intimations of Global Law (Cambridge, Cambridge University

Press, 2014).
60 Here, I have been greatly influenced by the work of Terry Nardin in Law, Morality, and

the Relations of States (n 31).

 Overview of the Argument and Structure of the Book 15

(in both Chapters 1 and 2), I aim to illustrate the kind of presumptions,
tensions and ambitions underlying this view of modern international law.
I do so in order to explain the difficulties that international lawyers have
faced in giving a coherent account on these terms—that is, in explaining this
kind of autonomy in a decentralised legal system—and thus (in Chapter 3)
I argue that this problem has left an overall impression of international law
as essentially deficient at a constitutional level.
Part II (Cause) is more broadly theoretical and analytical in approach
in an attempt to re-orient the focus of the ‘institutional problem’, specifi-
cally by considering and critically engaging with certain presumptions about
law perpetuated by dominant (‘descriptive-explanatory’) approaches to
analytical legal enquiry (in Chapter 4). In considering the methodological
weaknesses of these approaches in adequately accounting for forms of law
and legality beyond the state, I will ultimately advocate (in Chapter 5) the
need to take a distinctly evaluative, more normative approach in order to
understand law in its many guises. In doing so, my ambition is to defend a
‘practically reasonable’ concept of law which remains meaningful in a gen-
eral (or universal) sense, but which can be applied in particular circumstances
as a critical tool for engaging with the necessary institutional architecture of
non-state legal orders such as international law. On these terms, I will argue
(in Chapter 6) that law’s empty, abstract autonomy—its formal, systemic
character—should alone be seen as its most central (and most important)
contribution to any society or political community. This normative idealism
thus purposefully blurs the boundary between the concept and the rule of
law, but does so conceiving of the latter as a somewhat abstract ideal that
resists any specific institutional form.
Part III (Effect) reverts back to questions of international legal theory
specifically, and does so primarily to show why the effort to explain inter-
national law’s autonomy in any stronger, more pre-emptive sense necessar-
ily leads to dangers of distortion and methodological confusion. As such,
I first (in Chapter 7) explain why the attempt to apply any more ambi-
tious kind of rule of law ideal to international law is necessarily problem-
atic due to the importance of its decentralised legal form. Whilst I will (in
Chapter 8) argue that the ambitious models of institutional cooperation,
dispute settlement and innovative international ‘governance’ arrangements
developed since the start of the previous century necessarily compliment
and complicate the functioning of contemporary international law, I cast
doubt on the (increasingly pervasive) view that such changes can be seen
to transform or even centralise the nature of international ‘legality’ at the
broadest systemic level. Nevertheless, in Chapter 9, I will go on to show a
necessary and growing tension between the functioning of international law
in practice, dispersed between increasingly complex sites of institutional and
regulatory authority, and its continuing existence, in more formal terms, as
16 Introduction

a system of decentralised, non-hierarchical legal relations. I will argue, ulti-

mately, that to understand the ideal of the international rule of law in con-
temporary international society is to appreciate the necessary and important
tension between these functional and formal modes of international legal-
ity. In fact, I will show how a number of recent trends in international law
scholarship, essentially advocating a less formal concept of international
law in order to capture and constrain much of this ‘deformalised’ and ‘frag-
mented’ global governance activity, fail to grasp the continued structural
importance of international law’s legal form from a rule of law perspective,
and thus potentially further exacerbate existing rule of law concerns.
 Part I

Origins
 1
A Fragile Autonomy:
International Law at the Turn
of the Twentieth Century
That law is an effect of lawyers’ imagination is nowhere clearer than in the
development of international law from the isolated diplomatic practices of the
nineteenth century into a legal order sometime early in the twentieth. Professional
jurists took it upon themselves to explain international affairs in the image of the
domestic State, governed by the Rule of Law.
Martti Koskenniemi, The Gentle Civilizer of Nations1

S
OMETIME BETWEEN THE mid-nineteenth and the early twentieth
centuries, the older, philosophical tradition of the Law of Nations was
made over into the kind of systemic, institutional practice familiar to us
as modern ‘international law’.2 This transition was almost entirely complete
by the turn of the twentieth century,3 as (European) jurists gave shape to
international law as an autonomous system of positive legal rules binding
upon states in much the same way as they saw law regulating the conduct of
public affairs within the state.4 That nineteenth-century diplomatic practice
did not automatically present itself as an autonomous legal system, in this

1 M Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law

1870–1960 (Cambridge, Cambridge University Press, 2001) 361.

2 Bentham is said to have coined the term: see J Bentham, An Introduction to the Principles

of Morals and Legislation (JH Burns and HLA Hart (eds), London, Athlone Press, 1970; first
published in 1789) 293–300; and see further MW Janis, ‘Jeremy Bentham and the Fashioning
of ‘International Law’’ (1984) 78 American Journal of International Law 405, at 408–10 in
particular.
3 On this transition generally, see P Guggenheim, ‘The Birth of Autonomous Interna-

tional Law’ in International Law in a Changing World (Dobbs Ferry, NY, Oceana, 1963) 80;
R St J Macdonald and DM Johnston, ‘International Legal Theory: New Frontiers of the Disci-
pline’ in R St J Macdonald and DM Johnston (eds), The Structure and Process of International
Law: Essays in Legal Philosophy, Doctrine, and Theory (The Hague, Martinus Nijhoff, 1983)
1, at 6–7; G Schwarzenberger, ‘The Rule of Law and the Disintegration of the International
Society’ (1939) 33 American Journal of International law 56, at 65–66; R Pound, ‘Philosophi-
cal Theory and International Law’ (1923) 1 Bibliotheca Visseriana 1, at 73.
4 See, eg, M Koskenniemi, ‘Legacy of the Nineteenth Century’ in D Armstrong (ed),

Routledge Handbook on International Law (Abingdon, Routledge, 2009) 141, at 142–43.

20 A Fragile Autonomy

sense, is a point often overlooked in modern doctrine and practice, which

tends to take such a structural understanding for granted. In fact, until the
middle of the nineteenth century, few areas of state relations were deemed
to be regulated by law, at least in the sense of an overarching legal order
structuring and governing relations between states.5 Still, it is hard to refute
the reality of the transformation which had occurred by the early twentieth
century, by which time international law had come to be widely accepted as
a legal system—similar in function, if not necessarily in structure, to domes-
tic law—as academic method and legal reasoning itself became similarly sys-
tematic, inductive and institutional.6 As Patrick Capps notes, international
lawyers ‘began to think of their subject almost as if it stood up by itself …
that it could be disconnected from issues concerning philosophical method;
that international law was an autonomous discipline of study’.7 (emphasis
added)
Nevertheless, Capps’ equivocation with the word ‘almost’ is telling for,
as the concerns in the Introduction revealed, from the outset, this under-
standing of international law as an autonomous legal system was critically
received due to the obvious structural differences between international
and domestic legal orders. In the absence of centralised institutions akin
to those commonly found at the domestic level, international law appeared
less certain and effective in actually regulating the conduct of international
politics. The modern discipline was thus born with a persistent sense of its
own structural weaknesses and a constant need to prove its own relevance
in the conduct of international affairs. This is what I will come to term the
‘institutional problem’ in modern international law. I will say more about
this problem in Chapter 3, but before doing so, my aim in the current chap-
ter is to attempt to give an account of the origins of this problem, and
specifically the difficulties facing late nineteenth and early twentieth-century
international lawyers in giving a persuasive account of international law as
an autonomous system of positive legal rules. To the extent that jurists from
this time could be described as successful in ushering in such a transition in
understanding of international law, this would prove to be a rather fragile
autonomy, which, as I will show in Chapter 2, would not survive the First

5 A Carty, The Decay of International Law: A Reappraisal of the Limits of Legal Imagina-

tion in International Affairs (Manchester, Manchester University Press, 1986) 14–15.

6 See A Carty, ‘Why Theory?—The Implications for International Law Teaching’ in P Allott

et al, Theory and International Law: An Introduction (London, British Institute of Interna-
tional and Comparative Law, 1991) 75, at 80–82; and generally Carty (n 5). By ‘institutional’
here, I refer to the social and artificial quality of law as a man-made artifice; for a fuller expla-
nation of this quality of law, see Ch 6 of J Raz, The Authority of Law: Essays on Law and
Morality, 2nd edn (Oxford, Oxford University Press, 2009).
7 P Capps, Human Dignity and the Foundations of International Law (Oxford, Hart

Publishing, 2009) 10.

 A Fragile Autonomy 21

World War unscathed and which would leave a perpetual sense of structural
or constitutional deficiency which still haunts the modern discipline.
The chapter is structured as follows. In section I, I consider the
almost universal shift away from a naturalist towards a positivist under-
standing of international law that occurred towards the end of the
nineteenth century. Contrary to some contemporary reflections on this
period, though, I argue that this transition should not be understood as a
kind of apologetic concession to state power or the raison d’etat, but as part
of a modernist renewal of the discipline attempting to give an account of
international law as an autonomous system of rules capable of acting as a
persuasive restraint on sovereign freedom. Nevertheless, in section II, I will
then show the difficulties jurists faced in accounting for international law’s
autonomy in this respect, particularly in the face of recurring scepticism
over whether such a law could be anything other than self-imposed political
prudence on the one hand or moral utopianism on the other. I then take this
analysis forward in section III, where I will note how the coherence of this
systemic understanding had to depend upon assumptions about the inevi-
table evolution of international law towards the development of an institu-
tional structure that more readily reflects the kind of model of law familiar
from domestic legal experience.
I will say more about the coherence of this domestic paradigm itself in
Part II. My immediate concern in exploring this transformation is more to
demonstrate the particular theoretical difficulties that have faced interna-
tional lawyers in accounting for the reality of the object of their study on
these terms. Before moving on, one caveat should be noted at the outset.
My ambition in Part I is certainly not to give a full chronological reflec-
tion of the recent history of modern international law.8 Rather, by show-
ing the recurrence of certain argumentative patterns, I aim to illustrate the
inevitability of certain theoretical problems which emerge from the assump-
tion that international law could be explained by reference to a domestic
legal paradigm, which itself relies on a (rather unrealistic) rule of law ideal

8 For a classic account of the history of international law presented in this style, see

WG Grewe, The Epochs of International Law (Berlin, Walter de Gruyter, 2000). Whilst unsur-
passed in many respects, there are limitations to presenting the history of a discipline, which
shifts between theorisation, idealism and the practice of inter-state politics, in this way. As Ingo
Hueck notes, the ‘observation of the development of the theory of international law should
possibly take place without focusing on specific historical turning-points or events’, but rather
‘the reconstruction of the development of the theory … [should] focus on the spirit of the time,
and the social and political contexts respectively’. IJ Hueck, ‘The Discipline of the History of
International Law—New Trends and Methods on the History of International Law’ (2001)
3 Journal of the History of International law 194, at 198–99. See also, for similar concerns,
M Koskenniemi, ‘Why History of International Law Today?’ (2004) Rechtsgeschichte 61.
Whilst space necessarily precludes elaboration of such social context beyond some generalities,
I try to take account of the kinds of political and social contexts which prompted different
conceptualisations of the nature of international law in different periods.
22 A Fragile Autonomy

that stresses the importance of legal autonomy in securing the restraint of

political freedom. I will assume for current purposes that this is a widely
shared view of the nature of law in general, but, as noted above, I will return
to consider this view, and the jurisprudential models that sustain it, at some
length in Part II.

I. FROM PHILOSOPHY TO LEGAL SCIENCE

By the nineteenth century, international law was increasingly understood

as a science, taught and studied separately from ecclesiastical or civil law,
philosophy or theology—areas within which it had previously formed
a coherent part. This understanding arose specifically from a growing
‘professional’ ethos or disciplinary self-consciousness to defend the coher-
ence and efficacy of the law as a system of norms that could operate as an
effective restraint in international politics—in particular, as law was under-
stood to operate within the confines of the (European) state.9 In the last
third of the century, much of this professional spirit emerged as a desire
to rid the discipline of its grounding in the metaphysics of natural law and
instead to concentrate on ‘systematising and interpreting’ the century’s lim-
ited multilateral treaty practice, giving shape to the idea of European diplo-
macy as ‘a working system of largely customary law’.10
Depictions of the transformation of international law occurring towards
the end of the nineteenth century tend to describe this era as the high-
point of legal positivism,11 often criticising this doctrinal approach as
overly formalistic, abstract or even ideologically dangerous (for justify-
ing the unrestrained sovereignty of states).12 However, as a number of

9 M Koskenniemi, From Apology to Utopia: The Structure of International Legal Argu-

ment (Cambridge, Cambridge University Press, 2005) 122–23; A Anghie, Imperialism, Sover-
eignty and the Making of International Law (Cambridge, Cambridge University Press, 2005)
48–52.
10 Koskenniemi (n 4) 146. For a more detailed overview of this transition, see Ch 1 of

Koskenniemi (n 1).
11 See, eg, R Ago, ‘Positive Law and International Law’ (1957) 51 American Journal of

International Law 691, at 699.

12 See D Kennedy, ‘International Law and the Nineteenth Century: History of an Illusion’

(1997) 17 Quinnipiac Law Review 99, at 100–01. For examples of this kind of criticism, see,
most famously, H Lauterpacht, Private Law Sources and Analogies of International Law (with
Special Reference to International Arbitration) (London, Longmans, 1927) 43–44 and pas-
sim. I consider, and critically reflect on, this more in R Collins, ‘Classical Legal Positivism in
International Law Revisited’ in J d’Aspremont and J Kammerhofer (eds), International Legal
Positivism in a Postmodern World (Cambridge, Cambridge University Press, 2014) 23–49. I
pick up on the rejection of ‘classical’ doctrine in inter-bellum jurisprudence specifically in the
following chapter.
 From Philosophy to Legal Science 23

critical voices have recently begun to recognise,13 this portrayal is argu-

ably an overly simplistic representation of the disciplinary transition that
occurred at this time.14 Insofar as the critique stretches back into the mid- to
late nineteenth century, it tends to ignore ‘persistent strands of “naturalism”
in that century’s legal doctrine, constantly referring back to the moral
and civilizing forces of European law and practices’,15 particularly in
British and French works.16 Such narratives also tend to neglect the more
eclectic approach to theory discernible at this time (whether or not natural
law is retained explicitly),17 not to mention the fact that, by the beginning

13 See, inter alia, Kennedy (n 12); Anghie (n 9); Koskenniemi (n 1); Koskenniemi (n 4);

Koskenniemi (n 9) 71–157; C Sylvest, ‘International Law in Nineteenth-Century Britain’

(2005) 75 British Yearbook of International Law 9; M Lobban, ‘English Approaches to Inter-
national Law in the Nineteenth Century’ in M Craven, M Fitzmaurice and M Vogiatzi (eds),
Time, History and International Law (Leiden, Martinus Nijhoff, 2007) 65–90; and A Lev, ‘The
Transformation of International Law in the 19th Century’ in A Orakhelashvili (ed), Research
Handbook on the Theory and History of International Law (Cheltenham, Edward Elgar,
2011) 111–42.
14 As Kennedy continues: ‘This image, of a method before frustration with formalism, a

doctrine before the erosion of sovereignty, and a legal philosophy before the pragmatic flight
from theory, remains an active part of twentieth century disciplinary argument, although it
reflects only dimly the actual doctrine, method or philosophy of the field before the First World
War.’ See Kennedy (n 12) 100. See further Collins (n 12) 29–36; and T Skouteris, The Notion
of Progress in International Law Discourse (The Hague, TMC Asser Press, 2010) 117–20.
15 Koskenniemi (n 4) 14. Stephen Neff has made similar claims, even if overall he paints a

picture of the century as still, in the main, dogmatically positivist. S Neff, ‘A Short History of
International Law’ in M Evans (ed), International Law, 4th edn (Oxford, Oxford University
Press, 2014) 3, at 13–15. See also J von Bernstorff, The Public International Law Theory
of Hans Kelsen: Believing in Universal Law (Cambridge, Cambridge University Press, 2010)
26–27.
16 In terms of British approaches, the attachment was quite explicit. See, eg, R Phillimore,

Commentaries upon International Law, 3rd edn (London, Butterworths, 1879), particularly
at 14–29; T Twiss, The Law of Nations Considered as Independent Political Communities
(Oxford, Oxford University Press, 1861), particularly at 110–11. See also the work of the more
eccentric Scottish jurist, James Lorimer: The Institutes of the Law of Nations: A Treatise on
the Jural Relations of Separate Political Communities, vol II (Edinburgh, William Blackwood
and Sons, 1884). In French scholarship, the continued attachment to naturalism is evident in
particular in the doctrine of the fundamental rights of states; see, eg, A Pillet, ‘Recherches sur
les Droits Fondamentaux des États dans l’Ordre des Rapports Internationaux et sur la Solution
des Conflits qu’ils Font Naitre’ (1898) 5 Revue Générale de Droit International 503–32. For a
general overview, see E Jouannet, ‘A Century of French International Legal Scholarship’ (2009)
61 Maine Law Review 83, at 94.
17 See generally, Collins (n 12) 31–32. This point applies particularly to the ‘historical’

jurisprudence which influenced figures such as Johann Caspar Bluntschli or Henry Summer
Maine. See in particular JC Bluntschli, The Theory of the State, English translation from
the 6th German edn (Oxford, Clarendon Press, 1885); JC Bluntschli, Le Droit International
Codifié, 5th edn (Paris, Guillaumin, 1895); and HS Maine, Ancient Law: Its Connection with
the Early History of Society, and its Relations to Modern Ideas (London, John Murray, 1861).
For a detailed exposition of Maine’s theory in this respect, see the arguments of Sylvest (n 13)
42–46, 54–56.
24 A Fragile Autonomy

of the twentieth century, positivism itself had come to represent an umbrella

term for a broad spectrum of quite diverse theoretical approaches.18
At the same time, insofar as there was still a discernible and definite
shift towards the dominance of positivist method by the beginning of the
twentieth century, two points should be made with regard to the ideological
underpinnings and methodological consequences of this transition. First,
this disciplinary shift needs to be placed in its historical context and under-
stood for what it was: an attempt to find a more persuasive, more legitimate
basis for the law of nations as a real restraint on the sovereignty of states.
In particular, in a post-revolutionary Europe increasingly hostile to a pri-
ori or essentialist philosophical claims, public opinion had already turned
against the naturalist idea of sovereignty as personal and divine right, a
notion which had previously sustained the patrimonial legitimacy claims of
the ancien régime.19 Furthermore, at a time that saw the growth in promi-
nence of empirical science generally, natural law argument was increasingly
seen not only as illegitimate and speculative, but also as ‘a set of exces-
sively abstract (and in this sense arbitrary) maxims that could not form
part of a practical Jus publicum Europaeum’.20 For instance, the English
jurist Thomas Lawrence claimed that natural law ‘was false historically,
and untenable philosophically’ for it ‘confound[ed] together the actual and
the ideal’. He asserted confidently that state officials no longer appealed
publicly to ‘innate principles and absolute rights, but to rules which can be
proved to have been acted upon previously in similar circumstances by all
or most civilised nations’.21
Nineteenth-century international lawyers thus sought new means for
legitimising as well as new ways of understanding the legality of inter-state
relations. To construct a more convincing vision of an international pub-
lic order under law, they sought insights from domestic experience, where
sovereignty was seen as having already been reconstructed in more rela-
tive terms, tamed and harnessed by principles such as the rule of law. As
Christian Reus-Smit notes, modern doctrine took shape under the influence

18 S Neff, Justice among Nations: A History of International Law (Cambridge, MA,

Harvard University Press, 2014) 226 ff.

19 This was a common reflection amongst many European jurists writing towards the end of

the nineteenth and in the early twentieth centuries: see, eg, G Rolin-Jaecquemyns, ‘De l’étude
de la législation comparée et de droit international’ (1869) 1 Revue de Droit International 11,
at 256–57; P Fiore, International Law Codified and its Legal Sanction; or the Legal Organi-
zation of the Society of States (translated from the 5th Italian edn by Edwin M Borchard)
(New York, Baker, Voorhis & Company, 1918) 8–9; and TJ Lawrence, Essays on Some Dis-
puted Questions in Modern International Law (Cambridge, Deighton, Bell and Co, 1885)
236–37; TJ Lawrence, The Principles of International Law, 7th edn (London, MacMillan,
1923) 132.
20 Koskenniemi (n 4) 146.
21 TJ Lawrence, A Handbook of Public International Law (Cambridge, D Bell & Co,

1898) 6.
 From Philosophy to Legal Science 25

of principles such as juridical equality, non-discrimination and self-legisla-

tive justice. These principles were seen as already delineating the allocation
of political power within the state and, in this spirit, international law also
came to be perceived increasingly as an institutional practice structured on
the basis of mutual consent and reciprocal equality (at least in a formal
sense).22
By the turn of the twentieth century, the reality of this transition—in both
theory and practice—had become abundantly clear. One need only compare
the reactionary and conservative legitimising principles and purposes under-
pinning the Vienna Settlement of 1814–15 with the more liberal purposes
and multilateral ordering principles of the 1899 and 1907 Hague Confer-
ences to see the reality of this changed understanding.23 From a more doctri-
nal perspective, the repercussions of this change are clearly spelt out in Lassa
Oppenheim’s famous 1908 essay on the task and method of international
law. Oppenheim begins—perhaps more charitably than Lawrence (above),
though no less forthright—by dismissing natural law as an ‘epoch in the
evolution of human reason’. Natural law’s importance in this respect was in
having helped to spread liberal principles of constitutional legitimacy. Hav-
ing now taken hold, however, such principles had shown the necessity of a
clear demarcation of the legal and political realms:
We know now-a-days that it is impossible to find a law which has its roots in
human reason only and is above legislation and customary law … Nobody denies
the right of an author to criticize the existing legal rules, to condemn the prevailing
social conditions, and to construct a body of rules which, when accepted, would
constitute an improvement. But such rules, although ever so much supported by
reason, justice, and equity, would not be rules of law before they were either by
custom or by legislation adopted for the future conduct of those concerned.24
(emphasis added)

22 C Reus-Smit, The Moral Purpose of the State: Culture, Social Identity, and Institu-

tional Rationality in International Relations (Princeton, NJ, Princeton University Press, 1999)
129–32, 134–35, 153; and see C Reus-Smit, ‘The Constitutional Structure of International
Society and the Nature of Fundamental Institutions’ (1997) 51 International Organization
555, at 578, on how later in the century, the principle of ‘rule determination’ began to impact
in inter-state relations. As he claims, the principle that ‘social rules should be authored by those
subject to them came to license multilateral forms of rule determination, while the precept
that rules should be equally applicable to all subjects, in all like cases, warranted the formal
codification of contractual international law, to ensure the universality and reciprocity of inter-
national regulations’.
23 Reus-Smit (n 22) 131–32, 153.
24 L Oppenheim, ‘The Science of International Law: Its Task and Method’ (1908) 2

American Journal of International Law 313, at 329. See also discussion in Sylvest (n 13) 43,
where he reflects on the reaction to an ‘unhistorical and a priori’ natural law, which to jurists
of this era ‘might … [have been] important for understanding a trajectory of evolution, but …
[was] incapable of guiding civilization in its advanced stages’.
26 A Fragile Autonomy

Oppenheim was certainly not alone in espousing such a view of international

law by this time.25 By the early years of the twentieth century, few interna-
tional lawyers thought of the object of their study as anything other than
an artificial construct derived at some level from the will of states,26 and
the role of the international jurist as concerned with anything more than an
‘analysis of the practice of the institutions of the State’.27 As Carty notes,
Oppenheim’s approach signifies international law’s almost total transition to
a purely ‘institutional’ view of international law: it was seen as an autono-
mous legal order, grounded in state practice, where the validity of norms
would derive from their conformity with conditions endogenous to the legal
order itself rather than any a priori philosophical commitments.28
This conviction and methodological approach might strike contemporary
international lawyers as ‘naively positivistic’ in many respects,29 but it is
important to understand the normative ambition underpinning this meth-
odological commitment. For Oppenheim, in particular, international law
was ‘merely a means to certain ends outside itself ’, ends which were simply
posited as crucial to the very idea of international law, chief among them
being ‘peace among the nations and the governance of their intercourse by
what makes for order and is right and just’.30 However, in order to realise
these ends, it was crucial to maintain in existence the autonomous domain
of the law. As Benedict Kingsbury has argued, persuasively, there is a barely
concealed ethical commitment underpinning Oppenheim’s positivism in this
respect:
Oppenheim’s commitment to a positivist approach to international law was not
simply an assertion that a positivist concept of law was the only coherent one,
but also embodied a normative or ethical view that a positivist understanding of
international law was best able to advance the realization in international society
of a higher set of values to which Oppenheim adhered.31

25 Already by 1894, in fact, Oppenheim’s predecessor at Cambridge, John Westlake, could

confidently claim that it was with ‘law as an institution or a fact that the legal student has to
deal’. See J Westlake, ‘Chapters on International Law’ in L Oppenheim (ed), The Collected
Papers of John Westlake on International Law (Cambridge, Cambridge University Press, 1914,
originally published in 1894) 13.
26 Carty (n 5) 1–11 and passim. Whilst many jurists reserved a place for natural law argu-

ment, this normally had to be ‘positivised’, that is, manifest in the practices and usages of
states. See Koskenniemi (n 9) 137–38.
27 Carty (n 5) 8. As he continues: ‘In this context there is no significant difference between

the common law and civil law jurisdictions in so far as concerns legal method. Study of the
“practice” of judicial institutions follows the same analytical, i.e. above all logical, conceptual
method, as study of the “emanations” of the will of the State.’
28 See Carty (n 6) 80–82.
29 B Kingsbury, ‘Legal Positivism as Normative Politics: International Society, Balance of

Power and Lassa Oppenheim’s Positive International Law’ (2002) 13 European Journal of
International Law 401, at 402, though it should be noted that Kingsbury himself challenges
this view.
30 Oppenheim (n 24) 314.
31 Kingsbury (n 29) 431. See also Capps (n 7) 83.
 From Philosophy to Legal Science 27

Again, Oppenheim was clearly not alone in holding such opinions. As

Anghie recognises, from the late nineteenth century onwards, jurists
increasingly began to see the role of legal science as ‘a struggle against chaos
which could be won only by ensuring the autonomy of law, and establish-
ing and maintaining the taxonomies and principles which existed in fixed
relations to each other’.32 In line with the prevalent liberalism of the times,
any underlying commitment to international justice was thus expressed in
procedural rather than substantive terms. The validity of legal norms would
stem from their place within an objectively verifiable legal order, not from
inherently subjective and dangerous moralism.33
However, it is precisely this point which brings me to the second, more
methodological consequence of this shift. It is perhaps unsurprising that
constructing a legal system from a basis of state practice and sovereign will
is no easy feat. As Koskenniemi notes, it was far from a straightforward
enterprise ‘to imagine diplomatic correspondence and a few arbitration
cases as manifestations of an autonomous legal order’.34 Compared to more
‘developed’ domestic legal systems, international law appeared substan-
tively and institutionally primitive. Far from being dogmatically positivist
in terms of method, therefore, jurists of this era tended to be very creative
in their attempt to account for international law’s autonomy as a system
of positive legal rules. They had to compensate for gaps and deficiencies in
the law through, for example, moral argument, domestic analogy and his-
torical reflection. As noted above, many retained arguments derived from
natural law (even if not expressly couched in these terms) which, ‘though
usually termed “secondary” to positive law, fulfilled the important function
of offering arguments when positive ones were not available’.35 Meanwhile,
their resort to domestic analogy not only helped to flesh out important
substantive rules in areas such as the laws of territory, treaties and war-
fare,36 but also—and perhaps more importantly—allowed jurists to make
sense of the development of international law through teleological assump-
tions about its progressive evolution mirroring the constitutional develop-
ment of (European) nation states.37
If nineteenth-century jurists had therefore succeeded in divorcing interna-
tional law from its foundation as an expression of enlightenment philoso-
phy and re-imagining it as an autonomous legal order, it could be portrayed

32 Anghie (n 9) 51.
33 Koskenniemi (n 9) 53–54.
34 Koskenniemi (n 1) 362.
35 Koskenniemi (n 9) 131.
36 Koskenniemi (n 4) 150–51. See also, eg, J Westlake, Chapters on the Principles of Inter-

national law (Cambridge, Cambridge University Press, 1894) 9–11 and later in Ch 9 on the
title to sovereign territory.
37 See generally Ch 1 of Koskenniemi (n 1); and Koskenniemi (n 9) 53, 143–54.
28 A Fragile Autonomy

as such only by re-introducing principles, assumptions and teleological

arguments that seemed to sit uncomfortably with the claimed scientific
objectivity that had driven the quest for legal autonomy in the first place.
As we will see in the sections that follow, it was only by creatively filling in
the gaps in the law in this way that turn-of-the-century jurists were able to
explain international law as autonomous in this respect—that is, as some-
thing more than, and set apart from, states’ self-imposed restraint—but it
was precisely their efforts in doing so that seemed to threaten that very same
autonomy. The international legal system bestowed upon twentieth-century
jurists seemed embryonic and fragile at best.

II. A FRAGILE AUTONOMY: THE SOVEREIGNTY PROBLEM

Insofar as the growing dominance of legal positivism resulted in a view of

international law grounded in state sovereignty, this shift was certainly not
therefore intended to construct barriers towards legal order. Rather than
seeing the foundational idea of the sovereign equality of states as a form
of deference to the raison d’etat, we can understand it as a constitutive
organising principle, a necessary construct for the possibility of legal order
in a decentralised political space. In other words, a formalised idea of sover-
eignty as a delineated order of absolute competence provided a procedural
grounding for the law, an explanation of the possibility of autonomous law
in the absence of an overarching moral consensus or centralised authority at
the global level.38 As Koskenniemi observes:
From the late nineteenth century onwards, international lawyers have been critics
of ‘sovereignty’ as egoism, arbitrariness, and the absolutism of state power. The
contrary to sovereignty was international law … The legacy of the nineteenth
century was not excessive deference to sovereignty (arguments against such defer-
ence were common then as they are today) but rather the emergence of ‘sover-
eignty’ as the key topos of international law, leading the law into a formal and
procedural direction, away from views about the substantive rightness or wrong-
ness of particular types of behavior.39
David Kennedy makes a similar point:
[F]rom the standpoint of international law, the sovereignty consolidated in the
late nineteenth century was a very secular matter, a doctrinal project of prac-
ticality in a broader legal fabric whose existence, in turn, was simply obvious.

38 An idea clearly expressed by the Permanent Court of International Justice (PCIJ) four

years before its Lotus decision, in the Wimbledon case, claiming that the right to enter into
legally binding agreements should be seen as an attribute of state sovereignty rather than
resulting in its diminution. See Case of the SS Wimbledon (1923) PCIJ Ser A No. 1, 25; and
discussion in J Klabbers, ‘Clinching the Concept of Sovereignty: Wimbledon Redux’ (1998)
3 Austrian Review of International and European Law 345; as well as Koskenniemi (n 4) 146.
39 Koskenniemi (n 4) at 150.
 A Fragile Autonomy: The Sovereignty Problem 29

If nineteenth century international lawyers had a blind faith, it was in law, not
sovereignty. Sovereignty was their construct, their response, a project of earnest
doctrinal elaboration, opening a space for a new form of statecraft in an ancient
legal fabric.40 (emphasis added)
Nevertheless, whilst it might not have been the intention to erect a barrier
to the possibility of legal order, doubts would soon emerge over the coher-
ence of a positive system of rules grounded in the concordant wills and
social practices of sovereign-equal states. In particular, the question arises as
to how purportedly legal ‘rules’ could be anything other than self-imposed
political prudence on the one hand or unenforceable moral speculation on
the other.

A. Deriving Law from Sovereignty

The first form of scepticism relates to the idea that through their
agreements—whether tacit or explicit—states might somehow be able
to bind each other through their reciprocal promises, seemingly relying
on some form of self-imposed restraint or mutual respect. Many critical
reflections on this period relate this problem specifically to the oft-derided
theory of Selbstverpflichtungslehre (‘auto-limitation’), as emerged from the
influence of neo-Hegelian jurisprudence, particularly from German public
law theory from the mid-nineteenth century. This approach was applied
to international law most famously, though by no means exclusively, by
Georg Jellinek.41 Essentially, we might understand international law under
this model as a kind of ‘external public law’,42 though such an understand-
ing is more often than not caricatured and misunderstood, ignoring its
underlying philosophical commitment. Certainly, and particularly prior to
Jellinek’s work, there was a distinctly ‘voluntarist,’ even nationalistic strand
of thinking that used insights from historical jurisprudence and the philoso-
phy of Hegel to justify a state-centric, monist account of legal obligation.43
Nevertheless, the influence of such ideas outside of Germany was limited.44
In any event, the much more influential account of the Selbstverpflich-
tungslehre developed by Jellinek is difficult to characterise in these terms45

40 Kennedy (n 12) at 121.

41 G Jellinek, Die Rechtliche Natur der Staatenverträge (Vienna, A Hölder, 1880) 2, 42–49,
56–58.
42 The term ‘external public law’ comes from Koskenniemi’s reading of Jellinek: see

Koskenniemi (n 4) 145. The idea of ‘äußeres Staatsrecht’ can, however, be found much earlier
in the work of Hegel himself: GWF Hegel, Grundlinien der Philosophie des Rechts (Georg
Lasson (ed), Leipzig, Felix Meiner, 1911, originally published in 1821) 266–71 (paras 330–40).
43 See the discussion in Koskenniemi (n 1) 179–265.
44 Neff (n 18) 236–39.
45 See, eg, Koskenniemi (n 9) 128.
30 A Fragile Autonomy

and is perhaps more neo-Kantian than Hegelian in outlook.46 In particular,

Jellinek’s position was underpinned by a distinctly objectivist account of
state purpose, which was coupled with an acceptance of the constraining
influence of social interaction.47 In that sense, as Jochen von Bernstorff has
recently argued, Jellinek’s legal positivism was progressive and internation-
alist in outlook,48 acting as a clear precursor to the more communitarian,
constitutionalist international law scholarship to emerge out of Germany in
the twentieth century.49 As he puts it:
While acknowledging the importance of the sovereign will of the State as the
formal basis of all law, the binding nature of these fundamental rules in Jellinek
is ultimately based on the notion of shared fundamental interests in a histori-
cally created international community of States. State sovereignty is understood
as being defined and thus limited by the proto-constitution of this assumed inter-
national community.50
What ultimately counts here is the presumption of sociability that gives
meaning to the interactions between states and which does not itself have to
be accounted for within the system of law which it sustains.
As such, insofar as the idea of the Selbstverpflichtungslehre was influen-
tial after Jellinek, most sought to avoid the kind of philosophical account
of inherent state purpose that underpinned his approach.51 For instance,
the influential early twentieth-century international lawyer Heinrich Trie-
pel sought to qualify and improve upon Jellinek’s approach by relying on
a more socio-empirical basis for international law’s validity, deriving the
binding force of the law from a common will (Gemeinwille) which found
expression within, and could be derived from, express (treaties) and tacit
(custom) agreements between states (Vereinbarung).52 Triepel aimed to
highlight the different bases for international law in comparison to domestic
law—an avowedly dualist approach which tried to overcome the shortcom-
ings he saw in a (monist) theory of auto-limitation.53 A similar approach

46 Neff (n 18) 240.

47 See Koskenniemi (n 1) 201, where he notes how criticisms of Jellinek’s position ‘fail …
to address [his] move away from a pure voluntarism into a more genuinely sociological
understanding of the law in terms of the structural constraints imposed on State will by the
environment’.
48 Von Bernstorff (n 15) 27–28.
49 See further in Ch 7.
50 J von Bernstorff, ‘Georg Jellinek and the Origins of Liberal Constitutionalism in Interna-

tional Law’ (2012) 4 Goettingen Journal of International Law 659, at 662.

51 M Schmoekel, ‘The Internationalist as a Scientist and Herald: Lassa Oppenheim’ (2000)

11 European Journal of International Law 699, at 707. Though, as a counterpoint, see the
work of Alfred Lasson, Princip und Zukunft des Völkerrechts (Berlin, Hertz, 1871), discussed
in detail in Koskenniemi (n 1) 32–33.
52 See generally H Triepel, Völkerrecht und Landesrecht (Leipzig, CL Hirschfeld, 1899); and

H Triepel, Droit international et droit interne (Paris, A Pedone, 1920) 27–61.

53 Triepel (n 52) 77.
 A Fragile Autonomy: The Sovereignty Problem 31

found favour, at least initially, in the work of the Italian international lawyer
Dionisio Anzilotti,54 though in later years he would move to a more explic-
itly normative-conceptual framework, influenced by the work of Hans
Kelsen.55 As critics were soon keen to point out, however, the problem with
all of these accounts, insofar as they try to ground the binding force of the
law in agreements between states (pacta sunt servanda), is that they ulti-
mately have to presume a kind of ethical sociability amongst states which
sits outside of the system of international law, preceding it and giving it
overall normative force.56
To the extent that Jellinek’s approach had some influence beyond
continental legal positivism, particularly through the German émigré
Oppenheim,57 this idea of an underpinning community will would surface
again, albeit this time in a distinctly more pragmatic, Anglo-Saxon form.
Oppenheim grounded the binding force of international law in what he
referred to as the ‘family of nations’: a concept that was not merely an
aggregation of the particular interests of states, but again existed as a kind of
a priori assumption about their inherent sociability.58 As Schmoekel claims:
[Oppenheim] did not have to adopt Jellinek’s theory of self-restraint as the foun-
dation of law … Law was not forced on states because they live in a society, but
living in society causes the will to consent. Both seem very close in theory and may
have been influenced by the same sources, yet they formed distinct approaches.59
(emphasis added)
Oppenheim’s approach therefore needs to be distinguished from the more
normative, scientific positivism developed by Triepel and Anzilotti (above).
He was certainly sympathetic to Triepel’s dualism, for instance, particu-
larly in emphasising the specific purpose and institutional structure of
international law in comparison to domestic law. However, his more prag-
matic approach to theory gave a more sociological explanation of what
was necessary for a community’s survival and progressive development

54 D Anzilotti, Corso di Diritto Internazionale, 4th edn (Padua, CEDAM, 1955) 82–85. See

further G Gaja, ‘Positivism and Dualism in Dinisio Anzilotti’ (1992) 3 European Journal of
International Law 123, at 127.
55 See discussion in Gaja (n 54).
56 See, eg, D Anzilotti, Scritti di Diritto Internazionale (Padua, CEDAM, 1957) 57; and

see the remarks of Gaja (n 54) 127. For examples of these kinds of critiques, see Lauterpacht
(n 12) 43–50; and A Verdross, ‘Le fondement du droit International’ (1927-I) 16 Recueil des
Cours 247, at 262–86.
57 Though, as Schmoekel notes, there was an important difference between their theoreti-

cal approaches in this respect: ‘[Oppenheim] did not have to adopt Jellinek’s theory of self-
restraint as the foundation of law … Law was not forced on states because they live in a society,
but living in society causes the will to consent. Both seem very close in theory and may have
been influenced by the same sources, yet they formed distinct approaches.’ Schmoekel (n 51)
707; see also Carty (n 6) 81.
58 Kingsbury (n 29) 409.
59 Schmoekel (n 51) 707; see also Carty (n 6) 81.
32 A Fragile Autonomy

rather than trying to conceptualise or reflect any form of actual or tacit

agreement.60 Kingsbury describes this well:
His exposition and development of the idea [of the ‘family of nations’] was not
simply a description of a concept that everyone agreed upon, nor was it merely
the postulating of a logical necessity for international law. He believed, it is sug-
gested, that, in the circumstances then existing, this particular conception of
international society was required for the effective development of international
law.61
Although there were clear methodological differences between continental
and Anglo-American approaches to international law, this shared empha-
sis on the need for a societal or community will underpinning the law still
seemed a necessary construct in order to explain international law as an
autonomous, objective system of rules. The close connection between law
and society—ubi societas ibi ius est—was in fact a recurring rhetoric from
the late nineteenth century onwards, with each concept mutually support-
ing the other. It was only by differentiating the whole from its constituent
parts in this way that jurists from this era were able to sustain the coher-
ence of the idea of international law as an autonomous normative order
that was binding upon states.62 We can see this close connection between
law and society particularly in the work of Westlake, who saw interna-
tional law as underpinned by an underlying social interest or a collective
will opposable to that of the individual state63—or, as he put this himself,
law could be found and enforced through the ‘general consensus of opin-
ion within the limits of European civilisation’.64
Sovereignty may have provided the foundation to explain the binding
force of international law, but, as Anghie argues, to maintain the coherence
of this view, a conception of a higher societal will had to be introduced:
[S]ociety, rather than sovereignty, is the central concept used to construct the
system of international law … Despite the positivist claims that the sovereign
was the exclusive basis for the international system, it was only if society was

60 L Oppenheim, International Law: A Treatise, vol 1, 3rd edn (London, Longmans,

Green & Co. 1920) 14–15.

61 Kingsbury (n 29) 409.
62 Anghie (n 9) 47: ‘sovereignty is important, inasmuch as society is constituted by sovereign

states. Equally, however, it is because these states exist in society that international law can
claim to be law. The interaction of the members of this society gives rise to rules which are
regularly observed and which are enforced by sanctions. Consequently, society constituted law
and law constituted society. It is through a complicated inter-play between law and society that
the result is circularly achieved, that international order is maintained and international law is
created’. (emphasis added)
63 J Westlake, International Law: Part I, Peace (Cambridge, Cambridge University Press,

1904) 16.
64 Westlake (n 36) 78.
 A Fragile Autonomy: The Sovereignty Problem 33

introduced into the system that positivists could approximate the idea of ‘law’ to
which they urged adherence. Society, then, provides the matrix of ideas, the ana-
lytical resources which allied with sovereignty, could establish a positivist inter-
national legal order.65
Nevertheless, by placing emphasis on this idea of a society or international
community, the reconciliation seems to raise a new problem. As soon as the
whole (international society/community) is differentiated—and abstracted –
from each of its constituent parts (states), the obvious difficulty became how
to defend the coherence of this seemingly progressive, solidarist underpin-
ning to the law from those sceptical that such a construct could be anything
other than a form of disguised naturalism or moral abstraction. As I will
now go on to show, in fact, this charge would grow to be a particular sting
for jurists, particularly in Anglo-American works, due to the growing influ-
ence of the analytical positivism developed by the English legal philosopher
John Austin.

B. Avoiding the Charge of Moral Utopianism

Austin’s legal philosophy had essentially developed the political theory of

Thomas Hobbes into an analytical model of jurisprudence which sought
to make generalisable claims about law. The key to this understanding was
the claim that the central normative aspect of legal rules was their ability
to be enforced through the sanctioning power of a sovereign authority.66
In the absence of such an overarching sovereign or political superior at the
international level, Austin famously claimed that international law enjoyed,
at best, the status of ‘positive morality’.67 Whilst the deficiencies of Austin’s
command-based approach to legal normativity were convincingly demon-
strated some years later by Hart, amongst others,68 by the late nineteenth
century, his theory had begun to exert a significant influence, and became a
principal cause of existential doubt in the professional self-consciousness of
international lawyers in their efforts to defend both the reality and efficacy

65 Anghie (n 9) 48.
66 J Austin, Lectures on Jurisprudence or the Philosophy of Positive Law, 4th edn
(R Campbell (ed), London, John Murray, 1873).
67 Austin arrived at the notion of ‘positive international morality’ as he thought it impossi-

ble that a state could will an obligation into existence and retain its sovereignty: ‘The so called
law of nations consists of opinions or sentiments current among nations generally. It therefore
is not law properly so called.’ ibid 188.
68 See, eg, Ch II of HLA Hart, The Concept of Law, 3rd edn (Oxford, Clarendon Press,

2012) at 18–25 in particular. See further my own discussion on this point in Ch 3 below.
34 A Fragile Autonomy

of international law from critical attack.69 In fact, a review of some of the

key treatises from this time demonstrates how many international lawyers
sought to explain how international law could be maintained as a positive
legal order through the means of collective enforcement, despite its decen-
tralised organisation.
Oppenheim’s treatise was typical in this respect. He argued, contra
Austin, that the law’s binding force encompassed three aspects, none of
which depended on the need for an overarching sovereign in the interna-
tional sphere:
There must, first, be a community. There must, secondly, be a body of rules for
human conduct within that community. And there must, thirdly, be a common
consent of that community that these rules shall be enforced by external power.
It is not an essential condition either that such rules of conduct should be written
rules, or that there should be a law-making authority or a law-administering court
within the community concerned.70
Whilst Oppenheim clearly saw it as unnecessary for a decentralised legal
order such as international law to be organised in the same way as the con-
stitutional structure of a state, he clearly saw enforcement as a necessary
condition for a state of legality, even if international law had to be enforced
in a different way—primarily through reprisals and other mechanisms of
‘self-help’.71 In a sustained critique of Austin’s approach, Oppenheim com-
mented how:
[M]unicipal law, constitutional law, ecclesiastical law, and international law are
all branches of the same tree of law in general as a body of rules for the conduct
of the members of a community, which rules shall by common consent of the com-
munity be eventually enforced by external power, in contradistinction to rules of
morality which by common consent of a community concerned are to be enforced
by conscience only.72 (emphasis added)
Again, it is the common will of the ‘family of nations’ to enforce the law
which gives normative force to international legal rules under Oppenheim’s
approach. Others went further in their criticism of Austin, whilst still
accepting the need for some form of sanction in the law. For instance,

69 Whilst I will principally refer here to British texts, the problem was felt in similar terms in

American texts at this time (see, eg, FA Boyle, World Politics and International Law (Durham,
NC, Duke University Press, 1985) 18–20), not to mention also, as Koskenniemi observes,
that ‘similar ideas had surfaced in Staatslehre and French jurisprudence as well’: Koskenniemi
(n 1) 48. On the Austinian influence generally, see also JE Nijman, The Concept of Inter-
national Legal Personality: An Inquiry into the History and Theory of International Law
(The Hague, TMC Asser Press, 2004) 111–14; Anghie (n 9) 44–45. On the effort amongst
nineteenth-century British jurists to distinguish the autonomy of international law against
Austin’s criticisms, see also Sylvest (n 13).
70 Oppenheim (n 60) 7.
71 ibid 11.
72 Oppenheim (n 24) 331.
 A Fragile Autonomy: The Sovereignty Problem 35

Lawrence claimed that the kind of ‘command theory’ expounded by Austin

had already been discredited, even at the national level, with the recogni-
tion that public opinion had replaced the need for physical force as the
core of juridical sanction.73 Similar arguments were advanced by others,
particularly the staunchly positivist jurist WE Hall, who saw international
public opinion as outweighing the necessity for organised force.74
Others accused Austin of taking a far too narrow approach in assessing
legality. Westlake, for instance, claimed that Austin had not exactly erred,
jurisprudentially speaking, but had narrowed down his enquiry too far by
ignoring, as Oppenheim had also maintained, the fact that the ultimate
binding force of law depended on the willingness of any society to ensure
its enforcement.75 A variation of this argument, developed by Thomas
Holland, was to claim that Austin had ignored the different forms of law
within the state. For Holland, international law was simply ‘private law writ
large’, which, though commonly backed by the sanction of public authority
in the domestic sphere, could nonetheless be conceptualised as sufficiently
coherent in the absence of any external sovereign authority.76 Westlake
made a similar point:
[S]tates live together in the civilised world substantially as men live together in a
state, the difference being one of machinery, and we are entitled to say that there
is a society of states and a law of that society, without going beyond reasonable
limits in assimilating variant cases to the typical case.77
In making these kinds of defence in an attempt to ‘correct’ Austin’s theory (just
as Triepel and Anzilotti attempted, in their own way, to correct Jellinek’s),
Westlake and his contemporaries only really perpetuated the idea that inter-
national law was a less perfect form of a domestic paradigm. Specifically, in
making the comparison between international and domestic legal orders and
accounting for the difference between them, these jurists set international law
up as necessarily inferior to a command-based domestic law paradigm. They
might have argued that Austin had misunderstood the basis of sanction in

73 Lawrence (n 19) 20–23.

74 WE Hall, A Treatise on International Law, 2nd edn (Oxford, Clarendon Press, 1884)
14–15. See also a similar view espoused by the American jurist Elihu Root: E Root, ‘The
Sanction of International Law’ (1908) 2 American Journal of International Law 451. On the
presumption of an inherent sociability underlying Hall’s position, see also Koskenniemi (n 1)
82–83.
75 Westlake (n 36) 11–15; Westlake (n 63) 7–8.
76 TE Holland, Elements of Jurisprudence, 9th edn (Oxford, Oxford University Press, 1900)

372. Whilst he could justify positive international law as law in this way, this still led him
to demote its importance or its level of ‘perfection’ when compared to domestic law. As he
concluded in an earlier essay on the ‘systemic’ features of positive international law: ‘It is not
reasonable to undervalue the services rendered by International Law, because it is not precise
enough to supply a rule for every new case that arises, or strong enough to restrain from col-
lision nations whose passions are once fully roused.’ See TE Holland, Studies in International
Law (Oxford, Clarendon Press, 1898) 167.
77 Westlake (n 63) 7.
36 A Fragile Autonomy

international law (eg, Hall, Lawrence and Oppenheim), confused a condition

of the possibility of international law with the current state of international
organisation (eg, Westlake) or just thought him overly pedantic in what could
constitute law in the first place (eg, Lawrence and Holland). But for all con-
cerned, a collective anxiety remained as to the fragility of the edifice of inter-
national law as a fledgling order of positive law. The lack of organised and
centralised mechanisms for enforcing, adjudicating upon or developing the
law appeared—whatever way they could justify it—as international law’s dis-
tinct structural weakness: its institutional problem.78

III. ‘AT THE VANISHING POINT’: INTERNATIONAL

LAW AS PRIMITIVE LAW

In all, therefore, however crude Austin’s command theory might have been,
in their attempts to refute him, many late nineteenth and early twentieth-
century jurists also subtly reinforced his argument. By accepting a broadly
hierarchical paradigm of legality (however much modified or qualified)
based on domestic experience, most late nineteenth-century jurists dealt
only with the empirical observations underpinning Austin’s claim, often
over-simplifying the central point of his theory in the process, and thereby
missing its overall conceptual weakness too.79 As Anghie notes, Austin had
already anticipated, for example, Oppenheim’s argument as to the common
basis of custom in all forms of law; his point was merely that it would remain
a form of positive morality, rather than law, until it had been recognised in
common law (by a court) or statute (by a legislature).80 That it would be
better if international law evolved to introduce centralised organs designed
to enhance this element of legal certainty was rarely contested, if at all.
The point is not that Austin’s conceptualisation of domestic law’s bind-
ing force was correct or indeed that all international lawyers felt the force
of his critique to the same degree, but only that if one sought to prove that
international law could exist as a positive legal order on the same terms as
(yet despite its differences from) domestic law—as Oppenheim and others
suggested—then something like the Austinian challenge revealed the weak-
nesses of international law thus conceived. It may belong to the same genus
of law, but it is a genus which, in Oppenheim’s words, had to ‘be eventually
enforced by external power’.81 Whilst, as we saw above, jurists from this

78 See Lawrence (n 19) 252 and passim.

79 On the idea that Austin was set up as a ‘straw-man’ in this way, see Lobban (n 13) 80.
80 Anghie (n 9) 46, referring to J Austin, The Province of Jurisprudence Determined

(London, John Murray, 1832) 31.

81 Oppenheim (n 24) 331. Similarly, Lawrence saw it as inevitable that international law

would eventually develop an organised, centralised international tribunal to peacefully deal

with international disputes on the basis of law. Lawrence (n 19) 252 and passim.
 ‘At the Vanishing Point’: International Law as Primitive Law 37

time had answers as to how international law could be enforced in lieu of

centralised authority (either through the sanctioning ‘force’ of organised
public opinion or by states themselves through mechanisms of self-help),
these approaches were accepted as, at best, ‘gap-filling’ measures, making
up for the lack of centralised force found within domestic legal orders.
Accordingly, the kind of scepticism which denied the binding force of
international law is merely transferred to the law’s institutional condi-
tion. It was only by assuming that it would evolve to become more like
domestic law that international law could be reconciled on the same terms.
This assumption is particularly evident, again, in Westlake’s conceptuali-
sation of the difference between domestic and international legal orders,
which he saw as arising primarily because of international society’s stage
of development, not the existence of law within that society, which he took
as a given:
Since a loosely organised society can give less protection than a highly organised
one, and its rules are not ascertainable with equal precision, it may have less claim
to the obedience of its members. But the obligation of law on the conscience is a
question of ethical philosophy different from that of the objective existence of law
in a society, and lying deeper.82
On this basis, there was still a sufficient similarity between domestic and
international legal orders in order to make the comparison, the difference
being ‘one of machinery’, such that they could still be compared and con-
trasted ‘without going beyond reasonable limits in assimilating variant cases
to the typical case’.83
Nevertheless, the problem here is that rather than being theorised or
understood on its own terms, international law is conceived precisely as
a less perfect or incomplete variant of a hierarchical paradigm of legality
drawn from domestic experience. By claiming that international law’s struc-
tural dissimilarities compared to domestic law related merely to the law’s
material or institutional under-development, international law emerges
only as a primitive version of domestic law, awaiting an as-yet-unattained
stage of societal development and institutional maturity—the achievement
of which could only but be a speculative (and ultimately theoretically self-
destructive) assumption. In fact, it was the troubling nature of this posi-
tion which pushed the noted Oxford scholar Thomas Holland (a prominent
international lawyer as well as analytical legal philosopher) to describe
international law as being at the ‘vanishing point of jurisprudence’—his
point being that to require international law to have a centralised organisa-
tion would either make it vanish into existing domestic law or else require
some kind of overarching supra-state.84

82 Westlake (n 36) 12.

83 Westlake (n 63) 7.
84 Holland, Elements of Jurisprudence (n 76) 369.
38 A Fragile Autonomy

Accordingly, modern international law emerges from these accounts with

an inherent constitutional weakness, which can be addressed only through
a teleological assumption that as a legal order it necessarily must evolve
to develop an (arguably unachievable) institutional architecture akin to
domestic law.85 This teleological argument underpins the sociological claim.
The two rely on each other: it was only by acknowledging international
society as similar to domestic states that turn-of-the-century jurists could
sustain the idea that it was binding as law in the same way, but it was only
in assuming that international law would necessarily develop in the future
to more fully approximate this domestic paradigm that they could sustain
the basis of the comparison in the first place. By introducing teleology into
the argument, Austin’s criticism can be turned on its head as a means of
response: international law’s weaknesses help prove its similarity to the more
‘typical’ case. In fact, Westlake takes this kind of reasoning further, justify-
ing the creative role of the international jurist precisely because of the want
of an institutional power ‘to define and develop’ international legal rules.86
Accordingly, this lack of legislative and judicial machinery made it impera-
tive for lawyers to take a progressive stance in order to develop the law to
better reflect the underlying needs of international society.87
There is a certainty of conviction here that assumes international law’s
necessary evolutionary development and puts paid to the idea that this was
an era mired in state-centric legal positivism. By looking at the development
of other societies, one could by analogy explain international law’s apparent
defects as merely reflecting international society’s early stage of develop-
ment. Oppenheim, for instance, pointed out how custom had played an
equally important part in the development of the legal orders of domestic
states prior to their embracing centralised legislative machinery.88 In fact,
there is an obvious influence here from the kind of ‘historical jurispru-
dence’ developed by Westlake and Oppenheim’s predecessor in the Whewell
Chair at Cambridge, Henry Summer Maine.89 The use of such evolutionary

85 Oppenheim (n 24) 317–18.

86 Westlake (n 36) 8. In fact, in a critical engagement with the achievements of the second
Hague Conference in 1907, he dismissed the conference arrangements as a ‘parody of a parlia-
ment’ and a ‘phantom of a legislature’. J Westlake, ‘The Hague Conferences’ reproduced in
Oppenheim (n 25) 531, at 532.
87 Westlake (n 36) 273–74; and see his ‘Introductory Lecture on International Law,

17 October 1888’, reproduced in Oppenheim (n 25) 393, at 409–10. See also Sylvest (n 14)
63–64.
88 Oppenheim (n 60) 14–15.
89 As Berman notes, this historicist approach seemed primarily to be aimed at tempering the

more nihilistic implications of Austin’s claims, but without ‘recourse to the more murky [sic]
(and less legitimate) forms of natural law thinking’. HJ Berman, ‘World Law Transcendent’
(2005) 54 Emory Law Journal 53, at 55. In this respect, the historical approach could support
both conservative and progressive causes. See, eg, Neff (n 15) 17–19; and Koskenniemi (n 1)
42–47.
 Conclusion 39

argument allowed lawyers to dismiss Austin without undermining the basis

of the comparison between international and domestic legal orders. Looked
at in this evolutionary perspective, it appeared only natural that interna-
tional law had developed ‘by help of fiction’ and only later, in the nineteenth
century, with the advent of ‘scientific jurisprudence’, that there was a real
prospect of improving international law from its primitive state.90 In fact,
simply by placing Austin’s command theory on such a linear historical tra-
jectory, Maine was able to account for the imperfections of international
law’s current institutional structure as merely one stage—following on pro-
gressively from the naturalist, ‘law of nations’ paradigm that had preceded
it—in an ongoing evolution of international society through law.91
As certain as the jurists from this era were about the necessity of inter-
national law’s institutional development, it was nonetheless clear that the
structure of the international legal order as it then stood seemed to be a
clear barrier towards progress. As Maine was ultimately forced to conclude:
The want of coercive power is, in fact, the one important drawback which attends
all attempts to improve International Law by contrivances imitated from the inter-
nal economy of states, by something like legislation, and by something like the
administration of law by organised tribunals.92
In all, therefore, there was an overwhelming sense of international law’s
structural weakness as an autonomous legal system. It was still at the vanish-
ing point of jurisprudence, still craving the certainty of a more centralised
institutional architecture.

IV. CONCLUSION

There is no doubting the reality of the transformation in understanding

of international law which occurred between the mid- to late nineteenth
and early twentieth centuries. As equally demonstrated in this chapter,
however, there is also no escape from the implications of this transforma-
tion to the extent that international law began to be held up to compari-
son against an idealised version of domestic law, against which it seemed
institutionally under-developed, immature or primitive as a system of law.
From the assumption that international law could exist as a body of rules

90 The quotations are taken from Vinogradoff ’s summation of Maine’s position:

P Vinogradoff, The Teaching of Sir Henry Maine: An Inaugural Lecture (London, Henry
Frowde, 1904) 16–17.
91 Maine (n 17) 53. For a detailed exposition of Maine’s theory in this respect, see the

arguments of Sylvest (n 14) 42–43.

92 HS Maine, International Law, 2nd edn (London, John Murray, 1894) 213.
40 A Fragile Autonomy

capable of instigating a means of social order, restraining the passions of

states, came—as the next chapter will show—the crushing disappointment
associated with the outbreak of the First World War. The apparent naiveté
of the pre-war jurists, with their ambition to carve out an autonomous
international legal order, was an easy target for inter-bellum jurists. The still
embryonic professional practice and academic discipline of international
law would again become beset by scepticism and self-doubt.
 2
Scepticism and Renewal:
International Law
in the Inter-bellum Period

T
HE PROCEDURAL ENTHUSIASM of the late nineteenth-century
jurists—their belief in codification, systematisation and inter-state
arbitration—would not survive the outbreak of the First World War
unscathed. The existential shock of the war had a profound effect on the
future development of international law in the twentieth century. More par-
ticularly, the idea that international law could, or should, have been able to
prevent the war but had demonstrably failed in this respect was a recurring
rhetoric from this period, prompting inter-war jurists to stress the need for
renewal and reconstruction in the law.1 Already by 1917, prior to the end of
the war, the German-Swiss jurist and noted pacifist Ottfried Nippold went
so far as to admonish his own foolhardiness in believing in the abstract
autonomy of law alone in the absence of any real juridical sanction. With
the outbreak of the Great War, however, this faith had been substantially
undermined:
The war has brought us face to face with the relentless fact that international trea-
ties have been broken … faith in the moral power of international law has thereby
suffered a shock from which the civilized world will not very quickly recover.
This enables us to understand why, to-day, the call for more real sanctions for the
international legal order has been heard on every hand.2

1 See, inter alia, M Koskenniemi, From Apology to Utopia: The Structure of International

Legal Argument (Cambridge, Cambridge University Press, 2005) 159; A Anghie, Imperial-
ism, Sovereignty and the Making of International Law (Cambridge, Cambridge University
Press, 2005) 124, 127–31; T Skouteris, The Notion of Progress in International Law Discourse
(The Hague, TMC Asser Press, 2010) 103–20.
2 O Nippold, The Development of International Law after the War (Oxford, Clarendon

Press, 1923, originally published in German in 1917) 35. Lassa Oppenheim’s approach also
shifted subtly towards the end of the war, as he welcomed the development of collective secu-
rity through the League of Nations as leading towards a more centralised enforcement mecha-
nism for international law. See, inter alia, L Oppenheim, International Law: A Treatise, vol 1,
3rd edn (London, Longmans, Green & Co, 1920) 7, 10–11; and on the changed position of
both jurists, see H Suganami, The Domestic Analogy and World Order Proposals (Cambridge,
Cambridge University Press, 1989) 80–81.
42 Scepticism and Renewal

Initially buoyed by the founding of the League of Nations and the

development of the PCIJ—even if the League would eventually disappoint
in this respect—jurists of the inter-bellum period quickly turned on their
pre-war forbearers. The effort to explain international law as a functioning
legal system in the absence of institutions capable of securing some form of
juridical order in international relations seemed now either too fanciful and
divorced from the realities of international politics, or else overly deferen-
tial in being too closely wedded to state sovereignty. That these criticisms
seem somewhat contradictory only highlights the difficulties facing mod-
ern international lawyers—to some extent already outlined in the previous
chapter—in explaining international law as a decentralised system of posi-
tive legal rules. Indeed, as Koskenniemi has most famously demonstrated,
the modern discipline seems constantly plagued by critique from either side,
as the openness of its rules leaves them always vulnerable to being put to
use for seemingly opposed political purposes.3 Indeed, the sense of frustra-
tion at the openness and malleability of international law is well-captured
in the following critical remarks from the famous American jurist Manley
O Hudson writing in 1923:
As each belligerent nation sought in vain for a law which would restrain its ene-
mies, as each neutral nation sought in vain for a law which would relieve it of the
burdensome incidents of the struggle, the insufficiency of our pre-war law came to
be felt in every part of the world. Its principles seemed inadequate, its limitations
ineffective, and its bases insecure. In many quarters, belief in the utility of a law of
nations was weakened, and faith in the efficacy of any effort to increase its author-
ity was lost. Even our legal profession failed to withstand the effect of the general
scepticism, and we allowed to be revived the futile discussions of the Austinian
era as to the existence of a law of nations which might properly be called law.4
Foremost amongst the targets of the inter-bellum jurists was the theory of
legal positivism, which, as already noted, had largely prevailed over natu-
ralist theories by the end of the nineteenth century. By the late 1920s, this
‘classical’ legal positivism had become irrevocably associated with the kind
of voluntarist logic expounded by the PCIJ in the infamous Lotus case, where
the Court claimed that ‘The rules of law binding upon States … emanate from
their own free will’ and that: ‘Restrictions upon the independence of States
[could not] therefore be presumed.’5 This kind of reasoning not only seemed
theoretically flawed, being unable to account for international law as an
autonomous system opposable to the will of the state, but also ideologically

3 As he notes, both types of criticism can be levelled at naturalism and positivism: the former

reduced either to unverifiable moral commands or related too closely to the idea of natural
rights of sovereigns; the latter either too analytical and abstract or too closely related to state
will or practice. Koskenniemi (n 1) 164 and passim.
4 MO Hudson, ‘The Development of International Law since the War’ (1928) 22 American

Journal of International Law 330, at 330–31.

5 The Case of the SS Lotus (1927) PCIJ Series A, No 10, at 18. For a typical criticism, see

JL Brierly, ‘The “Lotus” Case’ (1928) 174 Law Quarterly Review 154.
 Scepticism and Renewal 43

dangerous, underpinning the kind of nationalist ideology which was thought

to have been directly causative of the First World War.6 In a series of lectures
on the ‘new aspects of international law’ delivered around the same time as
the PCIJ’s judgment, the Greek jurist Nicolas Politis stressed the poverty of
this kind of positivist reasoning, ‘for if a rule of law is merely the product
of free will it is not really binding, but remains at the discretion of the
States which created it’.7 Already before the PCIJ’s decision, writing in his
first English-language publication in 1925, Hersch Lauterpacht decried the
limits of legal positivism in even more forceful terms, arguing that it was
‘fraught with danger’, in particular due to the possibility ‘that not only will
the practice of states be taken as an unquestionable rule of law, but that the
philosophy underlying this practice will be regarded as a true expression of
the tendencies and the possibilities of the international society’.8
Nevertheless, if the shock of the war united inter-bellum jurists around
the perceived failure of pre-war international law, their prognoses for its
renewal or resuscitation varied widely and, in one sense at least, sharply
divided the discipline. As Astorino notes:
[The war was] viewed by all sides as an unequivocal moral failure. The sides, how-
ever, differed in their analysis of the war’s causes. To the orthodox, the outbreak
of war simply affirmed the absolute necessity of future adherence to law as the
alternative to war. To the critics of orthodoxy, the war signalled the bankruptcy
of toothless appeals to law; reality meant the objective fact, as could be demon-
strated by empirical social science, of a balance of power politics.9
With no going back to an older, metaphysical naturalism, the priority for
the modern era was thus how to re-imagine a more persuasive, more objec-
tive international law. The problem, however, was that there were quite
widespread divergences over how to achieve—and, indeed, the likelihood
of achieving—this ambition. As such, in the current chapter, I will out-
line three forms of response to this challenge.10 These are not suggested as

6 N Berman, ‘“But the Alternative is Despair”: European Nationalism and the Modernist

Renewal of International Law’ (1993) 106 Harvard Law Review 1792, at 1800–08.
7 N Politis, The New Aspects of International Law (Washington DC, Carnegie Endowment

for International Peace, 1928) 5.

8 H Lauterpacht, ‘Westlake and Present Day International Law’ (1925) 5 Economica

307, at 323–24. Similar criticisms are developed in his first monograph on international law:
H Lauterpacht, Private Law Sources and Analogies of International Law (London, Longmans,
1927), especially 43–44.
9 S Astorino, ‘The Impact of Sociological Jurisprudence on International Law in the Inter-

War Period: The American Experience’ (1996) 34 Duquesne Law Review 277, at 280.
10 Morgenthau, in fact, notes that pre-war positivism was attacked from ‘three sides’.

H Morgenthau, ‘Positivism, Functionalism, and International Law’ (1940) 34 American Jour-

nal of International Law 260, at 262. This tripartite response arguably over-simplifies the range
of perspectives that characterised this era of disciplinary renewal. Nevertheless, my own struc-
ture of this chapter is influenced by this characterisation—relying on sociological approaches,
neo-positivism and new natural law approaches in sections I, II and III respectively—less to
give a comprehensive overview of theory from this period, and more to highlight possible
disciplinary positions in response to classical positivism and to show the limitations of each.
44 Scepticism and Renewal

empirically exhaustive positions, but in their juxtaposition they illustrate

logically exhaustive alternatives, as well as illustrating the influence of
somewhat opposed jurisprudential traditions emerging on both sides of the
Atlantic. In other words, contrasted in this way they reveal the contours of
the challenge inter-bellum jurists faced in accounting for the autonomy of
international law as a persuasive restraint on the conduct of international
politics.
The first, outlined in section I, reflects the growth of legal realism and, more
generally, the influence of the social sciences in American jurisprudence.11
These influences led many international lawyers towards a more empirical,
sociological approach, which downplayed the importance of formal legal
rules.12 In its most critical form, this would eventually lead to the establish-
ment of a new discipline of International Relations (IR), which was in many
ways born out of the rejection of the possibility of the kind of legal auton-
omy pursued by classical positivists.13 The second, outlined in section II,
also sees the weakness of pre-war doctrine in its lack of scientific objectiv-
ity, but understands the notion of objectivity in a radically opposed way.
This more scientific or ‘pure’ form of legal positivism—championed by the
Viennese jurist Hans Kelsen and broadly influential in continental-European
jurisprudence at this time—sought instead to isolate law’s autonomy from
political, social or ethical inputs precisely in order to guarantee its counter-
factual normativity and thus its influence in shaping the relations between
states.14
Both of these responses can be understood as an effort to take forward
and correct the positivist project started in the previous century, as outlined
in the previous chapter, but each also remains vulnerable to critique from the

11 Sociological jurisprudence was also influential in France: see R Kolb, ‘Politis and Socio-

logical Jurisprudence of Inter-War International Law’ (2012) 23 European Journal of Interna-

tional Law 233; and M Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of
International Law 1870–1960 (Cambridge, Cambridge University Press, 2001) at 266–352,
though in particular at 302 ff. On the Scandinavian Legal Realism movement and its influence
on the international legal theory of Alf Ross, see also, inter alia, AL Escorihuela, ‘Alf Ross:
Towards a Realist Critique and Reconstruction of International Law’ (2003) 14 European
Journal of International Law 703.
12 Compare, for instance, Astorino (n 9) with Kolb (n 11). See also C Landauer, ‘J. L. Brierly

and the Modernization of International Law’ (1993) 25 Vanderbilt Journal of International

Law 881, at 884–99 in particular.
13 See, eg, the critical remarks of one of the founding figures of IR scholarship, Morgenthau

(n 10) at 263–73 in particular. On the birth of international relations as a rejection of the

autonomy of international legal rules, see M Koskenniemi, ‘Carl Schmitt, Morgenthau, and
the Image of Law in International Relations’ in M Byers (ed), The Role of Law in International
Politics: Essays in International Relations and International Law (Oxford, Oxford University
Press, 2000) 17–34.
14 For a contemporaneous overview of Kelsen’s work, and of the ‘Vienna School’ more

broadly, see J Kunz, ‘On the Theoretical Basis of the Law of Nations’ (1924) 10 Transactions
of the Grotius Society 115; and for a more retrospective overview, see more recently Chs 3
and 4 of J von Bernstorff, The Public International Law Theory of Hans Kelsen: Believing in
Universal Law (Cambridge, Cambridge University Press, 2010).
 The Call for Relevance: Hans Morgenthau and the Realist Turn 45

alternative position: one arguably unable to adequately explain law’s nor-

mativity in a counter-factual sense; the other arguably too far removed from
the underlying social facts of international relations. Accordingly, in section
III, I outline the necessary contours of a ‘middle way’ between these two
positions, illustrated by reference to the work of the popular jurists James
Brierly and Hersch Lauterpacht. I show how both were able to move with
more ease between sociological realism and normative idealism, in particu-
lar by showing how institutional developments of their time were helping to
reveal the ethical foundation of international law whilst also encouraging its
structural evolution towards a more centralised, institutional architecture.
This kind of reconciliation comes at a price, however, as—just as for the
generation before them—it premises the objectivity of international law on
its necessary evolution, thus also revealing its constitutional weaknesses as
currently structured. On this account, international law can only fully actu-
alise itself, or so it seems, by developing the kind of overarching sovereign
authority it purports to reject.

I. THE CALL FOR RELEVANCE:

HANS MORGENTHAU AND THE REALIST TURN

One of the most significant influences on international law in the inter-

bellum period stemmed from the rise of legal realism, as well as the broader
sociological turn in American jurisprudence. Whilst early realists like Karl
Llewellyn did not occupy themselves much beyond the practices of US law,
the more sociological approach that he and others championed would come
to have quite a considerable influence on American international law schol-
arship.15 One of the leading proponents of the new sociological jurispru-
dence, Roscoe Pound, did briefly turn his attention to international law, and
in doing so launched a scathing attack on the kind of legal positivism which
characterised pre-war international law. Writing in 1923, shortly after the
end of the First World War, he made this point most clearly, castigating legal
positivism for believing in the progressive potential of an autonomous inter-
national law, divorced from actual social practices:
[I]t is not hard to see why the nineteenth-century achieved so little in international
law … [Nineteenth century positivists] did not seek to be active agents in legal
development. They expected legal development to operate itself from some inter-
national momentum. The jurist was able to follow, arranging and ordering and
systematizing or observing and verifying and thus discovering the foreordained
lines of growth.16 (emphasis added)

15 See discussion of Astorino (n 9).

16 R Pound, ‘Philosophical Theory and International Law’ (1923) 1 Bibliotheca Visseriana
1 at 88; also cited in Astorino (n 9) 287.
46 Scepticism and Renewal

Pound wrote little on international law, but this critique, as well as the
sociological approach he espoused more generally, was particularly influ-
ential in shaping a more pragmatic, realist and inter-disciplinary turn in US
international law scholarship—an influence which continues to the present
day. As diverse as the approaches of Pound, Llewellyn, and other key figures
in this movement were amongst themselves, they were united in their disa-
vowal of the formalism that was seen as prevalent in positivist jurisprudence
since the end of the nineteenth century,17 which, as Anghie notes, asserted
the autonomy of legal reasoning from the fields of ethics and sociology.18
Even if, for many of these jurists, legal positivism had rightly replaced an
overtly metaphysical naturalism, this had become ‘an outdated formalis-
tic positivism that in its petrified form was simply incapable of responding
adequately to the political and social realities of the times’.19
As a result of these concerns, it is easy to see how a new discipline of IR
could emerge from the inter-war years, as a group of avowedly ‘realist’ schol-
ars attempted to apply something like a sociological jurisprudence to the field
of international law.20 Prominent early figures in the IR movement, such as EH
Carr and Hans Morgenthau, were essentially opposed to the legal-moralism
and formalism of classical positivist jurisprudence, favouring instead a more
thorough empiricism focused on the realities of state interactions and power
politics.21 For Carr, the idea that positive law possessed some autonomous
normativity, that is, an ability to constrain the political realm, was deeply
misguided.22 Similarly, for Morgenthau, legal positivism’s stress on the con-
ceptual autonomy of law at the expense of the material factors that actually
influenced state behaviour meant that it failed to live up to the scientism which
had inspired it in the first place.23 The unfolding events of the inter-bellum
years, the failure of the League of Nations and the outbreak of the Second
World War, would only help to solidify and add weight to these views.24
The emergence of realism and IR scholarship from this time thus has to be
understood as a distinctly modernist reaction to, and attempt to further, the
positivist transition begun in the previous century.25 The criticism directed at
pre-war international law is not so much concerned with its ambition—that

17 Astorino (n 9) 282.
18 Anghie (n 1) 128.
19 Astorino (n 9) 277.
20 On this transition generally, see Koskenniemi (n 13) 17.
21 FA Boyle, World Politics and International Law (Durham, NC, Duke University Press,

1985) 11–13.
22 EH Carr, The Twenty Years’ Crisis 1919–1939: An Introduction to the Study of Interna-

tional Relations, 2nd edn (London, MacMillan, 1946) 229–31.

23 Morgenthau (n 10).
24 Much of Morgenthau’s and Carr’s most critical output came around the time of the out-

break, or in the aftermath of, the Second World War.

25 Carty makes this point explicitly: A Carty, ‘Why Theory?—The Implications for Inter-

national Law Teaching’ in P Allott et al, Theory and International Law: An Introduction
(London, British Institute of International and Comparative Law, 1991) 75, at 83.
 The Call for Relevance: Hans Morgenthau and the Realist Turn 47

is, striving towards scientific objectivity in order to enhance the relevance

of international law in the relations between states. Rather, the criticism
comes precisely from the failure to live up to this ambition; the tendency
to engage in unverifiable (that is, unscientific) doctrinal metaphysics.26 We
can see this criticism running through Morgenthau’s seminal article in the
American Journal of International Law from 1940: ‘Positivism, Functional-
ism, and International Law’.27 Morgenthau was persistent in his criticism of
legal positivism and its stress on the law’s conceptual autonomy because he
saw that it required international lawyers to fall back on precisely the kind
of naturalist assumption of objective purpose which positivists themselves
had sought to remove from the law.28
Morgenthau therefore shared the aspiration of pre-war jurists like Oppen-
heim to make the study of law more realistic and therefore more persuasive.
Unlike Oppenheim, however, he did not see the legal as something concep-
tually autonomous from the political. The autonomy of law was guaranteed
domestically through the centralised institutions of the state, which enjoyed
a monopoly on the use of force. The decentralised nature of the interna-
tional legal order, on the other hand, meant that international law was ulti-
mately dependent on unorganised, fluctuating and unstable political forces:
In the domestic field, legal rules can be imposed by the group which holds the
monopoly of organized physical force, that is, the officials of the state. The inter-
national sphere is characterized by the absence of such a group. International law
owes its existence to identical or complementary interests of states, backed by
power as a last resort, or, where such identical interests do exist, to a mere bal-
ance of power which prevents a state from breaking these rules of international
law. Where there is neither community of interest nor balance of power, there is
no international law.29
The pre-war jurists had erred, therefore, by not taking seriously this critical
difference between the institutional structures of international and domestic
legal orders. For Morgenthau, this had two particular consequences: in the
absence of centralised machinery for legal compliance, adherence to inter-
national law would depend on a coincidence of interests or a balance of
power; and in the absence of efficient mechanisms for legal development
and change, pressure for change would precipitate an inevitable breakdown
in social order at the global level.30
Morgenthau’s realism is easily misunderstood. His critique of positivism
came from both sides: in its divorce from sociological and empirical reality,

26 D Kennedy, ‘International Law and the Nineteenth Century: History of an Illusion’

(1997) 17 Quinnipiac Law Review 99, at 113.

27 Morgenthau (n 10).
28 ibid 262–63.
29 ibid 275.
30 ibid 275–76; Koskenniemi (n 13) 22.
48 Scepticism and Renewal

and in its disconnection from social mores and philosophical goals. On the
one hand, he insisted that the broader social and political context could not
be excluded from the processes of legal reasoning. On the other hand, he
also saw the importance of giving law shape and direction through philo-
sophical deduction as an integral part of juristic method. In fact, he argued
that the ‘intelligibility of any legal system depend[ed] upon the recognition
of such a set of fundamental principles which constitute the ethical sub-
stance of the legal system’.31 Nevertheless, it seemed that the fundamental
structural differences between domestic and international legal orders cre-
ated difficulties in giving this kind of moral shape to the law:
This recognition is relatively easy to perform in the domestic field, where the con-
stitution codifies the main bulk of those fundamental principles, and a highly inte-
grated public opinion provides supplementary moral guidance. The task is much
more difficult with respect to international law. Here there is no body of such
principles separate from the ordinary rules of law. Some of those principles may be
only partly expressed in these rules; others may not be expressed at all, and hence
have to be detected, in a dangerously uncertain procedure, in the general moral
ideas underlying the international law of a certain time, a certain civilization, or
even a certain nation.32
As such, he argued that the attempt to account for international law as a
system in the same way as within the domestic state would be simultane-
ously under- and over-inclusive: including rules which did not reflect the
prevailing social conditions of the time, whilst ignoring those material fac-
tors which actually were determinative in shaping the behaviour of states.33
What mattered, ultimately, was the material ability of a legal order to chan-
nel politics through legal institutions and monopolise the use of force—
conditions which were patently missing at the international level, therefore
requiring international lawyers to engage in a more rigorous empirical
enquiry, looking beyond or behind the formal rules.34
Morgenthau was thus not simply denying the reality of international
law, but rather was recognising the problem of its apparent autonomy from
politics and morality—a condition which could only be guaranteed at the
domestic level because of the structural, institutional conditions of state-
based law. For Morgenthau, inter-state relations were therefore inherently
more unstable, but this instability was caused by this structural difference,

31 Morgenthau (n 10) at 268. He described the difference in the organisation of interna-

tional and national systems in more detail, though from a more distinctly political perspective
in H Morgenthau, Scientific Man vs Power Politics (Chicago, University of Chicago Press,
1946) 50–51 and passim.
32 Morgenthau (n 10) 268.
33 ibid 265–66, 273.
34 ibid 274; see also Koskenniemi (n 13) 19–20.
 The Call for Relevance: Hans Morgenthau and the Realist Turn 49

not by the nature of international law per se. Essentially, he saw a condition
of peace or order in international relations as only realisable through the
development of something akin to a global state, though he thought that
this goal was unrealisable due to the prevailing social and political condi-
tions of international relations in his time.35 This led him to suggest, though
never fully develop, what he termed a ‘functionalist’ theory of international
law, which stressed the materiality rather than formality of law.36
That Morgenthau therefore embraces an ideal of legal autonomy in
theory—specifically through the determination of centralised officials—but
denies its application to international law in practice reveals a fatal contra-
diction in his position, however. As Koskenniemi explains:
[This] argument is curious because it both maintains and denies the law/politics
distinction. The distinction is maintained through the assumption that law can
be separated from non-law through a criterion (the likelihood of sanction). But
the distinction is denied as the question of the likelihood of sanction becomes a
sociological one. Binding force emerges with factual coercion. Law is merely a
division of power politics … What is binding is determined by what is politically
effective.37
Ultimately, here, Morgenthau falls foul of the same critique that Hart
would later direct against Austin. In his stress on empirical observation at
the expense of conceptual enquiry, he leaves himself with no means of dis-
tinguishing legal from non-legal behaviour (the aim of the enquiry to begin
with). Consequently, when taken to its logical conclusion, this argument
either ends up denying international law’s existence as law or—as has been
argued by realists since Morgenthau—sees it as only of marginal or contin-
gent relevance, being ultimately subservient to power politics.
The realist-functionalism underpinning Morgenthau’s account therefore
invokes the second, opposing critique that inter-war jurists aimed at the pre-
war professionals: the problem of how a law based on the concordance of
separate wills could be anything more than a lowest common denominator
of agreement, a simple gloss on the realities of state power. A purely empiri-
cal, behavioural or ‘external’38 theory of law ends up as pure apologism;39
or worse, with Morgenthau, it results in the prevailing political conditions
being seen as ‘eternal laws by which man moves in the social world’.40

35 Insights he develops more fully in H Morgenthau, Politics among Nations (New York,

Knopf, 1949) 398–406. See also Suganami (n 2) 99–100.

36 Morgenthau (n 10) 274.
37 Koskenniemi (n 1) 199.
38 On the internal-external distinction, see generally HLA Hart, The Concept of Law,

3rd edn (Oxford, Clarendon Press, 2012) 88–90 and passim. On the importance of the internal
aspect of rules as described by Hart, see below in Ch 3, at nn 68–72.
39 Koskenniemi (n 1) 160.
40 Morgenthau (n 31) 220.
50 Scepticism and Renewal

II. KELSEN AND THE NEO-POSITIVIST REVIVAL

If Morgenthau’s approach can be understood as a rejection of the uneasy

amalgamation of empiricism and conceptual abstraction one finds in pre-
war international jurisprudence, then a similar ambition underlies the
broader jurisprudential agenda of Hans Kelsen. Like Morgenthau’s real-
ism, Kelsen’s pure theory of law, developed during the early decades of the
twentieth century, can be seen in this historical context as ‘a modernist rebel-
lion against the uncritical synthesis of traditional positivism’.41 And again
like Morgenthau, Kelsen’s approach is aimed at isolating a more objective
law, and is in many ways therefore a continuation of the nineteenth-century
positivist project. Crucially, however, Kelsen takes the critique in the oppo-
site direction with a quite rigid commitment to conceptual purity—to legal
autonomy in an absolute sense. What mattered for Kelsen was not map-
ping law onto prevailing social conditions, but the need to separate out
and clearly define the ‘ought’ claim of law; its normativity in the sense of
it being opposable to sociological fact.42 In applying his approach to inter-
national law in particular, Kelsen saw it as crucial to be able to determine
international legal rules in isolation of the subjective social forces inher-
ent in international politics.43 To put this another way (and in contrast to
Morgenthau), Kelsen saw that deriving international law simply from what
states actually did, or said, risked destroying ‘the autonomous integrity of
the legal order’.44
This neo-positivist perspective thus takes an entirely different approach
to understanding the ‘objectivity’ of law. A legal system did not depend
for its coherence on being embedded in any particular institutional struc-
ture—it had to be systemically autonomous in a purer sense, regulating its
own means of creation, mediation and enforcement.45 A legal institution
must logically take its identity from a pre-existing legal order: it is the legal
order which bestows juridical identity and authority upon such institutions
(eg, the state).46 Taken to its logical extreme, this showed the necessary
primacy of international law over domestic law, with the internal validity
of domestic legal orders necessarily dependent upon the pre-existence of the
international legal system.47

41 N Berman, ‘A Perilous Ambivalence: Nationalist Desire, Legal Autonomy, and the Limits

of the Interwar Framework’ (1992) 33 Harvard International Law Journal 353, at 363.
42 H Kelsen, General Theory of Law and State (Cambridge, MA, Harvard University Press,

1945) 29–40 and passim; and see also Koskenniemi (n 1) 226–28.

43 H Kelsen, Principles of International Law (New York, Rinehart & Co, 1952) 3–5.
44 Berman (n 41) 363.
45 H Kelsen, Pure Theory of Law (Berkeley, University of California Press, 1967) 71.
46 ibid 285–86. On this point, see in particular M Prost, The Concept of Unity in Public

International Law (Oxford, Hart Publishing, 2012) 73.

47 Kelsen (n 45) 336 ff.
 Kelsen and the Neo-positivist Revival 51

Kelsen’s view of normativity distinguished so-called ‘static’ from

‘dynamic’ normative orders: the normative claim of the former, synony-
mous with morality, was clearly content-dependent, whereas for the latter, a
dynamic normative order such as a legal system, the claim must be content-
independent.48 Accordingly, Kelsen’s concept of a legal system outlined
how norms are validated (and therefore binding) through their conformity
with higher legal rules within a kind of hierarchical pyramid of norms, at
the top of which stood Kelsen’s well-known grundnorm (or ‘basic norm’):
an a priori hypothesis or supposition giving validity to the legal order as
a whole.49 Accordingly, the validity of international law rested precisely
on such a ‘foundational assumption’, that is, ‘on the hypothesis that inter-
national custom is a law-creating fact’.50 Conceived in such conceptual-
systemic terms, Kelsen had no problem in defending the objective reality of
international law as a juristic fact.
Although the differences between their theories could not be greater in this
respect, it is still important to reiterate that Kelsen begins from similar prem-
ises to Morgenthau, seeing law as a means of coercion aimed at instigating
behavioural change. In this sense, what differentiates law from other forms
of social order, according to Kelsen, is its capacity to coerce through the
ultimate threat of sanction.51 Both Kelsen and Morgenthau therefore shared
the same normative starting point in the idea that this kind of order is benefi-
cial and something akin to this form of law exists in well-functioning domes-
tic systems. Where they (quite fundamentally) parted company, however, is
that Kelsen thought that the lawyer should not be concerned with whether
there was actual regularity of behaviour following from legal command, only
that a legal norm be capable of coercive application through the sanction of
another person ‘designated by the legal order’ itself.52 As he claims:
Law … is a coercive order not because the idea of the legal norm induces men
to proper behaviour, but because the legal norm provides a coercive measure as
a sanction. The element of coercion is of the substance of the legal norm, not in
the soul of the man subject to the legal norm. Whether or not men do actually
behave in such a manner as to avoid the sanction threatened by the legal norm and
whether or not the sanction provided in the legal norm is actually carried out are
issues totally irrelevant to the concept of law.53 (emphasis added)
Again, the contrast to Morgenthau could not be starker. Legal efficacy
and legal validity are sharply contrasted. This is not to suggest that Kelsen

48 ibid 70–71.
49 See, generally, Kelsen (n 42) 110–15 and passim.
50 Kelsen (n 43) 314.
51 H Kelsen, Law and Peace in International Relations: The Oliver Wendell Holmes

Lectures, 1940–41 (Cambridge, MA, Harvard University Press, 1942) 7.

52 ibid 9.
53 ibid 15.
52 Scepticism and Renewal

was unconcerned with the efficacy of law or of international law more

particularly—far from it. Like Morgenthau, Kelsen saw the potential solu-
tion to the problem of order in international affairs in the formation of
something like a world state and, similarly again, admitted that as the inter-
national legal order was presently constituted, such an ambition could only
be a utopian aspiration.54 However, unlike Morgenthau, he accounted for
the difference between national and international legal orders in a funda-
mentally different way. His monist conceptual approach presupposed both
as part of the same genus of law, differentiating international law solely on
the basis of its current lack of centralisation. The difference is one of degree,
not kind. On this basis, Kelsen could, on the one hand, account for the real-
ity of international law as a system of norms, seeing a coercive sanction in
state reprisals and other forms of self-help (authorised by the legal order
itself),55 whilst, on the other hand, explaining the difference between legal
orders simply in terms of the extent or their centralisation. In other words,
he saw international legal order as capable of progressive evolution towards
more centralised sanction (particularly through the regulation of the use of
force in universal institutions such as the League of Nations and later the
UN).56 In this respect, Kelsen explained international law essentially as a
primitive legal order in comparison to the domestic state, though, at the
same time, the latter’s jurisdictional sphere was validated and circumscribed
by the former. The two were seen in monist terms as a conceptual whole.57
Nevertheless, his attempt to explain the autonomy of international law
in a similar manner to domestic law also revealed a fundamental weakness
in his position. In his stress on mechanisms of self-help as explaining the
coercive sanction of international law, Kelsen relied upon the idea of the
bellum justum (the just war). However, he freely admitted that his choice
to conceptualise the international legal order in this way was an entirely
political decision. Kelsen’s need for systemic unity pushed him into a juristic
hypothesis not only in the foundation of the law (the concept of the grund-
norm), but also in terms of making sense of the conduct of international
relations as a coercive legal order overarching and in that sense regulat-
ing state behaviour. He deliberately chose this interpretation, ‘hoping to
have recognized the beginning of a development of the future and with the
intention of strengthening as far as possible all the elements of present-day
international law which tend to justify this interpretation and to promote
the evolution we desire’.58

54 ibid 28.
55 ibid 33–38; Kelsen (n 43) 20–34; H Kelsen, ‘Théorie du droit international public’
(1953-III) 84 Recueil des Cours 1, at 31–34.
56 Kelsen (n 51) 48–55, 83–86, 145–51.
57 See principally Ch VII of Kelsen (n 45) 320–47; and Ch V of Kelsen (n 43) 401–47.
58 Kelsen (n 51) 54–55.
 Lauterpacht, Brierly and the Renaissance of Natural Law 53

In admitting this choice in this way, he undermines the idea of interna-

tional law as an autonomous legal order, as politics become again infused
with legal analysis. In fact, Kelsen admitted at a number of points that
the decentralised international legal order was fundamentally ‘primitive’
compared to the domestic ideal,59 and thus had to presuppose the law’s
evolution in order to explain the differences between international and
domestic law. However, by removing any moral or political considerations
from within the pure theory of law, he was unable to justify his vision
of international law as anything other than his own political preference:
that which allows him to explain international law as inevitably moving
towards a more centralised organisation similar to that existing within the
state. This explanation allows Kelsen to account for international law as a
conceptually complete legal order, but at the price of opening up his theory
to the same critique which drove his quest for a pure theory in the first
place, ie, the rejection of the subjective, arbitrary viewpoint.
Consequently, this conceptual completeness comes at a price. By divorcing
the law from any overriding moral considerations or sociological context,
Kelsen’s theory leaves him unable to critique precisely the kind of behav-
iour he wished to condemn. By relegating law to coercive norms backed by
sanction, he was unable to find an objectively verifiable distinction between
valid resort to war or reprisal as a form of law enforcement, and precisely
the kind of unilateral, arbitrary state behaviour that his theory aimed to
restrict. The structure of the system again undermines the practical utility
of the theory. International law and politics again become infused in an
attempt to overcome this apparent institutional problem.

III. A MIDDLE WAY? LAUTERPACHT,

BRIERLY AND THE RENAISSANCE OF NATURAL LAW

Taken on their own, both Kelsen’s and Morgenthau’s positions can be

understood as attempts to fix the apparent failings of nineteenth-century
positivism, to explain the autonomy of law in different ways and, thereafter,
either to justify or deny this condition in international law as a matter of
fact. For both, what mattered was the objective ‘validity’ of legal norms,
but they understood validity in opposing ways—one conceptual, the other
material.60 However, both arguably failed to provide a fully convincing
account of legal normativity in a decentralised legal order like international

59 ibid 48–55. See also the discussion in C Leben, ‘Hans Kelsen and the Advancement of

International Law’ (1998) 9 European Journal of International Law 287, at 289–92; and
D Zolo, ‘International Peace through International Law’ (1998) 9 European Journal of Inter-
national Law 306, in particular his criticisms at 314–15.
60 On this point, see Koskenniemi (n 13) 22.
54 Scepticism and Renewal

law. Both approaches can therefore be taken, illustratively rather than lit-
erally, as two polar alternatives to the unconvincing synthesis of classical
positivism, with each in a way acting as a convincing critique of the other.
Morgenthau’s prioritisation of function over legal form arises precisely from
a view that normativity derives from factual constraint, which means he is
unable (just like Austin before him) to provide a criterion capable of iso-
lating the distinctive compliance pull of legal rules. Kelsen, more persua-
sively perhaps, sees law’s counter-factual normativity as key, but in trying
to isolate law as a system that can function coercively in the absence of the
institutional context of the state, he ends up reading into international law
precisely the kind of creative functional distinctions which reveal the pro-
gressive liberal politics that drove his pure theory of law in the first place.
In both cases, then, each theorist fails to provide a convincing account of
international law and each leaves himself open to critique from the other
perspective: Morgenthau misses the importance of law’s normativity in a
conceptual sense, but in trying to compensate for this absence also under-
mines its social-factuality. Kelsen’s stress on legal form over function dis-
tances law from the actual practices and motivations of states, but in doing
so also undermines law’s normativity by relying on functional postulates,
which remain unverifiable other than by reading the subjective motivations
of states. Not only is each a valid criticism of the other, but each also col-
lapses into the other: the claimed objectivity of Morgenthau’s functional-
ism is haunted by the subjective nihilism that arises in the absence of any
recognisable legal form; Kelsen’s legal formalism relies on an unverifiable
functional distinction.
Between these two positions, we see the elements of what is required,
conceptually speaking, to give a convincing account of international law
as an autonomous legal order that is binding over states. In other words,
following the conceptual schema set out by Koskenniemi (above), we can
say that the task is to account for the law’s autonomy in both a material (its
concreteness) and a conceptual (its normativity) sense.61 The problem is that
a positivist account of law which is not already enmeshed in the institutional
context of the state seems—at least on a surface level—incapable of offering
up a plausible means of balancing the two demands. To be convincing in
this respect, one has to re-introduce an element of progressive interpreta-
tion, a normative viewpoint which sits outside of the practices of states, and
orders and arranges those practices into a coherent normative order oppos-
able to state practice. From the inter-bellum period onwards, this has been
the challenge facing international lawyers, but the problem is that it seems

61 Koskenniemi refers to this not as ‘autonomy’, but alternatively as ‘objectivity’ or ‘relevance’,

though the starting point is the same: a feeling that the consensual, voluntarist explanation of
international law is incapable of accounting for the law’s ability to restrain political choice.
See Koskenniemi (n 1) 171–82. I return again to this problem in Ch 3, section I, below.
 Lauterpacht, Brierly and the Renaissance of Natural Law 55

difficult to introduce such a perspective without it falling foul of the kind of

critiques levelled against the pre-war positivists. I will say more about this
structural tension in Chapter 3. Here, my concern is to demonstrate how
modern perspectives attempt to move between these twin demands, but do
so in a way which leaves a perennial sense of structural deficiency in the law.
To illustrate this point, I will draw on the approach of two prominent and
extremely influential twentieth-century jurists, James Brierly and Hersch
Lauterpacht, both of whom sought to re-introduce natural law argument
as critical to accounting for the autonomy of international law in interna-
tional politics. However, in line with the transition begun in the previous
century, they sought to do so in a distinctly ‘modernist’ way—tying moral
values and social ends back to an underlying community will rather than
simply positing them a priori. Although Lauterpacht and Brierly were cer-
tainly not identical in their respective approaches—the former perhaps more
forthrightly communitarian and progressive, and the latter perhaps more
pragmatic, continuously stressing the need to relate the law to the ‘facts’ of
international relations62—both move within a mutually reinforcing frame
that relates the need for such facts to be interpreted according to progressive
aims, aims which in turn are seen to be buttressed by the facts.63
One can see this reconciliation straight away in Brierly’s first major essay
from 1924, where he sets out the ‘shortcomings’ of international law in the
wake of the kind of criticisms levelled at it above. In fact, he quotes directly
from Pound, underlining the need for international law to respond better
to the changing interests of international society as a whole.64 He stresses
the need for the law to be based on ethical principles, to take account of
higher values, yet following Pound, he adopts a modern, sociological dis-
course in order to tie those values to the evolving needs of the international
community.65 In fact, he notes how such enquiry is all the more essential in
international law, for it lacks the necessary institutions capable of respond-
ing to these changing needs:
Within any well-ordered modern state the process of adapting the law to new
conditions is perpetually going on. In part, in modern times, it is a conscious pro-
cess operating through legislation, through judicial decisions, or through juristic
interpretation; in part it is a more subtle process. But international law lost the
most fruitful seed of development that it has ever had when, far too early for the

62 Landauer (n 12) 885.

63 I discuss the similarities and differences between the two jurists’ approaches more in
R Collins, ‘The Progressive Conception of International Law: Brierly and Lauterpacht in the
Interbellum’ in R McCorquodale and J-P Gauci (eds), British Influences on International Law
1915–2015 (Leiden, Brill, forthcoming, 2016).
64 JL Brierly, ‘The Shortcomings of International Law’ in H Lauterpacht and CHM Waldock

(eds), The Basis of Obligation in International Law and Other Papers by the Late James Leslie
Brierly (Oxford, Clarendon Press, 1958) 68, at 72–74 (originally published in the British Year-
book of International Law in 1924).
65 ibid 78–80.
56 Scepticism and Renewal

health of the system, though doubtless inevitably, its foundation in natural law
was undermined. With the triumph of the positive school the problem of develop-
ment became immensely more difficult, for the system possesses hardly any of the
apparatus of change that exists within a municipal system. Not only has it no leg-
islature, and until recently no courts; but even the spontaneous growth of a new
customary rule is incomparably more difficult than it is within the community of
a state. For the society of states is numerically small; the bonds between them are
still much weaker than those between individuals in a state.66
It is no coincidence that this argument has much of the same structure as
that of Westlake, described in the previous chapter,67 essentially emphasis-
ing the progressive stance of the international jurist to compensate for the
inadequacies of the institutional structures of the international legal order.
Lauterpacht followed a similar course. In fact, in one of his earliest essays
in which he paid tribute to Westlake’s contribution to international law, he
lambasted the inadequacy of prevalent positivist explanations of the binding
force of international law and argued for the need to re-engage with natural
law, but did so again in distinctly modern, sociological terms:
The ‘Renascence of natural law’ has found its way from legal philosophy and
from municipal law into the domain of international law, where the influence of
the new ideas was facilitated by the depressing consciousness, strengthened by
bitter experience, of the practical inadequacy of positivist international law. Of
course, it is not the old law of nature; it is rather the modern ‘natural law with
changing contents’, ‘the sense of right’, ‘the social solidarity’, the ‘engineering’ law
in terms of promoting the ends of the international society.68 (emphasis added)
Both Lauterpacht and Brierly rejected the idea that international law’s bind-
ing force could derive from any metaphysical notions such as the divine
rights of states.69 They shared the kind of progressive internationalism
prevalent at this time amongst key inter-war jurists like Georges Scelle,70

66 ibid 73.
67 See Ch 1 above, at nn 86–87.
68 Lauterpacht (n 8) 315. Lauterpacht’s approach to natural law was essentially more prag-

matic than philosophical, seeing it as a means to ensure the law’s systemic completeness. For
example, in another essay, he describes natural law as the ‘lever of progress’ in international
law. See H Lauterpacht, ‘The Grotian Tradition in International Law’ (1946) 23 British Year-
book of International Law 1, at 24. Interestingly, Morgenthau attacked Lauterpacht’s watered-
down version of natural law for confounding together ‘reality and imagination’ in a way which
betrayed the older natural law tradition; in contrast, he claimed that scholars such as Suarez
and Grotius were ‘fully aware of the aprioristic, metaphysical character of their propositions
and had good philosophical reasons for adhering to them’. See Morgenthau (n 10) at 264.
69 See, eg, JL Brierly, The Law of Nations: An Introduction to the International Law of

Peace, 2nd edn (London, Oxford University Press, 1936) 39–41; JL Brierly, ‘The Basis of Obli-
gation in International Law’ in Lauterpacht and Waldock (n 64) 3–9 (originally published in
French in 1928); Lauterpacht (n 8) 43–50.
70 On Scelle’s internationalism, see A Somek, ‘From the Rule of Law to the Constitutionalist

Makeover: Changing European Conceptions of Public International Law’ (2011) 18 Constel-

lations 567, at 568–69; Koskenniemi (n 11) 327–38.
 Lauterpacht, Brierly and the Renaissance of Natural Law 57

Alejandro Alvarez71 or Hudson (above),72 all of whom were attempting

to move international law closer to the actual conditions that prevailed
between states, whilst at the same time reconciling state practice with the
progressive ends of international society as a whole.73 We see this recon-
ciliation in the preface to Lauterpacht’s first major monograph in inter-
national law, where he highlights the widespread dissatisfaction with the
sovereignty-centred, voluntarist dogma of pre-war international law, yet
claims that international lawyers should not merely dismiss its retrogres-
sive nature, but learn lessons from its focus on law as a science, aimed at
uncovering juridical realities from the facts of state practice.74
In a similar fashion, Brierly explained how the nineteenth-century positiv-
ist turn had been beneficial to the study and practice of international law
insofar as it recognised the importance of the distinction between the lex lata
and arguments de lege ferenda.75 As he noted, law could only claim viability
and legitimacy if connected concretely to the social bases that it purports
to regulate.76 But it is precisely this kind of sociological enquiry into the
prevailing conditions of international relations which led both jurists into a
progressive position. For example, in a similar way to Morgenthau, Brierly
saw positivism having betrayed its own premises, resulting in an absolutist
(and somewhat metaphysical) doctrine of sovereignty, which clearly contra-
dicted the facts of international life:
[P]ositivism is false to its own professions, for it fails to observe that international
practice itself habitually admits recourse to natural law or reason; and it exceeds its
function when it regards itself as a system of legal philosophy, teaching that obli-
gation can find its ultimate source in the consenting wills of the subjects of law.77
It is here that we see most clearly the middle way between sociological
realism and neo-positivism. The doctrine of unrestrained sovereignty and
state consent (associated however unfairly with the late nineteenth-century
‘professionals’) is not only at odds with the facts (ignoring the evident inter-
dependence of states,78 not to mention the reality that states constantly rely

71 Alejandro Alvarez’s progressive internationalism is well-documented, both on the bench

of the PCIJ and in academia: see Koskenniemi (n 1) 209–15.

72 See, eg, MO Hudson, Progress in International Organization (Stanford, CA, Stanford

University Press; London, Oxford University Press, 1932).

73 For reflections on the progressivism of this era, see Skouteris (n 1) 46–47, 98–120.
74 Lauterpacht (n 8) x. He goes on, in fact, to claim that his critique of positivism is not

the same as denying the primacy of custom and treaty in international law, which will always
outflank moral concern or principles of natural law (ibid).
75 Brierly, ‘The Basis of Obligation in International Law’ (n 69) 18.
76 For the clearest exposition of Brierly’s modernism in this respect, the influence of the

sociological approach espoused by, inter alia, Pound, and in particular Brierly’s stress on the
‘facts’ to prove the reality of an obligatory international law as a progressive restraint on inter-
state politics, see Landauer (n 12) 884–99.
77 Brierly, ‘The Basis of Obligation in International Law’ (n 69) 18.
78 ibid 7–9.
58 Scepticism and Renewal

on principles of justice, equity and ‘general principles of law’ in arbitration

agreements),79 but also fails in logical and conceptual terms on the basis
of its own scientific premises (having, ultimately, to resort to some founda-
tional objectives incapable of explanation on the basis of consent alone).80
These background criticisms flow directly into sustaining Lauterpacht’s
and Brierly’s own accounts of the binding force of international law. For
Brierly, the foundation of the law’s normativity lies in a higher moral duty
that ensures the binding force of rules between states.81 For Lauterpacht, the
legal order could only be sustained as an autonomous institution through a
juridical hypothesis, but one which was not based on inter-state agreement
(eg, pacta sunt servanda), but on the idea of a higher community will that
would ensure the binding force of the law even in the face of recalcitrant
state behaviour.82 Like Kelsen, legal validity was seen as a matter of a norm’s
conformity with the foundational rules of the legal order itself, and these
foundational rules themselves ultimately had to be grounded outside of the
system.83 Lauterpacht was in fact heavily influenced by Kelsen, his former
teacher at the University of Vienna. However, his position—like Brierly’s—
was also distinctly more sociological. Both were critical of Kelsen’s rigid
formalism in this respect, which they thought left him unable or unwilling
to admit the role of natural law or morality as foundational elements to any
legal order, and therefore also unable to justify or explain the nature of the
initial hypothesis upon which his theory depended.84
Nevertheless, whilst this reconciliation might go some way to resolve
the problem of the foundation of legal obligation, they both (again like
Kelsen) recognised the apparent weakness of international law theorised
in these terms. Brierly, for example, on the one hand acknowledged that
all that mattered for the law’s conceptual completeness was its capacity to
be ascertained and determined definitively. Yet, on the other hand, the cer-
tainty and efficiency of international law suffered as a result of the lack of
centralised law-making and determining institutions of the kind found com-
monly in domestic legal orders.85 He was critical of the international legal

79 Lauterpacht (n 8) 60–67.
80 ibid 51–59. As Hart rightly claims, such theories necessarily presuppose the existence of
superior norms determining the importance of consent within legal sources—such superior
norms may be sustained at a general level of societal agreement, but cannot be sustained on the
basis of explicit consent. Hart (n 38) 223–25.
81 Brierly, ‘The Basis of Obligation in International Law’ (n 69) 66–67.
82 H Lauterpacht, ‘The Nature of International Law and General Jurisprudence’ (1932)

37 Economica 301, at 316–17.

83 Brierly, ‘The Basis of Obligation in International Law’ (n 69) 53; H Lauterpacht, ‘The

Definition and Nature of International Law and its Place in Jurisprudence’ in E Lauterpacht
(ed), International Law, Being the Collected Papers of Hersch Lauterpacht, vol 1 (Cambridge,
Cambridge University Press, 1970) 9, 12–13.
84 Brierly, ‘The Basis of Obligation in International Law’ (n 69) 64–65; H Lauterpacht,

‘Kelsen’s Pure Science of International Law’ in Lauterpacht (ed) (n 83) 424–29.

85 Brierly, ‘The Basis of Obligation in International Law’ (n 69) 41; Brierly (n 64) 68.
 Lauterpacht, Brierly and the Renaissance of Natural Law 59

order’s continuing attachment to state sovereignty and its deferential respect

to states’ domestic jurisdiction,86 which in turn constantly undermined the
development of compulsory courts and adequate legislative machinery.87
One can see here how Brierly’s position reverses that of Kelsen to some
degree. He did not see the problem of international order as following from
the imposition of law, but rather the imposition of order as a necessary con-
dition for a state of legality to flourish. In other words, it was impossible
to separate completely the conceptual autonomy of the law from its insti-
tutional context. Rather than relying on and systematising the sovereign
autonomy of states, Brierly saw it as necessary to annex what was in states’
reserved domain, and in particular their ability to use force unilaterally,
in order to secure a more coercive legal order capable of restraining state
interests.88
Lauterpacht was even more vocal in relation to the law’s institutional
defects. Having accounted for the foundation of legal order at the interna-
tional and domestic levels on the same basis, he argued strongly that one
should not accept the evident deficiencies of international law as permanent
or necessary characteristics, as Oppenheim appeared to suggest (as out-
lined in the previous chapter).89 He was adamant that such defects must
be regarded as temporary or transient. If the basis of obligation lay in the
command of the community in both national and international legal orders,
then there was nothing in theory stopping the evolution of institutions more
capable of determining, expressing and enforcing this community will at the
international level. Accepting international law’s decentralised institutional
structure as a permanent characteristic would therefore undermine law’s
binding nature:
International law can form part of jurisprudence only when its present imperfec-
tions are regarded as transient. These imperfections are fundamental, and it is only
because they are deemed to be provisional that it is possible to treat international
law as part of jurisprudence. Once they are regarded as permanent, international
law vanishes completely from the horizon of jurisprudence.90
This reconciliation is crucial. By equating the international and national
legal orders in this way, Lauterpacht has to relativise the legality of the

86 A point also made later in his The Outlook for International Law (Oxford, Clarendon

Press, 1944) 10–12.

87 Brierly, Law of Nations (n 69) 62–65.
88 Brierly, ‘International Law: Some Conditions for its Progress’ in Lauterpacht and

Waldock (n 64) 327–37.

89 Lauterpacht (n 82) 304.
90 H Lauterpacht, ‘The Place of International Law in Jurisprudence’ in Lauterpacht (ed)

(n 83) 193, at 208 (paper originally published in French in (1937-IV) 62 Recueil des Cours
99–419). Lauterpacht was making reference here to Holland’s assertion that international law
was the ‘vanishing point of jurisprudence’. See TE Holland, Elements of Jurisprudence, 9th edn
(Oxford, Oxford University Press, 1900) 369.
60 Scepticism and Renewal

former by reference to the latter: this not only suggests the possibility of,
but also insists on the need for the international legal order to develop more
centralised institutions akin to a more federal organisation found within
many state-based legal orders.91
It is here where we see most critically the result of the compromise posi-
tion or ‘middle way’ between the formalism of Kelsen and the functional-
ism of Morgenthau. Unlike Kelsen, Lauterpacht was not merely concerned
with accounting for the formal (or abstract) unity of the international legal
order, but attempts to explain its material effectiveness as a restraint upon
available political choices.92 As we saw, Kelsen’s pure theory left him una-
ble to account for an objectively valid reason why the idea of the just war
should be read as international law’s principle sanction. Whilst Lauterpacht
engaged in similar doctrinal construction to support a systemic view of
international law, particularly with his rejection of the non-liquet argument
in the international judicial function,93 he was able to buttress his argument
philosophically by reference to natural law, as well as empirically by refer-
ring back to institutional fact. The most fundamental development in this
respect was the creation of the League of Nations and the PCIJ shortly after
the end of the war. Kelsen’s formalism stopped him from seeing in the crea-
tion of the League or the Court a fundamental change in the nature of the
international legal order: these institutions were grounded in treaties, enjoy-
ing only limited, consensual membership.94 Lauterpacht, moving with more
ease between the sociological and the normative, pictured the League Cov-
enant as the first step in a constitutional ordering of the international legal
order.95 What mattered to him was the substance of what the Covenant pur-
ported to do: its function, not its formal grounding in the law of treaties.96
This disconnect between form and function is also particularly evident in
Brierly’s textbook, which is structured around a constitutionalist reading of
the international legal order, including an analysis of international legisla-
tive, executive and judicial functions. Whilst Brierly saw international law

91 Lauterpacht (n 82) 318. On Lauterpacht’s often explicit federalism, see Koskenniemi

(n 11) 398 and passim.

92 See, eg, Koskenniemi (n 1) 53.
93 See principally H Lauterpacht, The Function of Law in the International Community

(Oxford, Clarendon Press, 1933).

94 See Kelsen (n 51) 39: ‘Since … the Covenant of the League of Nations and the Kel-

logg Pact are only instances of particular international law, these statements dealing with the
“illegality” of war must be considered merely indications of the actual existence of a commonly
accepted international legal conviction.’
95 See H Lauterpacht, ‘The Covenant as the Higher Law’ (1936) 17 British Yearbook of

International Law 54.

96 Lauterpacht drew heavily on the approach of his former teacher, Arnold McNair, in

making this distinction: see, eg, A McNair, ‘The Functions and Differing Legal Character of
Treaties’ (1930) 11 British Yearbook of International Law 100; and further discussion below
in Ch 8.
 Lauterpacht, Brierly and the Renaissance of Natural Law 61

as essentially a customary legal order, he saw its future as being shaped

through ‘legislative’ development with the creation of new multilateral con-
ventions, annexing what was then seen as the reserved domain of states’
domestic legal orders.97
Crucial to this institutional approach, though, is the way in which
Brierly, Lauterpacht and others of this era drew on Article 38 of the PCIJ
Statute to put an end to pre-war wrangling over the accepted sources of
international law. Whilst Article 38 was originally conceived solely in juris-
dictional terms to outline the sources of law to be taken into consideration
by the Court in the cases before it, with some creative doctrinal imagination,
it was seized upon by jurists of this era as concrete confirmation of the com-
pleteness of international law as a systemic, autonomous order. As Thomas
Skouteris notes, ‘within a few years [of the drafting of the Statute] the idea
of a “doctrine of sources”, in the contemporary sense of a finite list of
abstract forms that determine law-creation and law-ascertainment, became
introduced and consolidated as the standard approach to normativity’.98
For instance, Lauterpacht pointed to the fact that Article 38 confirmed the
availability of judicial recourse to supplementary sources, such as general
principles of law, supporting his reading of the material completeness of
the international legal order.99 As he claimed, Article 38 had ‘definitively
removed the last vestige of the possibility of gaps conceived as a deadlock in
the way of the settlement of a dispute’.100 For Brierly, similarly, Article 38
represented ‘a rich storehouse of materials for the general theory of inter-
national law’.101
The importance of Article 38, however, is not just that it offered a con-
crete anchor for the conceptual completeness of international law as a sys-
tem. By linking the sources of international law to a general court—albeit
one with limited jurisdiction—it underlines the possibility of international
law’s material completeness too: it can be seen to be developing towards a
more mature institutional structure, similar to the domestic state, wherein

97 Brierly, Law of Nations (n 69) 59–62. He stressed in particular the limitations of the

law in terms of its material scope, the lack of certainty in its determination and its slow pace
of development.
98 Skouteris (n 1) 95.
99 Lauterpacht (n 8) 68–71; Lauterpacht (n 93) 65–69; Brierly, ‘The Basis of Obligation in

International Law’ (n 69) 17–18; Brierly, Law of Nations (n 69) 46–57.

100 Lauterpacht (n 93) 67.
101 Brierly, ‘The Basis of Obligation in International Law’ (n 69) 17. They were certainly not

alone in expressing such views. For example, Fischer-Williams wrote at the end of the inter-
bellum period how art 38 ‘stands as the text of capital importance, the solid basis of rock on
which the fabric of international law has now to be built. Securus judicat orbis terrarium. The
world through the organizations in which for international purposes it is now grouped [sic],
has given its verdict’. JF Williams, Aspects of Modern International Law: An Essay (London,
Oxford University Press, 1939) 38–39. See further Skouteris (n 1) 95–98.
62 Scepticism and Renewal

the binding force of norms is reinforced through the determinations of

authorised officials. As Carty argues:
[Article 38] has to be seen in the wider context of a broad attempt, following the
First World War, to ‘institutionalise’ relations among States. The reason for the
absence of any in-depth consideration of the nature of the sources of interna-
tional law is that, in this context, the latter was considered as an already existing
and definite corpus of rules which quasi-supranational institutions had to develop
and to apply effectively, against the arbitrary sovereignty of States.102 (footnotes
omitted)
Whilst this perhaps goes too far, risking a caricature of the complexi-
ties of this theoretical reconciliation, it is easy to see how Brierly’s and
Lauterpacht’s work exemplified the kind of ‘institutionalist’ approach
which Carty describes as pervasive amongst prominent post-war interna-
tional jurists.103 This approach essentially accepts the formal limitations of
international law as a decentralised legal order. As a result of developments
occurring within the international legal order, however, it is able to read the
law progressively and functionally in order to suggest its eventual transfor-
mation into a legal order more akin to a well-functioning ‘rule of law’ state.
What started as a theoretical problem is thus turned into an institutional
problem—the perceived deficiency lying not at the level of the theory, but at
the structural level of an international legal order that remains perpetually
incomplete as a legal system.
As before, of course, the coherence and plausibility of such an account of
international law appears to rest on the extent to which such institutional
developments are indeed changing the structural condition of international
law. I take up this question specifically in Part III, where I suggest a number
of theoretical and practical problems in this respect. In the next, and final,
chapter of Part I, my more immediate aim is to better understand this per-
vasive sense of structural deficiency as reflected in international legal argu-
ment. Specifically, I will show how the attempt to explain international law
as an autonomous legal order always remains hampered by such perceived
deficiencies, which—as I will thereafter explain—cannot be overcome or
compensated for simply through progressive institutional innovation.
Instead, I will argue that this problem requires us to revisit and re-imagine
the coherence of the paradigms of legality against which international law is
traditionally compared and found wanting.

102 A Carty, The Decay of International Law: A Reappraisal of the Limits of Legal Imagina-

tion in International Affairs (Manchester, Manchester University Press, 1986) 14.

103 Brierly’s ‘institutional’ approach is most evident in section VII of his ‘Basis of Obligation’

essay (n 69) 46–56. See also Carty (n 25) 80; Landauer (n 12) 898–99. On the institutional
approach of Lauterpacht, see Koskenniemi (n 11) 396–99.
 Conclusion 63

IV. CONCLUSION

This chapter has outlined three alternative ways in which inter-bellum

jurists sought to counteract the perceived deficiencies of pre-war inter-
national law. Each attempted to give an account of how law operates to
control or regulate the conduct of international affairs, but each ends
up only really confirming a sense of constitutional weakness or underly-
ing deficiency. All the jurists here begin from the same problem, insofar
as they see the need to demonstrate the autonomy of international legal
rules in structuring the conduct of international politics. However, they are
unable to sustain their particular diagnoses of this problem without at the
same time admitting the inadequacies of international law thus conceived.
Morgenthau’s functionalism saw him take social practice seriously, but left
him unable to explain the binding normativity of law. Kelsen’s concern for
conceptual purity left him unable to account for the coherence of his view
of international law as a coercive legal order without also admitting crea-
tive political choices that seem at odds with the concrete realities of inter-
national politics. Meanwhile, whilst Lauterpacht’s and Brierly’s methods
moved more easily between sociological realism and counter-factual ideal-
ism, their effort to reveal the objectivity of international law in the practices
of states essentially depended on denying the completeness of international
law as a legal system. The emerging institutionalisation of international
law suggested its apparent move towards a more centralised, more autono-
mous, legal form, but such developments also revealed its current structural
weaknesses.
Inter-bellum jurists thus developed a range of responses to the appar-
ent weaknesses of pre-war international law, but this was only by further
highlighting an apparent structural deficiency in the law which, I will now
go on to argue, remains an acute problem for international legal theory. In
fact, into the latter half of the twentieth century, after the further disasters
of the Second World War and the creation of more ambitious international
institutions in its wake, this perception of structural deficiency seems only to
have been further reinforced. Contemporary doctrine and theoretical reflec-
tion seem constantly plagued by disappointment over the potential for inter-
national law to effectively constrain the passions of international politics.
International law appears still to be institutionally under-developed, still
failing to live up to a paradigm of legality drawn from domestic experience.
 3
The Institutional Problem
in Modern International Law
The clumsiness of custom-formation as a method of generating
authoritative solutions to co-ordination problems is obvious enough …
The need for somebody, or some body, to settle co-ordination problems
with greater speed or certainty is apparent in any community where people
are energetic and inventive in pursuit of their own or of common goods,
not to mention any community threatened with military, economic,
or ecological disaster. (emphasis added)
John Finnis, Natural Law and Natural Rights1

T
HE PREVIOUS TWO chapters have charted the difficulties faced by
two successive generations of international lawyers in giving a coher-
ent account of international law as an autonomous system of positive
legal rules. The scepticism they encountered in attempting to do so would
return to haunt the discipline again in the wake of the Second World War.
With the growing influence of political realism, there resurfaced an image of
international law as, at best, only a marginal or contingent influence in actu-
ally shaping the conduct of international politics.2 As such, another genera-
tion of jurists would continue to have to defend both the reality and efficacy
of international law for some years more.3 In the course of doing so, how-
ever, the modern discipline has grown an increasingly thick skin, not only
by drawing on the empirical reality of widespread state compliance with

1 J Finnis, Natural Law and Natural Rights, 2nd edn (Oxford, Oxford University Press,

2011) 245–46.
2 See, eg, M Koskenniemi, ‘Carl Schmitt, Morgenthau, and the Image of Law in Interna-

tional Relations’ in M Byers (ed), The Role of Law in International Politics: Essays in Inter-
national Relations and International Law (Oxford, Oxford University Press, 2000) 17–34.
3 See, for instance, W Friedmann, ‘National Sovereignty, International Cooperation,

and the Reality of International Law’ (1962–63) 10 UCLA Law Review 739; R Falk, ‘The
Reality of International Law’ (1962) 14 World Politics 353; W Friedmann, ‘The Reality of
International Law—A Reappraisal’ (1971) 10 Columbia Journal of International Law 46;
I Brownlie, ‘The Reality and Efficacy of International Law’ (1981) 52 British Yearbook of
International Law 1; A d’Amato, ‘Is International Law Really “Law”?’ (1985) 79 Northwest-
ern University Law Review 1293; and see the discussion in M Prost, The Concept of Unity in
Public International Law (Oxford, Hart Publishing, 2012) 2.
 The Institutional Problem in Modern International Law 65

international legal norms,4 but also by relying on arguably more sophisti-

cated theoretical models in doing so.5 With the evident expansion of inter-
national law in the second half of the twentieth century, including a growing
number of increasingly interventionist regimes and institutions, it has come
to seem somewhat absurd to deny the evident reality of international law in
practice. By the mid-1990s, in fact, Tom Franck could confidently assert the
arrival of international law’s ‘post-ontological’ era.6
Nevertheless, it is quite revealing that international lawyers have to make
such defences at all. Indeed, what is most interesting about Franck’s bold
claim is that he immediately followed it up with a call-to-arms to inter-
national lawyers to face up to what he saw as more pressing challenges
related to the effectiveness, enforceability, intelligibility and overall fairness
of international law.7 These kinds of ‘rule of law’ concerns remain pervasive
in the modern discipline, which, despite its ontological self-assurance, seems
perpetually troubled by the failure to realise a more autonomous interna-
tional legal order capable of effectively controlling the conduct of interna-
tional politics.8 We might be able to draw a line between the legal and the
political at the international level, but it is clearly a blurry, contestable and
ultimately more malleable line, leaving the operation of the law very diffi-
cult to disentangle from the interplay of underlying political forces.9
How are we to understand this recurrent sense of frustration or disap-
pointment? The argument that I have advanced so far in Part I is that, in the
main, international lawyers have seen the decentralised institutional architec-
ture of the international legal order as a kind of structural weakness or—as
Alexander Somek has recently put this—a ‘constitutional deficiency’, explain-
ing in part why international law largely fails to live up to the kind of public
order values one might associate with the rule of law.10 As he explains:
The international legal system is constitutionally deficient in precisely the sense of
the term which reflects what we have come to expect a constitutional system to
accomplish. Under conditions of constitutional deficiency—in decisive matters, at

4 L Henkin, How Nations Behave: Law and Foreign Policy, 2nd edn (Columbia University

Press, 1979) 47.

5 The most influential account in recent years being HLA Hart, The Concept of Law,

3rd edn (Oxford, Clarendon Press, 2012).

6 T Franck, Fairness in International Law and Institutions (Oxford, Oxford University

Press, 1995) 6.
7 ibid 6–7.
8 See, eg, S Beaulac, ‘The Rule of Law in International Law Today’ in G Palombella and

N Walker (eds), Relocating the Rule of Law (Oxford, Hart Publishing, 2009) 197, at 212–20
in particular. I return to this point again in Ch 7, below, but I reflect more on these concerns in
R Collins, ‘The Rule of Law and the Quest for Constitutional Substitutes in International Law’
(2014) 83 Nordic Journal of International Law 87, at 93–96.
9 C Warbrick, ‘Brownlie’s Principles of Public International Law: An Assessment’ (2000)

11 European Journal of International Law 621, at 626–27.

10 See, eg, A Somek, ‘From the Rule of Law to the Constitutionalist Makeover: Changing

European Conceptions of Public International Law’ (2011) 18 Constellations 567, at 576;

A Somek, ‘Kelsen Lives!’ (2007) 18 European Journal of International Law 409, at 432–33.
66 The Institutional Problem in Modern International Law

any rate—obligations are not clear … Generally, where obligations are unclear,
the powerful have an easy time of kicking the powerless around … A constitution
constrains the powerful, not merely by submitting their conduct to the discipline
of rules but also by setting a limit to the resourceful renditions of what they would
like to present as legal and constitutional.11
The problem, in other words, is that in a decentralised legal order there is an
inherent lack of clarity—or what Martti Koskenniemi has, more accurately,
described as a condition of indeterminacy—that is brought about by the
structure of the system itself.12 In the absence of the kind of official or con-
stitutional organs found at the state level, the creation, determination, appli-
cation and enforcement of international legal norms are left largely in the
hands of the same actors—primarily, though not exclusively, states—that the
system also purports to bind. It is precisely in this sense, in fact, that HLA
Hart denied that international law could be considered as a legal system.13
Whilst many international lawyers have, quite rightly, taken issue with
Hart’s claim in this respect, they have been far less successful in rebutting
the perception of constitutional deficiency which informed his conclusion.
In what follows, however, I will argue that it makes little sense to treat the
structural indeterminacy of international law as a deficiency in this sense.
Indeterminacy is intrinsic to a decentralised legal order; it cannot be otherwise
without undermining a core aspect of its legitimacy. As such, the recurring per-
ception of deficiency arises only as a result of the long-standing—and widely
shared—assumption that international law should function ideally so as to
regulate or govern the conduct of international politics. Whilst not agreeing
with Hart’s conclusion, I will use his theory to illustrate this problem—insofar
as it perpetuates this functional understanding as inherent to law—and, in
doing so, I will demonstrate why one cannot simply work around, com-
pensate for or explain away structural indeterminacy. Ultimately, I believe
that the problem—so far as it is a problem—lies primarily in the theoretical
presumptions perpetuated by the analytical method in legal theory, of which
Hart’s theory remains the leading example. I will say more about this in Part II.
My immediate aim is simply to show the pervasiveness of the functional
presumptions about law (and international law in particular), which have
remained until now largely unchallenged and which result in a thoroughly
unconvincing push for continuous institutional reform at the international
level. This, in short, is international law’s ‘institutional problem’.
To explain this problem, I first (in section I) set out the parameters of a
pervasive discourse in modern international law, which necessarily presumes
that international legal rules should function as autonomous solutions—that

11Somek, ‘Kelsen Lives!’ (n 10) 433.

12M Koskenniemi, From Apology to Utopia: The Structure of International Legal Argu-
ment (Cambridge, Cambridge University Press, 2005).
13 See Ch X of Hart (n 5).
 The Institutional Problem in Modern International Law 67

is, provide determinate outcomes—to specific normative problems. Next, in

section II, I show how this view is inherently problematic due to the appar-
ent indeterminacy of the international legal order, thus perpetuating the
sense of structural or constitutional deficiency outlined above. In section III,
I illustrate this perceived problem through the example of Hart’s attempt to
reconcile international law as a legal system. As noted above, I do so less to
prove Hart’s theory correct and more to demonstrate how if one presumes,
as Hart does, that legal systems should help secure determinate normative
standards, international law cannot but appear deficient at a core, consti-
tutional level. Insofar as international lawyers have therefore tended to set
Hart up as a kind of ‘bogey man’ figure who misunderstood the character
of international law, I show how the attempt to qualify or correct his theory
is unconvincing: it fails to challenge the kind of functional presumption
that underpins and gives meaning to his theory. In section IV, I will use the
example of the ascertainment of customary legal norms under international
law’s sources doctrine—a doctrine that is commonly understood to function
as a kind of proto-rule of recognition on Hart’s account—in order to further
illustrate the effect of structural indeterminacy in undermining the kind of
autonomy discourse mentioned above.
Before I begin, a caveat (or perhaps explanation) is necessary in relation
to my use of Hart’s work in what follows, particularly as I return to critique
Hart’s account at length in Part II. My focusing on Hart here is certainly
not to suggest that his is the only relevant or plausible understanding of
legal systems in general, or the international legal system in particular. How-
ever, whilst not endorsed by all international lawyers,14 it still matters that
most works defending a systemic construction of international law make
reference to Hart’s account (even if disagreeing with his substantive conclu-
sions about international law),15 not to mention that Hartian terminology
is widely used in practice, particularly in influential bodies of jurists like the
International Law Commission (ILC).16 More broadly, despite subsequent

14 For criticism of Hart’s approach and method, see, eg, A d’Amato, ‘The Neo-positivist

Concept of International Law’ (1965) 59 American Journal of International Law 321;

WL Morison, ‘The Schools Revisited’ in R St J Macdonald and DM Johnston (eds), The Struc-
ture and Process of International Law: Essays in Legal Philosophy, Doctrine, and Theory (The
Hague, Martinus Nijhoff, 1983) 131, at 144–55; and I Brownlie, The Rule of Law in Interna-
tional Affairs: International Law at the 50th Anniversary of the United Nations (The Hague,
Martinus Nijhoff, 1998) 3–6.
15 See, eg, d’Amato (n 14) 322–24; GJH van Hoof, Rethinking the Sources of International

Law (Deventer, Kluwer, 1983) 44–56; T Franck, The Power of Legitimacy among Nations
(New York, Oxford University Press, 1990) 183–94. See the discussion in D Lefkowitz,
‘(Dis)solving the Chronological Paradox in Customary International Law: A Hartian Approach’
(2008) 21 Canadian Journal of Law and Jurisprudence 129, at 137–44 in particular.
16 See, eg, ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts,

with Commentaries (2001), particularly 31–32, at paras 1–5; available at: http://legal.un.org/
ilc/texts/instruments/english/commentaries/9_6_2001.pdf; however, see the discussion below
at nn 77–79.
68 The Institutional Problem in Modern International Law

refinement, criticism and rejection from many quarters, Hart’s account

arguably endures as the most influential positivist legal theory in the modern
era (at the very least, in the Anglo-American world).17 At the same time, of
course, none of the above actually demonstrates the coherence and cogency
of Hart’s account, and there arguably still remains the risk that by rely-
ing on Hart to begin with, one automatically limits the relevant questions
posed in thinking about the nature of law in general or international law in
particular.18 This is a real danger, but it is also exactly the point that I wish
to make. In Part II, I will argue that the pervasive influence of Hart, and
the analytical method he adopted, has tended to restrict the questions we
ask about the nature of law in the global context. In this respect, Hart and
his followers can be criticised for straying into evaluative judgements based
on certain functional presumptions about law which remain theoretically
under-elaborated, as well as normatively undefended. The point is not nec-
essarily that these presumptions are wrong—though, in fact, I believe that
they are—but only that they require the sort of independent normative jus-
tification that is precluded by the tenets of analytical method. Nevertheless,
my more immediate concern—and the reason why I think it remains useful
to use Hart’s theory here—is that international lawyers themselves do, in the
main, largely share this view of law’s function. As such, the current chapter
is intended more as an ‘imminent critique’, demonstrating that this view of
law’s necessary function cannot but result in a perception of a deficiency or
weakness of exactly the sort that caused Hart’s scepticism in the first place.
In other words, it aims to show why the simple factual response to Hart
necessarily fails.

I. EXPLAINING THE AUTONOMY OF INTERNATIONAL LAW

So far in Part I, I have tried to illustrate a recurring disciplinary anxiety to

defend the autonomy of international law as a persuasive restraint upon
the conduct of international politics. This ‘discourse of institutional auton-
omy’, as one recent commentator has described it, is arguably pathological
in modern international law.19 We saw it in the approach of jurists like
James Brierly or Hersch Lauterpacht outlined in the previous chapter, both
of whom sought to rely on natural law arguments as a way of explaining the

17 See generally MH Kramer, C Grant, B Colburn and A Hatzistavrou (eds), The Legacy

of H.L.A. Hart: Legal, Political, and Moral Philosophy (Oxford, Oxford University Press,
2008).
18 I owe this observation to conversations with Margaret Martin, though to some degree the

same concern also runs through Jason Beckett’s ‘The Hartian Tradition in International Law’
(2008) 1 Journal of Jurisprudence 51.
19 C Reus-Smit, ‘The Politics of International Law’ in C Reus-Smit (ed), The Politics of

International Law, (Cambridge, Cambridge University Press, 2004) 14, at 36–37.

 Explaining the Autonomy of International Law 69

completeness of international law as a system binding over states.20 We can

see a similar concern in the more pervasive form of ‘modern positivism’ that
tends to dominate ‘mainstream’ understanding of international law today.21
On this account, international law is understood as:
[A] set or system of rules emanating from a narrow variety of accepted sources,
but recognises that the rules themselves require identification (or proof), inter-
pretation, and application; processes which leave scope for the legal imagination
but which are, nonetheless, sufficiently confined to leave the international legal
process distinct from politics or morality.22 (emphasis added)
Towards the end of the previous chapter, in my discussion of Brierly and
Lauterpacht’s approach, I suggested that this autonomy discourse is commit-
ted to showing what Koskenniemi describes as ‘objectivity’ in international
law. Objectivity on these terms essentially means reconciling, on the one
hand, international law’s ‘concreteness’, its grounding in social practices,
and, on the other, its ‘normativity’, that is, its counter-factual binding force.23
Of course, as Koskenniemi also acknowledges, it does not really amount to
much, nowadays, to say that law must be grounded at some level in social
facts—that, broadly speaking, international law can therefore be considered
as an ‘institutional’ rather than philosophical practice. As we have seen, the
more demanding challenge has been in accounting for international law’s
objectivity in this counter-factual sense, or, as Koskenniemi puts this, ‘how
to extract “international law” from other aspects of social life among States,
i.e. how to distinguish between political and legal obligation, convenience
and custom, violence and enforcement’.24 As he further explains:
Law, we learn, arises from human will and interest but can be known regardless of
any such will or interest. As a matter of legislation, law is subjective, as a matter
of adjudication, objective. If there is anything on which international lawyers—
or maybe jurists generally—agree, it is the importance of the distinction between

20 What distinguished such approaches from an older philosophical tradition in interna-

tional law was precisely this commitment to the systemic integrity of the law conceived as an
autonomous whole. Natural law provided an anchor for this systemic construction, but also a
means by which jurists could ‘fill in the gaps’, outlining the completeness of international law
as a normative solution to any given international problem. On this point, see above in Ch 2,
section III; and see also M Koskenniemi, ‘Lauterpacht: The Victorian Tradition in International
Law’ (1997) 8 European Journal of International Law 215, at 221, 225.
21 See R Collins, ‘Modernist-Positivism and the Problem of Institutional Autonomy in

International Law’ in R Collins and ND White (eds), International Organizations and the
Idea of Autonomy: Institutional Independence in the International Legal Order (Abingdon,
Routledge, 2011) 22–47.
22 See C Warbrick, ‘The Theory of International Law: Is There an English Contribution?’

in P Allott et al, Theory and International Law: An Introduction (London, British Institute of
International and Comparative Law, 1991) 47, at 61. See also A Paulus and B Simma, ‘Respon-
sibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View’ (1999)
93 American Journal of International Law 302, at 307 in particular.
23 Koskenniemi (n 12) 17–23 and passim.
24 M Koskenniemi, ‘Theory: Implications for the Practitioner’ in Allott et al (n 22) 1, at 7.
70 The Institutional Problem in Modern International Law

law-creation and law-ascertainment, political opinion and the legal norm.

Something of the very identity of law may be contained in that distinction.25
Certainly, Koskenniemi may be guilty of over-playing the distinction
between law creation and adjudication here. It is unlikely that many jurists—
international or otherwise, including many of those surveyed in Part I so
far—would see such a clear distinction between the legal and the politi-
cal realms, or indeed such a bright light between law’s enactment and
its ascertainment in practice. However, it would be misleading to accuse
Koskenniemi of any naivety in this respect. He acknowledges widespread
acceptance of what Hart might call ‘the relative indeterminacy’ or ‘open tex-
ture’ of law in this regard.26 His point is rather more subtle (and thus also
easily misunderstood). To explain further, consider the following remarks
from Oscar Schachter:
A legal system must, in my view, have a relative degree of autonomy. It cannot be
nothing but ‘power politics’ nor can it be only a specialized or symbolic language
to describe behaviour. It lacks the character of law if it is not in some degree ‘bind-
ing’, that is, it must be a means of independent control that effectively limits the acts
of the entities subject to it. To that degree, law must be independent of politics …
But acknowledging the necessity of that degree of autonomy still allows us to
recognize that factors of a non-legal character determine or influence the creation,
application and modification of the norms and procedures that constitute the legal
system.27
Schachter’s reference to the ‘relative autonomy’ of law is no appeal to a
‘discredited’ or overly naïve form of legal objectivity.28 He does not claim
that law—domestic or international—would be objectively ascertainable
or applicable without recourse to sociological, ethical, political or other
external factors, only that it cannot simply be assimilated to any one or
other of these factors if it is to serve any useful social purpose.29 As the
International Court of Justice (ICJ) also claimed in the South West Africa
advisory opinion, even if international law is deemed to serve certain impor-
tant moral ends, in order for it to do so, it must be possible to objectively
validate the existence of binding legal rules in a way which does not directly
implicate this underlying reason or purpose to begin with.30 It is for this

25 ibid 4; and see more comprehensively Koskenniemi (n 12) 22–23 and passim.
26 Hart (n 5), 128–32, 138–39; Koskenniemi (n 12) 36–41.
27 O Schachter, ‘The Nature and Process of Legal Development in International Society’ in

Macdonald and Johnston (n 14) 745, at 747.

28 Koskenniemi (n 12) 25.
29 See also O Schachter, International Law in Theory and Practice (Dordrecht, Martinus

Nijhoff, 1991) 34–46.

30 The ICJ was asked to give effect to certain humanitarian objectives and retorted that ‘[i]n

order to generate legal rights and obligations’, any such moral objectives had to be ‘given juridi-
cal expression and clothed in legal form’. The ICJ recognised that international law was there to
serve a social need, but ‘precisely for that reason it can do so only through and within the limits of
its own discipline. Otherwise, it is not a legal service that would be rendered’. (emphasis added)
South West Africa, Second Phase, Judgment, ICJ Reports 1966, 6, at 34, paras 51 and 49.
 Explaining the Autonomy of International Law 71

reason, in fact, that many of the more ‘instrumentalist’ theories devel-

oped in the late twentieth century—for example, rational choice,31 policy
science32 or interdisciplinary (international law and international relations)
perspectives33—have often proved so controversial, insofar as they appear
to deny, or at least are unable to account for, the autonomy of international
legal norms in this normative, counter-factual sense.34 To account for the
autonomy of law on these terms, as Koskenniemi acknowledges, is simply
to acknowledge something arguably intrinsic to law and particularly impor-
tant to the acceptability or persuasiveness of international legal argument:
Legal concepts and categories do have a degree of autonomy which cannot be
explained simply by reducing them to apologies for class interests or ideologies.
To understand the law we need to count for this autonomy, the persisting intuition
that legal argument somehow follows a logic which is external to lawyers’ prefer-
ences or those of their social group.35
To say that law is autonomous on these terms, therefore, is simply to recog-
nise that it possesses the qualities of a legal system. Despite scepticism from
some quarters—most notably from Hart—it is surely beyond doubt that
international law now exists, and is widely understood, as an autonomous
system in this sense.36 Indeed, following this logic, we could simply claim
that this kind of systemic understanding is ‘axiomatic’ or intrinsic to the
very idea of legal reasoning.37 Whether or not this is the case, it remains true
that international law’s existence as a legal system is confirmed regularly
in state practice and judicial opinion, as well as in the studies of eminent
bodies of jurists like the ILC.38 In fact, in his role as ILC Rapporteur on the
topic of fragmentation in international law, Koskenniemi is quite explicit in
confirming this systemic understanding:
International law is a legal system. Its rules and principles (i.e. its norms) act in
relation to and should be interpreted against the background of other rules and

31 For an example of this kind of approach, see, eg, JL Goldsmith and EA Posner, The Limits

of International Law (Oxford, Oxford University Press, 2005).

32 For critical discussion, see I Scobbie, ‘A View of Delft: Some Thoughts about Thinking

about International Law’ in M Evans (ed), International Law, 4th edn (Oxford, Oxford
University Press, 2014) 53, at 68–71 and 74–76.
33 See generally M Koskenniemi, ‘Miserable Comforters: International Relations as New

Natural Law’ (2009) 15 European Journal of International Relations 395; J Klabbers, ‘The
Relative Autonomy of International Law or The Forgotten Politics of Interdisciplinarity’
(2005) 1 Journal of International Law & International Relations 35.
34 Klabbers (n 33) 42.
35 Koskenniemi (n 12) 67.
36 See, eg, E Benvenisti, ‘The Conception of International Law as a Legal System’ (2008)

50 German Yearbook of International Law 393; O Casanovas, Unity and Pluralism in Public
International Law (The Hague, Martinus Nijhoff, 2001) 14–18.
37 A Gourgourinis, ‘General/Particular International Law and Primary/Secondary Rules:

Unitary Terminology of a Fragmented System’ (2011) 22 European Journal of International

Law 993, at 996; Casanovas (n 36) 15.
38 Gourgourinis (n 37) 998–1003.
72 The Institutional Problem in Modern International Law

principles. As a legal system, international law is not a random collection of such

norms. There are meaningful relationships between them. Norms may thus exist
at higher and lower hierarchical levels, their formulation may involve greater or
lesser generality and specificity and their validity may date back to earlier or later
moments in time.39
It is easy to see how this systemic explanation might appear sufficient as an
answer to Schachter’s challenge. In fact, it might also seem to collapse the
apparent dichotomy between law’s concreteness and normativity, at least
insofar as the system itself can be understood to regulate the social pro-
cesses by which law is created and, thereafter, the conditions for determin-
ing its objective validity in practice.40 To speak of objectivity on these terms
would not be to suggest that international law can be isolated from political
opinion and practice, but would simply be to imply its ‘distinctness’ from
political or moral forms of argumentation.41 Returning again to Schachter’s
point, we can in fact see exactly this kind of reconciliation. In order to give
an account of the relative autonomy of international law, he outlines the
role played by the doctrine of sources, which acts as a kind of Hartian ‘rule
of recognition’ for ascertaining the validity of international law.42 As he
claims:
The principal intellectual instrument in the last century for providing objective
standards of legal validation has been the doctrine of sources. That doctrine which
became dominant in the nineteenth century and continues to prevail today lays
down verifiable conditions for ascertaining and validating legal presumptions.
The conditions are the observable manifestations of the ‘wills’ of states as revealed
in the processes by which norms are formed.43 (emphasis added)
On this explanation, sources doctrine (as set down in Article 38 of the
ICJ Statute)44 acts as a bridge between law’s concreteness (‘the observa-
ble manifestations of the “wills” of states’) and its normativity in practice

39 ILC, ‘Fragmentation of International Law: Difficulties Arising from the Diversification

and Expansion of International Law’, in Report of the International Law Commission, 58th
Session (2006), UN Doc A/61/10 (2006), Ch XII, p 407, para 251(1), available at: http://legal.
un.org/docs/?path=../ilc/reports/2006/english/chp12.pdf&lang=EFSRAC.
40 D Georgiev, ‘Politics or Rule of Law: Deconstruction and Legitimacy in International

Law’ (1993) 4 European Journal of International Law 1, at 3.

41 ibid 4.
42 I will explain Hart’s use of this concept at length in section III below.
43 Schachter (n 27) 762. See also S Besson and J Tasioulas, ‘Introduction’ in S Besson and

J Tasioulas (eds), The Philosophy of International Law (Oxford, Oxford University Press,
2010) 1, at 10–11, who make a similar point.
44 Article 38 includes as the sources to be applied by the International Court of Justice: ‘inter-

national conventions, whether general or particular, establishing rules expressly recognized by

the contesting states … international custom, as evidence of a general practice accepted as law …
the general principles of law recognized by civilized nations … [and] judicial decisions and the
teachings of the most highly qualified publicists of the various nations, as subsidiary means for
the determination of rules of law’. For a discussion of the broader significance of art 38, see
above (Ch 2, section III) and further below (section III).
 Explaining the Autonomy of International Law 73

(‘as revealed in the processes by which norms are formed’). Employed in this
way, the doctrine of sources, alongside other systemic criteria, or ‘secondary
rules’ (for example, the lex posterior or lex specialis rules, rules of treaty
interpretation etc), provide the ICJ judge with a seemingly objective basis
for ascertaining and applying the law to concrete situations.45 Undoubtedly,
there will be considerable theoretical disagreement as to how the system is
understood and therefore how judges should go about fulfilling their func-
tions within the Court:46 for instance, as to how far moral or equitable
principles or other considerations should enter into judicial reasoning (as to
some extent Article 38 seems to permit);47 whether legal standards can be
said to be ‘lacking’ in a legal system in the absence of an agreed-upon legal
rule (ie, whether ‘gaps’ are theoretically possible within a legal system);48
or even at the foundational level of legal obligation itself (that is, what
validates the ordering principles, sources or other secondary rules to begin
with).49 Still, the fact that this disagreement tends to concern the nature
of the system, rather than its existence per se, and that we are able to talk
about a judicial function at all,50 seems only to confirm or presuppose the
existence of a relatively autonomous normative practice about which we
can have such legitimate disagreement.
Nevertheless, the problem here is precisely that different participants in
these processes do tend to disagree, not only as to what the law is and how it
might apply in the particular situation before them (and therefore what the
likely outcome of any problem is), but also in their understanding of how
the system functions overall. The decentralised institutional architecture
of international law facilitates such competing understandings, therefore
undermining its ability to function—on Schachter’s terms—as ‘a means of
independent control that effectively limits the acts of the entities subject to
it’. The fundamental problem, in other words, is that this kind of pre-emptive
determinacy appears to be necessarily precluded by the structural condi-
tion of a decentralised legal order. In the absence of the kind of centralised

45 JE Alvarez, International Organizations as Law-Makers (Oxford, Oxford University

Press, 2005) 47.

46 Indeed, such differences are often voiced internally through the separate and dissenting

opinions given in particular cases. See, eg, RP Anand, ‘The Role of Individual and Dissenting
Opinions in International Adjudication’ (1965) 14 International and Comparative Law Quar-
terly 788, particularly at 800–01.
47 Koskenniemi (n 12) 34. And as he notes, later jurisprudence of the court is decidedly less

conservative in this respect.

48 On the argument that such a view would be incompatible with the idea of an autonomous

international legal order, see H Lauterpacht, The Function of Law in the International Com-
munity (Oxford, Clarendon Press, 1933).
49 For instance, contrast Kelsen’s hypothetical grundnorm with the more social-conventional

approach of Hart: see discussion in Hart (n 5) 234–36.

50 For a good, recent overview, see G Hernandez, The International Court of Justice and the

Judicial Function (Oxford, Oxford University Press, 2014).

74 The Institutional Problem in Modern International Law

institutions one normally finds at the state level, the ‘processes’ by which
international law is validated, ascertained—or, indeed, interpreted, applied
and enforced—are simply left in the hands of international legal partici-
pants themselves (states, essentially), who will inevitably attempt to justify
unilateral political conduct by bringing law to their side. This indetermi-
nacy is implicated within the doctrine of sources itself, insofar as questions
as to the existence and binding effect of legal norms tend only to revert to
the practices and opinions of states. Schachter himself admits this, conced-
ing that the absence of a centralised legislative body and, thereafter, inde-
pendent courts possessing compulsory jurisdiction invokes problems of
national bias that undermine the law’s objectivity in actually determining
conduct and resolving political disputes.51 It is doubtful, therefore, that this
systemic explanation actually gets Schachter all of the way he wants to go.
As I show in the next section, indeterminacy is not something that can be
read out of international law or somehow worked around: the system itself
is perpetually, inherently or—more precisely—structurally indeterminate.

II. INTERNATIONAL LAW AS A LEGAL SYSTEM:

THE PROBLEM OF STRUCTURAL INDETERMINACY

To say that international law is structurally indeterminate is not to undermine

the claim that international law can be understood as an autonomous legal
system, though it does qualify what is implied by this claim to autonomy.
From one perspective, to defend the autonomy of international law would
just be to account for the ‘formal’ qualities of law as implied in a systemic
construction, that is, to recognise that legal argumentation must have a basis
of validity which is independent of any subjective moral or political reasons
that we may or may not have for abiding by any given norm.52 In other
words, notwithstanding the very good reasons we might have to follow or
refrain from any given course of conduct, legal argumentation is meant to
introduce new, ‘content-independent’ reasons, which will necessarily claim
to displace the other reasons we might have for acting.53 On this view, then,
the autonomy of legal reasoning is confirmed simply by ‘validating’ legal
norms by reference to criteria entirely endogenous to the system itself.
From another perspective, however, it is doubtful that this abstract
systematicity is sufficient to show the autonomy of international law, if this
autonomy is understood in a stronger, more pre-emptive sense. To put this

51 Schachter (n 27) 765–67.

52 On this point, see R Collins and A Bohm, ‘International Law as Professional Practice:
The Bounds of Legal Autonomy’ in A Nollkaemper, J d’Aspremont, W Werner and T Gazzini
(eds), International Law as a Profession (Cambridge, Cambridge University Press, 2016,
forthcoming).
53 See, eg, N Gur, ‘Are Legal Rules Content-Independent Reasons?’ (2011) 5 Problema 175.
 International Law as a Legal System 75

point the other way, simply confirming that international law follows its
own systemic logic might just as much prove the instrumentality of law for
whoever takes up the task of legal argumentation. In particular, states will
inevitably use the autonomous logic of the system to justify their conduct
(or to condemn the actions of others), thereby bringing the justification of
legality to their side. This instrumentality need not be seen as a problem as
such, but it will necessarily appear problematic if we presume that interna-
tional law should pre-empt or compel the political choices of states. As such,
insofar as we see international law as a normative solution to any particular
problem or dispute, or as a means to resolve disagreement, such functional-
ity would seem to require that we not only show the distinctness of law as a
system of reasoning, but that this reasoning is capable of actually constrain-
ing or restricting political choice. As Koskenniemi further explains:
In as much as law has the function of guiding problem-solution (that is, in as
much as it has a controlling social function) it must be envisaged as a set of direc-
tives, standards, rules etc. which have “binding force” in that they claim to deter-
mine a preference between competing solutions (rival meanings).54
The problem, then, as the analyses of the previous chapters have shown, is
that international law does tend to be judged by its capacity to secure deter-
minate resolution to specific problems in this sense. Despite disagreement
about the ends and values of international law, or at least what such pur-
poses and principles actually mean in concrete terms—peace, global justice,
human rights etc—it is rarely contested that international law should func-
tion, ideally, so as to better secure such goals in the face of recalcitrant state
behaviour. On these terms, it becomes difficult to resist the conclusion that
international law is deficient or defective at a structural, constitutional level.
This point is easily misunderstood. In highlighting structural indetermi-
nacy, Koskenniemi is certainly not suggesting that domestic legal norms are
any more determinate, either on their face value, or as a result of the clarity
of their drafting or exposition. The point is rather that at this level, there is
ordinarily some agreed-upon process by which legal norms can be authorita-
tively determined in specific cases and an institutionalised hierarchy accord-
ing to which divergences in interpretation or application of the law between
authorised decision-makers can be definitely resolved. At the international
level, in contrast, the lack of any such centralised architecture means that
questions as to the existence, meaning and specific applicability of legal
norms must be, in the main, determined by the very same participants that
the law purports to bind. As Jochen von Bernstoff explains in reflecting
upon Koskenniemi’s argument:
For a legal system that … primarily relies on ‘auto-interpretation’, the conse-
quences of [indeterminacy] … might indeed be more dramatic than for a legal

54 Koskenniemi (n 12) 27.

76 The Institutional Problem in Modern International Law

system that disposes of an encompassing system of compulsory jurisdiction. In

the absence of binding judicial settlements, legal arguments advanced by states or
other actors can easily be countered by an equally valid opposing argumentation.
Without authoritative decisions, the problem of ‘indeterminacy’ becomes more
acute.55 (emphasis added)
In other words, the international legal system is purposefully structured so as
to facilitate competing determinations of legal rules: the validity, scope and
applicability of any legal norm always remains subject to the free interplay
of political forces characteristic of a decentralised legal order. Any political
position can be masked as a legally justified course of conduct, and each
legal justification can just as easily be denounced as political manoeuvre.
A systemic reading of international law will of course allow legal partici-
pants to argue that there is a correct, specifically legal answer to any given
problem or dispute, but the system itself is incapable of—indeed, precluded
from—determining absolutely what that correct answer is. In other words,
the system serves to perpetuate as much as prevent the pursuit of discrete
political agendas; it provides a means of legitimising as much as limiting
particular viewpoints.56 As a result, the unilateral behaviour of any actor
can nearly always be conceptualised as permissible legal conduct by pri-
oritising one rule over another or by choosing one interpretation of a par-
ticular rule over another. In short, international law seems almost infinitely
malleable, incapable of providing a value-free, apolitical or non-arbitrary
solution to any dispute, and therefore ‘singularly useless as a means for
justifying or criticizing international behaviour’.57
These are damning words, but Koskenniemi’s intention in pointing to
this indeterminacy is not necessarily to suggest any fault or deficiency at
the international level. Rather, he seeks to show that such indeterminacy
is inherent within—indeed, intrinsic to—a customary, decentralised legal
order such as international law. In other words, the legitimacy (or, at least
acceptability) of international law is conditioned by this indeterminacy. Even
where there is agreement to regulate collective action problems or specific
normative disputes through the creation of specific rules or legal regimes,
this legalisation only transfers the political and moral questions to the legal
realm, as each relevant actor seeks to secure their own goals through the
imprimatur of the legal form. Rules can be defined very precisely where
strategic interests dictate (for instance, the rule defining the twelve nautical
mile limit of territorial waters under the law of the sea),58 but the opposite

55 J von Bernstorff, ‘Sisyphus was an International Lawyer. On Martti Koskenniemi’s “From

Apology to Utopia” and the Place of Law in International Politics’ (2006) 7 German Law
Journal 1015, at 1022–23.
56 See, eg, Benvenisti (n 36) 397–99.
57 Koskenniemi (n 12) 67. For broader considerations of similar themes, see also C Tomlins,

‘How Autonomous is Law?’ (2007) 3 Annual Review of Law and Social Science 45, at 58–59.
58 See art 3 of the United Nations Convention on the Law of the Sea 1982.
 HLA Hart and the ‘Constitutional Deficiency’ of International Law 77

is also true, where interests require leaving rules open to context and future
discretion (for instance, in defining key terms such as ‘aggression’ or ‘armed
attack’ in the context of the jus ad bellum).59 The very rationale for securing
a rule in an area of fundamental importance, such as the prohibition of the
use of force, will at other times require setting aside, seeking exception from
or otherwise arguing some necessary defence to the breach of that same rule:
And because no rule is more important than the reason for which it is enacted,
even the most unambiguous rule is infected by the disagreements that concern
how that reason should be understood and how it ranks with competing ones …
It follows that it is possible to defend any course of action—including deviation
from a clear rule—by professionally impeccable legal arguments that look from
rules to their underlying reasons, make choices between several rules as well as
rules and exceptions, and interpret rules in the context of evaluative standards.60
I shall return to this point again in concluding, below, and then again in
Part III. For now, the fact remains that the search for objectivity in interna-
tional law, to show its autonomy in this stronger, pre-emptive sense, seems
impossible to realise due to the apparent institutional problem of modern
international law.61

III. HLA HART AND THE ‘CONSTITUTIONAL

DEFICIENCY’ OF INTERNATIONAL LAW

Thus far, I have sought to show how a recurring effort to explain interna-
tional law as an autonomous legal order capable of securing determinate
solutions to defined normative problems will be inevitably undermined by
the decentralised institutional architecture of the international legal order.
In particular, in the preceding section, I outlined how the explanation of
international law as a legal system cannot serve to satisfy this kind of auton-
omy discourse; a systemic construction implies the relative autonomy of
international law as a form of normative practice in one sense, but the par-
ticular structural form of the international legal system itself only highlights
the openness, malleability and contestability of legal rules in the conduct of
international politics. As such, if we think that the function of law gener-
ally, and international law specifically, is to restrain political choice in this
way—international law as a form of ‘problem-solution’—its decentralised
institutional architecture will inevitably and necessarily appear problematic.
In other words, we will confirm exactly the kind of ‘constitutional defi-
ciency’ that was a recurrent cause for concern in the preceding chapters.

59 Koskenniemi (n 12) 591–95.

60 ibid 591.
61 ibid 26.
78 The Institutional Problem in Modern International Law

This constitutional deficiency is revealed in Hart’s consideration of the

legal nature of international law—though, as Somek notes, Hart himself
does not use the term explicitly.62 Rather, he saw the absence of certain cen-
tralised institutional structures as undermining the idea that international
law was a functioning legal system—it was, instead, simply a ‘set’ of pri-
mary norms,63 more characteristic of the law of a ‘primitive’ society:64
The absence of these institutions means that the rules for states resemble that sim-
ple form of social structure, consisting only of primary rules of obligation, which,
when we find it amongst societies of individuals, we are accustomed to contrast
with a developed legal system.65
Given the preceding analysis and the widespread recognition of interna-
tional law’s status as a legal system—amongst states as much as international
lawyers—this claim appears somewhat problematic. Indeed, on the basis
of Hart’s own methodological approach, that is, the need to conceptualise
law by reference to how it is practiced and understood by legal partici-
pants themselves, this conclusion does, on the surface at least, seem deeply
counter-intuitive.66 In fact, I think there are very good reasons why Hart is
wrong, not only in the rather bogus implication that international law is
somehow primitive,67 but also at a deeper, methodological level. I will say
more about this in Part II, where I point out deep inconsistencies in Hart’s
account and begin to question the functional presumptions which propelled
this conclusion. My more immediate concern, however, is that I believe
much of the effort to disprove Hart’s claim has seen its weakness simply
as a kind of factual misunderstanding as to how international law func-
tions in practice. In what follows, I will show why I believe this response
fails and, in doing so, why it also only serves to reinforce this perception of
constitutional deficiency.

A. The Rule of Recognition and the Practices of Officials

On one level, it is easy to see the broad appeal of Hart’s approach in giv-
ing an account of international law as an autonomous legal system. In

62 Somek, ‘From the Rule of Law’ (n 10) 576.

63 Hart (n 5) 223.
64 ibid 227. As Payandeh notes, although Hart does not explicitly state that international

law was a primitive system, the overall structure of his analysis throughout The Concept of
Law makes this comparison inevitable. See M Payandeh, ‘The Concept of International Law
in the Jurisprudence of H. L. A. Hart’ (2011) 21 European Journal of International Law 967,
at 978.
65 Hart (n 5) 214.
66 See, eg, Benvenisti (n 36).
67 In fact, international law is far more complex as a system than Hart’s account suggests.

See, eg, Payandeh (n 64) at 982–88 in particular; T Nardin, Law, Morality, and the Relations
of States (Princeton, NJ, Princeton University Press, 1983) 161–68.
 HLA Hart and the ‘Constitutional Deficiency’ of International Law 79

particular, given the parameters set out at the start of this chapter, Hart’s
account offers an explanation of the reality and functionality of a legal
system based simply on shared conventional understandings of legality
derived from social practices.68 This understanding, what Hart termed the
‘internal point of view’, was revealed simply by the use of legal rules ‘as the
basis of criticism, and as the justification of demands for conformity, social
pressure, and punishment’.69 In fact, Hart mounted an explicit defence
of international law’s reality on this very basis.70 By referring to the self-
understanding of international legal participants in this way, he was able,
on the one hand, to avoid the overly reductive approach of, eg, Austin or
the legal realists, which, as we have seen, tended to equate legal normativity
simply with a form of behavioural compliance, and was therefore incapa-
ble of distinguishing legal norms from threats backed by physical force.71
On the other hand, his social-factual explanation meant that he was able
to reject the kind of abstract systemic construction adopted by those like
Kelsen, which he thought risked distorting understanding of how interna-
tional legal rules were actually used and understood in practice.72
It is precisely for this reason, however, that Hart also rejected the idea that
international law should be thought of as a legal system on the same terms as
domestic legal orders. Yet his reasons for this rejection are easily, and indeed
often have been, misunderstood. To explain, Hart’s view of law’s systema-
ticity (as opposed to its normativity) was premised on a critical distinction
between ‘primary’ norms of obligation and more procedural, ‘secondary’
rules—rules of recognition, change and adjudication—the reality of which
was revealed through the practices of a distinct class of legal officials. At the
heart of this understanding is the ‘rule of recognition’, a kind of meta-norm
for the system as a whole, which validates the existence of all the other rules
and, in the hands of the system’s officials, is capable of offering a level of
certainty or determinacy in ascertaining the law in practice.73 Whilst Hart’s
rule of recognition might have the appearance of a kind of Kelsenian grund-
norm, the two are very distinct concepts. Kelsen’s grundnorm was simply
a conceptual construction, or juristic hypothesis, necessary to explain the
formal unity and systemic autonomy of law. In contrast, Hart’s claim was

68 See, eg, J d’Aspremont, Formalism and the Sources of International Law: A Theory of the

Ascertainment of Legal Norms (Oxford, Oxford University Press, 2011) 16; Payandeh (n 64);
S Besson, ‘Theorizing the Sources of International Law’ in Besson and Tasioulas (n 43) 180;
H Thirlway, The Sources of International Law (Oxford, Oxford University Press, 2014) 15.
69 Hart (n 5), 98.
70 ibid 227, 231, 235.
71 ibid 88–91 and specifically in relation to international law at 217–20.
72 ibid 213–16, 232–34.
73 Hart explains the reason for moving from a primitive towards a mature, systemic order in

terms of the added advantage of certainty (through the rule (or rules) of recognition), flexibility
(through rules of change) and efficiency (through rules of adjudication). ibid 94–97.
80 The Institutional Problem in Modern International Law

that secondary rules, including the rule of recognition, were observable in

practice; they were descriptions of institutionalised processes within which
legal officials fulfilled discrete functions and which collectively sustained
the coherence of the system as a whole.74 Whilst Hart sought to resist the
simple comparison of international law with an ideal type of law drawn
from domestic experience—that is, a legal system possessing centralised
institutions of adjudication, legislation and executive enforcement—and its
outright dismissal as law per se, its limited institutional structure did still
impact international law’s coherence as a legal system on the above terms.75
For the most part, international lawyers have sought not only to resist
this conclusion in defending international law’s systemic character—
pointing to the ‘internal’, self-understanding of international law’s par-
ticipants themselves—but also to explain how such understanding is often
structured around the Hartian distinction between ‘primary’ and ‘secondary’
norms:76 for example, in areas like the law of treaties77 or the ‘secondary’
rules of international responsibility.78 Whilst they might concede that the
international legal order lacks secondary rules of change and adjudication
(at least to the extent that these rules are equated with a centralised legisla-
ture and system of courts enjoying compulsory jurisdiction), there appears
to be broad agreement on the obvious reality of an international rule of
recognition—the absence of which being the central premise of Hart’s claim

74 See on this point generally N MacCormick, ‘The Concept of Law and the Concept of

Law’ in RP George (ed), The Autonomy of Law: Essays on Legal Positivism (Oxford, Oxford
University Press, 1996) 181–94.
75 In fact, he went further to outline how the search for these elements on the assumption

that they were essential to a condition of legality at the international level would inevitably lead
to distortions in understanding rather than a clearer conceptual picture of the nature of law in
general and of international law in particular. Hart (n 5), 213–16 and 232–33.
76 G Abi-Saab, ‘Cours général de droit international public’ (1987-VII) 207 Recueil des

Cours 9, at 122–26; Franck (n 15) 184–85. However, one has to be careful not to exaggerate
the influence of Hart on the adoption of this terminology by bodies such as the ILC. As noted
by Gourgourinis, Hart was not the first to adopt this distinction and—as is argued further
below—Hart’s own account of primary and secondary rules arguably purports much more
than the systemic distinction often employed in international legal doctrine. See Gourgourinis
(n 37) 1016–17. For a discussion on some of the ambiguities involved in the use of the distinc-
tion, see also H Thirlway, International Customary Law and Codification: An Examination
of the Continuing Role of Custom in the Present Period of Codification of International Law
(Leiden, AW Sijthoff, 1972) 39–42. And on the technical and somewhat artificial nature of this
distinction in international law, see E David, ‘Primary and Secondary Rules’ in J Crawford,
A Pellet and S Olleson (eds), The Law of International Responsibility (Oxford, Oxford
University Press, 2010) 27–33.
77 Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ

Reports 1997, p 7 at para 47, pp 38–39. J d’Aspremont, ‘Formalism versus Flexibility in

the Law of Treaties’ in CJ Tams, A Tzanakopoulos, A Zimmerman and AE Richford (eds),
Research Handbook on the Law of Treaties (Cheltenham, Edward Elgar, 2014) 257, at 283–84.
78 See ILC (n 16). The ILC also adopted the terminology in its work on fragmentation: ‘Frag-

mentation of International Law: Difficulties Arising from the Diversification and Expansion of
International Law: Report of the Study Group of the International Law Commission, Final-
ized by M. Koskenniemi’, UN Doc A/CN.4/L.682, 13 April 2006, Section B3, paras 27–36,
available at: http://legal.un.org/ilc/documentation/english/a_cn4_l682.pdf.
 HLA Hart and the ‘Constitutional Deficiency’ of International Law 81

that international law could not be considered a legal system. In fact, one
regularly sees reference to international law’s sources doctrine, particularly
by reference to Article 38 of the ICJ Statute, as fulfilling exactly this kind of
‘secondary’ function in international law.79 For instance, in his defence of
the relative autonomy of international law given above, Schachter explic-
itly rebukes Hart for missing the obvious ‘secondary’ nature of sources
doctrine.80
Nevertheless, the problem with this explanation, that is, the claim that
Article 38 (or any other principle) functions as a rule of recognition on
Hart’s terms, is that it tends to misunderstand the function of this rule
in his account of a legal system. Such an explanation fails to adequately
engage with the broader institutional context underpinning Hart’s concept
of law, particularly the role played by a discrete class of legal officials and
their relationship to the system’s secondary rules.81 In this regard, Hart was
not concerned to simply account for the possibility of abstract conceptual
relationships between norms. He tried to provide a rationalisation of the
institutionalised normative hierarchies that actually pertain in functioning
domestic legal systems. His account is certainly open to a number of criti-
cisms, particularly in terms of how he constructs and understands the sys-
temic interaction between officials and secondary rules—criticisms to which
I will return at length in Part II—but the point remains that it is difficult
to simply divorce the operation of the secondary rules from the hierarchi-
cal institutional structures in which they take on specific meaning.82 As
I show below, this official role and recognition is therefore crucial to and
constitutive of the system, and cannot just be read out of his theory without
undermining the underlying functional rationale which gives meaning to his
overall account of a legal system.

B. The Functional Presumptions of Hart’s Concept of Law

The role of officials in Hart’s account is absolutely critical in revealing the

functional presumptions that propel his concept of law and in particular
the rule of recognition within it. Legal officials not only derive their author-
ity from the secondary rules, but their practices create, conform to and

79 For instance, P-M Dupuy, ‘L’unité de l’ordre juridique international: cours général de

droit international public’ (2002) 297 Recueil des Cours 9, at 39; or more recently Besson and
Tasioulas, ‘Introduction’ (n 43) 10–11; and also in the same volume (and more extensively),
Besson (n 68) 180–85. See also Payandeh (n 64) 981–93; H Thirlway, ‘The Sources of Interna-
tional Law’ in Evans (n 32) 91, at 91–93 and 115–20; Van Hoof (n 15) 53–54 and 60. And for
discussion, see Prost (n 3) 84.
80 Schachter (n 27) 763.
81 See Prost (n 3) 82–83 and passim.
82 See N MacCormick, H. L. A. Hart, 2nd edn (Stanford, CA, Stanford University Press,

2008) 31–34.
82 The Institutional Problem in Modern International Law

maintain in existence the necessary divide between secondary and primary

rules to begin with. In other words, Hart’s account is not only premised
upon the social fact of subjects obeying the law (or even their recogni-
tion of its systemic nature), but a critical dichotomy between the general
observance of norms in practice and their promulgation, application and
enforcement in the hands of such officials.83 Hart is quite explicit on this
point:
There are … two minimum conditions necessary and sufficient for the existence of
a legal system. On the one hand, those rules of behaviour which are valid accord-
ing to the system’s ultimate criteria of validity must be generally obeyed, and, on
the other hand, its rules of recognition specifying the criteria of legal validity and
its rules of change and adjudication must be effectively accepted as common pub-
lic standards of official behaviour by its officials.84
Consequently, his scepticism as to the systemic character of international
law was not a denial of the social-factual acceptance of systemic relation-
ships between legal norms, but a recognition of the consequences of con-
structing those kinds of relationships in the abstract: in the absence of legal
officials, such systemic reasoning would only reveal the openness, ineffi-
ciency and contestability of international legal rules in comparison to their
domestic counterparts.85 To put this point another way, Hart was not just
concerned with the possibility of the formal unity of a legal order, but also
sought to explain what was functionally necessary to maintain in existence
a certain kind of hierarchical normative order. Secondary rules are not ends
in themselves, but rather ‘starting points’ for a broader account of a concept
of law which Hart saw as fundamentally structured towards guiding human
conduct.86 Indeed, whilst Hart is at least ambiguous on the question of
whether law in general shares a point or purpose, this basic presumption—
that ‘law’s function is to guide and control the behaviour of its subjects’87—
undergirds his account, and it is against this function that we have to
understand the conceptual apparatus of secondary rules within his concept
of the legal system. On this account, the rule of recognition thus has a spe-
cific functional role in the hands of officials in contributing to the determi-
nacy of norms—a quality that is seen as absent at the international level.
Mario Prost explains this point well in a passage worth quoting at length:
Secondary rules are … the means by which to dispel doubts about the existence,
scope and operation of primary rules. They specify the way in which the primary

83 See his more explicit admission in this respect in the Postscript to the second edition: Hart

(n 5) 254–59. See also the discussion of A Marmor, ‘Legal Conventionalism’ in J Coleman (ed),
Hart’s Postscript: Essays on the Postscript to the Concept of Law (Oxford, Oxford University
Press, 2001) 195–217.
84 Hart (n 5) 116.
85 ibid 91–96.
86 Prost (n 3) 84–85 ff.
87 ibid 85.
 HLA Hart and the ‘Constitutional Deficiency’ of International Law 83

rules may be conclusively and decisively ascertained and instances of their viola-
tion conclusively identified. If a certain degree of uncertainty or indeterminacy is
bound to exist in any legal system, this element of uncertainty must thus stop with
secondary rules. These rules are, in a sense, ‘ultimate rules’ or rules of ‘last resort’.
They constitute the systemic response to law’s open texture and, if they are to fulfil
their function, they must therefore be determinate. This, for Hart, is a ‘necessary’
and ‘crucial’ condition of law’s unity and integrity as a system.88 (emphasis added,
footnotes omitted)
Whilst Prost might over-simplify the complex interplay between and dis-
crete functions of each of Hart’s secondary norms, it is clear that the offi-
cially operated rule of recognition plays exactly this type of role in bringing
greater determinacy in ascertaining law in practice. As Hart claims, ‘if
doubts arise as to what the rules are or as to the precise scope of some given
rule, there will be no procedure for settling this doubt, either by reference to
an authoritative text or to an official whose declarations on this point are
authoritative’.89
It is for this reason, then, that Hart is so critical of attempts by Kelsen, as
well as international lawyers themselves, to find a basic norm or other point
of foundational validity for the international legal order.90 His dismissal
of candidate international rules of recognition—the principle pacta sunt
servanda, the notion that states ought to behave as they customarily have
behaved etc—stems from the fact that such principles, to the extent that they
can be seen to underpin the sources of international law, cannot fulfil this
function that he attributes to the rule of recognition. These claimed foun-
dational rules are either incomplete, indeterminate or else merely refer one
back to the need for broad social acceptance. In other words, they merely
confirm the customary character of the international legal order; their pos-
tulation as ‘secondary’ serves no functional utility other than in accounting
for systemic relationships between norms—relationships which can already
be said to exist simply by being accepted as such. To read into international
law a rule of recognition therefore seems entirely superfluous, making no
difference to the functioning of the international legal order (whether or not
we call it a system), as the validity of international legal norms rests solely
on the basis of collectively agreed processes enjoying broad social accept-
ance at any given period of time.
Of course, in line with the concerns raised above, one might legitimately
question why these points matter if Hart was simply wrong in his conclu-
sions as well as the presumptions he makes about law’s function. As noted
above, I do believe that Hart is wrong in this respect. Indeed, bearing in

88 ibid 87.
89 Hart (n 5) 90.
90 ibid 232–34. Finnis pursues a similar line of argument in demonstrating the structural

limitations of a customary legal order: Finnis (n 1) 244.

84 The Institutional Problem in Modern International Law

mind his uneasy elision of functionalism and conventionalism in his expla-

nation of a legal system, there are at least prima facie reasons to doubt the
necessity of certain institutional roles outside of the specific state context.
I will return to this point in Part II, where I aim to disprove the view that
law must necessarily act to pre-empt and foreclose political choice through
the provision of determinate normative standards. Such a function may well
seem uncontroversial, but I do not think we can simply presume it a priori.
However, my more immediate concern, and the reason why I think Hart’s
views matter in the current context, is that the discourse of institutional
autonomy recounted so far shares in this functional presumption, indeed,
it is premised upon it. As I have argued here, insofar as many international
lawyers have been critical of Hart’s conclusions, their argument has tended
to be factual (that there are indeed secondary norms within the international
legal order) rather than theoretical (for instance, that a legal system need not
necessarily function in the way Hart presumes). In leaving this functional
presumption untouched, this factual response cannot but prove inadequate
as a means of rebutting Hart’s scepticism. In the current context, then,
whether Hart was correct or not in his conclusion about international law
and, indeed, whether this functional presumption is justified are both beside
the point. If we share this starting point, our disagreement lies only at the
semantic level and thus remains vulnerable to the kinds of concern which
propelled Hart’s scepticism. If we think that the international legal system
should secure determinate solutions to normative problems, the deficiency
that Hart identifies does indeed sting.
To illustrate this point, in the next and final section—of this chapter and
of Part I overall—I will draw upon the example of the ascertainment of
customary international law under the oft-claimed ‘international rule of rec-
ognition’, Article 38 of the ICJ Statute.

IV. AN INTERNATIONAL ‘RULE OF RECOGNITION’?

INDETERMINACY IN THE SOURCES OF INTERNATIONAL LAW

In the previous chapter, it was noted how Article 38 of the PCIJ (now ICJ)
Statute was almost immediately accepted as a summation of international
law’s sources, standardising and proceduralising the law in this area and,
in so doing, buttressing the claim that it could be considered as an autono-
mous legal system.91 Nowadays, although often decried as inadequate or
incomplete92—a point to which I will return below—Article 38 is widely

91 See above Ch 2, section III.

92 See, eg, Besson (n 68) 164–65; Alvarez (n 45) 258–59.
 An International ‘Rule of Recognition’? 85

accepted as the necessary starting point for an explanation of the sources

of international law (and thereafter of international law’s status as a legal
system).93 To be sure, there is a sense of pragmatic doctrinal creativity here,
glossing over the fact that the recognition of a specific treaty norm as pro-
viding a foundational point of legal validity in this sense presupposes the
existence of a prior foundational norm.94 At the same time, however, one
can still treat Article 38 as a description of an underlying presupposition,
meta-norm or—more pertinently for current purposes—a simple social-
factual explanation of a set of practices actually pertaining within the inter-
national community, which thereafter facilitates a systemic understanding
of international law.95
As I have suggested above, however, this kind of functional reliance on
Article 38 may provide ontological certainty in one sense, but it raises the
more troubling question of the efficacy of this understanding in securing the
determinacy of international law in practice.96 In fact, theoretical uncer-
tainties about the operation of the doctrine of sources have come to act as
a kind of microcosmic proxy for broader conceptual uncertainty about the
legal nature of international law more broadly.97 Whilst treaties and cus-
tomary international law are undoubtedly recognised as the principal and
most important sources included in Article 38 (even if, at the same time,
there is continuing uncertainty about the relationship between them),98 a
huge range of unresolved questions remain, not only about the nature of
these two sources, but also pertaining to the status of the other sources
either listed or otherwise excluded from the list in Article 38. For instance,
what status belongs to ‘general principles of law’? Can such general princi-
ples form the normative basis to the settlement of disputes between states
or do they act only as interpretative guides when giving effect to other legal
norms? How many and which legal systems have to support the existence
of such principles before their generality can be established? What status

93 See d’Aspremont (n 68) 149, who observes how art 38 of the ICJ Statute has provided ‘the

basis on which several generations of international lawyers have been trained’.

94 In that sense, it could be said that the idea that art 38 is foundational or basal to the rest

of the international legal system suffers from the problem of so-called ‘foundational regress’,
on which see P Capps, ‘The Rejection of the Universal State’ in N Tsagourias (ed), Transna-
tional Constitutionalism (Cambridge, Cambridge University Press, 2007) 17, at 19–20.
95 See also J d’Aspremont, ‘Herbert Hart in Today’s International Legal Scholarship’ in

J d’Aspremont and J Kammerhofer (eds), International Legal Positivism in a Postmodern

World (Cambridge, Cambridge University Press, 2014) 114, at 122.
96 See, eg, J Kammerhofer, ‘Uncertainty in the Formal Sources of International Law:

Customary International Law and Some of its Problems’ (2004) 15 European Journal of
International Law 523.
97 See, in particular, P Weil, ‘Le droit international en quête de son identité (Cours général

de droit international public)’ (1992) 237 Recueil des cours 9, at 133, also cited in Prost (n 3)
91, fn 101.
98 See, eg, recently JJ Bia, ‘The Relations between Treaties and Custom’ (2010) 9 Chinese

Journal of International Law 81, particularly at 84–86.

86 The Institutional Problem in Modern International Law

do judicial decisions or case law have as an independent source of the law,

if at all? What about other potential sources of international law not listed
in Article 38, such as equity, unilateral declarations, resolutions of interna-
tional organisations, or other forms of so-called ‘soft law’?99
It is not my intention to suggest answers to these questions, but merely
to illustrate that as a whole, there is a significant penumbra of uncertainty
surrounding international law’s sources. Still, to suggest indeterminacy at
the margins—even if those margins are somewhat extensive—does not nec-
essarily preclude a degree of certainty at the core. Even if these questions
surrounding sources doctrine remain unsettled, it might still be possible to
describe with certainty the processes for ascertaining and applying custom-
ary international law and treaty obligations. The problem, however, is that
the very nature or point of international law’s sources thesis is to defer back
to states, international law’s key participants, on questions of the existence
and meaning of legal norms. In other words, there is a kind of structural
indeterminacy built into the very fabric of sources doctrine and, indeed,
therefore the international legal system as a whole.
To illustrate this problem further, I will focus on the specific problem of
indeterminacy in the ascertainment of customary international law. Before
doing so, however, I should note that my focusing on custom is not at all to
suggest that the law of treaties is free from theoretical difficulties or uncer-
tainty in practice. Indeed, in the ascertainment of treaty obligations, not
only are the processes and principles of treaty interpretation themselves
open-textured and opaque,100 but there remain uncertainties as to whether
certain agreements actually constitute treaties in the first place and what this
might mean in affecting legal obligations.101 More fundamentally, from a
systemic point of view, there is a lingering question over the extent to which,
conceptually speaking, treaties represent sources of law at all (as opposed
to being merely repositories of more specific legal obligations pertaining
between the parties in question).102 In fact, recognising that the binding

99 Prost (n 3) 91–97.
100 See, eg, U Linderfalk, ‘Is the Hierarchical Structure of Articles 31 and 32 of the Vienna
Convention Real or Not? Interpreting the Rules of Interpretation’ (2007) 65 Netherlands
International Law Review 133. For broader reflections on the various factors influencing
approaches to interpretation, see the collection of essays in A Bianchi, A Peat and M Windsor
(eds), Interpretation in International Law (Oxford, Oxford University Press, 2015).
101 See, generally, J Klabbers, The Concept of Treaty in International Law (The Hague,

Kluwer International, 1996).

102 This question might now seem somewhat formalistic and obsolete, particularly bearing

in mind the importance of treaties to the functioning of contemporary international law. How-
ever, from a conceptual point of view, the question remains pertinent. cf G Fitzmaurice, ‘Some
Problems Regarding the Formal Sources of International Law’ in Symbolae Verzijl (The Hague,
Martinus Nijhoff, 1958) 153, at 157–58; and M Mendelson, ‘Are Treaties Merely a Source
of Obligation?’ in WE Butler (ed), Perestroika and International Law (Dordrecht, Martinus
Nijhoff, 1990) 81–88.
 An International ‘Rule of Recognition’? 87

force of treaty rules can only really be derivative from pre-existing rules
of general international law is precisely the point of my focusing on cus-
tomary international law. Custom not only remains of critical theoretical
importance to the overall systemic construction of international law, but for
that reason it must also be logically prior to, and constitutive of, the rules
of treaty law. Also, from a more practical perspective, to focus on treaties
as a general source of law (rather than merely specific legal obligations for
consenting parties) would only really highlight the perceived constitutional
deficiency outlined above; it would, in other words, only serve to highlight
the lack of any efficient means of creating general legal rules binding all
states. The very fact that some states may or may not be a party to a treaty,
and thereafter conflicts between state-parties and non-state-parties have to
revert to the level of custom, only highlights the continued importance of
customary rules to the overall system of international law.103 As Ian Brownlie
states, ‘custom is not a special department or area of public international
law: it is international law’.104 Of course, the flipside of this point, as Jörg
Kammerhofer also notes, is that: ‘The theoretical problems of customary
international are [also] the theoretical problems of international law as a
whole.’105

A. Customary International Law and the Opinio Juris Paradox

According to Article 38, the ICJ shall apply custom as ‘evidence of a gen-
eral practice accepted as law’. Customary international law is in this sense
sociological—drawn from social practices—but the Statute recognises
that practice alone would not account for the binding force of law (ie, the
reference to ‘practice accepted as law’). Being a decentralised order, this
reconciliation acknowledges that the binding force of a customary rule in
international law can only really be determined from a general recognition
of a norm’s obligatory force by those subjected to it.106 In other words,
the opinio juris sive necessitatis element of international custom accords
with Hart’s internal point of view, as formulated above, in requiring an
acceptance of the normativity of law rather than seeking to make a more

103 Koskenniemi (n 12) 389–90: ‘The generality of custom seems like an incident of its

normativity. All States should be bound by the same law, regardless of their subjective will or
power. This does not rule out specific conventional arrangements. But just as municipal law
requires that the acts of legal subjects are evaluated from the perspective of a unitary norma-
tive structure, it must be assumed that there exists a general, uniformly applicable law between
States, however abstract or rudimentary, by virtue of which States have the power to create
specific obligations and from which these obligations can be evaluated and interpreted.’
104 Brownlie (n 14) 18.
105 Kammerhofer (n 96) 536.
106 See, inter alia, the North Sea Continental Shelf, Judgment, ICJ Reports 1969, 3, at 42–43.
88 The Institutional Problem in Modern International Law

‘external’ judgement with regard to the regularities of state practice, which

may equally be influenced by extra-legal factors.
Accordingly, it seems impossible to do away with either element without
undermining a key point of legitimacy in the modern discipline: to find the
reason for the binding authority of custom merely by reference to the con-
forming practices of states would make it indistinguishable from political
prudence, habit or other social convention;107 to locate it in the subjective
belief of states alone—opinio juris—would risk the law becoming an irrel-
evance insofar as practice does not concur with these subjective beliefs.108
However, to apply these twin requirements in any coherent way is a notori-
ously confusing and cumbersome exercise, raising a number of problems
which are by now well-rehearsed in the academic literature:109 for instance,
questions over what exactly constitutes state practice (just material acts,
or statements and opinions also?);110 the generality of practice required (if
not full unanimity, how many states must actually conform to any given
practice? What duration of practice (or number of instances) is required?
Do some states’ practices have more weight than others?); as well as more
deep-rooted anxieties and uncertainties about exactly what is implied in
the notion of opinio juris in the first place.111 It is this latter problem, in
particular, which has not only proven troubling, theoretically speaking, but
also goes to the heart of the practicability of these source criteria as a means
of ascertaining customary international law.
Traditionally, the problems associated with the opinio juris requirement
are subsumed within, or at least illustrated by, what has been referred to
as the ‘chronological paradox’.112 Although this is by now a somewhat
laboured discussion, it is worth briefly illustrating this apparent problem
insofar as it helps shed light on the practical difficulties of actually ascer-
taining the existence of a purportedly legal rule in practice. To explain,
traditionally the notion of the opinio juris has been distinguished from
a requirement of actual consent (whether explicit or simply tacit) as any
such consensual basis for customary norms would seem to dissolve their

107 See, eg, M Akehurst, ‘Custom as a Source of International Law’ (1974–75) 47 British

Yearbook of International Law 1, at 33; CL Lim and OA Elias, The Paradox of Consensualism
in International Law (The Hague, Martinus Nijhoff, 1998).
108 Koskenniemi (n 12) 410–11.
109 For a good overview, see, eg, Ch 8 of M Byers, Custom, Power and the Power of Rules:

International Relations and Customary International Law (Cambridge, Cambridge University

Press, 1999) 129–46.
110 ibid 133–36. See also A d’Amato, The Concept of Custom in International Law (Ithaca,

NY, Cornell University Press, 1971) 88 ff; and Kammerhofer (n 96) 525–27.
111 An extensive discussion of the problems associated with the opinio juris element, and

suggested solutions to the problem, is included in O Elias, ‘The Nature of the Subjective
Element in Customary International Law’ (1995) 44 International and Comparative Law
Quarterly 501, at 502–11.
112 Byers (n 109) 130–33; Lefkowitz (n 15) 130–33 and passim.
 An International ‘Rule of Recognition’? 89

normativity altogether, leaving customary international law seemingly use-

less as a counter-factual normative constraint on state behaviour. However,
the problem then becomes how subjective belief in the binding quality of
custom can emerge in the formation of a new rule of international law, as it
would seem that any such belief would simply be erroneous.113 Accordingly,
when the existence of a rule of customary international law is in question
(as is often the case when questions of international legality are under
discussion), the paradox would seem to arise. As Kammerhofer explains:
If it is the belief that something is already law that counts, then it can only be used
to identify existent customary international law. The belief cannot be true with
respect to conduct that had either hitherto not been covered by a norm or by a
different norm, believing something to be law which is only becoming law. There-
fore, the belief is necessarily, not just ordinarily, a mistaken belief.114
To get around this problem, we might distinguish a belief that something
should be law as a constitutive element of the law-making process (rather
than being declaratory of prior existing law),115 but the problem then
becomes how binding law can be ascertained if one of the criteria for its
ascertainment rests on subjective intent—that is, a claim de lege ferenda
rather than lex lata. This leads to uncertainty due to the fact that one can-
not look to the source requirements to determine or validate law because
the very act of validation is implicated within the law-creation process (and
vice versa). In other words, the criteria for the ascertainment of custom are
inseparable from the processes of its formation—there is no defining line
between the epistemological question of law’s emergence and the ontologi-
cal question of how to ascertain binding legal obligations.116
It might also be the case that this theoretical paradox can be reconciled
in conceptual terms to the extent that one imposes a logical separation
between these two processes. For instance, a state may exert the belief or
will that something ought to be the law and this claim is, through consistent
usage and acceptance by other states (whether tacitly, through acquiescence
etc), subsequently determined to be law. There may be a smudging of the
theoretical problem in such a scenario, but imposing this kind of conceptual
distinction, we could nonetheless say that ascertainment becomes the search
for evidence of concordant practice, intent and acceptance. However, this
does nothing to bring determinacy or certainty to the process of ascertaining

113 Kammerhofer (n 96) 534 ff; d’Amato (n 110) 47 ff; Byers (n 109) 131. However, see

also Lefkowitz (n 15) 130–31, who claims that this paradox conflates the processes of law
ascertainment and law creation. I reflect more on this below.
114 Kammerhofer (n 96) 534.
115 On this distinction between declaratory and constitutive views, and the scholars who

propound each view, see Koskenniemi (n 12) 418–24.

116 ibid 306; and T Skouteris, The Notion of Progress in International Law Discourse

(The Hague, TMC Asser Press, 2010) 147.

90 The Institutional Problem in Modern International Law

customary norms; it merely begs further questions about how to determine

the existence of a norm for those states whose belief or intent is said to
be foundational to the rules themselves.117 This uncertainty thus makes it
impossible for legal participants (states) to simply apply the given criteria
in order to make a determination of what the law actually is in any given
situation.118
We might deem it practically more feasible to consider custom ascertain-
ment from the perspective of the seemingly objective, external adjudicator,
judge or international jurist. However, whilst such institutionalised pro-
cesses might provide a short-cut through these difficulties, they are rarely
able to escape controversy in their efforts to do so. For instance, to get
around the difficulties of having to determine clear intent or belief from
seemingly disputed practices, the judge or jurist might simply infer opinio
juris from a sufficient generality of practice (even if we are not able to give
a precise threshold of generality)—such an inference being a kind of tacit
consent or acquiescence.119 However, the problem here is that it is impos-
sible to merely infer motivations in any legitimate way without enquiring
further into subjective states of mind, for example, by looking for particular
types of practice which go beyond physical acts (ie, statements, claims or
assertions).120 Not only would this raise another area of uncertainty as to
what actually constitutes practice in the first place, but as soon as we look
for intent or other subjective psychological factors within state practice, we
dissolve the necessary distinction between the two source elements.121 Fur-
thermore, and more practically, the question of the existence of a customary
norm more often than not seems to arise in cases where there is a paucity
of practice, or a conflict between practices, as well as clear differences in
subjective beliefs, leaving the decision-maker in the impossible position of
trying to choose between genuine as opposed to erroneous intent or belief
of the parties concerned.
It is surely the case therefore that the chronological paradox is not sim-
ply a theoretical or conceptual quandary which dissolves as soon as the
source requirements are applied in practice. The practical difficulties (if not

117 Kammerhofer (n 96) 535. See further in J Kammerhofer, Uncertainty in International

Law: A Kelsenian perspective (Abingdon, Routledge, 2011) 83–84; and Koskenniemi (n 12)
422–24.
118 Kammerhofer (n 96) 535.
119 Indeed, this seems to be the conclusion of the International Law Association in

its study on the topic of the formation of customary international law. See International
Law Association, Final Report of the Committee on Formation of Customary (General)
International Law (2000), at 31–32, available at: www.ila-hq.org/download.cfm/docid/
A709CDEB-92D6-4CFA-A61C4CA30217F376.
120 Koskenniemi (n 12) 430–31; Kammerhofer (n 96) 529–30.
121 Thirlway (n 68) 73–74.
 An International ‘Rule of Recognition’? 91

impossibility) of looking for the subjective reasons for norm-compliance

from this external, sociological perspective most often give rise to a more
fluid (and by no means less controversial) form of judicial reasoning in
practice: this, for instance, might just smudge the two elements together to
some degree122 or might prioritise one over the other.123 In practice, very
few judgments of the ICJ, for example, are able to convincingly demon-
strate proof of both elements.124 If the existence of custom is not simply
just stated, ie, without presenting any corresponding evidence to this effect,
more frequently we see intent merely inferred from practice or, vice versa,
inconsistent practice sidelined altogether (such as in the controversial Nica-
ragua judgment)125 in favour of relying on public statements, resolutions
of international organisations or treaty practice as sufficient evidence for
the existence of a custom.126 This ‘modern’ approach to customary inter-
national law ascertainment will look for a much looser form of social con-
sensus, perhaps derived from the ‘soft’ normative output of international
institutional fora such as the UN General Assembly (UNGA) or the prior
existence of a multilateral treaty, which, though not seen as binding in lieu
of consent, is clearly seen as relevant practice and/or opinio.127
Nevertheless, in its eliding of the two elements of custom in this way,
this approach really only goes to show the lack of determinacy within the
criteria themselves128—the binding force of any given custom merely awaits
its recognition as such by any authorised decision-maker. Of course, rely-
ing on existing treaty practice, resolutions and statements of international
organisations, and codification exercises of bodies such as the ILC, may
help to ‘streamline’ the law-creation process to some degree, but it can-
not bring determinacy to the processes of customary law’s ascertainment.
Some controversial choice has to be made, either leading to a cautious,

122 As Koskenniemi notes, ‘standard doctrinal argument makes use of both senses of the

opinio in a happy mixture, resorting to one when argument would otherwise seem too apolo-
gist, to the other when too utopian’. Koskenniemi (n 12) 418.
123 See, eg, AE Roberts. ‘Traditional and Modern Approaches to Customary International

Law: A Reconciliation’ (2001) 95 American Journal of International Law 757; see also
FL Kirgis Jr , ‘Custom on a Sliding Scale’ (1987) 81 American Journal of International Law
146, who suggests that a great deal of opinio juris can count against the fact of a lack of prac-
tice, and vice versa.
124 Koskenniemi (n 12) 428–29.
125 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United

States), Merits, ICJ Reports 1986, p 14, at, inter alia, pp 99–100.
126 Roberts (n 123) 758–59. On the problem of international criminal tribunals applying

custom without sufficient consideration of practice, see recently N Arajärvi, The Changing
Nature of Customary International Law: Methods of Interpreting the Concept of Custom in
International Criminal Tribunals (Abingdon, Routledge, 2014).
127 A Boyle and C Chinkin, The Making of International Law (Oxford, Oxford University

Press, 2007) 225–29.

128 RY Jennings, ‘What is International Law and How Do We Tell it When We See it?’

(1981) 37 Schweitzerisches Jahrbuch für Internationales Recht 59, at 67–70.

92 The Institutional Problem in Modern International Law

conservative approach or else leaving the decision-maker always suscep-

tible to the criticism of having misapplied the source determinants in the
identification of any given rule.129 For instance, to the extent that legal cod-
ification exercises have a more general, galvanising effect on the process of
custom formation, these tend only to smooth over disagreement by leaving
draft codes or texts ambiguous or, more commonly, by producing a set of
‘rules’ which combines the lex lata and proposals de lege ferenda.130 In such
cases, certainty seems to come (if indeed it does at all) in the authorised
decision of a court or body charged with resolving disputes or determin-
ing specific questions of international law. Yet this is precisely the problem
as, notwithstanding the theoretical uncertainties outlined above, the more
immediate concern is the continued absence of any hierarchical system of
courts with a general, compulsory jurisdiction. Whilst there are a number—
a growing number—of regimes created within the international legal order,
many of which provide for limited forms of compulsory dispute settlement
in specific contexts,131 the lack of any systemic hierarchy, combined with
the ability to ‘forum shop’ between them, leaves states still very much in
control in the determination of their specific legal obligations.132

129 A good example is the methodological criticism directed at the International Committee

of the Red Cross (ICRC) over its study of customary international humanitarian law: see, per-
haps most vociferously, Y Dinstein, ‘The ICRC Customary International Humanitarian Law
Study’ (2006) 36 Israel Yearbook of Human Rights 1. See also criticisms of the ICJ’s meth-
odology in ascertaining customary international law rules in the Nicaragua case (n 125) in
TM Franck, ‘Some Observations on the ICJ’s Procedural and Substantive Innovations (in
Appraisals of the ICJ’s Decision in Nicaragua vs. United States (Merits))’ (1987) 81 American
Journal of International Law 116, at 118–20.
130 For example, consider the uncertain status of countermeasures taken in the ‘collective

interest’, on which art 54 of the ILC’s Articles on State Responsibility takes no position. James
Crawford, the ILC Rapporteur on the topic, claimed, in the commentaries to the Articles, that
practice in this area was ‘limited and rather embryonic’. See ILC (n 16) 137.
131 For instance, within the context of the World Trade Organization or under the UN Con-

vention on the Law of the Sea 1982. For an overview of developments in dispute resolution
and international adjudication, see RP Anand, ‘Enhancing the Acceptability of Compulsory
Procedures of International Dispute Settlement’ (2001) 5 Max Planck Yearbook of United
Nations Law 1; C Romano, ‘International Organizations and the International Judicial
Process: An Overview’ in L Boisson de Chazournes, C Romano and R MacKenzie (eds), Inter-
national Organizations and International Dispute Settlement: Trends and Prospects (Ardsley
on Hudson, Transnational Publishers, 2002) 3–36; and, more recently, the various contribu-
tions to D French, M Saul and ND White (eds), International Law and Dispute Settlement:
New Problems and Techniques (Oxford, Hart Publishing, 2010).
132 See JG Merrills, Anatomy of International Law, 2nd edn (London, Sweet & Maxwell,

1981) 18–30. This problem also seems to impact upon the formative rules of treaty law,
particularly with regard to treaty interpretation—to the extent that we can explain these as
secondary rules—as the apparent openness of the law again stresses the importance of institu-
tional determination rather than normative determinability: see the discussion in J Klabbers,
‘Reluctant Grundnormen: Articles 31(3)(c) and 41 of the Vienna Convention on the Law
of Treaties and the Fragmentation of International Law’ in M Craven, M Fitzmaurice and
M Vogiatzi (eds), Time, History and International Law (Leiden: Martinus Nijhoff, 2007) 141–61.
 An International ‘Rule of Recognition’? 93

B. The Institutional Problem in Customary Law Ascertainment

What these concerns highlight, in other words, is that the chronological

paradox is not the result of some badly worded, misconceived or misdi-
rected test for ascertaining customary international law. The problem is
intrinsic to the institutional structure of international law itself—a problem
which equally affects the claimed scope of norms as much as their prior
ontological existence. Consider, for instance, the conflicting conceptions of
the rules relating to attribution in the context of the law of state responsibil-
ity deployed by the ICJ in the Nicaragua case133 on the one hand, and by
the Appeals Chamber of the International Criminal Tribunal for the former
Yugoslavia (ICTY) in the Tadic case134 on the other. The rules in question
touched on the question of attribution of legal responsibility to states for the
conduct of armed belligerent groups and other non-state entities.135 In the
latter case, the ICTY critiqued the ‘effective control’ test deployed by the ICJ
in this regard as too exacting a standard and decreed that the (distinctly less
onerous) test of ‘overall control’ should be applied instead. Unsurprisingly,
the ICJ later reconfirmed its earlier formulation, defending the customary
status of the effective control test in spite of the criticism of the ICTY.136 As
Koskenniemi comments in the ILC’s Study Report on fragmentation, such
interpretative disputes are not normally perceived to be a problem in domes-
tic legal orders, where a hierarchy of courts can resolve such conflicts, but
they appear problematic if we expect the same degree of normative certainty
at the international level:
The point is not to take a stand in favour of either Tadic or Nicaragua, only to
illustrate the type of normative conflict where two institutions faced with analo-
gous facts interpret the law in differing ways. This is a common occurrence in any
legal system. But its consequences for the international legal system which lacks a
proper institutional hierarchy might seem particularly problematic. Imagine, for

133 See the Nicaragua case (n 125) 64–65, at para 115.

134 See Prosecutor v Dusko Tadic, Judgment of 15 July 1999 (1999) 38 ILM 1540, at
paras 115, 116–45.
135 The test relates to the application of the rule contained in art 8 of the ILC’s Articles on

State Responsibility, which provides that: ‘The conduct of a person or group of persons shall
be considered an act of a State under international law if the person or group of persons is in
fact acting on the instructions of, or under the direction or control of, that State in carrying out
the conduct.’ For discussion of the application of the test in the two cases mentioned, see ILC
(n 16) 47–48, at paras 4–5.
136 See Case Concerning the Application of the Convention on the Prevention and Punish-

ment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment,
ICJ Reports 2007, at para 404, where the Court describes the applicability of the ‘overall
control’ test to the law on state responsibility as ‘unpersuasive’. For criticism of the Court’s
reasoning in light of the earlier cases, see A Cassese, ‘The Nicaragua and Tadic Tests Revisited
in Light of the ICJ Judgment on Genocide in Bosnia’ (2007) 18 European Journal of Interna-
tional Law 649, at 651 ff.
94 The Institutional Problem in Modern International Law

example, a case where two institutions interpret the general (and largely uncodi-
fied) law concerning title to territory differently. For one institution, State A has
validly acquired title to a piece of territory that another institution regards as part
of State B. In the absence of a superior institution that could decide such conflict,
States A and B could not undertake official acts with regard to the territory in
question with confidence that those acts would be given legal effect by outside
powers or institutions. Similar problems would emerge in regard to any conflict-
ing interpretations concerning a general law providing legal status.137 (emphasis
added)
Such normative conflict may be capable of resolution in the abstract, but
the rather fragmented institutional structure of international law means
that possibilities for dispute settlement depend often upon a choice between
diverse regimes and contexts, which may well be affected by certain insti-
tutional biases, and between which there is not necessarily any defined
hierarchy.138 In many cases, the underlying conflict can be resolved within
the international legal order only if both states are in agreement to resolve
the conflict in the same tribunal, and even then the decision has no necessary
precedential value beyond the dispute in question. What would ultimately
seem to bring certainty in the specific case, as well as determinacy over the
longer term, would be the existence of an overarching system of central-
ised adjudication enjoying a priori authority over states. As John Merrills
acknowledges: ‘With the creation of international law such a decentral-
ised process, so liable … to give rise to doubt or controversy, much clearly
depends on the possibility of obtaining authoritative interpretations of the
law.’139 In the absence of such centralised judicial institutions, the decisions
of any institutional body, the ICJ included, will likely remain controversial
and contestable, even after a legal determination has been made. Interna-
tional judges, as much as states themselves, remain vulnerable to the criti-
cism of having misapplied the source criteria or having over-stepped the
bounds of their authority, thus leaving open the possibility that in any future
instance, another tribunal, decision-maker or other body will seemingly
ascertain, interpret or apply the law in a different way.
In other words, and as the analysis of the previous section sug-
gested, the problem of indeterminacy in the ascertainment of customary

137 ILC (n 39) 32, para 51.

138 See CPR Romano, ‘The Shift from the Consensual to the Compulsory Paradigm in
International Adjudication: Elements for a Theory of Consent’ (2007) 39 New York Univer-
sity Journal of International Law and Politics 791, at 854, who comments on the kind of
‘unofficial’ hierarchies which seem to have been created between an increasing number of
courts with forms of compulsory jurisdiction: ‘while hierarchies might be inevitable, they have
emerged in a system that should by definition have no hierarchies. If hierarchies must exist in
such a system, the system itself should be able to control them or should allow states to design
them in their role as the ultimate source of legitimacy in the international legal order’.
139 Merrills (n 132) 15.
 An International ‘Rule of Recognition’? 95

international law derives entirely from the structure of international law

as a legal system. It not only acts to illustrate Koskenniemi’s critical inter-
vention, but it also serves to show the reason why it is difficult to simply
reconcile international law’s systematicity on Hart’s terms. If we accept that
secondary norms should bring certain functional benefits, and chief among
them is the determinacy brought about by the officially operated rule of
recognition, then international law’s proto-rule of recognition, whatever it
might turn out to be, will inevitably fail to deliver in this role.
One possible response to this conclusion, of course, might be to argue that
I have simply over-played the formal, structural distinctions between inter-
national and national legal orders, thereby ignoring the way in which this
kind of indeterminacy may be compensated for at the international level.
On this basis, we might argue that Hart simply misunderstood the way in
which a decentralised legal order such as international law fulfils the kinds
of functions implicated in his account of secondary rules. Indeed, this point
is raised by Mehrdad Payandeh in a recent effort to show how international
law can be reconciled with Hart’s theory:
If the main distinction between the social rules of a primitive society and a more
sophisticated legal system lies in the ability of the latter to address the problems of
uncertainty, of the static character of the social rules, and of the inefficiency of the
system in enforcing the rules, then there is no compelling reason why an interna-
tional legal order needs to resemble the domestic legal order in form—the lack of
which is the main reason for Hart to qualify international law not as a system but
only as a set of rules. It seems more convincing to evaluate the nature of the inter-
national legal system on the basis of whether it contains rules and mechanisms
which perform the three functions which Hart deems necessary for the existence
of a legal system.140
This kind of approach seems intuitively plausible in one sense. Over the
years, in fact, generations of international legal scholars have sought to
explain how states themselves fulfil certain ‘constitutional functions’ which
are seen as necessary to the conceptual completeness of international law. To
recall from Chapter 2, Kelsen relied on the idea of states’ ‘self-help’, essen-
tially institutionalising a ‘just war’ theory, in order to explain what he saw
as a necessary enforcement function in international law.141 In Chapter 1,
similarly, we saw how Oppenheim relied on essentially the same form of
argument in outlining the necessity of international law’s enforcement
through decentralised processes, specifically as determined by the so-called
‘family of nations’.142 A somewhat more sophisticated, though arguably also
more idealistic, variant of this kind of argument might be Georges Scelle’s

140 Payandeh (n 64) 981; and see his attempt to account for these functions in detail, at

982–83.
141 See above in Ch 1, section II.
142 See above in Ch 2, section II.
96 The Institutional Problem in Modern International Law

theory of dédoublement fonctionnel, or ‘role-splitting’. Scelle’s approach

suggested the importance of the combined functions of legislation, adjudica-
tion and enforcement to the conceptual coherence of international law, but
explained how state officials can be understood as exercising such functions
at an international level when authorised to do so under the constitutive (or
‘secondary’) rules of the international legal system.143 Conceived in this
way, in fact, Scelle was able to account for most international activity as
part of a larger constitutional ordering of the international system.144
Nevertheless, the problem in all of these readings is that they do little to
alleviate the apparent institutional problem as set out above and as perceived
by Hart in particular. Indeed, Hart himself considered and rejected this kind
of analogical reasoning, which often seems to rely on controversial external
interpretations of state behaviour rather than any internal element of self-
understanding.145 For example, from the point of view of law creation, in
deciding whether a certain course of action adopted by states, collectively or
in isolation, is breaching the law or establishing new law, we either have to
defer to the views of the state(s) concerned—which are inevitably attempt-
ing to justify their behaviour as legal—or we have to rely upon controversial
readings of subjective intent, or more purposive interpretations or judgements
of the surrounding context. In fact, by characterising these subjective inter-
pretations as official functions, we potentially risk legitimising what might
actually be more ‘deviant’ conduct.146 A similar problem also arises in think-
ing of inter-state conduct in terms of legal ‘enforcement’. Any such reading
tends towards over-inclusiveness or over-generalisation in the suggestion that,
for example, reprisals, acts of ‘self-help’ or the resort to war are necessarily
concerned with upholding the law, or the enforcement of a state’s legal rights,
as opposed to simply the pursuit of more individualistic, political ends.147

143 See, inter alia, G Scelle, Précis de droit des gens: principes et systématique. Pt.2, Droit

constitutionnel international (Paris, Sirey, 1934) 10–12 and passim.

144 See G Scelle, ‘Essai de systématique de droit international (Plan d’un cours de droit

international public)’ (1923) 30 Revue Générale de Droit International Public 116, at 124–41
in particular. Patrick Capps has given a more recent spin to this same idea in P Capps, Human
Dignity and the Foundations of International Law (Oxford, Hart Publishing, 2009) 244 and
passim.
145 Hart (n 5), 232–33; and see the discussion in Koskenniemi (n 12) 174–77.
146 Koskenniemi (n 12) 175–76.
147 Hart (n 5) 232–33. This argument was already well-made by Wolfgang Friedmann, in

fact, who criticised Kelsen’s systemic account for this reason. See WG Friedmann, ‘General
Course in Public International Law’ (1969-II) 127 Recueil des Cours 39, at 74: ‘Where states
use force at the behest of, and within the legal framework of international authority, they act
as executants of the international legal order. Where they act in self-defence, they may still be
considered as organs of international law (Art. 51, United Nations Charter). But where the
states—as they normally do—allege self-defence as the justification for the use of force, they
do so in the absence or in defiance of an international fact-finding or adjudicatory authority
and cover up national policy decisions or even naked acts of aggression through allegations of
“provocation”, “aggression” and similar formulas.’
 An International ‘Rule of Recognition’? 97

A recent, and perhaps more relevant, example of this kind of dédou-

blement fonctionnel argument has been developed by David Lefkowitz in
an explicit attempt not only to explain away the opinio juris paradox, as
described above, but also to reconcile customary law ascertainment by ref-
erence to a rule of recognition on Hart’s terms.148 Lefkowitz accepts that
the essential problem, that is, the idea of predicating at least part of inter-
national law’s candidate rule of recognition on a persistent misnomer or
mistaken belief (that is, states’ belief that a customary norm is already bind-
ing upon them), would make sources doctrine somewhat useless as a means
of ascertaining the law in any given situation. However, he points out that
such a belief fails to distinguish two discrete processes at work: first, the
need for a given number of states to believe in the binding force of certain
customary norms (crucial to the formation of the customary norm); and,
second, the general recognition (of states) that a certain norm exists by vir-
tue of sufficient practice and such widespread belief. To be sure, in practice
there is a blurry line between the formation of the rule and its acceptance in
practice, but conceptually speaking, not only can we think of the processes
as separate, but so too can we think of the actors (states) involved as fulfill-
ing discrete roles. Specifically, in the formation of rules, states can be seen as
merely participants in a constitutive process which may or may not give rise
to the recognition of a legal norm. In the ascertainment of rules, however,
states can be understood as international legal officials whose acceptance
and operation of the international rule of recognition is what translates state
practice and opinio juris into a binding rule of international law. Accord-
ingly, the states involved in the formation of a customary rule of interna-
tional law need not, as a matter of conceptual necessity, be the same as those
that recognise the norm as binding law. There will likely be some consider-
able overlap in practice, of course, but conceptually speaking, one can still
identify two processes at work, with states fulfilling discrete functions when
involved in each process.149 As Lefkowitz explains:
Why … have so many international legal theorists thought that the creation of
new norms of customary international law suffers from the chronological para-
dox? A likely answer is that they have been misled by the fact that, in the inter-
national legal system, states comprise both the primary actors whose conduct and
beliefs give rise to the existence of a customary rule, and the vast majority of the
officials in the international legal system whose adherence to the rule of recogni-
tion leads them to deem that rule legally valid.150

148 See Lefkowitz (n 15); and see also the commentary on Lefkowitz’s ideas in K Culver and

M Giudice, Legality’s Borders: An Essay in General Jurisprudence (Oxford, Oxford University

Press, 2010) 34–37.
149 Lefkowitz (n 15) 132–34.
150 ibid 135.
98 The Institutional Problem in Modern International Law

Following this distinction, therefore, Lefkowitz argues that the chronological

paradox exists only by means of a certain conceptual confusion and actu-
ally dissolves at the practical level.151 As ingenious as this form of concep-
tual reconciliation is, however, the fundamental problem here is that this
argument still fails as a solution to the problem of uncertainty as perceived
above. In making the distinction he does, Lefkowitz offers a conceptual
solution to a problem which, as we have seen, has—both for Hart and for
international lawyers—a more functional or practical purport.152 The fact
that states are at one and the same time both officials and subjects—if indeed
they are—is precisely the problem, as in practice this structural peculiarity
of international law means that the (conceptually distinct) processes of law
creation and law ascertainment dissolve into each other.
To read into international law these kinds of functional analogies seems
only to confirm the kind of constitutional deficiency outlined above.153
Indeed, it is telling that authors who have in the past adopted these types of
dédoublement fonctionnel argument tend to be quite open about the limita-
tions of reading states as fulfilling any important, constitutional functions
in this regard,154 with many also often calling for the development of more
autonomous forms of international organisation to overcome the perceived
constitutional deficiencies of international law.155 Intuitively, this latter
form of response appears more appealing and, indeed, has become a more
widespread and explicit means of countering Hart’s scepticism. Essentially,
this argument would accept that the institutional problem identified here is

151 ibid 136.

152 Culver and Giudice (n 148) 37.
153 See on this argument Friedmann (n 147) 75, quoting from JL Brierly, The Outlook

for International Law (Oxford, Clarendon Press, 1944) 4–5, and also drawing on Ch V of
(the original 1961 edition of) Hart’s The Concept of Law (n 5). See also W Friedmann, The
Changing Structure of International Law (London, Stevens & Sons, 1964) 82–86. Hersch
Lauterpacht was perhaps the most vociferous critic in this respect, seeing such models as ulti-
mately undermining the coherence of international law as a legal system. H Lauterpacht, ‘The
Nature of International Law and General Jurisprudence’ (1932) 37 Economica 301, at 318–20.
154 I have noted many of these dissatisfactions and hopes for institutional renewal in the

previous two chapters. However, Scelle also saw from the outset that the international legal
order was fundamentally flawed in its constitutional architecture and claimed that his scheme
of dédoublement fonctionnel acted as a ‘dangerous substitute’ for a more perfect form of inter-
national organisation based on a hierarchical structure. See G Scelle, Manuel de droit inter-
national public (Paris, Domat-Montchrestien, 1948) 22. In commenting on Scelle’s scheme,
Cassese notes the particular problem of legal certainty revealed in this approach: A Cassese,
‘Remarks on Scelle’s Theory of “Role Splitting” (dédoublement fonctionnel) in International
Law’ (1990) 1 European Journal of International Law 210, at 215.
155 See, eg, Oppenheim’s views in this respect in L Oppenheim, The League of Nations

and its Problems: Three Lectures (London, Longmans, Green & Co, 1919) 21–22. Scelle also
welcomed the development of the League of Nations and, later, the UN, as tentative steps in
a more federal ordering of the international system. G Scelle, ‘Le phénomène juridique du
dédoublement fonctionnel’ in W Schatzel and H-J Schlochauer (eds), Rechtsfragen der Interna-
tionalen Organisation—Festschrift für H. Wehberg (Frankfurt am Main, Klostermann, 1956)
324, at 341; and see Cassese (n 154) 214.
 Conclusion 99

indeed a deficiency or weakness, but would counter that there had been a
significant maturation of international law in the years since Hart wrote The
Concept of Law. It would suggest, in other words, that international law is
beginning to look a lot more like the kind of well-functioning legal system
with which we are familiar from the state context, including mechanisms
for legal change and adjudication, such as to call into question the badge of
‘primitiveness’ which Hart bestowed upon the modern discipline.156
This seems, on the surface at least, a more plausible form of response
overall. However, it is also one which is not free from theoretical contro-
versy, nor indeed does it negate the very practical concern that many of
these institutional developments seem to be invoking further rule of law con-
cerns in recent years. I will say more about this form of response in Part III;
suffice to say that I remain unconvinced that such institutional develop-
ments can compensate for, or fix, the apparent deficiency identified above.
In fact, I believe the only plausible form of response to this problem is to
engage with the cogency of the domestic legal paradigm against which inter-
national law is most often compared and found wanting. I will now take
up this challenge in Part II in an effort to re-orient the focus of this insti-
tutional problem—that is, I will suggest that this problem does not at all
relate to any structural, constitutional or institutional fault or deficiency at
the international level. Rather, I will claim that the problem relates more to
a pervasive mode of theorising law, which tends to simply presume—based
solely on experience of the domestic law-state—that a governance function
inheres in law in general.

V. CONCLUSION

This chapter has described how our intuition to make sense of international
law as an autonomous legal order—understood in terms of an objective sys-
tem of rules capable of pre-empting political or moral decision-making—is
undermined considerably by the law’s institutional structure. I have used
Hart’s concept of law to illustrate how, if we conceive of international law’s
autonomy in this manner, the decentralised international legal order can-
not but appear constitutionally deficient as a result. I have drawn upon
Hart’s account not because I wish to necessarily endorse his method or his
substantive conclusion about international law’s apparent ‘primitiveness’.
Rather, I do so because his theory more than any other has been influential
in shaping disciplinary understanding of the nature of international law as
a legal system that is capable of providing determinate (or at least determi-
nable) answers to questions about the existence, scope and applicability of

156 Payandeh (n 64) 982 ff.

100 The Institutional Problem in Modern International Law

any purportedly legal norm. The above analysis of sources doctrine, and the
core example of customary international law, shows that Hart’s concerns
about the ability of international law to function at this level are, to this
extent at least, well-founded. Looked at from the perspective of an ideal
type of a centralised system of domestic law (and holding the system to
account on this basis), international law’s structural weaknesses become all
too apparent: its institutional problem is confirmed.
Of course, as I have already begun to suggest above, it need not neces-
sarily follow that because of its openness to competing uses and ends—
its structural indeterminacy—international law should be considered as
deficient or defective. Koskenniemi makes this point most clearly in answer-
ing his critics in the Epilogue to From Apology to Utopia:
The important point I wish to make … is not that [international law’s structural
indeterminacy] should be thought of as a scandal or (even less) a structural ‘defi-
ciency’ but that indeterminacy is an absolutely central aspect of international law’s
acceptability. It does not emerge out of the carelessness or bad faith of legal actors
(States, diplomats, lawyers) but from their deliberate and justified wish to ensure
that legal rules will fulfil the purposes for which they were adopted.157 (emphasis
added, footnotes omitted)
Indeterminacy thus only appears as a problem as such from outside of the
system looking in, particularly on the assumption that some form of cen-
tralised legislative will or intent could emerge in order to cut through the
competing perspectives of international legal participants themselves. How-
ever, from the perspective of any actor within the system, it seems difficult,
if not impossible, to imagine such a legitimate reference point, that is, one
having the a priori authority to give any clearer meaning to the law than
that contained within the norm itself.
I will return to this point again in Part III, where I not only present a spe-
cific normative defence of the structural openness of international law as a
system grounded in an inherently pluralist conception of international soci-
ety, but also show the inherent difficulties, if not impossibility, of attempting
to overcome or compensate for this condition. As I will claim, this struc-
tural indeterminacy cannot be ‘read out’ of international law: it is intrinsic
to a decentralised legal order. The important point, for current purposes,
is that the recurrent scepticism and disciplinary anxiety about the institu-
tional condition of international law only arises because of the presump-
tions we have made as to the core tasks and features of a well-functioning
legal order. In fact (as I have already suggested to some degree), I have some
doubts about the cogency of the functional orientation of law presumed on
this account, but to challenge this mode of thinking, I need to revert to a

157 Koskenniemi (n 12) 591–92.

 Conclusion 101

broader, theoretical analysis. In Part II, therefore, I seek to challenge head-

on the cogency of the domestic paradigm of a well-functioning legal order
which has arguably been perpetuated through the analytical method that is
dominant within contemporary legal theory. In doing so, I hope to re-orient
our understanding of the institutional problem, which I believe inheres at
the level of legal theory and conceptual enquiry, rather than being a fault or
failing of the international legal order.
Part II

Cause
 4
Presuming Hierarchy:
The Problematic Concept
of the Legal Official

T
HE FIRST PART of the book has shown how efforts to give a coher-
ent account of international law as an autonomous system of deter-
minate legal rules are undermined constantly by the decentralised
institutional structure of the international legal order. Specifically, as we
saw in Chapter 3, this structure appears problematic due to the lack of any
ostensible distinction between legal subjects and legal officials, leaving the
law seemingly indeterminate in its ability to guarantee objective standards
capable of pre-empting or foreclosing available political choices. Whilst this
structural indeterminacy has not necessarily undermined international law’s
ontological reality, there remain lingering and widespread doubts over the
normative authority, importance and influence of international law in the
conduct of international affairs.
This, in short, is what I have called the ‘institutional problem’ in modern
international law. As I have gone to some lengths to demonstrate through-
out Part I, this problem has been widely perceived—amongst legal theorists
and international lawyers alike—as a kind of structural weaknesses or con-
stitutional deficiency at the heart of the international legal order. In Part II,
however, my aim is to question, re-orient and ultimately subvert this view
of the problem. I aim to demonstrate instead how the problem arises out
of the limitations and short-sightedness of much conceptual thinking about
law, which has, in turn, coloured our perception of the specific institutional
characteristics of international law.
Insofar as many international lawyers have perpetuated this sense of
structural or constitutional deficiency, the solution that has most often
appeared imminent or essential in international legal literature has been the
need to move towards a more centralised, more autonomous institutional
architecture, that is, an institutional structure more able to effectively guide
or regulate the conduct of international affairs. In Part III, I will return to
consider some of the conceptual and practical problems related to this form
of ‘constitutional compensation’, particularly where intergovernmental
106 Presuming Hierarchy: The Problematic Concept of the Legal Official

institutional structures are seen to be implicated in forms of ‘governance’

at the global level. Before doing so, however, my immediate ambition is
to demonstrate how this sense of structural deficiency is perpetuated by
more widespread, yet contestable, presumptions about the necessary insti-
tutional features of law, themselves premised upon a view of law as inher-
ently bound together with the task of governance.
In this opening chapter of Part II, I will focus on what has arguably been
the most influential legal-theoretical approach in recent times: the analyti-
cal tradition of jurisprudence that has dominated theoretical study in the
Anglo-American world since the publication of Hart’s The Concept of Law
in 1961 (a work already discussed at length in Chapter 3 due to its dis-
tinct influence in conceptual thinking about international law). Specifically,
I examine closely the under-conceptualised, yet absolutely critical explana-
tory role of the concept of the ‘legal official’, particularly the reliance on
officials’ use and acceptance of the Hartian rule of recognition—the struc-
tural source criterion grounding and giving effect to the system of law as
a whole. Despite the essentiality of officialdom in this respect, I will argue
that analytical legal philosophy has failed to provide a convincing explana-
tion capable of conclusively identifying officials or justifying their neces-
sarily constitutive role within legal systems. I will instead suggest that the
reliance on officialdom acts merely as an analytical boot-strapping device
which does away with the need to justify pre-legal hierarchy and the kinds
of political authority found at the state level.
My ultimate ambition in the chapter is to demonstrate that this reliance
on the notion of the legal official can only really be explained in more
functional terms by thinking about the particular role of domestic law in
the maintenance of political authority or social order. To the extent that
the concept of law has been premised upon this view of law’s function,
we should thus exercise caution in invoking it in the case of non-state
legal orders, specifically international law, which appears to be widely
accepted, even deliberately constructed, as a non-hierarchical form of legal
system. This is not to suggest that this view of law’s function is neces-
sarily wrong (and, if correct, it may well confirm that there is indeed a
structural deficiency at the core of the international legal order), but only
that the methodological commitments of many analytical theorists seem
unable to substantiate any such claim (and thus any apparently negative
conclusions about international law). In fact, I will argue that we can only
reach such a conclusion on the basis of a coherent normative or ‘focal’
justification for the necessarily coercive, hierarchical character of law: an
explanation that would seem to require a more directly evaluative juris-
prudential method. I will return to consider such an alternative approach
in Chapter 5. For the moment, my attention is focused specifically on
the kind of descriptive-explanatory approach that dominates analytical
jurisprudence.
 Officialdom and the Identity of Legal Orders 107

I. OFFICIALDOM AND THE IDENTITY OF LEGAL ORDERS

In Chapter 3, I introduced the distinction between legal subjects and legal

officials as critical to Hart’s negative conclusion as to international law’s
status as a legal system. Ever since the publication of The Concept of
Law, in fact, the ‘legal official’ has been one of the most under-theorised
yet critical explanatory elements of modern analytical jurisprudence.1 In
particular, Hart’s ‘resurrection’ of analytical legal theory established what
was to become a central lynchpin of legal-conceptual analysis: the ‘practice
theory of rules’, which aims to give an account of a legal system in terms
of a critical dichotomy between the general deference of the population at
large and the more committed, systemic viewpoint of legal officials.2 More
specifically—and, again, to recall from Chapter 3—Hart claimed that there
were two minimum conditions for the existence of a legal system: that the
primary rules are generally obeyed by the populace at large; and that the
‘rules of recognition specifying the criteria of legal validity and its rules of
change and adjudication must be effectively accepted as common public
standards of official behaviour by its officials’.3
Even if analytical legal theory since The Concept of Law has sought to
expand and explicate a more nuanced account of the necessity of different
secondary rules,4 of the likely existence of multiple rules of recognition,5 or
has even challenged the adequacy of the rule of recognition as an explana-
tory device,6 what has rarely been questioned is the importance of certain
official roles, in particular judicial offices, in maintaining in existence the
foundational rules of the legal system.7 In fact, whilst in the Postscript to

1 See, however, KM Ehrenberg, ‘The Anarchist Official: A Problem for Legal Positivism’

(2011) 36 Australian Journal of Legal Philosophy 89, at 89; and for general discussion, see
Ch 1 of K Culver and M Giudice, Legality’s Borders: An Essay in General Jurisprudence
(Oxford, Oxford University Press, 2010).
2 HLA Hart, The Concept of Law, 3rd edn (Oxford, Clarendon Press, 2012) 254; Culver

and Giudice (n 1) 1.
3 Hart (n 2) 115–16. Though as Kramer points out, at other times (eg, at 107) Hart seems

at least ambiguous on who must accept the rule of recognition. See M Kramer, ‘The Rule of
Misrecognition in the Hart of Jurisprudence’ (1988) 8 Oxford Journal of Legal Studies 401, at
406. A fairer reading might suggest that whilst Hart did not rule out the broader community
acceptance of a rule of recognition as enough to sustain its validity, the fuller realisation of a
legal system appears to require official acceptance and application of the rule.
4 See, eg, N MacCormick, ‘The Concept of Law and “The Concept of Law”’ (1994)

14 Oxford Journal of Legal Studies 1, at 9–12; L Green, ‘The Concept of Law Revisited’
(1996) 94 Journal of Legal Studies 1687, at 1699.
5 J Raz, Practical Reason and Norms (Oxford, Oxford University Press, 1999) 129–31;

J Finnis, ‘Revolutions and Continuity of Law’ in AWB Simpson (ed), Oxford Essays in
Jurisprudence: Second Series (Oxford, Clarendon Press, 1971) 44, 67–70; S Shapiro, ‘What is
the Rule of Recognition (and Does it Exist)?’ in M Alder and K Himma (eds), The Rule of Rec-
ognition and the U.S. Constitution (Oxford, Oxford University Press, 2009) 235, at 246–47.
6 See, eg, Kramer (n 3).
7 N MacCormick, Legal Reasoning and Legal Theory (Oxford, Clarendon Press, 1978) 55.
108 Presuming Hierarchy: The Problematic Concept of the Legal Official

the second edition of The Concept of Law, Hart accepted certain criticisms
of the coherence of his picture of the rule of recognition,8 he nonetheless
continued to defend the core of this idea as resting still upon ‘a conventional
form of judicial consensus’.9
I will return to consider aspects of this critical debate shortly, particularly
insofar as it reveals certain ambiguities about the role and purpose of offi-
cials in their use or acceptance of the rule of recognition, but my immediate
point is to stress the centrality of the concept of officialdom as a constitu-
tive element of descriptive-explanatory accounts of legal order. Consider, for
example, Joseph Raz’s analysis of the rudiments of a legal system, which he
predicates upon the practices of certain ‘norm-applying institutions’, which
are seen not merely as important, but critical and constitutive of the sys-
temic character of law:
Many, if not all, legal philosophers have been agreed that one of the defining
features of law is that it is an institutionalized normative system. Two types of
institutions were singled out for special attention: norm-applying institutions such
as courts, tribunals, the police, etc., and nom-creating institutions such as consti-
tutional assemblies, parliaments, etc. I have argued elsewhere that the existence
of norm-creating institutions though characteristic of modern legal systems is not
a necessary feature of all legal systems, but that the existence of certain types of
norm-applying institutions is.10 (emphasis added)
Similarly, Jules Coleman explains the conceptual necessity of officials to sus-
taining the rule of recognition, in particular pointing out how legal subjects
or citizens need not necessarily accept or be aware of the rule in the same
way. As he puts it:
Law exists (is actual) when there is a rule of recognition and rules valid under it
that are generally followed by the majority of the population. Acceptance from
the internal point of view by officials is a conceptual requirement of the possibil-
ity of law; acceptance from the internal point of view by a substantial proportion
of the populace is neither a conceptual nor an efficacy requirement. Even if they
characteristically do, these individuals, as a conceptual matter, need not accept the
bulk of the other rules or the rule of recognition in a legal system from the internal
point of view.11 (emphasis added)
Coleman builds on Hart’s claim in the Postscript, noted above, that the rule
of recognition rests on a conventional form of judicial consensus, though at

8 For a good account, see A Marmor, ‘Legal Conventionalism’ in J Coleman (ed), Hart’s

Postscript: Essays on the Postscript to the Concept of Law (Oxford, Oxford University Press,
2001) 193, 194–97.
9 Hart (n 2) in the Postscript at 267.
10 J Raz, ‘The Institutional Nature of Law’ (1975) 38 Modern Law Review 489, at 491.
11 J Coleman, ‘Incorporationism, Conventionality, and the Practical Difference Thesis’ in

Coleman (n 8) 99, at 115. The same remarks are also included in J Coleman, The Practice of
Principle: In Defence of a Pragmatist Approach to Legal Theory (Oxford, Oxford University
Press, 2001) 76.
 Officialdom and the Identity of Legal Orders 109

the same time he goes further in suggesting—at least initially12—that the rule
of recognition was essentially a form of ‘coordination convention’, premised
upon a kind of game-theoretic account of shared expectations amongst offi-
cials sufficient to create the basis for a stable legal order.13
In a sense, Coleman’s account of officialdom attempts to locate a norma-
tive reason for why officials accept and use the rule of recognition, arguing
that: ‘Whatever ends it serves … the distinctive feature of law … is that it
serves these ends through rules that purport to guide conduct.’14 Thus, for
Coleman, the officially operated rule of recognition, as a form of coordina-
tion convention, provides a normative foundation for legal order, that is, a
purposive justification for law’s particular institutional structure (even if,
once constituted this way, law is understood thereafter to serve a number
of discrete purposes). A similar ambition underlies Scott Shapiro’s recent
explanation of law as a ‘planning institution’, which attempts to offer a
sociological (and in that sense positivist) account of law which is grounded
in an instrumental rationale (the necessity of planning to collective action):
Legal institutions are structured by shared plans that are developed for officials
so as to enable them to work together in order to plan for the community. These
norms set out the vertical and horizontal divisions of social labor, specifying who is
authorized to formulate, adopt, repudiate, affect, apply, and enforce the plans and
instructing them about how to engage in these various stages of social planning.15
In fact, for Shapiro, the very point of law can be understood and explained
in terms of guiding and organising ‘the behavior of legal officials through
the specification of roles that each is to play in the collective activity of legal
regulation’.16
It is thus important to note how, for all concerned here, the existence of
a certain class of official is seen as a necessary and not merely contingent or
important condition for the realisation of a system of law. If they are right,
this appears to have significant consequences for international law, where
difficulties in accounting for a separate category of legal official suggest, on
Hart’s account, that international law lacks the status of a legal system,17 or

12 Later, he appears to have moved away from this position somewhat. See the remarks in

Coleman, The Practice of Principle (n 11) 93 ff; and see generally the discussion in J Dickson,
‘Is the Rule of Recognition Really a Conventional Rule?’ (2007) 27 Oxford Journal of Legal
Studies 373.
13 Coleman, The Practice of Principle (n 11) 93–94.
14 ibid 101.
15 S Shapiro, Legality (Cambridge, MA, Harvard University Press, 2011) 176.
16 Shapiro (n 5) 249–50 and passim.
17 See Ch 3 above. Although interpretations of Hart’s views in this respect do vary, this is

a common understanding of his position on international law in Ch 10 of Hart (n 2) 213–37.

For a recent affirmation of this view, see J Waldron, ‘International Law: “A Relatively Small
and Unimportant” Part of Jurisprudence?’ in L Duarte d’Almeida, J Edwards and A Dolcetti
(eds), Reading HLA Hart’s ‘The Concept of Law’ (Oxford, Hart Publishing, 2013) 209–26.
110 Presuming Hierarchy: The Problematic Concept of the Legal Official

more pervasively—as we have seen—that the international legal order is at

best a defective or deficient form of legal system. Before reaching any such
conclusion, however, it is necessary to enquire further into the concept of
officialdom, in particular to try to define who exactly counts as a legal official
and exactly what role they are said to fulfil vis-a-vis the rule of recognition.
Indeed, given the centrality of the concept of officialdom to descriptive-
explanatory accounts of legal system, one would surely expect to see some
settled meaning or clear explanation of the concept. Nevertheless, as I will
now go on to demonstrate, there is at the very least a critical ambiguity within
such accounts as to the parameters of the concept of officialdom, as well as to
exactly what function officials are seen to fulfil vis-a-vis the rule of recogni-
tion. In particular, drawing on a recent and important work by Keith Culver
and Michael Giudice,18 I will argue that such accounts fail to move beyond
mere supposition based upon collective experience of the domestic law-state.

II. THE PROBLEMATIC CONCEPT OF THE LEGAL OFFICIAL

In suggesting the centrality of officials to post-Hartian descriptive-

explanatory accounts of law and legal systems, I do not wish to over-elevate
Hart’s theory (or other accounts which have followed in Hart’s footsteps)
as the only applicable or relevant approach to understanding international
law. However, as we have already seen in Chapter 3, to the extent that the
discipline’s own attempts to offer a coherent account of the systemic nature
of international law are often premised upon something like Hart’s concept
of law, it is necessary to understand, and to critically engage with, the wide-
spread reliance on officialdom, without which any such approach makes lit-
tle sense. Furthermore, it seems that even in the most influential alternative
theoretical models developed, for instance, those of modern natural lawyers
like John Finnis and Lon Fuller, there is an even greater conceptual inter-
relation between ideas of legality and law’s institutionalisation.19 In fact,
in the most vehemently ‘anti-positivist’ approaches to legal theory, such as
the legal realism of jurists like Alf Ross20 or, more obviously perhaps, the
interpretevist approach of Ronald Dworkin,21 the law’s material applica-
tion in the hands of judicial bodies and other authorised decision-makers
becomes even more critical to its normativity in practice. In fact, one recent

18 Culver and Giudice (n 1).

19 J Finnis, Natural Law and Natural Rights, 2nd edn (Oxford, Oxford University Press,
2011) 8–9, citing L Fuller, The Morality of Law (New Haven, Yale University Press, 1964) 210
and passim.
20 See, eg, A Ross, On Law and Justice (Berkeley, University of California Press, 1959),

34–38 and passim; and see the criticisms of HLA Hart in this respect in ‘Scandinavian Realism’
(1959) 17 Cambridge Law Journal 233, at 237–40.
21 See generally Ch 2 of R Dworkin, Law’s Empire (Oxford, Hart Publishing, 2004, first

published in 1986).
 The Problematic Concept of the Legal Official 111

commentator, writing within an avowedly Dworkinian frame, has gone so

far as to claim ‘that it is doubtful that there can ever be a legal system
without officials running it’ and, even if theoretically possible to imagine a
system without such officials, ‘their importance where they are to be found
is undeniable’.22
The important point here is that in challenging descriptive-explanatory
accounts of legal order, none of these approaches at the same time chal-
lenges the over-reliance on specific institutions or structures of authority
within those accounts; if anything, the criticism is that such theories fail
to adequately explain an important institutional element of law. As such,
I will consider further the extent that we can specifically justify officialdom
by looking beyond the frames of the descriptive-explanatory method in the
following two chapters. Here, I wish to critically examine the claim that we
can ground an adequate general concept of law from a description of the
necessary features which it is deemed law must possess. Accordingly, the
question that arises is as follows: is it possible to give a coherent explanation
of officialdom, presuming that legal officials are a necessary, constitutive
feature of law in general?
It is in response to this question, however, that certain problems of iden-
tification arise. For instance, to say that officials are merely those who by
necessity accept, use or otherwise rely on the rule of recognition does not
in any way mark out anything unique about the office and what it brings
to the conceptual coherence of a legal system. After all, it could well be the
case that in domestic legal systems, citizens themselves choose to understand
legal rules in this way, assessing the validity of substantive legal principles
by reference to a rule of recognition. In particular, Hart’s account did not
preclude this; he (like Coleman also) merely claimed that such acceptance
was not a necessary element of a legal system, whilst acceptance by officials
was.23 Are citizens, subjects or other legal persons also deemed to be legal
officials merely on the basis of their use or acceptance of the rule of recogni-
tion? If so, the problem for international law would surely be resolved, but
this clearly was not the case for Hart. Such an identifying criterion is not
only implausible, but also seems conceptually unnecessary to the existence
of a given legal order: if the only purpose of designating certain individuals
or bodies as officials is that they do as a matter of course accept, or reason
according to, the rule of recognition, their designation as such makes little

22 D Kyritsis, ‘The Normativity of the Practice of Officials: A Philosophical Programme’ in

S Bertea and G Pavlakos (eds), New Essays on the Normativity of Law (Oxford, Hart Publishing,
2011) 177, at 177.
23 Hart (n 2) 114–17; and see Coleman, ‘Incorporationism’ (n 11). However, see the criti-

cisms of Stephen Perry in this respect, who argues that this optionality of wider acceptance is
an ‘embarrassment’ on the part of Hart’s account, potentially propping up authoritarianism.
S Perry, ‘Hart on Social Rules and the Foundations of Law: Liberating the Internal Point of
View’ (2006) 75 Fordham Law Review 1171, at 1203.
112 Presuming Hierarchy: The Problematic Concept of the Legal Official

conceptual sense in terms of our ability to identify the existence of a legal

system. As Culver and Giudice claim, we need to know more about what
is distinctive in ‘occupy[ing] a special position within the legal system by
virtue of the rules of office’.24
In attempting to give an answer to this conundrum, however, they note
two immediate problems. The first and most obvious is the problem of cir-
cularity, as the concept of the legal official seems to depend for its des-
ignation on the prior existence of a legal system, yet the official is seen
as critical to the constitution of that system—a classic ‘chicken and egg’
situation.25 This problem has in fact been a common criticism of the condi-
tions for legal order given by Hart26 and, perhaps unsurprisingly, a number
of jurists have suggested means by which it is possible to escape or otherwise
show the falsity of this criticism.27 In order to defeat this problem, we need
some boot-strapping device28 or social-factual explanation of officialdom
which does not simply rely on the pre-existence of a certain type of legal
order.29 For instance, Coleman claims that officials can be identified by ref-
erence to those institutions or offices accepted by a population as exercis-
ing authority, but whose designation as officials within the context of a
particular legal system only arises once the system is constituted as such.30
MacCormick sees an intrinsic connection and inter-referentiality between
rules of change, adjudication and recognition, beyond that conceived by
Hart, which provides a sociological explanation for maintaining in existence
a legal system.31 Brian Tamanaha offers a similar, social-factual explanation
of officialdom, which essentially sees the emergence of the secondary rules
of a legal system and the acceptance of the official status of certain institu-
tions as ‘contemporaneous events’.32 Shapiro also describes the authority
enjoyed by courts (and possibly other officials) as a matter of social facts,
rather than being determined by the same rule of recognition that their prac-
tice helps to constitute. As he puts it:
[Particular] bodies are courts of a certain legal system because they generate and
sustain that system’s rule of recognition … Once we have determined that certain

24 Culver and Giudice (n 1) 10.

25 See, eg, IW Duncanson, ‘The Strange World of English Jurisprudence’ (1979) 30 Northern
Ireland Legal Quarterly 207, 220.
26 See, eg, Kramer (n 3), 407–08; B Tamanaha, A General Jurisprudence of Law and Society

(Oxford, Oxford University Press, 2001) 140–42; MacCormick (n 7) 54–56; and, more exten-
sively, N MacCormick, H. L. A. Hart, 2nd edn (Stanford, CA, Stanford University Press, 2008)
136–41; and see further references in Culver and Giudice (n 1) 6, fn 11.
27 Culver and Giudice (n 1) 10–14.
28 See, eg, MacCormick (n 7) 55–56; and see the criticism of Kramer (n 3) 413.
29 MacCormick, H. L. A. Hart (n 26) 142–44; plus the further criticism of Kramer (n 3)

414–16.
30 Coleman, The Practice of Principle (n 11) 100–01.
31 MacCormick, H. L. A. Hart (n 26) 139–40.
32 Tamanaha (n 26) 141.
 The Problematic Concept of the Legal Official 113

bodies have created and sustained the secondary rules of a legal system, we can
claim that those bodies are the courts of that system, for courts belong to a certain
legal system when they have been successful in creating and sustaining its norma-
tive infrastructure.33
The problem with these claimed solutions, however, is that they only really
justify that which is already in place: Shapiro’s argument, for instance, can-
not be used critically to determine the existence of officials in normative
orders where their presence is disputed. Whilst such pragmatic, social-
factual explanations, as intuitive as they might seem, seem to solve the prob-
lem of circularity, they do so only by relying upon, presuming or passively
accepting the prior existence of a certain hierarchy, which tends to escape
any independent justification. More critically, however, on their own, they
do not solve the second issue identified by Culver and Giudice: the problem
of indeterminacy. This problem is particularly troublesome bearing in mind
the discussion in Chapter 3, where I explained how in domestic legal orders
the problem of normative indeterminacy can be mitigated, prima facie at
least, by the presence of legal officials in domestic legal systems. If, however,
the very concept of officialdom is itself also beset by indeterminacy, the
initial problem is merely transferred to another level.
The indeterminacy surrounding the concept of officialdom arises pre-
cisely from the social-factual, intuitive nature of the above response to the
charge of circularity. This response seems to ground the concept of official-
dom in well-known and widely accepted examples of legal officials familiar
from domestic legal contexts (courts, legislatures etc). However, this form
of intuition—or, less charitably, ‘speculative anthropology’, as Leslie Green
once put this in criticising Hart34—raises two particular difficulties. First,
whilst obvious examples of domestic legal institutions are easy to identify,
such observations do not allow us to determine uncertainty at the mar-
gins of the concept: beyond judges, legislatures, the police etc, who exactly
counts as a legal official and who does not? Furthermore, such observations
tell us nothing about the discrete functions fulfilled by different officials and
whether (and, if so, why) some official roles might (as Raz suggests) be more
important than others in constituting the systemic character of law. Second,
if we accept that there is at least a penumbra of uncertainty surrounding the
outer margins of the concept of officialdom, then on what basis are we to
determine whether officials exist at all in normative orders such as interna-
tional law that claim the status of a legal system and, indeed, whether such
normative orders are therefore forms of law at all?

33 S Shapiro, ‘On Hart’s Way Out’ in Coleman (n 8) 149, at 156.

34 L Green, ‘Legal Positivism’ in EN Zalta (ed), The Stanford Encyclopedia of Philosophy (Fall
2009 Edition); available at: http://plato.stanford.edu/archives/fall2009/entries/legal-positivism,
as also cited in Culver and Giudice (n 1) 12.
114 Presuming Hierarchy: The Problematic Concept of the Legal Official

To overcome this uncertainty at the margins, accounts of officialdom

tend to leave it to the system itself, and particularly the existence of an
identifiable institutional hierarchy, to be able to determine who occupies
an official position. In so doing, however, this form of reconciliation just
seems to create another kind of circularity: an official being whoever is offi-
cially accepted as such. For instance, whilst Andrei Marmor’s account of
the rule of recognition as a constitutive convention is less categorical than
many—ie, he does not portend a rigid distinction between officials and sub-
jects, but instead suggests a kind of ‘division of labour’ or gradated idea of
officialdom—his answer still depends on the existence of a certain kind of
hierarchy. Specifically, he suggests that the closer one is to the centre of the
practice of law, the more one will be familiar with the constitutive conven-
tions necessary to keep the practice in place. On this (deliberately vague)
account, officialdom clearly encompasses more than just judges, but judicial
offices again emerge as the most important position in maintaining in exist-
ence the coherence of the legal order.35
Whilst such deference to judicial hierarchies may be tolerable in the case
of domestic law, it is obviously unsatisfactory in making sense of decentral-
ised legal orders such as international law.36 As Culver and Giudice argue,
‘if we can presume a core of officials, such as judges, who sit at the top or
center in a hierarchical structure of a legal system, worries about borders
become less worrisome, since there is in practice a means of resolving such
indeterminacy’.37 This is certainly a problem to our immediate enquiry, as
to rely on a hierarchical structure in this way is clearly at the same time to
diminish the utility of such conceptual models in making sense of systems of
law beyond the state. The more fundamental problem, though, is that even
at the state level, this explanation is inadequate, as its inherent pragmatism
seems to end up merely as unquestioning deference to authority. If questions
as to the characteristics of officialdom are merely settled by officials them-
selves, a new form of circularity emerges which seemingly does away with
the constitutive nature of the rule of recognition itself. More precisely, if
questions about the identification of law depend upon official practice and if
questions about the identification of officials are resolved by officials them-
selves, it seems that the rule of recognition need say no more than that the
law is whatever officials say it is. In fact, thinking about the role of judges in
particular, it is far from clear that the judiciary in many legal orders have a
shared, singular understanding of the system’s claimed rule (or rules) of rec-
ognition, or indeed whether certain sources of law are merely just accepted

35 Marmor (n 8) 209–10.
36 Culver and Giudice (n 1) 14–15, 21.
37 ibid 16.
 Functional Officialdom and the Problem of Translation 115

regardless of what is commonly taken to be the rule(s) of recognition of that

system.38 What matters from this perspective seems to be only the act of
acceptance, not the content of the rule itself.
Such social-factual explanations are tainted by the problem that, whilst
subordinating the ascertainment of law vis-a-vis the rule of recognition to
official practice, they fail to offer up any countervailing argument that might
explain how law determines the normative situation of officials themselves.
If evidence of the rule of recognition stems merely from official recognition
of the rule and little more is said about why officials might find it important
or necessary to maintain in existence a particular kind of rule of recognition,
then it seems that the foundations of legal order can be explained simply in
terms of official decree: a justification for institutional hierarchy without
any mediating form of accountability.
An alternative explanation, of course, is that officialdom is, after all, sim-
ply not necessary for the constitution of a legal system absent a defence of
law’s specific function or purpose and, thereafter, how such a function struc-
tures, guides and, ultimately, restrains officials in their position of authority
over other legal participants. However, it is precisely this kind of functional,
purposive justification that tends to be avoided, or explicitly rejected, by
those adopting a descriptive-explanatory methodology, who purport to
offer only an uncommitted explanation of the constitutive features of law
(or legal systems) in general terms. Nevertheless, as I will argue in the next
section, it is only on the basis of such a justification that legal theory can
offer up a convincing and coherent explanation for the necessity of official-
dom as a constitutive element of legal order.

III. FUNCTIONAL OFFICIALDOM AND THE

PROBLEM OF TRANSLATION

To recap on the previous analysis, the problem of indeterminacy as to the

concept of the legal official seems to be incapable of resolution other than
by relying on certain clear-cut examples of officialdom, including but not
limited to judges and other law-applying institutions, who are able them-
selves to determine where the distinction between official and citizen might
lie in any given situation. In other words, the concept of officialdom only
seems to operate effectively if we presume some kind of pre-existing hier-
archy in the legal system. However, relying on official acceptance in this
way begs the question of why officials are required at all as a distinct legal

38 This is of course a criticism levelled at Hart most famously by Dworkin: see principally

Ch III (‘The Model of Rules II’) of R Dworkin, Taking Rights Seriously (Cambridge, MA,
Harvard University Press, 1978).
116 Presuming Hierarchy: The Problematic Concept of the Legal Official

category; why their acceptance might matter over any other form of broader
social acceptance. In other words, from a purely constitutive perspective,
it is not at all clear what the concept of the legal official does in order to
prove essential to the concept of law. Why not, in other words, just rely on
accepted sources of law in a looser, less essentialist enquiry into law as a
social-factual phenomenon?
The answer to this conundrum appears to be that whilst officials may fulfil
many useful functions within the legal order—as acknowledged by Hart as
much as by others39—it is really the authoritative resolution function of law-
applying institutions which seems to matter most, bringing determinacy to
otherwise indeterminate legal standards. In this way, it can be said that offi-
cials contribute to the material, and not merely abstract, autonomy of a legal
system. Indeed, as we saw in Chapter 3, only if we presume that authorita-
tive resolution is critical to law’s role in society does the structural indeter-
minacy of international law seem problematic, thus undermining its overall
coherence as a legal system. However, to admit this is to equate the regula-
tory purpose of the domestic law-state with the function of law in general—a
purpose for which a measure of determinacy in identifying and applying the
law would seem necessary.40 This point is well made by Margaret Martin,
who considers the critical role that judges play within Raz’s account:
Judges are not simply important players in a political game of power and princi-
ple. Instead, they are charged with the responsibility of maintaining a stable body
of norms that the citizens can turn to for guidance … the judicial duty to apply the
law does not simply secure the exclusionary nature of legal norms. This duty also
gives shape to the legal system more generally.41
This view of law as securing a form of order and control creates a kind of
‘creation myth’, giving a justification for specific institutional features, the
essentiality of which only makes sense if we presume the correctness of the
underlying functional commitment: that is, a view of law as ‘an autono-
mous set of legal norms that can serve as reasons for action of the populace
enabling order to triumph over chaos’.42 There is much in this explanation
which is problematic if we apply this view to international law—a point
to which I return below and in the following two chapters—but the imme-
diate problem is that this functional explanation is explicitly resisted by
many analytical legal theorists, Raz included, who purport only to offer
an uncommitted descriptive explanation of the necessary features of a legal
order, and not an account (or, better, defence) of why a certain kind of

39 See discussion below at n 56.

40 Indeed, this is precisely the claim made by those espousing a more openly evaluative,
‘normative’ or ‘ethical’ form of positivism. See principally J Waldron, ‘Normative (or Ethical)
Positivism’ in Coleman (n 8) 411; as well as, more comprehensively, T Campbell, The Legal
Theory of Ethical Positivism (Aldershot, Dartmouth, 1996).
41 M Martin, Judging Positivism (Oxford, Hart Publishing, 2014) 18–19.
42 ibid 19.
 Functional Officialdom and the Problem of Translation 117

order is important, useful or otherwise preferable to others.43 In particular,

Raz suggests that a functional explanation of officialdom is inappropriate.
He admits that if merely looked at in terms of systemic function, the ‘law-
applying institution’ could be understood merely by reference to the acts of
any authorised body, person or institution accepted as fulfilling this specific
function, and he also recognises that a formal account of officialdom is
made problematic by the divergences between, and particularities of, dis-
tinct legal systems. However, he argues that it can only be the particular
nature of the office that matters, that is, the specific way in which courts or
law-applying institutions fulfil their function.44 In this respect, Raz offers a
definition of officialdom based on the peculiarities of the office itself, with
‘law-applying institutions’ identified as those bodies ‘with power to deter-
mine the normative situation of specified individuals, which are required to
exercise these powers by applying existing norms, but whose decisions are
binding even when wrong’.45
On one level, this definition seems to be a very obvious description of a
domestic judicial function. This is clearly not very helpful in conceptualis-
ing the distinctiveness of the role of the legal official if we disagree with him
in his conclusion that, or that only, law-applying institutions are necessary
to legal order. However, he does not just leave his concept of a legal system
as dependent upon official recognition; he goes further than Hart in setting
out certain attributes that a legal system must possess in making a necessary
claim to authority (thus making his definition of officialdom more com-
prehensible): these are what he terms supremacy, comprehensiveness and
openness.46 As, inter alia, Marmor,47 Tamanaha,48 as well as more recently
(and more extensively) Culver and Giudice49 have all claimed, aside from
arguably being controversial on their own terms, when put to the test, these
criteria fail to distinguish adequately the institutions of a legal system from
other forms of normative order: they are both over- and under-inclusive in
important ways, making the puzzle of the distinctive institutional structure
of a legal system only more problematic. Whilst I think there are good rea-
sons why they are correct in making these criticisms, I do not wish to push
this point further here. There is, I believe, a more profound problem with

43 For example, Leslie Green argues that: ‘Law is a modal kind and not a functional kind at

all; it is distinguished by its means and not its end. The moral value of law depends primarily
on the ends to which its means are put, and that is a contingent matter.’ Green (n 4) 1711.
44 Raz (n 10) 492.
45 ibid 494.
46 J Raz, The Authority of Law: Essays on Law and Morality, 2nd edn (Oxford, Oxford

University Press, 2009) 116 ff.

47 A Marmor, Positive Law and Objective Values (Oxford, Oxford University Press, 2001)

39–42.
48 Tamanaha (n 26) 139–40.
49 Culver and Giudice (n 1) 47–62.
118 Presuming Hierarchy: The Problematic Concept of the Legal Official

Raz’s account of law as authority, and more particularly his reliance upon
law-applying institutions, in that it really tells us little about why judges
themselves are important to the constitution of the system of law beyond
their ability to authoritatively bind others (that is, to reach determinate
solutions). In other words, read together with the authority claims he sees as
intrinsic to law, Raz’s approach suggests that judicial institutions are valu-
able to the extent that they are able to bring determinacy in the application
of the law; it suggests that Raz sees a functional benefit to the presence of
law-applying institutions that allows the law to better determine the situa-
tion of legal subjects, enhancing its ability to offer guidance on conduct, pre-
empt political choice and close off disagreement.50 However, rather than
attempt to defend this view of law’s role in society as a necessary good,
his account is built on the presumption that such functions are intrinsic to
law—they are ‘commonplace’, he claims.51 But if we can legitimately ques-
tion this presumption or indeed challenge its pretention to universality, his
refusal to justify and defend this functional orientation begins to seem far
more problematic.52
This point is picked up by Tamanaha, who argues that Raz is not alone
in presuming a certain functional purpose to law, upon which a seemingly
more neutral descriptive-explanatory account of law’s necessary institu-
tional structure can be erected. He notes how there is an implicit—though,
at times, often also explicit—premise at work in the concept of law and
legal system developed by analytical theorists, particularly in the accounts
given by both Hart and Raz: namely that the function of law is to ‘maintain
social order’.53 Though dismissing the possibility of a functional explana-
tion of the necessary institutional features of a legal system, Raz seems to
have premised his entire theory on the view that law must guide conduct,
pre-empting or foreclosing other political and moral choices.54 Similarly,

50 Raz denies that his account of law commits him to a view that law serves any particular

role of social coordination, let alone a form of coercive authority. See J Raz, ‘Postema on Law’s
Autonomy and Public Practical Reasons: A Critical Comment’ (1998) 4 Legal Theory 1, at
2–4. However, see critical comments to the contrary in Tamanaha (n 26) 143–44, pointing out
how Raz imposes an efficacy requirement on law as a form of coercive realisation of social
order. Furthermore, the idea of authority underpinning Raz’s concept of law clearly seems to
rely on an unstated view of the role of municipal legal systems which is dangerously close to
authoritarianism. See in this respect the criticism in D Dyzenhaus, ‘Why Positivism is Authori-
tarian’ (1992) 37 American Journal of Jurisprudence 83, at 101 ff. On Raz’s clear reliance on
the hierarchical structure of the domestic law-state, see generally Ch 2 of Culver and Giudice
(n 1). And see also the more general criticisms of Raz’s inconsistency in M Martin, ‘Raz’s The
Morality of Freedom: Two Models of Authority’ (2010) 1 Jurisprudence 63 and developed at
length in Martin (n 41).
51 Raz (n 46) 50–51.
52 See discussion in Martin (n 41) 97–98.
53 Tamanaha (n 26) 135.
54 For an example of this kind of claim, see, inter alia, Raz (n 5) 144. For discussion, see

Martin (n 41) 117–23 and passim.

 Functional Officialdom and the Problem of Translation 119

in Hart’s work, we see numerous references to the idea of law as a means

of ‘social control’,55 yet no attempt to justify this purpose beyond intuition
from the domestic context.56
There is a certain ambiguity in Hart’s account in this respect, which
is addressed by Lefkowitz in his attempt, noted in Chapter 3, to apply a
Hartian approach to the identification of customary international law.
Lefkowitz shows how Hart seems to move between two versions of the
rule of recognition, which at times is seen to serve an identification function
and at other times a more unifying, systematising function, requiring the
authoritative resolution of disputes about the meaning and application of
any given rule in concrete situations.57 As he notes:
Hart elides an important distinction between … the ontological function and the
authoritative resolution function of such a rule. The former makes possible the
kind of justification and criticism constitutive of a rule-governed practice for iden-
tifying norms as legally valid. The latter makes possible the settling of disputes
over what the law is, as well as over the scope of particular legal norms.58
On the basis of the points raised in Part I, it seems obvious that interna-
tional law would fail this latter, more ambitious functional test, due particu-
larly to the fact that it lacks the institutional structure necessary to ensure
authoritative resolution in the sense described. In order to reconcile Hart’s
approach with a systemic account of the international legal order, Lefkowitz
attempts to decouple these two functions; he argues that if we think in terms
of a constitutive, ontological function alone, it would be possible to read
states themselves into an official role at the international level.59 However,
as we saw in Chapter 3, whilst such an account could provide conceptual

55 Hart (n 2) 40, 9–91, 165, 188, 208; and see the discussion in Tamanaha (n 26) 136. On

the many meanings which we might attach to the notion of social order/control in this context,
see also discussion in W Twining, ‘A Post-Westphalian Conception of Law’ (2003) 37 Law &
Society Review 199, 215–17.
56 As we saw in Ch 3 above, Hart is quite open about the benefits (and risks) of a society

moving from the pre-legal and primitive form of legal order to one which is structured accord-
ing to officially operated rules of recognition, change and adjudication. These benefits include
‘adaptability to change, certainty, and efficiency’; however, Hart says that such benefits accru-
ing from the centralisation of authority within the state will have to be weighed against the cost
in terms of the ‘risk that the centrally organized power may well be used for the oppression of
numbers with whose support it can dispense, in a way that the simpler regime of primary rules
could not’. See Hart (n 2) 202. These risks are discussed at length in relation to the challenge
of the rule sceptics, who for Hart would essentially have the law determined entirely by judicial
fiat. In response, Hart outlines how judges’ authority will always exist in a precarious balance,
having to recognise its limits in the context of the overall coherence of the legal system (ibid
141–45). See further the discussion above in Ch 3, section III.
57 D Lefkowitz, ‘(Dis)solving the Chronological Paradox in Customary International Law:

A Hartian Approach’ (2008) 21 Canadian Journal of Law and Jurisprudence 129, at 145–46.
For somewhat similar concerns on the ambiguities around the construction and use of the rule
of recognition, see also Twining (n 55) 230–31.
58 Lefkowitz (n 57) 146.
59 ibid 146–47.
120 Presuming Hierarchy: The Problematic Concept of the Legal Official

completion to international law as a system in a way that would allow a

reconciliation with Hart’s concept of law (at least on one reading), it also
seems to leave the concept of the legal official logically redundant: one could
simply speak of states and other participants or actors as recognising certain
sources of law and give a systemic account on those terms alone. In other
words, it seems difficult to read Hart in this way, that is, to find a reason
for the distinction between subject and official, as well as any justification
for the practices of officials, solely in terms of their using, deferring to and
reasoning according to the rule of recognition.
As such, to give this kind of descriptive explanation—relying on recognised
hierarchies and the prior existence of certain norm-applying institutions
as necessary institutional features of all forms of law or legal system—
is surely problematic without going further in offering and, importantly,
normatively defending a specific justification for law as a method of social
ordering, facilitated through centralised institutions capable of giving an
authoritative resolution to normative problems.60 It would seem that the
accuracy of what, for example, Hart entails to be essential institutional
features of a legal system, and therefore seemingly absent or deficient at
the international level, depends upon the correctness of the assumptions
he makes about the point, purpose or function of law in general, includ-
ing within the domestic context. As Tamanaha notes, there is an awkward
elision of functionalist and essentialist logic in Hart’s account, which, in
turn, sits uneasily with the social-factual (or conventional) methodology
underpinning analytical jurisprudence. This movement between conven-
tionalism, functionalism and essentialism allows Hart to eliminate as not
subscribing to certain forms those legal orders which might be constituted
differently from domestic law (his essentialism), yet which can be under-
stood, perhaps, to fulfil the same purpose (his functionalism). However,
the particular constitutive features of law thus taken to be essential seem
to be highly contingent upon a fuller normative justification for the specific
functional orientation of law—a justification which is largely absent apart
from certain scattered remarks which, as noted above, seem to suggest (but
not substantiate or defend) the function of law as a means of social con-
trol.61 To put this same point another way, if the union of primary and
secondary rules in Hart’s account was seen purely in terms of conventional
usage, then it would surely apply to any system which demonstrated sys-
tematicity, yet did not necessarily function to maintain social order. At the
same time, if functionality was key, it would equally would that a legal
order which fulfilled a social-coordination function (or whatever function

60 See the discussion and criticisms of, inter alia, Martin (n 41) 97–98 and passim; Finnis

(n 19) Ch 1; Waldron (n 40) 429–31; and R Cotterrell, The Politics of Jurisprudence: A Critical
Introduction to Legal Philosophy, 2nd edn (Oxford, Oxford University Press, 2003) 107–11.
61 Tamanaha (n 26) 138.
 Moving Beyond the State: A Way Forward for Conceptual Enquiry? 121

we presume is intrinsic to law) yet was constituted differently (for instance,

was decentralised in structure) could still qualify as law. However, nowhere
is this functional account put to the test due to the essentialist claims Hart
makes about the necessary institutional structure of law in general.62 Ulti-
mately, despite underlying assumptions based on functional utility, it seems
that it is essentialism which prevails over functionalism in Hart’s account,
as well as in much of the analytical tradition that has followed.63

IV. MOVING BEYOND THE STATE:

A WAY FORWARD FOR CONCEPTUAL ENQUIRY?

This disavowal of functionalism in thinking about necessary features of

law thus seems problematic if we have no other convincing justification
for the essentiality of legal officials within legal theory. Whilst there have
been attempts to plug this apparent gap, aimed at giving a more coherent
account of the functional role played by the officially operated rule of rec-
ognition, these efforts have proved controversial precisely because they tend
to embrace commitments to which a descriptive-explanatory methodology
seems opposed. For instance, we saw above that Coleman had developed
(though apparently later moved away from) an account of the rule of rec-
ognition as a coordination convention. However, this kind of explanation
seems controversial precisely because it presumes an essential function at
the basal level of the system, without offering up an a priori justification
or normative commitment to this view. Many if not most analytical legal
philosophers (including, inter alia, Hart, Raz, Dickson and Green) have
been explicit that law does not necessarily serve one particular function;
that it can be described modally by reference to how it functions rather
than what function it serves.64 In the Postscript to The Concept of Law,
Hart makes this point in response to Dworkin, in particular arguing that
it is ‘quite vain to seek any more specific purpose which law as such serves
beyond providing guides to human conduct and standards of criticism of

62 ibid 142–45.
63 Similar criticisms have been levelled at those like Postema or Coleman who have pre-
sented a ‘conventionalist’ account of the rule of recognition, but defined this conventional
account in terms of social coordination—the presumption being that law has as its function the
task of providing a meta-solution to collective action problems. See, eg, G Postema, ‘Coordina-
tion and Convention at the Foundations of Law’ (1982) 11 Journal of Legal Studies 165; and
the criticisms contained in A Marmor, ‘The Conventional Foundations of Law’ in Bertea and
Pavlakos (n 22) 144, at 150–51.
64 See, eg, Hart (n 2) 24–50. Raz devotes Ch 9 of The Authority of Law (n 46) to law’s many

functions, but has been clear that law cannot be defined by reference to any one of them: Raz
(n 50) 2–4; Green (n 4) 1709–11; and see J Dickson, Evaluation and Legal Theory (Oxford,
Hart Publishing, 2007) 112.
122 Presuming Hierarchy: The Problematic Concept of the Legal Official

such conduct’.65 Nevertheless, it is clear that at other points, this seemingly

uncontroversial ‘conduct-guidance’ function seems to easily morph into a
fuller, more regulatory ideal, which, in turn, tends only to reinforce the
particular institutional character of the modern state form, particularly the
presence of coercive, authoritative dispute settlers.
Following this line of reasoning, and in attempting to rescue the con-
ventionalist explanation as a justification for the institutional and systemic
structure of law, Marmor has argued that the rule of recognition cannot be
understood as primarily related to a function of social coordination or con-
trol. Rather, by necessity, he argues that it can only be held to play a consti-
tutive role in the validation of legal rules and thus the constitution of a legal
system (even if the way in which it is used and operated by legal officials
may also have benefits in terms of social coordination, that is, by bringing
greater determinacy through authoritative resolution). To the extent that
the rule of recognition might also bring such contingent benefits, however,
Marmor points out that, logically speaking, it must be possible to ascertain
the law, to define what it is, before we seek greater determinacy in identify-
ing the law, that is, in giving it specific meaning in particular instances:
[I]f there are reasons to have rules of recognition, those reasons must be very inti-
mately linked to the reasons for having law in the first place. Certainty about what
the law is cannot be the main reason for having law. There must be some reasons
for having law first, and then it might also be important to have a certain level of
certainty about it. It cannot be the other way around.66
This is an important observation underpinning Marmor’s claim that law has
to be understood as a relatively autonomous social practice and, as such,
that the rule of recognition provides the criteria necessary for achieving that
degree of autonomy. To see the rule of recognition as purposefully driven
towards a certain aim, ie, social co-ordination, would seem to undermine
this claimed autonomy (as there may well be more than one way to achieve
this end, thus risking the abstract form of the law becoming subjugated to its
function). Rather than thinking in terms of functions or functionalism, how-
ever, Marmor describes his defence of law’s autonomy as ‘historicist’:67an
attempt to explain the form of law as a matter of social contingency that
does not prioritise any one particular function.
There is much in this particular observation that is potentially important
(and much that is potentially controversial),68 but it suffices to recognise

65 Hart (n 2) 249.
66 Marmor (n 63) 150.
67 Marmor (n 8) 216–17.
68 For instance, both Dickson and Green deny that such an account would be a ‘conven-

tionalist’ account at all; that Marmor is merely describing a practice theory of rules which does
not require the concept of the social convention—which, in fact, suggests a functionality which
Marmor is not purporting to explain. See Dickson (n 12); L Green, ‘Positivism and Conven-
tionalism’ (1999) 12 Canadian Journal of Law and Jurisprudence 35, at 41–43 and passim.
Moving Beyond the State: A Way Forward for Conceptual Enquiry? 123

two particular difficulties for the moment. First, if the rule of recognition is
merely an historically contingent social convention (telling us what the law
is, who has which powers etc), then why would the existence of this conven-
tion necessarily presuppose the kind of division of labour (between subjects
and officials) which Marmor also describes as important or necessary to
the existence of legal order? Although Marmor suggests a means to resolve
the question of who is an official—one which, as we saw above, is hardly
satisfactory—it is not at all clear why he needs a concept of officialdom
at all. His reliance on legal officials seems persuasive only to the extent
that Marmor sees the apparently secondary benefit of greater determinacy
brought about through authoritative resolution as a still important, even
if perhaps not constitutively necessary, component of a mature system of
law.69 At the root of this concern, however, lies a second, deeper problem
with Marmor’s account, in that he seeks to make essentialist claims about
the institutional character of law that are premised merely upon historical
contingency rather than specific normative justification. In his effort to pri-
oritise the rule of recognition’s constitutive rather than authoritative reso-
lution function, there still seems to be a value judgement which recognises
the importance of law’s autonomy, a value that might be threatened by any
more instrumentalist logic. However, it is questionable whether Marmor
can really defend this value coherently due to the conventionalist (or his-
toricist) methodology that underpins his theory. This theory offers no criti-
cal ammunition by which to disprove or disregard the views of, on the one
hand, those legal participants who would see law’s ambitions or ends as
more important than its means or methods, or, on the other, those who
would defend the ontological reality of putatively legal orders like interna-
tional law, which appear to function systemically but lack any meaningful
distinction between legal officials and other legal actors or participants.
One way out of this apparent conundrum, of course, would be to
embrace empiricism at the expense of any such essentialist claims, that is,
to give a social-factual, or conventional, explanation of law all the way
down. This potential—and potentially quite radical—way forward is advo-
cated by Tamanaha, for instance, whose commitment to legal pluralism has
caused him to abandon almost all essentialist claims about the necessary
institutional characteristics of law. Instead, he seeks to explain the operative
validity of any given legal order in purely social-factual terms, based on its
societal acceptance alone.70 Tamanaha’s approach does not seek to jettison

69 I owe this observation to Mike Giudice, who points out how we might be able to specify

the existence and content of some social rule to a certain degree of certainty without necessar-
ily depending on legal officials to identify and reason according to this rule. Hence, even if we
see certainty as a necessary condition for the existence of a system, it might still not require
officialdom per se.
70 Tamanaha (n 26) 166–70 ff.
124 Presuming Hierarchy: The Problematic Concept of the Legal Official

criteria for legal validity entirely, but it does mean that ‘any members of a
given group can identify what law is, as long as it constitutes a conventional
practice’ and therefore also recognises that ‘a given manifestation of law …
might completely lack legal officials’.71 He recognises the vagaries of this
test, in particular that it does not provide a criterion level of acceptance: for
instance, it does not tell us how many members of a group need to recog-
nise the binding nature of law for it to be operative over them, nor does it
deal with the potential problem of linguistic aberrations. Nevertheless, he
contends that these uncertainties do not hinder the acknowledgement and
ascertainment of juridical law in operation in a given community, which can
be established simply on the basis of both ‘[c]ontext and usage’.72
There is great potential in this approach to move jurisprudential enquiry
forward to embrace a more genuinely universal (less parochial) empiri-
cism, aimed at understanding the constituent features of law in its many
diverse global contexts.73 In particular, Tamanaha’s effort to show the
social and historical contingency of supposedly essential features of legal
order—indeed, to demonstrate the back-to-front view that law is somehow
constitutive of social order (rather than, for instance, seeing the contingent
institutional features of law themselves as a product of the instigation of a
certain form of social order)—is a particularly welcome disciplinary move.74
At the same time, however, in his thorough review of Tamanaha’s work,
William Twining is surely correct that this attempt to give up on all essen-
tialist claims about law is counter-intuitive and unworkable if jurisprudence
is to play any critical role in offering practical truths or useful observations
about law, particularly in cases where the law-like quality of a particular
normative order is in dispute.75 Tamanaha’s use of ‘folk concepts’ to draw
out conclusions about how law is used and understood is important and
critical if jurisprudence is to develop conceptualisations of law which are
meaningful to those who use them, but any such enquiry can only be a first
step.76 In particular, to rely on participant perspective alone would seem
to run into trouble when there is internal disagreement within communi-
ties or a blurring of the boundaries between legal and purportedly legal
normative orders, seemingly requiring a conceptual framework that aids

71 ibid 166.
72 ibid 168.
73 The criticism of jurisprudential parochialism has been gaining in force in recent years.

See, eg, W Twining, General Jurisprudence: Understanding Law from a Global Perspective
(Cambridge, Cambridge University Press, 2009) 10–11 ff. And see my commentary on this
disciplinary transition in R Collins, ‘No Longer at the Vanishing Point? International Law and
the Analytical Tradition in Jurisprudence’ (2014) 5 Jurisprudence 265, at 273–75.
74 Tamanaha (n 26) 223–24.
75 Twining (n 55) 229–30.
76 ibid. On this particular point in relation to international law, see also P Capps, Human

Dignity and the Foundations of International Law (Oxford, Hart Publishing, 2009) 23.
Moving Beyond the State: A Way Forward for Conceptual Enquiry? 125

in distinguishing, or deciding upon relative importance, in coming up with

useful generalisations or comparative frameworks. This is a point picked up
by Culver and Giudice, who, whilst being sympathetic to Tamanaha’s ambi-
tions, as well as many of his observations, argue that his ultimate conclusion
‘disarms legality of its special explanatory task and role’,77 with his account
therefore ceasing to be useful as a way of resolving disputes about the legal-
ity of putatively legal orders.78
If Culver and Giudice are right, how are we to move forward to account
adequately for what might or might not be necessary institutional features
of law or legal systems? One option might be to follow what Twining refers
to as a ‘thin functionalist’ approach, seeking to re-integrate law’s institu-
tional and normative aspects to understand the role that it plays in ordering
societal relations. As he explains:
If ‘ordering’ is interpreted to be wider than social control and social order to
include constitutive, facilitative, facultative, symbolic, benefit-conferring, and
educative functions, this allows for the possibility that a given example of law is
not necessarily concerned with any particular function, such as dispute processing
or authoritative regulation, but still invites attention as ‘law’.79
Pared down to a certain level of abstraction, this view of law’s function—
itself premised on Karl Llewelyn’s famous ‘law jobs’ theory80—seems largely
uncontroversial, easily mapping on to international as much as domestic
legal practice. At the same time, however, it does seem to come up short
in two ways. First, even if less demanding, and in that sense more univer-
sal, in its apparent reach, simply positing or presuming certain functional
truisms doesn’t seem any less controversial a methodological approach if
we accept that there may also be a view of law’s function which extends
beyond simply ordering human affairs in the way suggested. By positing
this function—suggesting essentially the empty formal autonomy of law as
an end in itself—Twining’s argument seems to accord with the approach
of those, like Marmor, who are anxious that any more instrumental task
may undermine the distinctive identity of law. However, precisely for this
reason, this approach suggests something valuable and important in law’s
formal autonomy, therefore requiring evaluative judgement on the part of

77 Culver and Giudice (n 1) 145.

78 ibid 146.
79 Twining (n 55) 241. This approach also has some affinity with the kind of systemic inter-

referentiality inherent in the notion of autopoiesis advocated by Luhmann. This would re-
orient Hart’s rule of recognition to demonstrate how the legal system can assign roles and
specify relationships between norms, without at the same time needing to defend a specifi-
cally hierarchical concept of officialdom. See N Luhmann, ‘Operational Closure and Structural
Coupling: The Differentiation of the Legal System’ (1992) 13 Cardozo Law Review 1419, at
1426–29.
80 See, eg, KN Llewellyn, ‘The Normative, the Legal, and the Law-Jobs: The Problem of

Juristic Method’ (1940) 49 Yale Law Journal 1355.

126 Presuming Hierarchy: The Problematic Concept of the Legal Official

the theorist to not merely record but also defend this view against those who
may take a different position on law’s ultimate purpose.
Recognising this point, however, raises a second issue. Without endorsing
and justifying some account of human goods in this respect, how are we
to non-arbitrarily prioritise this view over the more demanding ‘regulatory
governance’ model of law outlined above? Just because certain hierarchi-
cal institutional forms are defended intuitively or presumptively based on
shared experiences of the domestic law-state does not, in itself, demonstrate
the falsity of their importance to a successful account of law viewed in func-
tional or ‘focal’ terms. Might it not be the case, for example, that some
form of compulsory form of adjudication would improve upon the exist-
ing international legal order if it were so instigated? Unless we are able to
reflect upon, critically consider and test the normative assumptions which
underpin these views as to law’s limited functions, we surely do not have the
methodological tools necessary to give an answer to such questions.
As it happens, I believe the answer to this question is in the negative,
but my reason for thinking this depends upon a distinctly non-instrumental
account of legality, an account which requires a specific normative defence
of the autonomy of international law in order to explain its critical impor-
tance to the conduct of international politics. I will say more about this
briefly in Chapter 6 and then further throughout Part III, but to get to this
point, it is necessary to re-orient the methodological approach which we
might employ in engaging in such conceptual analysis. This is the task I take
up in the next chapter.

V. CONCLUSION: PRESUMING THE LAW-STATE?

There is a danger that the above critique may come across as a hair-splitting
exercise, looking for some justification for certain presumptions or intui-
tions about law which are widespread, ingrained and largely uncontrover-
sial. However, the critique is necessary in making a more fundamental point
that is particularly germane to our current enquiry: if legal orders such as
international law are widely understood, practised and practicable as legal
systems, and if the only basis upon which this system might appear defective
or deficient is the lack of a hierarchical, centralised institutional structure,
then it must be the case, I would submit, that we have a strong underpinning
rationale for why those features are seen as essential or important. Such
features cannot simply be presupposed in order to thereafter build our legal
theories upon them; indeed, to do so would seem to undermine any preten-
sion to generality or universality in our conceptual enquiry.
As such, to the extent that a widespread reliance on the concept of offi-
cialdom reveals certain hidden, under-theorised or simply unjustified views
about the functional orientation of law, there seems to be enough room
 Conclusion: Presuming the Law-State? 127

to doubt the coherence of the conceptual models against which interna-

tional law is so often held up and found deficient. It appears that without
an attempt to move beyond description and intuition, to set out to defend
an account of law’s essential purpose or aim by reconnecting legal theory
and political philosophy to a significant extent, it will be hard to sustain
any such presumptions. Nevertheless, such a disciplinary move appears
to be excluded by the descriptive-explanatory methodology prominent in
analytical jurisprudence, and indeed is explicitly resisted by many theorists
working within this tradition. Recognising these methodological limitations
is not enough, of course, to suggest that these theorists’ intuitions and pre-
sumptions about law’s function or purpose are necessarily wrong, but it
does suggest that we need to consider whether we are able to vindicate this
view of law’s task and whether thereafter this justification offers a plausible
conceptual model by which to critically engage with international law. The
next chapter begins the task of taking up this challenge.
 5
A Functional Jurisprudence?
Methodological Controversies
in Contemporary Legal Theory

T
O WHAT EXTENT are we able to conceptualise law, to define it,
by reference to an inherent point, purpose or function? This was the
question left open at the end of the previous chapter, and to which
I now turn my attention. An increasing number of analytical theorists have
sought to defend a more explicitly functional account of law in this respect,
accepting that an explanation or analysis of law’s structural or institutional
aspects can only really follow once we have a plausible account of law’s
overarching purpose. For instance, in developing his ‘institutional theory of
law’, Neil MacCormick argues that:
[H]uman artefacts and contrivances, including any rules by which people try to
live, or get others to live, have to be understood functionally. What is their point,
what is the final cause to which they are oriented? They perform well or ill, are
in good shape or bad, to the extent that they can be seen to work towards these
essential ends with a minimum of regrettable side-effects.1
Scott Shapiro develops a similar argument in defending his view of law as
a ‘planning institution’, which, as we have seen, specifically premises ques-
tions of law’s institutional design upon a proper appreciation of its function
in society:
[L]egal systems exist, and exist in the form that they do, because they serve certain
functions. By having available institutions that create, modify, and apply rules, the
law is able to secure benefits that it would not be able to secure, or secure as well,
without them. The functionalist view does not imply that the functions served
by the law are worthy ones … [it] does, however, require that the proper way
to evaluate the law is to assess whether legal institutions are serving worthwhile
functions and whether they are serving them well.2

1 N MacCormick, Institutions of Law: An Essay in Legal Theory (Oxford, Oxford Univer-

sity Press, 2007) 305; and see further on this point N MacCormick, ‘Norms, Institutions, and
Institutional Facts’ (1998) 17 Law and Philosophy 301, at 335–36.
2 S Shapiro, ‘On Hart’s Way Out’ in J Coleman (ed), Hart’s Postscript: Essays on the Post-

script to the Concept of Law (Oxford, Oxford University Press, 2001) 149, at 187.
 A Functional Jurisprudence? 129

In methodological terms, this argument seems to offer an interesting move

forward for analytical legal theory. Rather than defining legal orders by
reference to whether or not they possess certain structural features or insti-
tutional characteristics, those features become parasitic upon a proper
appreciation of law’s point or, to borrow MacCormick’s terminology, its
‘final cause’.
At the same time, there lies a critical point of controversy at the core of
Shapiro’s remarks above: he claims that the legal theorist is required to iden-
tify ‘worthwhile’, but not necessarily ‘worthy’, functions, suggesting still a
critical distance that divests the theorist from any responsibility in having to
endorse and morally defend a particular view of the function or purpose of
the law. The question which this necessarily provokes, however, is how one
is to understand law functionally in anything other than an arbitrary way? If
officials, citizens and other legal ‘participants’ disagree over what the neces-
sary function of law is, within as well as between different legal orders, how
are we to choose between these views to decide upon law’s necessary func-
tions and institutional characteristics other than through intuition, arbitrary
selection or a kind of lowest-common-denominator aggregation of common
and uncontroversial claims about law’s role in society?
This is what Patrick Capps has recently termed the ‘methodological prob-
lem in legal science’, that is, the difficult question of how ‘objective knowl-
edge can be had of law as a practical phenomenon’.3 It is this question that
I take up in this chapter. Specifically, I will consider whether it is possible and
plausible to normatively defend a functional account of law which is not in
some sense arbitrary or specific to a particular social and political context.
To do so, I draw on the approach of John Finnis and in particular his meth-
odological critique of HLA Hart (and, by implication, many others develop-
ing Hart’s ‘practice theory’ of rules, as outlined in the previous chapter), and
his own efforts to re-orient legal theory towards a more ‘focal’ method. In
doing so, I will agree with Finnis as to the need to reconnect legal and politi-
cal philosophy, that law must be understood on the basis of its functional
purpose in human communities, and that it behoves the legal theorist to
advance a rationally defensible ideal account of this purpose. Nevertheless,
whilst I will accept and adopt Finnis’ methodological critique in this respect,
I will cast doubt on his substantive conclusions as to law’s purpose, and
more specifically how this translates at the institutional level: his account
ultimately vindicating the kind of hierarchical institutional structure which
one might more readily associate with the task of domestic governance. In
fact, in Chapter 6, I will return to explain in more detail why this view fails
as a theory of law in the domestic as much as the international context.

3 P Capps, Human Dignity and the Foundations of International Law (Oxford, Hart

Publishing, 2009) 23.

130 A Functional Jurisprudence?

I. METHODOLOGICAL CONTROVERSY IN LEGAL THEORY

How might we begin to forge a response to the methodological problem

just outlined? Intuitively, in line with the kind of analysis and approach to
international law advocated in Chapter 3, it surely behoves the legal theorist
to take account of how law is understood or valued amongst those individu-
als, institutions or officials who are immersed within, or subject to, law as
a form of social practice.4 Indeed, recognition of the importance of this
‘internal point of view’ has arguably been one of the most important lega-
cies of Hart’s contribution to jurisprudence, reflected not only in the ‘social
thesis’ shared amongst most contemporary forms of legal positivism,5 but
also of much wider significance as a starting point for many, if not most,
forms of contemporary jurisprudential enquiry.6 As Julie Dickson argues,
‘legal theorists making judgments of importance and significance about
their subject matter must be guided by what is considered important and
significant by those who create, administer, and are subject to the law and
whose views and activities constitute the subject matter of jurisprudential
inquiry’.7 For instance, at the international level, relevant participants might
include states and international lawyers, but also a much broader array of
non-state actors, individuals and institutions. As Capps explains:
[I]nternational law is a practice which is meaningful to those involved in it. For
the sake of convenience, those involved in this practice can be called interna-
tional lawyers, but it can obviously involve a much wider array of individuals
and groups. The job of the legal scientist is to articulate general concepts about
this practice which take into account its meaning for those involved in it. This is
a well-known starting point which unifies a wide range of positions in legal and
social science.8

4 As Postema explains, the analysis of law ‘requires that legal theorists frame their accounts of

the nature of law in terms that take … participant beliefs into account and make them intelligible’.
G Postema, Bentham and the Common Law Tradition (Oxford, Clarendon Press, 1986) 335.
5 For instance, J Raz, The Authority of Law: Essays on Law and Morality, 2nd edn (Oxford,

Oxford University Press, 2009) 41–45.

6 On this point generally, see J Dickson, Evaluation and Legal Theory (Oxford, Hart Pub-

lishing, 2001) 39–40; M Martin, Judging Positivism (Oxford, Hart Publishing, 2014) 96–97.
On the relationship between participant perspective and the construction of hermeneutic con-
cepts, see also the thoughtful analysis of I Farrell, ‘H.L.A. Hart and the Methodology of Juris-
prudence’ (2006) 84 Texas Law Review 983, at 1002–03.
7 J Dickson, ‘Methodology in Jurisprudence: A Critical Survey’ (2004) 10 Legal Theory

117, at 124. Frederick Schauer makes a similar point when he notes that in order ‘to under-
stand the phenomenon of law and the behaviour of its inhabitants, we need an accurate empiri-
cal understanding of the legal enterprise, without which we cannot hope to analyse even its
normative and philosophical aspect’. F Schauer, ‘The Limited Domain of the Law’ (2004) 90
Virginia Law Review 1909, at 1414.
8 Capps (n 3) 23. I engage with Capps’ work, and many of its methodological claims, at

length in R Collins, ‘No Longer at the Vanishing Point? International Law and the Analytical
Tradition in Jurisprudence’ (2014) 5 Jurisprudence 265. Some of the remarks which follow in
this and the next chapter are informed by or follow on from the claims defended in that work.
 Methodological Controversy in Legal Theory 131

Whilst this might be a relatively straightforward and uncontroversial

starting point, Capps is surely correct in his assertion that the more perti-
nent problem facing the legal theorist is that such participant perspective
is far from concordant or homogeneous: individual participants tend to
disagree not only about what the law is, but also about what law is and,
importantly, what it is for.9 To merely record, collate or aggregate wide-
spread perspectives about the nature of law is likely itself only to reproduce
conceptual uncertainty. If the nature of law or legal practice is understood
differently from one participant to another (and, in fact, from one legal
order to another), then it will be impossible to arrive at any coherent
understanding of law in general (or international law in particular) simply
by referring to this ‘raw data’ alone—or, indeed, and more acutely, the
interpretations placed upon such data by the participants themselves. The
more difficult question therefore concerns how we are to choose between
such competing accounts in order to evaluate and select what is important
and significant about law in a non-arbitrary way.
In many ways, the question of how to go about making sense of this ‘raw
data’ has been one of the most central, controversial and divisive issues in
modern legal theory, particularly since Ronald Dworkin’s engagement with
Hart’s work,10 and Hart’s own attempt in the Postscript to The Concept of
Law to reflect on his method and defend a value-neutral, descriptive form
of conceptual analysis.11 Whilst I do not intend to revisit and re-open that
specific debate, it is Hart’s reassertion of the descriptive methodological
commitment underpinning his (and others’) approach which has arguably
given rise to the most amount of methodological controversy.12 As we saw
in the previous chapter, theorists following in the Hartian tradition tend to
argue that whilst law plays an important function in society—perhaps even
many important functions—it cannot be defined by reference to any one or
more of those functions. Rather, any plausible conceptualisation of law, it
is argued, must purport to identify the law by how if fulfils its functions: its
specific institutional features and defining characteristics. We have already
considered certain versions of this argument in the previous chapter (partic-
ularly from Raz), but, for convenience, Dickson summarises this distinctly
‘institutional approach’ well:
On such an approach, the primary focus of jurisprudential inquiry lies with those
distinctive legal institutions and processes which reveal the structure and mode of
law’s operation, and which help us to place and understand legal institutions in

9 Capps (n 3) 70–71. Ronald Dworkin makes a similar point in Law’s Empire (Oxford,

Hart Publishing, 2004, first published in 1986) 4–5.

10 See, eg, Ch II (‘The Model of Rules I’) of R Dworkin, Taking Rights Seriously

(Cambridge, MA, Harvard University Press, 1978) 14–45.

11 HLA Hart, The Concept of Law, 3rd edn (Oxford, Clarendon Press, 2012) 239–44.
12 See, eg, SR Perry, ‘Hart’s Methodological Positivism’ in Coleman (n 2) 311–54.
132 A Functional Jurisprudence?

relation to other social and political institutions. Many theorists in this tradition
do not even accept that law has one overall point or function, let alone that a
whole tradition of jurisprudential thought converges upon one view of law’s func-
tion such as to render it uncontroversial.13
Towards the end of the previous chapter, I began to sketch out one particular
problem with this view of the task of legal theory. Specifically, the ‘distinctive
legal institutions and processes’ vindicated by those following a descriptive-
explanatory methodology seem still to be highly contingent upon the pre-
sumptions and intuitions of legal theorists as to law’s underlying regulatory
purpose. Insofar as those same theorists claim not to premise the essential-
ity of these institutional features on any one function, then, there seems
to be a certain level of methodological ‘blindness’ in such ‘institutional’
approaches. Any such function cannot just be incorporated (or overlooked)
as simply obvious or uncontroversial. The critical question thus becomes
whether theorists like Hart are able to maintain or justify the concept of law
that they ultimately vindicate absent a morally evaluative judgement aimed
at defending such functionality.14 Surely it is only on the basis of such moral
judgement that Hart was able to select and choose between the significant
and insignificant in order to construct the necessary institutional features of
legal order?
Bearing in mind Hart’s methodological claims, and indeed those of many
others following his approach to conceptual analysis, it would seem that
the selection of the relevant from the irrelevant is premised only upon cer-
tain (by no means uncontroversial) abstraction strategies15 or else rests
upon a necessary distinction between substantive and (meta-)theoretical
value judgements.16 As Dickson has pointed out, however, it is a rather
banal point to note that Hart had to engage in evaluation at this meta-
theoretical level—that is, to make ‘judgments about which data to focus
on and how to order and arrange materials for explanation in order for
one’s theory to exhibit such general theoretical virtues as simplicity, clar-
ity, consistency, and comprehensiveness’.17 Arguably, such theoretical values
can only really help to ‘streamline’ conceptual distinctions about the nature
of law and do not help us to choose between competing accounts of law’s
essential features.18 In other words, these strategies cannot, at least on their

13 Dickson (n 6) 112.
14 For a summary of these debates, see principally Dickson (n 7) 22 ff; and see further Ch 2
of Dickson (n 6) 29–49. See also Capps (n 3) 65–75.
15 Capps (n 3) 70–75.
16 See, eg, HLA Hart, ‘Comment’ in R Gavison (ed), Issues in Contemporary Legal Philoso-

phy: The Influence of HLA Hart (Oxford, Clarendon Press, 1987) 39; see also the discussion
in Dickson (n 6) 30–38.
17 Dickson (n 7) 125–27. See also on this point Pt 3 of Jules Coleman, The Practice of

Principle: In Defence of a Pragmatist Approach to Legal Theory (Oxford, Oxford University

Press, 2001).
18 Capps (n 3) 70.
 The Problem of Value Neutrality in Conceptual Analysis 133

own, offer an account of why certain phenomena are important to those

who are engaged in the practice of law as a social institution.
The more pertinent issue, therefore, is whether such conceptual analysis
can legitimately be seen as purely neutral and descriptive; to what extent,
in other words, the legal theorist must choose, select and defend what they
believe are the most important features of law. In this regard, Dickson is right
to point out the misleading nature of the claim that Hart’s approach is merely
‘descriptive’, in the sense that it suggests that the theorist does not evaluate,
analyse or critically engage with the object of their study.19 At the same time,
however, she admits that much of the recent methodological controversy in
analytical jurisprudence has related to a stronger claim: that in order to
offer up an account of law’s specific characteristics, one must necessarily
engage in moral evaluation or political justification. This controversy is per-
haps best illustrated through John Finnis’ engagement with Hart’s work.20
Although directed specifically at The Concept of Law, Finnis’ criticisms will
have obvious methodological consequences for the coherence of many of
the perspectives outlined in the previous chapter, particularly his argument
that law’s specific institutional characteristics are not simply self-evident,
but must be defended as essential to meeting law’s underlying purpose—a
defence that requires committed moral engagement from the legal theorist.21
Nevertheless, despite this methodological difference, I will go on to show
how, substantively, Finnis’ ideal theory vindicates an institutional model of
law very similar to that which was defended by Hart and his followers, as
outlined in the previous chapter. I will say more about this shortly, but first
I need to consider in more detail his critical engagement with claimed lacuna
in Hart’s theory.

II. THE PROBLEM OF VALUE NEUTRALITY

IN CONCEPTUAL ANALYSIS

Finnis’ argument, essentially, is that if we engage with Hart’s theory (and,

by implication, others like it) on the basis of its own premises—that is, as
a social-factual methodology prioritising the ‘internal point of view’ over
other viewpoints—then we realise that the process of selection involved,
between the relevant and irrelevant social facts, is difficult to understand
in value-free terms. The internal point of view is chosen over others as it is
the viewpoint most likely to sustain the coherence of the law as a system
with all the benefits that this is meant to entail—benefits (along with risks)

19 Dickson (n 6) 33–37. See also Perry (n 12) 321–22.

20 J Finnis, Natural Law and Natural Rights, 2nd edn (Oxford, Oxford University Press,
2011) 11–15.
21 ibid 231–33.
134 A Functional Jurisprudence?

about which Hart is quite open in his work.22 In differentiating the internal
from the external viewpoint, Finnis argues that Hart could not, on his own
premises, engage with the former in an evaluative way. Whilst he recog-
nised that those sharing the internal point of view may do so for a variety
of reasons—eg, ‘calculations of long-term interest; disinterested interest in
others; an unreflecting inherited or traditional attitude; or the mere wish to
do as others do’23—there is no way of choosing between these reasons for
their practical significance to the concept of law he develops (which, as we
saw in the previous chapter, seems to be drawn more from what is already
pre-existing). This is particularly problematic as the accumulated reasons
Hart gives seem contradictory, or at least sit uneasily with each other, but
nonetheless happen to achieve the result of sustaining the coherence of the
legal order as he saw it. It is difficult to see how Hart, or indeed any other
theorist adopting a descriptive-explanatory method, can offer any substan-
tive justification for choosing between the views of one participant over the
other, even the majority over the minority; they surely cannot explain why
participants conceptualise the law in this way and therefore whether they
are right or wrong in doing so. As a result, Hart’s passive acceptance of the
internal point of view leaves us unable to determine why these collective
reasons necessarily result in something like the kind of well-functioning
domestic legal order which his theory ultimately vindicates.
This form of conceptual enquiry therefore appears of limited value
when employed in any critical way. We cannot abstract from what is sup-
posed to be important in law absent an explanation of why it is valued
outside of the historically and socially contingent contexts in which law
functions at any given time and place. And when presented with social
practices which do not conform to Hart’s concept of law (eg, interna-
tional law), these can only be seen as deviant aberrations, or dismissed
simply as non-legal.24 In fact, this issue becomes particularly problematic
when we consider the ‘pre-legal’ form of ‘primitive’ normative orders,25
such as how Hart described international law, as it reveals little about the
necessary motivating factors that would bring about a transition towards
Hart’s more ambitious concept of law. The fact that there are a number of
already-committed individuals holding out a particular kind of ‘internal
point of view’—a view which happens to support or sustain the particu-
lar characteristics of developed domestic legal systems—will itself tell us
nothing about why those individuals feel it important to do so. Moreover,
their attitudes towards, as well as use of, the rule of recognition cannot

22 See primarily Ch 5 of Hart (n 11); and see the previous discussion in Ch 3, section III and

Ch 4, section III, at n 56.

23 Hart (n 11) 203, also cited in Finnis (n 20) 13.
24 Hart (n 11) 92 and passim.
25 ibid 117.
 The Problem of Value Neutrality in Conceptual Analysis 135

be specifically prioritised without being able to determine in advance on

what basis they are seemingly justified in their views. Finnis puts this point
particularly well:
[Such] attitudes … will, up to a point, tend to maintain in existence a legal system
(as distinct from, say, a system of despotic discretion) if one already exists. But
they will not bring about the transition from the pre-legal … order of custom or
discretion to a legal order, for they do not share the concern, which Hart him-
self recognizes as the explanatory source of legal order, to remedy the defects of
pre-legal social orders. Similarly, Hart’s persons who are moved by ‘calculations
of long-term interest’ (sc. self-interest) water down any concern they may have
for the function of law as an answer to real social problems … they dilute their
allegiance to law and their pursuit of legal methods of thought with doses of
self-interest which it is an elementary function of law … to subordinate to social
needs.26
It is perhaps obvious to see the significance of this criticism for our consid-
eration of international law, the institutional structure of which, as we saw
in Chapter 3, makes it arguably more difficult to disentangle self-interest
from a more systemic concern to maintain the coherence of the international
legal order. Moreover, we can see that if, for example, there is a distinctly
widespread view that international law should function as a system capa-
ble of normatively pre-empting the self-interest of states, then the form of
descriptive ‘conceptual analysis’ undertaken by Hart seems incomplete or
even self-defeating in undermining this most obvious aspect of the internal
point of view.
Similar criticisms have been developed by others, such as Stephen Perry
and Jeremy Waldron, both of whom question the value neutrality of Hart’s
claims in The Concept of Law.27 For instance, Perry argues that Hart’s
approach betrays its own methodological commitments by straying into
normative evaluation of social practices, which cannot just be explained in
terms of the kind of meta-theoretical values—for example, simplicity, clar-
ity etc—outlined above. Specifically, he notes how if one adopts a view of
law as normatively oriented towards securing social coordination or order,
as Hart indeed appears to, then one cannot escape necessary evaluative
judgement:
The statement that a regime of primary rules has defects, like the statement
that these defects are remedied by the introduction of a rule of recognition and
other secondary rules, is an evaluative claim. The values in question relate … to
the guidance of conduct, which means that they have a normative dimension.

26 Finnis (n 20) 14.

27 J Waldron, ‘Normative (or Ethical) Positivism’ in Coleman (n 2) 429.
136 A Functional Jurisprudence?

The descriptive-explanatory method assesses theories by means of criteria that are

properly called evaluative, such as predictive power and simplicity, but the values
in question are applicable to all scientific theories, and they are not normative in
character … Hart is making evaluative claims not about theories but about the
very social practices he is studying.28 (emphasis added)
Similarly, Waldron notes how Hart deliberately outlines the choice of mov-
ing towards a constituted legal order, of correcting the defects of a regime
of primary rules, as a choice involving both costs and benefits,29 and indeed
therefore suggests that the costs outweigh the benefits—at least for most
societies.30 However, he refuses to endorse these reasons as germane to
understanding the concept of law that his theory ultimately vindicates. Con-
sequently, if in the international legal order, for example, there are good
reasons for sustaining law as a decentralised legal order, Hart’s theory can-
not explicitly illuminate these reasons; conversely, if there are good reasons
why international law should be reformed towards a more centralised insti-
tutional structure, his theory is incapable of grounding the evaluative judge-
ment necessary to justify such a reform. Instead, international law is simply
dismissed as defective according to the ‘central case’ of legality drawn from
domestic experience.
As we saw in the previous chapter, many of those taking forward and
refining the form of conceptual analysis deployed by Hart have attempted
to provide a more open normative justification to explain why the specific
institutional configuration of law is important or necessary—for example,
by casting the rule of recognition as a form of coordination convention,
by explaining law by reference to the task of governance (as a ‘planning
institution’) etc—but such theories seem still to have hedged this functional
explanation simply on intuitions drawn from shared experience of the law-
state. Without going further in order to philosophically defend such under-
standings as important and necessary to law’s purpose in more universal
terms, they emerge as question-begging as soon as they are applied to a
legal order not already constructed around this model (particularly, and
most pertinently, when they are applied to international law). For instance,
in one of his earlier works, MacCormick attempted to provide a more
lucid historical and sociological explanation of law’s defining nature as an
institutionalised normative order in a form similar to the concept of law

28 Perry (n 12) 323.

29 I set out these gains in brief in Ch 3—ie, ‘adaptability to change, certainty, and efficiency’.
However, Hart says that such benefits accruing from the centralisation of authority within the
state will have to be weighed against the cost in terms of the ‘risk that the centrally organized
power may well be used for the oppression of numbers with whose support it can dispense, in
a way that the simpler regime of primary rules could not’. Hart (n 11) 202.
30 Waldron (n 27) 429–31.
 The Problem of Value Neutrality in Conceptual Analysis 137

developed by Hart.31 However, as Matthew Kramer notes, his explanation

relies essentially on a (presumed, even fictional) historical narrative, where
the present is simply reconstructed through a selective viewpoint and pre-
sumed endpoint that has already vindicated certain institutional features as
essential to the concept of law:
His historical narratives take on significance, for MacCormick’s purposes, only in
the light of the terminus or telos to which they lead. MacCormick tells his story
of the development of the British legal system because the story culminates in the
advent and solidification of a full-fledged system; but this entails that he knows
what qualifies as a full-fledged system. If he tried to justify his selection of particu-
lar narratives, he would confront all the problems that the narratives supposedly
had eliminated.32
Ultimately, the problem seems to be an idealisation of form without real
historical contingency: either, as with Hart, historical and socio-political
context is read out of theory, thus leaving particular institutional forms
removed almost entirely from their specific socio-political setting; or, as
with (early) MacCormick, such context is read back in as a non-empirical
account of the inevitability of the current form of juristic organisation. This
creates a space in which the normative idea, as well as the institutional
form, of the state is somehow subordinated to, or at the very least theorised
as a product of, the legal order—rather than the legal order’s particular
institutions being seen as historically and socially contingent features of the
state itself, responding to the constitutional demands of legitimate public
order and governance.33
The same problem arguably hampers Scott Shapiro’s explanation of
law as a ‘planning institution’, which, as we saw in the previous chapter,
attempts to offer a functional account of officialdom as necessary to law’s
governance task. On Shapiro’s account, constitutional law forms the basis
of ‘a plan for governance’, the purpose of which is to ‘guide and organize the
shared activity of legal officials’, an institutional configuration seen as neces-
sary itself in order ‘to overcome the enormous complexity, contentiousness
and arbitrariness associated with arranging a system of social regulation’.34

31 See specifically Ch 10 of N MacCormick, H. L. A. Hart, 2nd edn (Stanford, CA, Stanford

University Press, 2008) 130–52; though note his explicit disavowal of this explanation in his
later work: N MacCormick, ‘The Concept of Law and The Concept of Law’ in RP George (ed),
The Autonomy of Law: Essays on Legal Positivism (Oxford, Oxford University Press, 1996)
163, at 179–80.
32 M Kramer, ‘The Rule of Misrecognition in the Hart of Jurisprudence’ (1988) 8 Oxford

Journal of Legal Studies 401, at 421.

33 See, eg, IW Duncanson, ‘The Strange World of English Jurisprudence’ (1979) 30 Northern

Ireland Legal Quarterly 207.

34 S Shapiro, ‘What is the Rule of Recognition (and Does it Exist)?’ in M Alder and

K Himma (eds), The Rule of Recognition and the U.S. Constitution (Oxford, Oxford Univer-
sity Press, 2009) 235, 252.
138 A Functional Jurisprudence?

From one perspective, of course, this counts as an advance on Hart’s concept

of law to the extent that Shapiro explicitly adopts a specific normative jus-
tification for the importance of officialdom to deliver on the purpose of
law as he sees it. However, the problem here is that, despite his own efforts
to move past the coordination convention explanation of the rule of rec-
ognition,35 his account of law’s functional purpose itself suffers from the
very same problem: it works backwards from the existing institutions of the
law-state to provide what appears to be an intuitively plausible explanation
of law’s defining task of social coordination and governance, but which is
simply self-reinforcing from a methodological perspective. Indeed, despite
the efforts of theorists like Twining and Tamanaha, outlined in the previ-
ous chapter, that were aimed at broadening the empirical raw data well
beyond state-based legal experience, Shapiro’s view seems still rigidly one-
dimensional in focus. At no point does he see it as necessary to philosophi-
cally defend his starting point by explaining the inherent universality of the
kind of liberal governance model that itself then vindicates the importance
of certain institutional forms. These features are simply posited as necessary
or inevitable components of his general concept of law.36
This criticism is developed further by Sean Coyle, who notes how Shapiro’s
methodology begins with an honest and open exposition of his intuitive
starting point, but then limits the task of legal philosophy to a process of
refining this intuition through its accordance, or otherwise, with underlying
social facts. The ostensible intellectual honesty of this mode of ‘reflexive
equilibrium’ is therefore undermined by the realisation that the relevant
social facts are simply the ones which have already been vindicated from
Shapiro’s intuitive starting point.37 This has particular relevance to the
account of officialdom outlined in the previous chapter, as Shapiro’s theory
glosses over any complexities of historical and social context to explain the
hierarchical character of domestic legal governance as simply a matter of
institutional design. Coyle continues:
The processes whereby political and legal power in Western societies came to
be vested in distinct ‘offices’, often defined and limited constitutionally, are
both complex and not easily detachable from the deeper currents of Western
civilisation. The problem … is not that Shapiro neglects to concern himself with

35 Indeed, Shapiro’s account is justified as an attempt to correct the tension between

normativity and social-factuality in Hart. By giving a rational, functional account of law as

a planning system, he provides a justification for the normativity of law grounded outside of
the system itself. See Ch 5 of S Shapiro, Legality (Cambridge, MA, Harvard University Press,
2011) 154–92.
36 For a good discussion of this problem, see, for example, V Rodriguez-Blanco, ‘The

Moral Puzzle of Legal Authority: A Commentary on Shapiro’s Planning Theory of Law’ and
K Schaubroeck, ‘Legal Normativity and the Instrumental Principle’ in S Bertea and G Pavlakos
(eds), New Essays on the Normativity of Law (Oxford, Hart Publishing, 2011) 86–106 and
107–40 respectively.
37 S Coyle, ‘Legality and the Liberal Order’ (2013) 76 Modern Law Review 401, 406–07.
 From the Concept to the Rule of Law? 139

the historical causes which oversaw the development of political offices out of
the ‘estates’ with which political power was traditionally associated, but that his
arguments are informed almost entirely by the terminology and assumptions of
‘institutional design’. The existence of offices of power can be the result of only
one thing: creation.38
By framing an account of law’s functional purpose by what is familiar and
seemingly uncontroversial in this way, it is difficult, if not impossible, to dis-
tinguish the contingent from the essential: the historical, political or social
contingency of the ‘deep conventions’39 of society that give rise to its specific
institutional structures are read out of the concept of law as moral or politi-
cal justifications that are seemingly beyond the purview of legal theory.40 As
a result, such a functional view of law ends up providing only an incomplete
and not particularly satisfying justification for the kinds of institutions that
already exist in many domestic societies.
Unless these intuitively vindicated institutional features are defended,
not merely by empirical reflection, but direct evaluative judgement—that
is, endorsed as a moral or political good to which any legal order ought to
subscribe—legal theory loses its critical potential altogether. It ends up
almost rigidly one-dimensional, excluding other intuitively plausible expla-
nations of the functional importance of law: for example, rights-based
approaches which suggest the importance of non-instrumental rationality,
or approaches informed by the kind of reflexive ‘ideality’ often associated
with the common law tradition.41 More importantly and immediately—
bearing in mind the argument developed up to this point—the problem with
this jurisprudential ‘narrowing’ is that when faced with putatively legal
orders that differ in structure from state-based law, such accounts both over-
reach, by holding what may well be wholly contingent features as essential
or necessary conditions for a legal system, and under-explain, by ignoring
the social, political and moral contexts in which law takes its meaning, and
against which particular instantiations of law can only really be understood.

III. FROM THE CONCEPT TO THE RULE OF LAW?

IN SEARCH OF LAW’S ‘FOCAL MEANING’

Ultimately, if we are to understand law as it is used and valued as a social

practice through the eyes of legal participants, it seems difficult to avoid
the conclusion that the theorist must embrace the necessarily value-laden
nature of the task of conceptual enquiry. To admit this, of course, still leaves

38 ibid 411.
39 I borrow this phrase from Andrei Marmor in his defence of the necessary autonomy of
law; see, inter alia, A Marmor, ‘The Conventional Foundations of Law’ in Bertea and Pavlakos
(n 36) 143, at 154–56.
40 Coyle (n 37) 408–09.
41 See S Coyle, ‘The Ideality of Law’ (2009) 6 Journal of Moral Philosophy 521.
140 A Functional Jurisprudence?

open the question of how we are to go about this task; how we are to non-
arbitrarily choose between the competing and not necessarily commensura-
ble valued-based judgements unearthed from our socially reflective starting
point. In this respect, Finnis argues that we should embrace an approach
which—with a nod to Max Weber42—he describes in terms of the search
for law’s ‘focal meaning’.43 Specifically, he outlines the distinctly practical-
philosophical nature of the task of conceptual analysis, which implies:
[T]hat the evaluations of the theorist himself are an indispensable and decisive
component in the selection or formation of any concepts for use in description of
such aspects of human affairs as law or legal order … the most important things
for the theorist to know and describe are the things which, in the judgement of
the theorist, make it important from a practical viewpoint to have law—the things
which it is, therefore, important in practice to ‘see to’ when ordering human
affairs. And when these ‘important things’ are (in some or even in many socie-
ties) in fact missing, or debased, or exploited or otherwise deficient, then the most
important things for the theorist to describe are those aspects of the situation that
manifest this absence, debasement, exploitation, or deficiency.44
There is much in this passage which deserves further consideration, not
least of which is exactly what Finnis means when speaking of the ‘practical
viewpoint’. I will return to this specific question in the last section (below).
My immediate concern is the methodological implications of adopting
Finnis’ approach, particularly in terms of how this might impact on our
critical engagement with international law. The first thing to note in this
respect is that whilst this kind of focal method will point in the direction
of certain institutional features deemed important and useful to the fulfil-
ment of law’s purpose (that is, in meeting the central case of legality), it will
not necessarily hinge the question of the ontological reality of law upon
the existence or otherwise of certain institutional features. Law’s existence
would be discernible simply on the basis of social usage. As such, the ques-
tion of law’s reality can be distinguished from the broader and more ambi-
tious ideal of ‘legality’, understood in a more evaluative sense, which is
encapsulated in the ‘central case’ or ‘ideal-type’ of a well-functioning legal
order. This central case can be summarised briefly—though I will return to
consider this again shortly—as a legal system complying with the kind of
procedural values implied by the rule of law.45 As Finnis states:
If there is a viewpoint in which the institution of the Rule of Law … and compli-
ance with rules and principles of law according to their tenor, are regarded as at
least presumptive requirements of practical reasonableness itself, such a viewpoint

42 See generally M Weber, Economy and Society (New York, Free Press, 1964).
43 Finnis (n 20) 9 ff.
44 ibid 16.
45 This is in many respects a disputed and multifaceted concept, though Finnis himself defines

it as similar to Fuller’s desiderata for a state of legality, including values such as prospectivity,
clarity, coherence etc. See ibid 270–71 and, more specifically, Fuller’s definition below, at n 71.
 From the Concept to the Rule of Law? 141

is the viewpoint which should be used as the standard of reference by the theorist
describing the features of legal order.46
Applying this form of focal analysis, therefore, the central case of a well-
functioning rule of law system provides a necessary benchmark against which
paradigm cases of law can be assessed, appearing more or less legal depend-
ing upon the extent to which they are institutionally structured towards
fulfilment of this ideal.47 Consequently, deploying a form of focal analy-
sis, we might agree with Finnis (and probably Lon Fuller too)48 that legal
systems (as well as the rule of law itself) might exist ‘as a matter of degree’.49
Applying this methodological approach to international law, there-
fore, would allow one to see how paradigm cases of international legality
(ie, those principles, rules and practices that are commonly referred to as
forming part of international law) can be judged to be more or less legal to
the extent that they satisfactorily fulfil what are seen to be the functions of
(international) law. In this respect, the focal method will place emphasis on
certain institutional features (for example, courts with compulsory jurisdic-
tion) that may be more or less present and which are deemed important to
the fulfilment of law’s focal purpose, whilst not necessarily being essential
to proving international law’s ontological reality as such. Applying focal
analysis in this way might thus provide a way of reconciling international
law’s reality as a legal order whilst also suggesting a direction for its institu-
tional reform and improvement. In other words, from the central case, we
can form a concept of international law, which, as Capps notes, can be used
as a mediatory device, functioning ‘between our conception of international
relations and questions of institutional design’.50 This concept of interna-
tional law will suggest ideally how international law should be organised
(the ‘central case’ of international legality) to achieve its focal purpose. That
international law might fail to meet this ideal will not therefore disqualify it
as law, at least not necessarily, but will rather suggest how the existing inter-
national legal order (as a more ‘peripheral case’ of legality) might be better
improved to meet this purpose. We might therefore agree with Tom Franck’s
assertion (noted in Chapter 3) as to international law’s clear ontological real-
ity, whilst at the same time recognising certain imperfections or deficiencies,
which help to explain more long-standing disciplinary anxieties, as well as
the international legal order’s susceptibility to being relegated to a kind of
‘defective’ or ‘peripheral’ case of legality.51 This approach would thus leave
space to critically engage with the law’s institutional structure and suggest

46 ibid 15.
47 Capps (n 3) 35.
48 See L Fuller, The Morality of Law, revised edn (New Haven, CT, Yale University Press,

1969) 41 and passim.

49 Finnis (n 20) 279.
50 ibid 245.
51 For a thorough discussion of the distinction between ‘central’ and ‘peripheral’ cases of

legality, see Capps (n 3) 35–39.

142 A Functional Jurisprudence?

ways in which international law may be positively reformed to make it more

law-like.
As such, this methodological approach would seem to provide a promising
way forward in critically engaging with the institutional condition of mod-
ern international law. In fact, I believe that Capps is probably correct that
many international lawyers, including, inter alia, Hersch Lauterpacht (as
outlined in Chapter 2) already employ this kind of focal approach52—albeit
often in a distinctly unreflective way. However, to endorse such a methodol-
ogy as a potentially more useful and intellectually coherent approach in this
respect is not—at least not yet—to necessarily endorse the focal concept of
law as Finnis (and others) see this. Indeed, if we accept that there are differ-
ences of opinion over the function or purpose of law—law’s ‘focal meaning’
being still inherently controversial in that respect—there remains the trou-
bling question of how we are to judge if Finnis’ (or others’) central case
of legality is coherent and defensible, both in general and when applied to
make sense of international law specifically.
In response, the first point to note, as by now might be clear, is that the
theorist cannot escape necessary value choices in their defence of the func-
tional orientation of law.53 The task is not simply selecting the participant
viewpoint that best reflects the meaning of law, for one would need to be able
to make this judgement, determining what is important about law, before
any such selection is made. Nor can the task of conceptualisation really just
be a distillation of shared factors which are deemed to be important about
law from one participant to another—and, indeed, from one legal order
to another. Rather, to conceptualise law in its ideal, focal sense requires a
distinctly rational or ‘practical’ form of philosophical reflection.54 How we
go about this task, as well as what this might mean in terms of the focal
concept of law, are the issues I take up in the following and final section.

IV. THE PRACTICAL VIEWPOINT AND THE

NECESSARY AUTONOMY OF LAW

To recap on the claims of this chapter up to this point, I have argued that the
task of legal theory is necessarily value-laden—that the role of the theorist
cannot just be to passively choose the most descriptively accurate concept
of law. Rather, they must present and defend an account of law’s necessary

52 ibid 77 and passim.

53 Both Finnis and, more recently, MacCormick make this point in one form or another. See
Finnis (n 20) 17; MacCormick (n 1) 305. On the ambiguities surrounding an apparent shift
in MacCormick’s position in this regard, see V Villa, ‘Neil MacCormick’s Legal Positivism’ in
M del Mar and Z Bankowski (eds), Law as Institutional Normative Order (Farnham, Ashgate,
2009) 45–64.
54 See, eg, Capps (n 3) 102.
 The Practical Viewpoint and the Necessary Autonomy of Law 143

point by reflection on its central importance in society. Whilst this account

should be informed by empirical reflection in order to understand law as it
is valued amongst those who use or are bound by it, such enquiry can only
ever be a first step in determining what is valuable about law. The theorist
must thereafter provide some rational defence of law’s unique and valuable
contribution to the ordering of human affairs—a perspective that is dis-
tinctly practical-philosophical rather than empirical in nature.
It might appear somewhat counter-intuitive to speak of the need to adopt
such a practical viewpoint, insofar as this view does not necessarily have to
reflect any particular participant perspective. Bearing in mind that I began
this chapter by outlining and endorsing the widespread view that the task
of legal theory is to develop concepts of law which are meaningful to those
who use them, it might seem odd to claim that our focal concept of law is
not intended to simply reflect, or map onto, actual viewpoints in practice.
However, such a misgiving perhaps misunderstands what is at stake in this
methodological debate. To explain, let us consider again Hart’s position
of indifference as to the reasons why officials might accept, use and rea-
son according to the rule of recognition. Putting aside for the moment the
troubling questions over the concept of officialdom outlined in the previ-
ous chapter, and in particular why we might wish to prioritise such official
perspectives over other committed viewpoints, this indifference seems to
lead Hart down a conceptual blind alley. He explicitly rejects the view that
judges have any specifically moral duty to accept the rule of recognition, or
indeed to sustain the fundamental values and ordering principles of the legal
system as it is commonly understood.55 In so doing, he offers the empirical
(and plausible) claim that as a matter of fact, officials, characteristically
judges, clearly do not (and need not) always fulfil their role out of the altru-
istic motivation to protect the integrity of the legal system (nor indeed pur-
sue the sorts of values often encompassed within ideals like the rule of law).
As Gerald Postema points out, however, whilst Hart may well be correct in
this claim, the factual, empirical nature of his explanation misses the point
of conceptual enquiry. The point is not to understand the actual motivating
factors that propel those officials in positions of legal authority, but rather
to work out what kind of view they must legitimately—indeed, publicly—
subscribe to in order to justify the authority which they wield according to
the law. It is therefore irrelevant that some—indeed, many—legal officials
might fail to take up this attitude as a matter of fact.56 Postema continues:
The practical perspective is not the point of view of someone who internalizes,
commits herself to, social or legal norms; nor is it the point of view of one who is
puzzled or curious about those norms. Nor again is it the point of view of one who

55Hart (n 11) 197–98, 203.

56See both GJ Postema, ‘Norms, Reasons, and Law’ (1998) 51 Current Legal Problems 149
and GJ Postema, ‘Jurisprudence as Practical Philosophy’ (1998) 4 Legal Theory 329.
144 A Functional Jurisprudence?

rejects, or seeks to evade, or seeks to undermine them. It is not the point of view
of any of these because it is not the point of view of anyone. It is a logical, hence
constructed or hypothetical, point of view, not a personal one. This perspective
defines a framework for inquiry of a certain kind, inquiry into reasons for acting.
Whether there are any norms or rules or reasons in the context that generates the
inquiry is not settled by taking up this perspective. Rather, the perspective pro-
vides the framework of inquiry within which such issues are considered, deliber-
ated, and disputed.57
This ‘practical’ perspective cannot therefore be an ‘internal point of view’
in the factual sense described by Hart, but it is internal to legal practice in
the sense that it is developed through reflection on law as a distinctive social
practice. In other words, adopting the practical perspective does not chal-
lenge the importance of participant viewpoint as a foundation for construct-
ing a conceptual account of law, for the relevance of participant perspective
stems precisely from the fact that the concept one is describing is itself a
social construct or form of social practice.58 This point is perhaps better
described by reference to Nigel Simmonds’ ‘reflexive’ view of the task of
conceptual construction in legal theory. As he explains:
Understanding the nature of law is not ultimately a matter of achieving a careful
description of social practices but a matter of grasping the idea towards which
those practices must be understood as oriented. The idea of law is the focal point
that enables us to make coherent sense of the otherwise diverse features of prac-
tice, but it is not itself a matter of observable practice.59
In his later work, MacCormick appears to have come to a similar view:
[T]he character of the whole enterprise [of law] determines that its intrinsic ends,
or ‘final causes’, are the realisation of justice and the common good, according to
some reasonable conception of these. Hence you cannot sincerely participate in
this enterprise without a serious orientation to these values, and you cannot intel-
ligibly participate in it without at least pretending to have such an orientation.60
(emphasis added)
Like Postema and Simmonds, MacCormick’s argument here is that the
focal point of law—its final cause—is a viewpoint to which one must
logically be committed, or at least publicly profess to be committed, in
order to possess any authority within the legal enterprise taken as a whole.
MacCormick’s focus on the ‘reasonable’ conception of the common good
stresses that the task that confronts the theorist is to construct a distinctly
rational perspective: one that is able to cut through the incommensurability
of competing perspectives, indeed, that respects this incommensurability

57 Postema, ‘Norms, Reasons, and Law’ (n 56) 172–73.

58 ibid 174.
59 N Simmonds, ‘Reflexivity and the Idea of law’ (2010) 1 Jurisprudence 1, 18.
60 MacCormick (n 1) 264.
 The Practical Viewpoint and the Necessary Autonomy of Law 145

by reflecting that which is necessary for humans to live together under

conditions of moral pluralism.61 For his part, Finnis describes this as the
‘practically reasonable viewpoint’, which should be:
[C]onsistent; attentive to all aspects of human opportunity and flourishing, and
aware of their limited commensurability; concerned to remedy deficiencies and
breakdowns, and aware of their roots in the various aspects of human personality
and in the economic and other material conditions of social interaction.62
Whilst Finnis justifies this viewpoint by reference to his distinctly Thomist
natural law epistemology,63 insofar as it translates into a legitimate and
coherent account of legal order, the ‘limited commensurability’ of moral
viewpoints in practice justifies a construction of law as an artificial, institu-
tional order very similar to that vindicated in positivist discourses.64 Indeed,
Finnis himself makes connections between Aquinas’ thought on law and
the more ‘Kantian, liberal, positivist’ tradition—that is, exactly the kind of
tradition from which normative positivists like Waldron or MacCormick
end up defending a very similar view of legal order.65 In fact, there is a
remarkable degree of synergy now between the kind of modern natural law
perspective, adopted by, inter alia, Finnis and Fuller, and the more explicitly
‘normative’ form of positivism defended by theorists like Waldron.66 In fact,
an apparent ‘entente cordiale’ sees many legal positivists now attempting
to justify and defend the law’s limited domain (its positivity) on distinctly
moral grounds, whilst many natural lawyers increasingly accept the need for
an artificial, institutional view of law, conceived as ‘an autonomous sphere
of practical reason established specifically to respond to the co-ordinatory
and regulatory problems of moral indeterminacy and societal complexity’.67

61 Capps (n 3) 104–05.
62 Finnis (n 20) 15, also quoted by Capps (n 3) 101.
63 Finnis (n 20) passim.
64 ibid, passim, but 276–77 in particular.
65 See J Finnis, ‘The Truth in Legal Positivism’ in George (n 31) 195, at 198.
66 cf, on the one side, Fuller (n 48) passim; J Finnis, ‘On Hart’s Ways: Law as Reason and

as Fact’ (2007) 52 American Journal of Jurisprudence 25, at 42–44, Finnis (n 65) 204–05;
and, on the other, Waldron (n 27); J Waldron, ‘Kant’s Legal Positivism’ (1996) 109 Harvard
Law Review 1535; N MacCormick, ‘A Moralistic Case for A-Moralistic Law?’ (1985–86)
20 Valparaiso University Law Review 1; Postema (n 4) 328 et seq. See also the discussion in
Capps (n 3) 125–26. On the breakdown between positivist and naturalist theories as rival
accounts of the concept of law, and instead conceiving them as competing modes of under-
standing how moral concepts translate into posited law (and how, thereafter, morality re-enters
the picture of legal reasoning), see S Coyle, ‘Positivism as a Statist Philosophy of Law’ (2008)
59 Northern Ireland Legal Quarterly 49.
67 HP Olsen and S Toddington, Law in its Own Right (Oxford, Hart Publishing, 1999) 11.

See further EJ Weinrib, ‘Legal Formalism: On the Imminent Rationality of Law’ (1988) 97 Yale
Law Journal 949, especially 996–99; A Ripstein, Force and Freedom: Kant’s Legal and Political
Philosophy (Cambridge, MA, Harvard University Press, 2009), briefly at 9 and passim.
146 A Functional Jurisprudence?

My point here is that, despite their philosophical differences, these

perspectives are united, not only in their convincing disavowal of
descriptive-explanatory methodology, or their insistence on the need to
reconnect legal theory and political philosophy, but also, ultimately, in
seeking to morally defend and justify an account of law’s function and
institutional aspects very similar to that which was set out in the previ-
ous chapter and which was, as we saw, either simply presumed or else
defended by intuition by those theorists working in the analytical tradi-
tion. For Finnis, Waldron and others following suit, however, it is the
very condition of incommensurability in participant perspective which not
only highlights the fallacy of the value neutrality of descriptive-explana-
tory approaches, but which also, at the same time, provides the specific
normative justification for a form of legal order that is able to mediate
this disagreement due to its structural autonomy and institutional char-
acter. As Postema puts it, whilst ‘law’s ultimate aspiration may be justice,
its proximate aim and defining task is to supply a framework of practi-
cal reasoning designed to unify public political judgment and coordinate
social interaction’.68 In other words, whatever account of human goods,
or rational or moral purpose we begin from, it is the pluralistic conditions
of human societies which are widely accepted as justifying the more imme-
diate or proximate purpose of law: ‘to establish the conditions by which
each person can safely predict how others will act, as well as to facilitate
co-operation and to resolve social conflict’.69
When not simply presumed but instead philosophically vindicated on
these terms, this view of law’s function seems intuitively plausible. Fur-
thermore, where Fuller asserts that law’s function ultimately resides in
‘subjecting human conduct to the governance of rules’, and therefore that
the concept of law should be understood ideally as best structured to fulfil
this function, his argument seems in many respects so obvious as to be
largely unobjectionable.70 Accepting this premise, therefore, we might have
cause to agree that our central case of legality ought to be a form of legal
order that meets the requirements of the rule of law, perhaps by reference
to the kind of desiderata supplied by Fuller’s notion of ‘legality’, requir-
ing the kind of systematicity that ensures that legal rules are, for instance,
general, non-retroactive, consistent, coherent etc.71 Of course, the ideal of

68 GJ Postema, ‘Law’s Autonomy and Public Practical Reasoning’ in George (n 31) 79, at 80.
69 Capps (n 3) 83.
70 Fuller (n 48) 106.
71 Fuller’s eight desiderata for the existence of a state of ‘legality’ include the law’s generality,

public promulgation, non-retroactivity, clarity, non-contradiction, capacity to be obeyed, con-

stancy, and a reasonable level of congruence between law in the books and law as it is practised
by authorised officials. ibid 39 and passim.
 The Practical Viewpoint and the Necessary Autonomy of Law 147

the rule of law is a deeply contested notion—a point to which I will return
in Chapter 7—but it would seem plausible to suggest that, whatever its best
interpretation, the rule and the concept of law cannot be easily separated.72
On its own terms, therefore, this approach seems internally coherent and
convincing.
At the same time, however, there remains a fundamental ambiguity in
this account insofar as the concept of the rule of law is merely co-opted
to suggest a certain ideal, hierarchical institutional structure. As Gianluigi
Palombella has shown, if the rule of law has an inherent meaning at all,
discernible from the historical, social and political contexts in which it
has been applied, it is in stressing the need for an institutional structure
which resists the law’s instrumentality towards any pre-defined ends. In
other words, the rule of law suggests the necessary autonomy of law as
an end in its own right.73 In that sense, the concept should not be seen
simply as a justification for a certain kind of institutional structure, rather
than that institutional structure being reflective of this idealisation of law
worked out in some specific historical, social and political context—that is,
in the context of the modern state.74 I will say more about the rule of law
specifically, as well as the difficulties of its translation in the international
context, in Part III. My concern here, however, is less with the broad idea
that law should be best understood by reference to such an ideal, but more
with the way in which the specific character of the state itself seems still
to be presumed or, rather, explicitly justified by those adopting this more
focal approach to legal-conceptual analysis. Applied to international law,
therefore, the risk is that rather than attempting to work out what kind
of institutional model might best secure law’s autonomy—as opposed to
instrumentality—in the specific political context of international relations,
the rule of law is applied in a less reflective, indeed, more instrumental,

72 See chiefly in this respect J Waldron, ‘The Concept and the Rule of Law’ (2008–09)

43 Georgia Law Review 1. Although the rule of law is a contested concept, Palombella and
Walker note how, at the very least, the concept ‘seeks to inform us of the ways in which and
the characteristics through which it is plausible to think of law as something that rules over
things—as an institution which regulates the other forces that shape our common life. It also
seeks to provide a justification for such a claim to ascendency’. See G Palombella and N Walker,
‘Introduction’ in G Palombella and N Walker (eds), Relocating the Rule of Law (Oxford, Hart
Publishing, 2009) xi, at xi (emphasis added).
73 See, in this respect, G Palombella, ‘The Rule of Law as an Institutional Ideal’ in L Morlino

and G Palombella (eds), Rule of Law and Democracy: Internal and External Issues (Leiden,
Brill, 2010) 3–40; and see further this point applied in relation to international relations in
T Nardin, Law, Morality, and the Relations of States (Princeton, NJ, Princeton University
Press, 1983) passim.
74 I reflect more on this at length in R Collins, ‘The Rule of Law and the Quest for Consti-

tutional Substitutes in International Law’ (2014) 83 Nordic Journal of International Law 87.
148 A Functional Jurisprudence?

way as a justification for a certain kind of governmental or regulatory insti-

tutional form. In the following, final chapter of Part II, therefore, I will
agree that law should be conceived ideally as an autonomous institutional
practice, but I will also show why this ideal is often mischaracterised, being
instead understood less as an end in its own right and more as a means to a
more effective regulatory ideal.

V. CONCLUSION

I began this chapter by suggesting that an important first step in under-

standing the nature of law is to attempt to give an account of how it features
in the social practices of legal participants themselves (however broadly
we define this group). At the same time, I have also noted how these prac-
tices are inevitably conflicted or controversial, with legal participants them-
selves often disagreeing over the nature of what is important about law: its
necessary features, ultimate point or function. This realisation calls into
question the ability of descriptive-explanatory approaches to adequately
determine what is important about law without being open about the value
choices involved in such a determination. In developing this argument,
I have endorsed the claim, propounded most explicitly by Finnis, that law’s
necessary institutional characteristics depend not only on an explanation,
but also on an explicit normative defence of law’s point or overall function
in society. The theorist must attempt to understand the importance of law
as it is practised and understood by those who use the law, and amongst
whom law’s distinctive features take on practical meaning. In reflecting
upon and evaluating these practices, however, it is necessary to determine,
judge and ultimately vindicate a central case or ideal view of law, against
which one can engage critically and coherently with putative legal forms in
order to assess prospects for institutional or structural reform, that is, what
is required to make such practices more ‘law-like’.
To the extent that a range of otherwise quite diverse legal theorists and
philosophers have adopted this view of the task of legal theory, however,
they have also, in the main, sought to justify a view of law’s function as
inherently bound up with ordering human affairs under conditions of moral
pluralism. On this basis, we seem to have a more plausible justification for
a concept of law which we might simply understand as mirroring a well-
functioning rule of law state, thereby underlining the importance of the
kind of institutions and offices that are often simply presumed as necessary
under more descriptive-explanatory forms of conceptual analysis. Accord-
ingly, this approach would seem to give us a more plausible methodological
approach by which one can explain the reality of international law, whilst
at the same time critiquing perceived institutional defects or deficiencies at
 Conclusion 149

the international level. In other words, this view might help us to explain,
understand and judge the cogency of the apparent institutional problem
unearthed in Part I. However, before making any such judgement, it is nec-
essary to consider whether this view of law’s function, as well as the insti-
tutional implications taken as following from this function, are coherent
and plausible on their own terms, as well as more specifically when they
are applied to make sense of international law and in order to pass critical
judgement upon its institutional architecture. This is the task I now take up
in Chapter 6.
 6
Law’s ‘Creation Myth’: Instrumental
Reasoning and the Necessary
Autonomy of Law

I
T MAY SEEM a trite point, self-evident even, that law plays an essen-
tial purpose in guiding conduct, thereby securing social order in human
societies.1 So far in Part II, we have seen how such a functional view is
implicit within, or simply presumed by, many of the most prominent theo-
rists in the analytical tradition in jurisprudence. Despite convincing meth-
odological criticisms of these approaches by more idealist theorists like John
Finnis, this view of law’s immediate or proximate function remains widely
shared (including by Finnis himself). As I noted towards the end of the last
chapter, despite significant philosophical and methodological differences,
there seems to be a considerable degree of convergence in contemporary
legal theory, justifying a view of law as an ‘institutional framework for uni-
fying our community’s judgements and stabilising and structuring our social
relations’.2 Margaret Martin explains this as a kind of ‘creation myth’, set-
ting out a normative justification for law’s autonomous institutional form.
As she explains more fully:
Law, on this view, is conceived of as a set of public norms that serve to unite a
populace that would otherwise descend into chaos. Law is able to unify judgment
because it offers a set of rules that enjoy autonomy—that is to say, the citizenry
can identify the content of any given legal norm without relying on moral argu-
ments. This is important as moral issues are the source of disagreement and law’s
ability to unify judgment is therefore … dependent on the ability of legal norms
to offer practical guidance without recreating the very disagreements that legal
norms are introduced to solve.3

1 See on this point M Martin, Judging Positivism (Oxford, Hart Publishing, 2014) 1–3.
2 P Capps, Human Dignity and the Foundations of International Law (Oxford, Hart
Publishing, 2009) 127.
3 Martin (n 1) 2.
 Law’s ‘Creation Myth’ 151

This creation myth appears in many respects ‘familiar and uncontrover-

sial’.4 It underpins, in one form or another, many of the most influential
works in legal and political philosophy over the past few centuries,5 uniting
figures as diverse as Thomas Hobbes6 and Immanuel Kant7 with more con-
temporary legal theorists, including, in addition to Finnis,8 legal positivists
such as Joseph Raz.9 Furthermore, as I sought to demonstrate throughout
Part I—a point to which I will return again in Chapter 7—international
legal discourse seems itself to contain a version of this myth, with interna-
tional lawyers having to explain how the practices and will of states trans-
late into an autonomous institutional framework capable of binding those
same states (and other actors) independently of their free will.
Bearing in mind the ubiquity of this view, and the value accorded to the
autonomy of law more broadly, it is necessary to delve a little deeper in order
to understand the core tenets and institutional implications of this account
of law’s function. Considering, in particular, the difficulties that interna-
tional lawyers have faced in explaining the autonomy of international legal
rules in this respect—which, as we have seen, has been the primary cause
of international law’s perceived constitutional deficiency—I want to test the
coherence of this view of law’s function, both on its own terms and as a way
of engaging with the international legal order. In order to do so, I will draw
upon a paradigmatic version of this creation myth, as set out by Gerald
Postema: the Autonomy Thesis.10 Postema not only aims to demonstrate
the institutional implications of this view of law’s function, but also, impor-
tantly, how these institutional demands seem to end up undermining the
very ideal of autonomy at the heart of the thesis. In following this critique,
I will show why I agree with Postema that the thesis fails in fulfilling its core
premise of offering an institutional framework capable of mediating and

4 Capps (n 2) 127.
5 ibid 127–28 ff; and see further GJ Postema, ‘Law’s Autonomy and Public Practical
Reasoning’ in RP George (ed), The Autonomy of Law: Essays on Legal Positivism (Oxford,
Clarendon Press, 1996) 79, at 80.
6 This is perhaps best expressed, albeit at a very abstract level, in the following passage

from Hobbes’ Leviathan (CB Macpherson (ed), London, Penguin, 1968, first published in
1651) 263–64 [108–09]: ‘as men, for the atteyning of peace, and conservation of themselves
thereby, have made an Artificiall Man, which we call a Common-wealth; so also have they
made Aritficiall Chains, called Civill Lawes, which they themselves, by mutuall covenants,
have fastned at one end, to the lips of that Man, or Assembly, to whom they have given the
Soveraigne Power; and at the other end to their own Ears. These Bonds in their own nature
but weak; may neverthelesse be made to hold, by the danger, though not by the difficulty of
breaking them’.
7 For a thorough view of Kant’s views in this respect, see Capps (n 2) 134–39.
8 See, eg, J Finnis, Natural Law and Natural Rights, 2nd edn (Oxford, Oxford University

Press, 2011) 266–70.

9 See, eg, J Raz, The Authority of Law: Essays on Law and Morality, 2nd edn (Oxford,

Oxford University Press, 2009); though see further below (at n 13) for Raz’s refutation of this
view.
10 Postema (n 5).
152 Law’s ‘Creation Myth’

pre-empting the kind of moral disagreements which characterise modern

political communities. Nevertheless, whilst Postema (and others) see this
failure as potentially negating the ideal of law’s autonomy—in fact, arguing
instead for the re-introduction of moral reasoning as key to fulfilling law’s
functional premise—I will rather claim that the failure of the thesis stems
from the nature of this functional premise itself, that is, the instrumental
rationale that justifies law’s autonomy as necessary to secure a particular
kind of social order.
In order to make this argument, the chapter is structured as follows. First,
I set out the contours of the Autonomy Thesis, pointing out in particular how
the pre-emptive strategy underpinning it acts as an obvious justification for
the introduction of officialdom into our concept of law—as originally sug-
gested in Chapter 4. However, in section II, I will follow Postema’s critique
in order to show how this re-introduction of human agency causes problems
for the claimed autonomy of law. Specifically, I note how widespread reli-
ance on judicial determinations to enhance the certainty and effectiveness of
the law actually ends up only demonstrating its inherent indeterminacy. The
re-introduction of human agency in this context might not necessarily under-
mine completely the broad claim to law’s autonomy, but if this autonomy
is justified as a means to mediate moral and political disagreement, then it
still raises problematic questions about the authority of legal officials to give
determinative content to the law. In particular, it seems necessary to admit
that officials have a degree of freedom to introduce into the law considera-
tions from outside of the legal domain, seemingly requiring a rather differ-
ent justificatory model that explains how such authorised decision-makers
are either legally or morally constrained in making any such determination.
As such, I will agree with Postema’s diagnosis that this is a fatal flaw for
this theory. Accordingly, in the third section, I consider two plausible ways
forward. One option—hinted at by Postema, but argued for more forcibly
by others—would essentially entail abandoning the idea of law’s ‘limited
domain’, re-integrating an account of moral determinacy in our concept of
law to enhance its presumed guidance function. The other option would be
to instead abandon the idea that law must necessarily pre-empt moral choice
and guide conduct in this way, therefore rejecting the instrumental rationale
of the thesis in order to defend law’s autonomy as a valuable normative good
in and of itself. In demonstrating the implausibility of the former option,
I hope to ultimately vindicate the latter view. I will argue that the kind of
creation myth underpinning the Autonomy Thesis makes sense only as a
theory of the state, akin to the ideal of the social contract, and therefore ends
up justifying a much more ambitious political and institutional architecture
than that furnished by law (and legal institutions) alone.
Before I begin, however, a couple of caveats are necessary in relation to
my choice to focus on the Autonomy Thesis as necessarily representative
of a broad range of views as to the nature and function of law. The first
 Law’s ‘Creation Myth’ 153

point to note is that insofar as it may well be true that a wide array of
theories converge around a justification for law’s necessary autonomy, this
very notion—the autonomy of law—is something of a nebulous concept.11
For instance, Roberto Unger has identified at least four different senses in
which law may be viewed as autonomous: substantively, insofar as law’s
validity does not depend on the substantive merits of candidate norms;
institutionally, in the sense that the field of law is maintained through spe-
cialised institutions, particularly adjudicative or law-applying institutions;
methodologically, where those specialised institutions construct, develop or
perpetuate a particular kind of justification based on the substantive auton-
omy of legal rules; and occupationally, insofar as a ‘special group, the legal
profession, defined by its activities, prerogatives, and training, manipulates
the rules, staffs the legal institutions, and engages in the practice of legal
argument’.12 As Unger’s typology suggests, however, these forms of auton-
omy are not necessarily mutually exclusive. In fact, part of the point of this
chapter—and, indeed, of Postema’s working through of the thesis—is that
when justified on the basis of law’s ability to pre-empt moral choice, one
form of autonomy (substantive autonomy) naturally leads into other forms
(particularly institutional or occupational autonomy).
Second, in line with the argument of the previous chapter, I will accept—
as with Postema—that the Autonomy Thesis applies as much to analyti-
cal positivists like Hart and Raz as it does to more idealist theorists such
as Fuller or Finnis. For the reasons given in the previous two chapters,
I agree with Postema that this view of law’s necessary autonomy is pre-
sumed within descriptive-explanatory approaches, even if not justified
explicitly. In making this claim, however, there remains a certain risk of
over-generalisation, potentially setting up ‘strawmen’ by ignoring the
important differences between discrete, and not necessarily commensurate,
theoretical perspectives. In fact, Raz has responded critically to Postema’s
thesis for this very reason, denying that he is committed to an account of
law’s autonomy on Postema’s terms.13 Whilst he makes a valid point in
recognising this danger of theoretical distortion, I also believe that Raz
is wrong both to think that his own approach is not compatible with the
tenets of the Autonomy Thesis—indeed, much of the analysis of Chapter
4 has attempted to show that he is indeed committed to such a view14—

11 For a discussion, see BH Bix, ‘Law as an Autonomous Discipline’ in P Cane and

M Tushnet (eds), The Oxford Handbook of Legal Studies (Oxford, Oxford University Press,
2003) 975–87; R Unger, Law in Modern Society (New York, Free Press, 1976) 52–54.
12 Unger (n 11) 52–53.
13 See J Raz, ‘Postema on Law’s Autonomy and Public Practical Reasons: A Critical

Comment’ (1998) 4 Legal Theory 1.

14 I am not alone in holding this view. Margaret Martin has gone to some lengths to

demonstrate exactly why Raz’s refutation of Postema’s argument is misguided. See Martin
(n 1) 155–56 ff.
154 Law’s ‘Creation Myth’

and in missing the fact that Postema’s thesis is not intended as a full and
accurate account of the specificities of any particular theoretical approach.
Rather, it aims to draw out what are the necessary implications of either
explicitly adopting, or implicitly accepting, a view of law’s function related
to social ordering, which therefore draws upon the artificial or institutional
nature of law as important to the fulfilment of this purpose. For this reason,
I believe Postema is justified in attributing this view to Raz (as well as to
Hart also).

I. LAW’S ‘CREATION MYTH’: THE AUTONOMY THESIS

The justification for law’s autonomy given above and towards the end of the
previous chapter is premised on the view that law’s function resides in its
ability to guide conduct under conditions of political plurality. The capacity
of law to unite otherwise divergent viewpoints therefore depends on its abil-
ity to supplant the other reasons we might have for action, instead offering
up the purely artificial, source-based normativity of the legal domain. This
view is set out by Postema as the core rationale of the Autonomy Thesis:
According to the Autonomy Thesis, legal reasoning is a viable and vital form of
public practical reasoning that is able to serve the task assigned to it because of its
autonomy from moral and political reasoning. This autonomy consists, roughly,
in the fact that the existence, content, and practical force of norms from which
legal reasoning proceeds are determined by criteria that make no essential refer-
ence to considerations of political morality, and so legal reasoning can proceed
entirely without engaging in arguments of political morality.15
In making this claim, a few points of clarification are necessary. First of
all, this claim to law’s autonomy is not necessarily central to the concep-
tual definition of law per se: one could in principle accept law’s ontologi-
cal validity on the basis of a much more limited set of criteria, without
necessarily requiring its autonomy in the form described by the Autonomy
Thesis. Second, and following on from the previous point, this commitment
to law’s autonomy is not simply a different formulation of the ‘separation
thesis’, common to certain methodological claims espoused principally by
legal positivists, which insist on a complete conceptual distinction between
law and morality. Rather, as noted above, if not assumed as a basic fea-
ture of legality, the Autonomy Thesis acts as a shorthand justification for
the moral, prudential or political imperatives compelling the subjugation of
individual moral judgement to the public, promulgated standards of legal-
ity. Third and finally, and again relatedly, in claiming that legal reasoning
‘can proceed entirely without engaging in arguments of political morality’,

15 Postema (n 5) 80.
 Law’s ‘Creation Myth’: The Autonomy Thesis 155

Postema is not suggesting that legal reasoning necessarily does so proceed,

but merely that even if moral or political considerations figure considerably
in legal reasoning, they necessarily must not play the decisive part in deter-
mining law’s normative force. Legal validity (rather than overall systemic
legitimacy) is in this sense determined ‘entirely’ by criteria endogenous to
the legal order itself.
Accordingly, whilst there may be a moral or political justification that
propels the need to isolate law’s limited domain, and whilst this limited
domain will undoubtedly open up again to moral and political concerns
when interpreting, applying or otherwise engaging the law, a legal order
may still be described as autonomous to the extent that legal norms enjoy
content-independent validity derived purely from their conformity with cer-
tain social sources. As Postema further explains:
The status of any norm as a law in a given jurisdiction is strictly a function of
its roots in sources (conventionally) recognized in the jurisdiction. While the
norm will have gained entry into the law’s domain in virtue of its extra-legal
merits, its status and force as a practical norm change. This status is rooted in its
source-base, and the practical meaning or interpretation it is given in application
is determined by reference to that source (and perhaps its relationship to other
sourced-based norms in the domain). Its application—that is, its practical mean-
ing or interpretation and its practical force—are now opaque to the merits which
first recommended it … It follows that, where there no doubt will be important
moral reasons for identifying a separate legal domain, these reasons will not be
available to the practical reasoning of participants in legal practice.16
Following this reasoning, we can say that the normative reasons underpin-
ning the thesis—whether moral, practical, prudential etc—become opaque
to the extent that they justify the construction of a certain kind of legal sys-
tem which, once established, allows those engaged in legal practice to justify
their specific normative commitments by reference to an entirely artificial
form of practical reasoning grounded in certain sources (and constructed
by reference to certain other secondary ordering principles) that are entirely
endogenous to the system itself. To buttress the ‘limited domain’ of the law
in this sense is to recognise and acknowledge the importance of the formal-
ity of legal sources as a necessary factor in mediating social discord and
pre-empting individual moral judgement.17
Insofar as we can accept this instrumental rationale, Postema is prob-
ably also right in recognising that the Autonomy Thesis can actually be
broken down further into three underpinning and necessarily intercon-
nected theses: these being what he terms the Limited Domain, Pre-emption

16
ibid 87.
17
See, eg, F Schauer, ‘Formalism’ (1988) 97 Yale Law Journal 509; F Schauer, ‘The Limited
Domain of the Law’ (2004) 90 Virginia Law Review 1909.
156 Law’s ‘Creation Myth’

and Sources theses. Henrik Palmer Olsen and Stuart Toddington provide a
useful summary of what Postema intends here:
These, respectively, express the demands of the [Autonomy Thesis] in that ‘law’
(autonomous normativity) operates in a limited domain of practical reason com-
mon to officials and citizens alike; that these norms constitute exclusionary rea-
sons for action in that they preclude acting for reasons outside the domain, and
these, therefore pre-emptive, norms be identifiable at source without recourse to
moral argument or political evaluations outside the limited domain.18
There thus seems to be a crucial interrelation between these three theses: the
Limited Domain Thesis is intelligible only because of the way in which the
other two theses necessarily act on each other. More specifically, the Pre-
emption Thesis suggests that law’s usefulness as a means of social mediation
depends on its ability to provide reasons for action which exclude, or, bet-
ter, trump, other moral or political reasons for action.19 The Sources Thesis
suggests that in order for legal reasons to be accepted as exclusionary in this
respect, the law’s validity must be verifiable on the basis of source-based
criteria—social facts—which themselves are distinct from moral or political
reasons for action.20 As Postema goes on to note:
[T]he Pre-emption Thesis and the Sources Thesis are [therefore] mutually depend-
ent. It would be pointless to isolate law’s limited domain from the normal reach
of practical reasoning, and especially from the balance of moral considerations
lying behind the rules, unless membership in law’s domain could be determined
by citizens and officials alike without recourse to moral argument … Similarly,
it would be pointless to displace practical reasoning onto a limited domain of
source-based rules, if citizens and officials alike could not count on compliance
with those rules.21
This position seems convincing and logically coherent within the terms of its
rationale—accepting, still, the instrumentalist justification which undergirds
this view, that is, the idea of law as a means of mediating social discord and
pre-empting moral judgement. But, as soon as we work through each of
these requirements, it seems difficult to fulfil these demands without further
supplementing the thesis. Law’s ability to secure compliance surely depends
on one’s capacity to determine the law’s content, which is likely not to be
clear-cut simply on the basis of there being certain social sources validat-
ing legal normativity or an abstract, systemic logic defining the contours of

18 HP Olsen and S Toddington, ‘Legal Idealism and the Autonomy of Law’ (1999) 12 Ratio

Juris 286, 296.

19 A norm’s acceptability must therefore depend on second-order procedural rules which

are distinct from evaluative considerations. As Raz puts it, legal norms must exclude other
reasons for acting on the basis of their being accepted at a second-order level, as independent
and distinct from all other reasons for acting: see J Raz, Practical Reason and Norms (Oxford,
Oxford University Press, 1975) 79–80.
20 Postema (n 5) 82 and passim.
21 ibid 92.
 Law’s ‘Creation Myth’: The Autonomy Thesis 157

legal reasoning. This indeterminacy suggests—as was noted in Chapter 3 in

particular—the probability of reasonable disagreement, in turn leading to a
certain degree of flexibility and malleability in the law. If left uncoordinated,
the law thus potentially offers a variety of possible justifications for particu-
lar, not necessarily commensurable political positions.
To explain further, consider again Raz’s critical engagement with Postema,
wherein he denies that his theory is committed to anything other than the
Sources Thesis—a form of autonomy which he takes to be a defining ele-
ment of all forms of legal positivism.22 The problem, however, is that it is
difficult to understand how the Sources Thesis can exist independently of
the broader commitment to pre-emptive normativity that appears so critical
to Raz’s overall theory.23 Indeed, despite his refutation of the argument that
law has any overarching and necessary function, the idea that law aims nec-
essarily to pre-empt moral choice and claims authority for itself must neces-
sarily presuppose the function of guiding conduct or social ordering. Indeed,
we saw in Chapter 4 how Raz’s reliance on law-applying authorities can
only really be explained by presuming such a function—as unremarkable as
such a function may seem. If we presume this view of law’s function to be
correct, it therefore seems doubtful that one could simply refer to a defined
list of sources in order to reach determinate solutions capable of norma-
tively pre-empting political or moral choice without the introduction of an
institutionalised hierarchy, as suggested above. The unrealistic assumption
that law has any inherent, discernible and determinate meaning is under-
mined by a number of recurrent and basic truths about legal practice: for
example, that normative disputes are often structured in terms of divergent
interpretations of existing legal rules; that different, sometimes potentially
conflicting, legal rules, entitlements or rights will exist independently of
each other without any obvious relation between them; and that, prior to
law’s ascertainment in certain adjudicatory contexts, it may be question-
able whether particular candidate norms actually ‘exist’ in the first place—
this being particularly the case at the international level, where adjudicators
are left to fill in the gaps caused by international law’s uncoordinated and
decentralised law-creating processes.
This might be a somewhat trite illustration of the open texture of legal
rules, but it is precisely for this reason that most who defend an account of
law akin to the Autonomy Thesis—Raz included—will tend to ground this
autonomy within a broader institutional theory,24 outlining the necessary

22 Raz (n 13) 3–4.

23 Martin (n 1) 158–60.
24 This is not necessarily the same as The Institutional Theory of Law developed by

MacCormick, though this approach accords significantly with what Postema hereby intends.
See most recently N MacCormick, Institutions of Law: An Essay in Legal Theory (Oxford,
Oxford University Press, 2007).
158 Law’s ‘Creation Myth’

intermediary role of a class of legal officials—particularly, though by no

means exclusively, judicial offices25—the purpose of which can only really
be to enhance the determinacy (and perhaps also the efficiency and effective-
ness) of legal norms. In other words, the abstract notion of legal autonomy
is supplemented through the introduction of a specific institutional context
that is understood as securing the overall systemic integrity of the legal order
in question. Insofar as we do not simply presume, but instead seek to justify
and defend this institutional structure—thus avoiding the methodological
controversy outlined in Chapters 4 and 5—we can follow Postema in refer-
ring to this model as the Institutionalised Autonomy Thesis. As he explains:
[T]he law’s solution to the pervasive problems of social co-operation essentially
includes, but is not limited to, defining a set of norms that meet the conditions of
the Autonomy Thesis; for these norms are authoritatively interpreted and applied,
and the system of norms is maintained by adjudicative institutions. Moreover,
adjudicative institutions are authorized to settle issues left unsettled by the set of
source-based legal norms available at any point in time.26
This reliance on certain authoritative institutional structures should come as
no surprise bearing in mind the perspectives covered in the previous two chap-
ters. The pre-emptive capacity of the law seems to depend upon incorporat-
ing, centralising and streamlining law-determining processes or institutions:
substantive autonomy eventually implies—indeed, necessitates—institutional
autonomy. In this respect, a legal system’s ‘secondary rules’ would need to
offer guidance that goes beyond identifying legal norms (and, perhaps, clari-
fying the relationships between them), having to outline procedures and pro-
cesses, not only for determining the validity and meaning of these norms,
but also for clarifying which official or authorised body has the ultimate say
in any continuing conflict—that is, whose view is ultimately to be determi-
native.27 In other words, rather than simply presume the presence of legal
officials, a more explicitly normative theory akin to the Institutionalised
Autonomy Thesis provides a specific justification for their presence—or, at
the very least, provides a justification for independent courts of compulsory
jurisdiction capable of authoritatively determining the law and enforcing
their judgment on disputing parties.28
This movement from abstract to institutionalised autonomy seems, again,
familiar and uncontroversial. Insofar as these institutional processes are

25 See, eg, J Raz, The Concept of a Legal System, 2nd edn (Oxford, Clarendon Press, 1980)

215–16; Postema (n 5) 92.

26 Postema (n 5) 93.
27 Though not always clearly expressed as such, it is possible to see this kind of interrelation

in Hart’s discussion of secondary norms: HLA Hart, The Concept of Law, 3rd edn (Oxford,
Clarendon Press, 2012) 91–99.
28 See, eg, J Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics,

revised edn (Oxford, Clarendon Press, 1994) 330–35.

 The Failure of the Autonomy Thesis 159

seen as authorised by the system itself, that is, so long as there is acceptance
of the structural and institutional rules capable of sustaining the finality
of legal decisions (and probably also law-creating and enforcement pro-
cesses),29 a legal order can be defended still as a coherent and (relatively)
autonomous system of public practical reasoning.30 Indeed, insofar as those
institutions are themselves staffed or serviced by relatively homogeneous
legal professions, this view further reinforces the inter-related and mutu-
ally reinforcing forms of legal autonomy outlined at the beginning of the
chapter. At the same time, however, there is a certain tension revealed in
institutionalising our legal theory in this way: once we re-introduce human
agency into the picture by justifying—indeed, necessitating—some form of
institutionalised authority or ‘final say’, we surely need to supplement our
theory to account for the authority of the thus-authorised decision-maker,
particularly insofar as such authorities are understood as possessing adjudi-
cative discretion. In other words—and as I will explain more clearly in the
following section—it would appear that law itself is no longer acting as the
pre-emptive normative restraint, but instead the particular determinations
of legal decision-makers (officials). On this view, legal norms themselves do
not necessarily have any pre-emptive authority until bestowed with deter-
minate content by officials. The problem, however, is that this content must
necessarily come from outside of law’s limited domain and therefore further
begs the question of how to constrain or pre-empt the discretion of our thus-
authorised officials. In fact, as I now go on to demonstrate, if we retain the
instrumental justification for the Autonomy Thesis, we seem pushed into
having to embellish the thesis to such an extent that it threatens the very
idea of the autonomy of law at its heart.

II. THE FAILURE OF THE AUTONOMY THESIS

The problem just outlined can perhaps best be illustrated by further con-
sidering the task being asked of legal institutions (specifically, what has
been termed law- or norm-applying institutions in Chapter 4). The kind of
justification for adjudicative institutions contained in the Institutionalised
Autonomy Thesis does not suggest that judges (or any other official) are
tasked with authoritatively determining law’s inherent meaning in cases of
conflict—such truth claims being precluded by the very same moral agnos-
ticism and political pluralism that are taken together to justify the neces-
sary autonomy of law in the first place. Rather, adjudicative institutions are

29 Postema (n 5) 92–94; and for examples of this kind of justification, see, eg, Raz (n 25)

215–16; N MacCormick, ‘The Concept of Law and The Concept of Law’ in George (n 5)
180–81.
30 Postema (n 5) 92–93.
160 Law’s ‘Creation Myth’

seen as giving meaning to legal standards, gap-filling and often creatively

interpreting norms in novel situations. As Postema explains:
[Adjudicative institutions] are authorised to add to or alter the norms of law.
Since, in such cases by hypothesis, the existing legal considerations are silent, inde-
terminate, or in conflict, the courts’ settling of them is determined not by appeal to
the law, but by appeals to considerations outside its limited domain.31 (emphasis
added, footnotes omitted)
To admit this is, again, perhaps a trite point, but recognising this basic truth
surely points to the fact that legal reasoning is not in itself an autonomous
process.32 What would appear to be most important in authorised adjudica-
tive processes are the non-legal factors which are introduced into judicial
reasoning to give meaning to otherwise indeterminate legal standards.33
This might not necessarily be perceived as a problem insofar as the claim
to the autonomy of law goes only to the nature of law and not to its appli-
cation as such, but such a limitation would suggest the incompleteness of
the Autonomy Thesis (and thus any theory of law premised upon it), par-
ticularly bearing in mind that the initial justification for the thesis was to
secure social coordination under conditions of political plurality. Whilst one
might therefore get around this problem at a surface level by distinguishing
a theory of adjudication from a conceptual analysis of law,34 this distinction
would be somewhat disingenuous to the extent that our concept of law is
justified by a functional purpose that can only really be fulfilled by integrat-
ing adjudicative processes in this way. At the same time, to instead follow
through on the idea that law only instantiates itself through adjudication
would seem to admit the plausibility of the critique of those such as Ronald
Dworkin, whose interpretivist approach essentially entails the denial of the
law’s autonomy through a necessary re-integration of moral reasoning into
the legal domain vis-a-vis authorised institutions.35
As Postema ultimately concludes, it seems difficult to institutionalise
the Autonomy Thesis in this way without undermining its core rationale,
which, as we have seen, relies on the artificiality of the legal framework to
overcome the moral indeterminacy created by the plural political condi-
tions of human communities. In fact, the irony of this realisation is that the
apparent discord between functional ambition and institutional implication

31 ibid 93; also cited in Olsen and Toddington (n 18) 297.

32 Raz perhaps makes this point most forcibly in his repudiation of Postema’s argument: see
Raz (n 13) 4.
33 Capps (n 2) 143–44.
34 See also the discussion in Schauer (n 17) 1949–50.
35 See R Dworkin, Law’s Empire (Oxford, Hart Publishing, 2004, first published in 1986).

See also section 5 of N Stavropoulos, ‘Legal Interpretivism’ in EN Zalta (ed), The Stanford
Encyclopedia of Philosophy (Summer 2014 edn); available at: http://plato.stanford.edu/
archives/sum2014/entries/law-interpretivist.
 The Failure of the Autonomy Thesis 161

is only amplified when applied to societies that are particularly marked

by moral and political disagreement—most obviously at the international
level—for it would seem that in these societies there would be the greatest
need for autonomous law, so that legal participants can determine their
action in accordance with ‘deliberations about matters that are common
to them all, rather than considerations which most divide them’.36 In such
cases, though, the fact that legal institutions are guided by factors outside
of law’s limited domain surely creates a problem for the law’s task of social
coordination. By drawing on such extra-legal justifications in order to
complete the task of instantiating the law in specific contexts, it is diffi-
cult to see official determinations as in any sense pre-empted by law—it
being those non-legal factors (moral or political considerations) that are
ultimately decisive in ascertaining the law and applying it to concrete situ-
ations. Why would legal participants have a reason to follow the judg-
ments of courts if they do not feel that judges themselves are somehow
constrained by the law?
We therefore seem to need a reason to sustain the authority of legal
officials that would go beyond, for example, a claim to expertise or
neutrality—claims that are surely controversial, if not indeed precluded, in
societies marked by deep moral and political disagreement. If the authority
of law-applying institutions cannot be sustained a priori then legal partici-
pants are arguably forced to somehow track and evaluate judicial reason-
ing by some theory of legitimacy, thus once again undermining the social
coordination justification for autonomous law.37 As Postema recognises,
‘in the absence of a plausible claim of expertise on contested matters of
political morality, law can hope to maintain its legitimacy in a society in
which serious issues of political morality remain unsettled, only if it pro-
vides institutional devices by which the conditions of its own legitimacy
can be assessed’.38
One can see this tension at work, once again, in the approach of Raz,
as Martin has recently demonstrated. In his later work in particular, spe-
cifically Ethics in the Public Domain, Raz looks at the moral duties incum-
bent on adjudicators when giving judgment in legal disputes.39 Bearing in
mind, as we have already seen, that Raz’s argument is that law necessarily
claims authority, and this theory is, in turn, premised upon the practice of
law-applying institutions (whose acceptance of the rule of recognition is
seen as constitutive of legal order), one can legitimately question how Raz
can maintain this position without also incorporating an account of how
morality acts upon and guides our thus-authorised decision-makers. In this

36 Postema (n 5) 106–07.
37 ibid 100–01.
38 ibid 108–09.
39 Raz (n 28); and see also Martin (n 1) 49–54.
162 Law’s ‘Creation Myth’

respect, as Martin recognises, it seems impossible to divorce Raz’s account

of adjudication from his overarching legal theory:
Citizens have a reason to defer to legal norms when deciding how to act because
they can depend on judges to enforce the rules. The exclusionary status of norms is
itself dependent on the duty of judges to apply pre-existing positive law … [But o]nce
judges are thought of as moral reasoners, we can wonder whether citizens have
the requisite incentive to treat legal norms as pre-emptive (or exclusionary)
reasons for action.40
This kind of embellishment of the theory thus seems to corrupt its core
tenets; it seems impossible to complete the Autonomy Thesis without also
undermining it, for we need to look outside of law’s limited domain—either
to some theory of inherent moral restraint, or political mechanism by which
we might account for, and ultimately restrain, judicial discretion—in order
to find the operative factors at play in actually facilitating social coordina-
tion.41 In fact, as Capps also acknowledges, this problem only appears to
get worse when we relocate our analysis to the international level, which, in
addition to being a characteristically pluralistic society of the sort described
by Postema, clearly lacks both institutions for authoritatively determining
the law, as well as any means by which the legitimacy of any such determi-
nation could be checked—at least other than through the free interplay of
political forces that arguably characterises international society. In short,
the ad hoc nature of international adjudication and the lack of any systemic
hierarchy between courts and other institutionalised decision-makers mean
that international legal participants are themselves left to track the legiti-
macy and cogency of each legal determination given by any particular court
or other authorised decision-maker.42 This institutional structure thus seems
to contain within itself the very same social tensions which, it is claimed,
law has the purpose of mediating.

III. RESCUING THE AUTONOMY THESIS?

With this problem in mind, we seem left with two plausible ways forward.
The first would be to give up entirely on the apparent fiction of legal auton-
omy, to recognise the necessarily moral character of law, conceding the cri-
tiques of those such as Dworkin, who sees law as only really instantiating
itself when adjudicators attempt to synthesise law’s content with the under-
lying social values at play in any given community.43 Bearing in mind the

40 Martin (n 1) 53.
41 Postema (n 5) 110.
42 Capps (n 2) 146–47.
43 Dworkin (n 35) 52–53 and passim.
 Rescuing the Autonomy Thesis? 163

direction of the argument of Part II so far, it might seem somewhat strange

to reach the conclusion that law might not, after all, be autonomous (at
least not in the sense described). The problem, though, is that if we follow
through the logic of the Autonomy Thesis as formulated above, seeing law
as an instrumental solution to the problem of social order in pluralist socie-
ties, we appear to be drawn towards this conclusion. Indeed, this is echoed
by Postema himself, who claims that the Autonomy Thesis will be unlikely
to survive its necessary ‘completion’ unless we abandon the very claim to
law’s autonomy at its heart. To carry through the functional ambition at the
heart of the thesis—an ambition which, in fact, seems to underpin the vast
majority of contemporary theories of law—we seem to need some theory
of institutional rationality, or interpretative practice, re-introducing moral
argumentation as crucial to the task of legal reasoning and thus, ultimately,
the fulfilment of law’s function.44
That this conclusion seems somewhat paradoxical, perverse even, par-
ticularly bearing in mind the value that has been attributed to the idea of
law’s autonomy thus far, causes me to veer towards a second option, how-
ever. This option would be to maintain the value of law’s abstract, sys-
temic autonomy as a virtuous end in itself and, instead, to reject almost
entirely the instrumentalist logic of the kind of ‘creation myth’ that propels
the Autonomy Thesis in the first place. This option would be to recognise
the abstract rationality of law as an important end in itself; that law’s func-
tion is to structure, channel and facilitate a way of managing disagreement
in plural political communities. To be sure, this is still to recognise that law
is best defined and rationally defended by reference to its point or purpose,
but, importantly, this point or ‘final cause’ can be seen as inherently non-
instrumental insofar as it subsists in law being its own end. I will say more
about this claim shortly, but to support my position in this respect, I must
first say why I think the alternative view—the attempt to re-introduce moral
reasoning, indeed, to equate moral and legal validity, in order to fulfil the
instrumentalist logic at the heart of the Autonomy Thesis—inevitably fails.

A. On the Reflexivity of Legal Reasoning

Postema’s concerns are picked up by Capps, who notes how in seeking to

rescue the Autonomy Thesis, we would need to show how law acts upon
and guides authorised decision-makers (officials essentially), who cannot
merely have free rein to interpret the law as they see fit. If they have to
interpret the law at all, officials must engage in a form of justification that

44 Postema (n 5) 111; Olsen and Toddington (n 18) 298. See also J Finnis, ‘The Truth in

Legal Positivism’ in George (n 5) 204–05.

164 Law’s ‘Creation Myth’

cannot simply refer back to the internal logic of an autonomous legal order,
the indeterminacy of which being precisely the reason why, in the domestic
context at least, adjudicatory institutions are called upon to finally settle the
legal disputes that arise between other legal participants.45 For Capps, legal
adjudicators are thus compelled to carry through the initial moral impera-
tive for autonomous law into the adjudicative setting, essentially binding
them to reason according to moral imperative (ie, by giving effect to human
dignity, respecting moral autonomy or some other similar ends or values).46
In making this point, Capps follows Postema, who seeks to show how
adjudication has to be a ‘reflectively self-critical’ practice—by which he aims
to underscore the sense in which this task is, ultimately, a justificatory activ-
ity. In other words, it places an onus on decision-makers to refer back and
reason according to the moral imperatives which grant their authority in the
first place.47 This would seem to accord considerably with the views of those
like Finnis, who highlight how legal decision-making must be informed by
the prevailing social mores in the community in which law is operative.48
Specifically, Finnis claims that a host of non-posited norms will inevitably
act upon legal subjects in terms of how they conform (or not) to legal rules,
just as a considerable number of different non-posited (often procedural)
norms will be at play in the deliberations and decision-making of legal offi-
cials when giving effect to the law in specific contexts.49 In this way, he
draws a contrast between the artificial, institutional nature of positive law
and the broader social-moral context of its instantiation in practice:
Though human law is artefact and artifice, and not a conclusion from moral prem-
ises, both its positing and the recognition of its positivity (by judges, professionals,
citizens, and thence by descriptive and critical scholars) cannot be understood
without reference to the moral principles that ground and confirm its authority or
challenge its pretention.50
This argument seems intuitively plausible in many respects. It is surely
not unreasonable to suggest that legal participants (including authorised

45 Capps (n 2) 152–54.
46 Postema (n 5) 111–12.
47 ibid 111.
48 This is a point well made by Finnis, with a useful, though he claims also ‘hackneyed’,

example of the ‘rule of the road’. See Finnis (n 8) 285: ‘There is a sense in which … the rule of
the road gets “all its force” from the authoritative custom, enactment, or other determination
which laid it down. Until the stipulation “dive on the left, and at less than 70 miles per hour”
was posited by one of these means, there was no legal rule of the road; moreover there was no
need for the legislator to have a reason for choosing “left” rather than “right” or “70” rather
than “65”. But there is also a sense in which … the rule of the road gets “all its normative
force” ultimately from the permanent principles of practical reason (which require us to respect
our own and others’ physical safety) in combination with non-posited facts such as that traffic
is dangerous and can be made safety by orderly traffic flows and limitation of speed, that brak-
ing distances and human reaction times are such-and-such, etc.’
49 ibid 286–87.
50 Finnis (n 44) 204–05.
 Rescuing the Autonomy Thesis? 165

adjudicative bodies) operate in a political and social context in which they

must look beyond law and legal texts to reason, make determinations and
adapt the law to new circumstances in accordance with prevailing moral
principles or political realities. Insofar as law can therefore only really be
implemented by legal decision-makers by making reference to this broader
context, clearly the Autonomy Thesis requires some form of qualification.
At the same time, however, this reflexivity of adjudicative practice does
not necessarily undermine the recognition of law’s limited domain—as
Postema, Capps and others seem to suggest—but, I would argue, really
only demonstrates the futility of the pre-emption strategy underpinning the
thesis. In other words, it suggests that law only takes on normative mean-
ing by reference to standards already prevailing within a given society; that
one cannot simply trace a causative path from legal norm to behavioural
adjustment.51 I will say more about why this might be shortly, but first let
me consider further the way in which legal reasoning may be reflexive in the
form that I have just suggested.
This idea is fleshed out in particular in an important work by Nigel Sim-
monds,52 who highlights the ‘symbiotic relationship’ between legal norms
and the background social mores and normative understandings held in the
community as a whole.53 Importantly, however, Simmonds argues that the
idea that law is used functionally to implement moral standards, that is, to
instruct a community, inverts the actual order of things: ‘that community is
the matrix of interpretation, not its result’, by which he means that ‘if social
life did not already exhibit some stable expectations and shared understand-
ings, law could not provide them’.54 If Simmonds is correct, then, rather than
completing or supplementing the Autonomy Thesis, this realisation points
directly to the incoherence of the pre-emptive strategy that drives it and
which, at least in Postema’s model, sits at its heart; it suggests that law plays
a part in resolving, but cannot authoritatively determine the outcome of, any
given normative problem. In Simmonds’ words, it ‘embodies an authorita-
tive interpretation of social relationships and in that way enters into our
understanding of social life’, but it is this understanding which, in turn, also
‘makes a vital contribution to the stability and ascertainability of law’.55
This realisation would thus seem to cast doubt on the cogency of the
creation myth explanation of law’s function in society. Rather than see-
ing law as being bound up with the task of securing order, of governing or

51 See on this point J Griffith, ‘Is Law Important?’ (1979) 54 New York University Law

Review 339.
52 N Simmonds, ‘Between Positivism and Idealism’ (1991) 50 Cambridge Law Journal 308.

Simmonds appears to have moved away from this view to some degree in his later work,
particularly in N Simmonds, Law as a Moral Idea (Oxford, Oxford University Press, 2007).
53 See on this point Capps (n 2) 150.
54 Simmonds, ‘Between Positivism and Idealism’ (n 52) 326.
55 ibid 322.
166 Law’s ‘Creation Myth’

guiding conduct, law might be better understood as an attempt to give an

‘authoritative interpretation’ of the social and political context in which it is
found; it embodies the shared understandings of participants in a particular
practice, which will in themselves embody broader notions of political legit-
imacy as they feature in those relations, giving structure and authority—in
the domestic context at least—to governmental institutions.
I believe that Simmonds’ views in this respect are insightful and impor-
tant. They offer a normative account of law’s necessary and important func-
tion in society (law’s instrumentality), whilst at the same time recognising
that law holds out its own idea, or end, which is bound up with the idea of
justice itself (its autonomy, in one sense at least). As such, this realisation
may well offer a way of rescuing the Autonomy Thesis not by supplement-
ing it as such, but by radically scaling back that which is demanded of law
in instrumental terms. On this view, law’s autonomy would not be seen as
important as a means to social order, of instructing a community, but as an
important end in itself: giving a specific (and important) institutional form
to our social conflicts (rather than resolving those conflicts in any definitive
sense). This does not mean that law cannot be used for immoral ends, nor
does it disconnect it from morality—at least not when conceived as an ideal.
What it does mean, however, is that there is specific value in law’s institu-
tional nature, its artificiality.
It is not my intention yet to draw out the consequences of this way of
thinking about law for our consideration of international law—I take up
this task in Part III. For now, I want to remain at the more abstract level of
legal theory in order to show why I believe the attempt to rescue the instru-
mentalist view, specifically by incorporating a more deterministic moral
viewpoint, will inevitably fail. In this regard, I must engage with one quite
fundamental objection to the kind of ‘reflexive approach’ I have sketched
out briefly above.

B. Morality ‘All the Way Down’? The Failure

of the Interpretivist Challenge

In following through on Postema’s challenge, Capps considers and ulti-

mately rejects the kind of reasoning presented by Simmonds. He argues that
such a strategy fails to guard against the attendant risk that a legal order
becomes corrupted, sustaining fundamentally unjust practices (for instance,
racial apartheid or the subjugation of women) which are often tolerated
by certain societies or perhaps even regarded as fair or just by a significant
enough section of the community in question.56 In order to guard against

56 Capps (n 2) 152–53.
 Rescuing the Autonomy Thesis? 167

this risk, Capps argues that legal standards must possess some objective
moral content that stands above the positive law, aprioristically determining
the range of permissible responses available to authorised decision-makers.
Though this conclusion clearly challenges the autonomy of law, Capps
follows Postema’s lead by referring to this approach as the Integrated
Autonomy Thesis, which he describes as ‘a version of the [Autonomy Thesis]
that reflects all its features except for the isolation strategy which is at its
heart’.57 Whilst space precludes giving Capps’ theory, particularly insofar as
it applies to international law, the full consideration it deserves—a challenge
I have taken up elsewhere58—it suffices for current purposes to note that the
Integrated Autonomy Thesis is ‘predicated on an integration of law with
objective moral interests’, a state of affairs ‘achieved by officials exercising
their role in legal institutions so as to establish the conditions by which each
legal subject has human dignity’.59 Capps’ claims in this regard largely fol-
low those of Olsen and Toddington, who adopt a similar argument in their
critical engagement with Postema’s account, arguing that the normative jus-
tification that was made opaque under the Autonomy Thesis should again
become ‘transparent’ in the process of the law’s application in adjudicative
contexts.60 Specifically, they claim that in order to fulfil the functional justi-
fication that propels the original Autonomy Thesis, one must at least defend
‘the possibility of a sufficiently determinate system of practical reason which
can survive positive complexity’.61
To this extent at least, this final move pushes these approaches in the
direction of those like Dworkin who argue for a constructive interpreta-
tion of practices based on an account of ‘law as integrity’.62 Although
philosophically—indeed, epistemologically—distinct in their philosophical
commitments, methodologically speaking, there is a considerable degree of
convergence here in a collective disavowal of law’s limited domain (as con-
ceived under the original Autonomy Thesis). In fact, Olsen and Toddington
describe Dworkin’s account of integrity as following the functional logic
of the Autonomy Thesis, whilst at the same time denying one of its core,
defining features: the wish to clearly distinguish legal from moral validity.

57 ibid 151.
58 See R Collins, ‘No Longer at the Vanishing Point? International Law and the Analytical
Tradition in Jurisprudence’ (2014) 5 Jurisprudence 265. Some of the points raised here develop
themes from this work.
59 Capps (n 2) 184.
60 HP Olsen and S Toddington, Law in its Own Right (Oxford, Hart Publishing, 1999)

129 ff.
61 Olsen and Toddington (n 18) 308.
62 See, eg, R Dworkin, Freedom’s Law: The Moral Reading of the American Constitution

(Cambridge, MA, Harvard University Press, 1996). Capps outlines and endorses an interpreta-
tion of Hersch Lauterpacht’s method in international law based on a Dworkinian reading. See
P Capps, ‘Lauterpacht’s Method’ (2012) 82 British Yearbook of International Law 248.
168 Law’s ‘Creation Myth’

Following this rationale, they argue—as Capps does also—that legal

decision-makers should strive for the realisation of the practical reason that
propels the thesis in the first place. Whilst this would not solve the problem
of indeterminacy or secure a precise infallible outcome, it would limit and
guide the decision-maker in the right direction by placing an interpretative
obligation upon them.63
It is difficult to dispute these collective diagnoses of the failure, or at least
incompleteness, of the Autonomy Thesis as originally promulgated, but it is
far from clear that these efforts to resurrect and re-orient the theory would
help resolve the kind of moral discord, or danger of moral subversion,
which these theorists wish to expunge from the law. Even if the value which
ultimately propels their work, the recognition and necessary protection of
human dignity, seems unobjectionable as a broad moral commitment, it
surely adds nothing to the quandary of legal decision-making to claim that
adjudicators are somehow bound to reason according to this specific end
when applying law to a particular set of circumstances in specific social and
political contexts. To be sure, values like human dignity or Kantian moral
autonomy might suggest certain boundaries to the freedom of decision-
makers, but they surely cannot reveal any more definite and determinate
solutions to the kinds of complex moral problems that often arise in socie-
ties marked by political and moral pluralism—that is, in exactly the kind of
situations where the Autonomy Thesis seemed to reveal its inherent limita-
tions. More specifically, if it is the non-ideal conditions pertaining in society
(and the attendant moral discord such conditions imply) that explain why
our moral imperatives translate into the abstract formality of legal form,
then to refer back to the underpinning moral rationale will reveal little until
such values are interpreted within the specific historical and social contexts
in which they are fleshed out and given meaning in practice.
It is very likely, therefore, that whilst legal practice, broadly speaking,
cannot be understood when divorced from the moral or political values
that the law seeks to promote—as scholars such as Finnis, Simmonds and
Dworkin all insightfully suggest—such values cannot offer any concrete
determinate outcomes in mediating the kind of moral discord that charac-
terises many areas of human activity. Consider, for example, the issue of
abortion in societies deeply divided on the moral and legal issues involved.
Suppose that a judge finds herself in the (unlikely) position of ruling on the
legality or constitutionality of the practice in general, and in doing so finds
herself equally persuaded as to the merits of arguments of both pro-life
and pro-choice camps—particularly when such arguments are considered
from the perspective of the moral autonomy and dignity afforded to human

63 Olsen and Toddington (n 18) 306.

 Rescuing the Autonomy Thesis? 169

beings. In this case, to say that the judge must apply the objective demands
of practical-reasonableness to decide how to resolve this dispute surely
leaves open reasonable arguments either way.64 In such an instance, Capps
would not suggest that judges or other adjudicators would have any kind
of special access to knowledge about what, for instance, human dignity
might specifically require in particular disputes or controversies, especially
areas of such sensitive moral disagreement. Rather, like Dworkin, the claim
is more methodological, suggesting that the onus is on the decision-maker
to reach the most justifiable outcome—the claim to integrity—in these par-
ticular circumstances. However, the problem here is that one is left won-
dering in what way infusing moral and legal validity would help to secure
this end.
In these circumstances, it seems much more convincing—I would
maintain—to recognise the institutional nature of legal decision-making,
which is, in Neil MacCormick’s words, morally ‘heteronomous’ rather than
‘autonomous’.65 In other words, what is required of the decision-maker is
a balancing of interests in order to do justice in the specific context of the
social and political setting in which they operate. Waldron has made a simi-
lar point and is worth quoting at length:
Neither judges nor legislators are deciding what to do as individuals. When they
deliberate and vote in their respective institutions, they are deciding what is to be
done in the name of the whole society. On abortion, for example, the judge or the
legislator is not like a private citizen wrestling with the question of whether it is
right or wrong to procure an abortion for herself. The judge or the legislator is
participating in the establishment of a national abortion policy. He has to make
a decision that will stand in the name of large numbers of others in the society,
including others who he knows reason from premises that differ from his premises
to conclusions that differ from his conclusions. He may feel he has a duty to take
the views of some of these others into account, and in a way that has no parallel
in the case of strictly individual reasoning. One way of putting this is to say that,
although it is appropriate, even necessary, for the ordinary citizen’s moral reason-
ing to be autonomous (in the sense of its being incumbent upon her just to think
morally for herself), it may not be appropriate for the judge’s or the legislator’s
moral reasoning to be autonomous in that sense.66
Following this reasoning, it would seem that objective instantiations of
values like human dignity can only really materialise by reference to par-
ticular social and historical contexts, and even then may only reveal deep

64 See generally on this point J Waldron, ‘The Irrelevance of Moral Objectivity’ in RP George

(ed), Natural Law Theory (Oxford, Clarendon Press, 1992) 158–87.

65 MacCormick (n 29) 170–71; MacCormick (n 24) 249–51.
66 J Waldron, ‘Judges as Moral Reasoners’ (2009) 7 International Journal of Constitutional

Law 2, at 5–6.
170 Law’s ‘Creation Myth’

areas of moral disagreement when applied to concrete circumstances—thus

underlining the importance of the kind of symbiosis that Capps sees as
inadequate.

C. The Autonomy Thesis as a Social Contract Theory

Whilst history suggests that Capps’ fears over the moral subversion of the
law by authorised decision-makers are not unfounded, the attempt to fill
out or augment the Autonomy Thesis as a coherent theory of law misses
its most fundamental flaw. If anything, the lesson from the state context is
that to the extent that such risks have presented themselves, certain checks
and balances will exist (or, at least, can be put in place) through the instiga-
tion of complex institutional arrangements, including, but not limited to, a
separation of powers, mechanisms of judicial review, as well as necessary
democratic inputs into constitutional processes. This may well be a drastic
over-simplification of a more thorough, worked-through model of consti-
tutional legitimacy at the state level, but this is only really to highlight the
underlying point of contention: the best version of the Autonomy Thesis is
probably not, or not just, a theory of law at all. Rather, taken to its logical
extreme, the Autonomy Thesis actually morphs into a fuller social contract
theory, specifically because what the thesis is attempting to establish is legiti-
mate political authority and not, or not just, law alone.
This conclusion is not really surprising. In setting the Autonomy Thesis
out as a ‘creation myth’, Postema appears to imply as much, particularly
when grounding it in a tradition of thought which dates back to Hobbes
and Locke.67 Capps as well as Olsen and Toddington make explicit refer-
ence to the idea of the social contract when working through the implica-
tions of Postema’s thesis.68 Of course, law clearly plays an important part in
the kind of constitutional theory that seeks to explain legitimate authority
in the state context, responding specifically to the fact of domination and
hierarchical political rule. However, attempting to explain this legitimacy
problem through the lens of legal theory alone will not only distort reality,
but will also miss the particular—and important—role that law plays within
this broader institutional and political setting. In other words, it completely
fails to explain the value of law’s autonomy in acting as a non-instrumental
check on political action.69
The point that I am trying to make here is that the failure of the
Autonomy Thesis arises from the fact that what law is being asked to do—

67Postema (n 5) 79–80.
68Capps (n 2) 138–39, 177–78 and passim; Olsen and Toddington (n 18) 303 and 308; and
more extensively, see Ch 5 of Olsen and Toddington (n 60) 113–28.
69 See, eg, Griffith (n 51).
 Conclusion 171

the task of social coordination through coercion—is not a task which law
alone can fulfil. In other words, the goal to which the Autonomy Thesis is
committed aims to solve a particular legitimacy problem faced by those sub-
ject to hierarchical authority in a state context. Those propounding such an
argument thus seem to commit the basic error ‘of confusing certain features
of the modern state with the idea of law as such’.70 The social contract does
not act solely as a justification for legal institutions, but provides a broader
rationale for, at best, something like a democratic, functioning rule of law
state. As such, the Autonomy Thesis fails because of what we demand from
it, but what is demanded from it in this respect is not only unrealistic, but
also hugely problematic in undermining the very thing that makes law valu-
able to these constitutional processes: its autonomy, in this restricted, non-
instrumental sense. Unless we continue to maintain a necessary distinction
between legal and moral validity, law will be unable to make any kind of
important and valuable contribution to the life of a community. Simmonds
is therefore correct that, in its essence, law is a deeply moral idea, but it is
surely also one which has its own imminent rationality.

IV. CONCLUSION

In reaching the conclusion that the Autonomy Thesis is essentially a version

of a social contract theory, it must also be the case that this thesis cannot
simply be watered down by missing out the fuller institutional context of the
state as a coercive legal order with a specific function, and subject to specific
legitimacy pulls, requiring a particular kind of institutional solution. As a
theory of (or at least a justification for) law, and as a theory applicable to
international law in particular, the Autonomy Thesis can thus be accused
of over-reaching in its ambition, pointing towards the broader institutional
and political context of legitimate rule and authority that one commonly
finds at the state level, and which is not only characteristically absent from
international law, but is arguably antithetical to such a decentralised legal
order.
I do not doubt that Capps is correct in foreseeing that a legal order may
well become corrupted and that law’s abstract autonomy may be used to do
bad as much as good, but this does not take away from the fact that this
autonomy on its own may be a valuable (albeit contextually dependent)
end in its own right. To the extent that the kinds of risks he foresees present
themselves within the context of coercive political communities justified
through something like the social contract, our attempts to guard against
them necessarily involve a range of constitutional questions of institutional

70 T Nardin, Law, Morality, and the Relations of States (Princeton, NJ, Princeton University

Press, 1983) 132.

172 Law’s ‘Creation Myth’

design which stretch beyond the ambit of law’s limited domain. Law has to
play a role in this context, but its specificity depends upon it retaining its
unique artificiality, distinguishing legal and moral validity. In other words,
the best version of the Autonomy Thesis is not one which is supplemented
in order to explain this problem of constitutional authority, but one which
is scaled back to recognise this rather more limited but no less important
end. To paraphrase yet ultimately disagree with Capps, the best version of
the thesis is the one that reflects Postema’s model in all aspects, except for
the pre-emption strategy at its core.
With this conclusion in mind, we should be very cautious in accepting
the plausibility of the kind of legal-theoretical models against which inter-
national law is commonly reconciled and is so often found wanting. In this
chapter, and indeed in this part of the book overall, I have not sought to
disprove international law’s claimed institutional deficiency—as outlined
in Part I—but by drawing on some popular modes of conceptual think-
ing about law, I hope to have questioned the plausibility of a view of law’s
function and necessary institutional architecture against which this criticism
most often arises. Reaching this conclusion thus prompts further thought on
how best to understand the institutional architecture of international law, of
the unique role that law plays in the circumstances of international politics,
with its own legitimacy pulls and discrete political constraints. This is the
task I now take up in Part III.
Part III

Effect
 7
Domestic Analogy, the Rule of Law
and the Relations Between States
In no field of intellectual endeavour has the domestic experience
of liberalism been so overwhelming as in this. The application
of domestic legal experience to international law is really the main
stock in trade of modern international thought.
Hans Morgenthau, Scientific Man vs. Power Politics1

T
HE USE OF domestic analogy has long played a pivotal role in shap-
ing thought about the nature of relations between states, as well as
the potential for legal rules to structure or regulate those relations.2
The analogy is explicit in some of the most famous writings in political
theory, for instance, in the works of Rousseau or Kant, though it has also
been of more implicit reach in structuring understanding of the nature of
and basis of legitimacy within the international legal system.3 The effort to
understand international law as an autonomous system of positive rules,
detailed in Part I, presupposes the analogy: ‘a legitimate social order [being]
one which is objective, one that consists of formally neutral and objectively
ascertainable rules, created in a process of popular legislation’.4 In fact,
the resulting (and recurring) perception of a ‘constitutional deficiency’ in
international law only really makes sense by reference to such an idealised

1 H Morgenthau, Scientific Man vs. Power Politics (Chicago, University of Chicago Press,

1946) 113.
2 As Joseph Weiler suggests: ‘Analogies to domestic law are impermissible, though

most of us are habitual sinners in this respect.’ JHH Weiler, ‘The Geology of International
Law—Governance, Democracy and Legitimacy’ (2004) 64 Zeitschrift für Ausländisches
Öffentliches Recht und Völkerrecht 547, at 550. See further H Suganami, The Domestic Anal-
ogy and World Order Proposals (Cambridge, Cambridge University Press, 1989).
3 P Capps, ‘The Rejection of the Universal State’ in N Tsagourias (ed), Transnational

Constitutionalism (Cambridge, Cambridge University Press, 2007) 17, at 19–22 and pas-
sim; see also M Koskenniemi, From Apology to Utopia: The Structure of International Legal
Argument (Cambridge, Cambridge University Press, 2005) 22–23; and, more recently, I Hurd,
‘The International Rule of Law and the Domestic Analogy’ (2015) 4 Global Constitutionalism
365, at 366–67 in particular.
4 Koskenniemi (n 3) 71; and see further M Koskenniemi, ‘The Politics of International Law’

(1990) 1 European Journal of International Law 4, at 4–7; and FV Kratochwil, ‘How Do

Norms Matter?’ in M Byers (ed), The Role of Law in International Politics (Oxford, Oxford
University Press, 2000) 35, at 39–40.
176 Domestic Analogy, the Rule of Law

paradigm of a well-functioning rule of law state.5 As Hidemi Suganami

has argued, the domestic analogy can be understood to ‘form part of the
assumptions of any contemporary writer on international affairs who
attributes the instability of the international system primarily to its decen-
tralized structure’.6
Nevertheless, following the argument developed in Part II, we should at
least be cautious in presuming that the discrepancies revealed in applying
the analogy are necessarily faults or deficiencies at the international level.
Insofar as such discrepancies reveal important structural differences, the
analogy can be particularly useful in helping to better understand the dis-
crete nature of and specific basis of legitimacy within the international legal
order. Indeed, domestic analogies only become problematic when applied
uncritically and unreflexively as an argument for necessary institutional
reform. In other words, the analogy risks distortion and misunderstanding
when the peculiarities of the object being compared are seen simply as faults
or deficiencies that run in one direction only. As Thomas Poole recently
remarked:
What’s problematic about analogies is not so much that the act of being compared
to something else heightens the risk of misunderstanding or devaluing the object
being described. Rather it is that when pressed into the service of normative theory
analogies have a propensity to short-cut argument. Such-and-such is like so-and-so;
therefore such-and-such should be treated like so-and-so. There’s nothing necessar-
ily objectionable about the first step. It’s the next step that needs to be treated with
real caution. There may be plenty of very good reasons, even if such-and-such is
like so-and-so, not to treat the two in the same way. It depends.7 (emphasis added)
This warning is particularly salutary in relation to the normative ideal of
the rule of law, which, despite being a rather ambiguous, contested con-
cept that is difficult to disentangle from the peculiar constitutional relation-
ship enjoining citizen and sovereign,8 has come to function as an important

5 See, eg, A Somek, ‘From the Rule of Law to the Constitutionalist Makeover: Changing

European Conceptions of Public International Law’ (2011) 18 Constellations 567; A Somek,

‘Kelsen Lives!’ (2007) 18 European Journal of International Law 409, at 432–34; and see
further discussion above in Ch 3.
6 Suganami (n 2) 19.
7 T Poole, ‘Sovereign Indignities: International Law as Public Law’ (2011) 22 European

Journal of International Law 351, at 351–52.

8 As noted in the book’s introduction, it is perhaps unhelpful to try to give a precise defini-

tion of the rule of law, but it can be assumed to possess a meaningful core in the sense of secur-
ing a well-functioning legal system, though this function is usually understood—particularly in
the current context—by reference to the restraint of arbitrary political power. See G Palombella
and N Walker, ‘Introduction’ in G Palombella and N Walker (eds), Relocating the Rule of
Law (Oxford, Hart Publishing, 2009) xi: ‘Whatever its best interpretation, the rule of law
necessarily involves a claim in principle about the centrality of law to the enterprise of living
together—about law’s title to rule, so to speak. What is more, such a claim always has both a
practical and a normative dimension. It seeks to inform us of the ways in which and the charac-
teristics through which it is plausible to think of law as something that rules over things—as an
institution which regulates the other forces that shape our common life. It also seeks to provide
a justification for such a claim to ascendency.’ (emphasis added)
 Domestic Analogy, the Rule of Law 177

critical benchmark in understanding the point and potential of contempo-

rary international law.9 This ideal finds expression increasingly not just in
the academic literature,10 but also in the legal and political commitments
of states and global institutions.11 Such is the ubiquity of the rule of law
in contemporary international law discourse, in fact, that one might be
tempted to conclude that it is ‘the raison d’être of international law to bring
power under law’.12 As Gabriella Blum claims:
International lawyers and diplomats characterize the ‘rule of law’ as the single most
important goal of the international system, upon which all other goals—peace,
prosperity, and effective international cooperation—depend. In its simplest itera-
tion, ‘rule of law’ means that international law should guide the conduct of states:
it is the final arbiter of the exercise of power and states must comply with its
provisions.13
Following the argument developed in Part II and bearing in mind the impor-
tance of this commitment to the self-understanding of international legal
participants, we should therefore take seriously the critical potential of this
ideal in developing a rationally defensible, or ‘practically reasonable’, con-
cept of international law. As Patrick Capps argues, persuasively in my view,
this kind of conceptual enquiry is necessary if we are to develop meaningful
critical paradigms for engaging with the institutional condition of modern
international law.14
Nevertheless, I will argue in this chapter that applying a coherent account
of the rule of law at the international level is not without its difficulties.
In Chapter 3, I have already suggested certain reasons why—on Poole’s
terms—international and domestic legal orders cannot be considered alike
in important ways. I develop this argument further here. Specifically, in the
first section (I), I explain how the application of the domestic analogy to

9 Hurd (n 3).
10 The literature is voluminous, but see, recently, J Crawford, ‘International Law and the
Rule of Law’ (1993) 24 Adelaide Law Review 3; I Brownlie, The Rule of Law in Interna-
tional Affairs: International Law at the Fiftieth Anniversary of the United Nations (The Hague,
Martinus Nijhoff, 1998); and S Chesterman, ‘An International Rule of Law?’ (2008) 56 Ameri-
can Journal of Comparative Law 331.
11 At the 2005 World Summit meeting, heads of state and other leading officials expressly

recognised ‘the need for universal adherence to and implementation of the rule of law at both
the national and international levels’. See United Nations, 2005 World Summit Outcome, UN
Doc A/RES/60/1, 24 October 2005, at 29, para 134, available at: www.un.org/en/ga/search/
view_doc.asp?symbol=A/RES/60/1. A similar commitment has been reaffirmed each year since
in successive United Nations (UN) General Assembly resolutions, each of which has made
the connection between the rule of law and the necessary adherence to and respect for core
principles of the international legal order. See most recently, for example, UNGA Res 69/123
(10 December 2014).
12 A Nollkaemper, National Courts and the International Rule of Law (Oxford, Oxford

University Press, 2011) 1.

13 G Blum, ‘Bilateralism, Multilateralism, and the Architecture of International Law’ (2008)

48 Harvard International Law Journal 323, at 331–32.

14 P Capps, Human Dignity and the Foundations of International Law (Oxford, Hart Pub-

lishing, 2009) 104, 158 and passim.

178 Domestic Analogy, the Rule of Law

international law reveals important points of principle and prudence as

to why international law cannot be subjected to a centralised institutional
structure akin to a constitutional state. In section II, I consider how far this
structural difference makes problematic the idea of an international rule of
law. In particular, insofar as the concept is seen as primarily or substantially
related to the restraint of political power through objective legal rules, and
therefore difficult to apply to the decentralised structure of international
law, I will argue that this apparent ‘lack of fit’ cannot be understood simply
as a structural or constitutional deficiency at the international level. Rather,
I will claim, it only reveals the discrete character of international politics
and the particular role that international law plays therein. This should not
be taken to completely undermine the rule of law as a normative ideal, but
it does, as Terry Nardin argues, make its application to the international
legal order somewhat more ‘indirect and complex’.15 As such, in section III,
I consider a more meaningful articulation of an international rule of law,
which can be understood more in terms of a culture of ‘legality’, or what
Nardin describes as ‘the basis of association’ in international relations. This
culture of legality is secured insofar as international law is utilised as a
framework of interaction, where agreement to play by the rules—to conduct
international politics through the legal form—is an important end in itself in
a system characterised by political pluralism and moral agnosticism. Whilst
suggesting the importance of a certain degree of ‘formalism’ in this regard,
I will nonetheless close the chapter by highlighting a rival, necessarily more
demanding and purposive conceptualisation of the international rule of law,
brought about largely as a result of the impact of international institutions
from the early years of the twentieth century onwards. This rival formula-
tion is in many respects ‘anti-formal’ in character, suggesting the need to
limit international law’s decentralised legal form to achieve a more effective
realisation of certain community values and agreed-upon objectives. This is
a real challenge to the account of the concept I develop here and, accord-
ingly, I will consider this view at length in Chapter 8. In doing so, however,
I will show how, far from securing the rule of law, this more purposive or
instrumental ambition appears to threaten or undermine the concept’s cen-
tral ethos. As the analysis of Part III progresses, however, I will argue that
the tension between these rival understandings of the international rule of
law—one purposive and instrumental, the other more formal—helps us to
better come to terms with the legitimacy dynamic at play in ‘post-modern’
international law.

15 T Nardin, Law, Morality, and the Relations of States (Princeton, NJ, Princeton University

Press, 1983) 183.

 Domestic Analogy and the Discontinuity Thesis 179

I. DOMESTIC ANALOGY AND THE DISCONTINUITY THESIS

Intuitively, it seems both plausible and familiar to understand the claim to

legitimacy of international law and its necessary institutional architecture
by reference to the kind of ‘creation myth’ explanation set out in the pre-
vious chapter. The same kind of reasoning implied in the social contract
tradition,16 which has often been understood (historically at least) as a jus-
tification for the authority of the state, can be, and indeed often is, applied
in the abstract as a justification for international law.17 As Patrick Capps
suggests, in both traditions, the concepts of ‘consent, obligation and insti-
tutional form, are mutually supportive and logically parasitic upon each
other’.18 More precisely, the legitimacy of the international legal system is
often grounded in a similar respect for the autonomy (consent) of its con-
stituent members (states), where the ever-present risk of societal discord
or disagreement necessitates an autonomous legal framework (institutional
form) designed to mediate between competing positions and unify judge-
ment (obligation).
Accordingly, as Terry Nardin has also noted, we can say that the domestic
analogy holds explanatory purchase here only in a structural and artifi-
cial sense, as the inherent inter-subjectivity of relations between states is
understood as requiring the imposition of a system of common rules.19 In
other words, the analogy presumes the rule of law as the governing principle
of international society, that is, as the ‘basis of association’ between states
(and other actors).20 Martti Koskenniemi makes a similar point, describing
how the domestic analogy is necessarily implicated in international legal
discourse, following a similar ‘liberal theory of politics’ that sees in the
rule of law a means of mediating the pluralistic conditions of international
relations:
This is a theory which identifies itself on two assumptions. First, it assumes that
legal standards emerge from the legal subjects themselves. There is no natural

16 There are numerous formulations of the contract idea, including most famously

J-J Rousseau, The Social Contract and Other Later Political Writings, (V Gourevitch
(ed), Cambridge, Cambridge University Press, 1997), as well as T Hobbes, Leviathan,
(CB Macpherson (ed), London, Penguin, 1968). More recently, social contractarian reasoning
has been employed by John Rawls in A Theory of Justice, revised edn (Cambridge, MA, Harvard
University Press, 1999), particularly at 10–11, where he relates his notion of the original posi-
tion to something like the Hobbesian state of nature. For a recent overview of the different for-
mulations of the social contract (as well as their critics), see the collection of essays in D Boucher
and PJ Kelly (eds), The Social Contract from Hobbes to Rawls (Abingdon, Routledge, 2005).
17 See generally Capps (n 3). For a recent example of a model of international legitimacy

worked out on these terms, see J Rawls, The Law of Peoples (Cambridge, MA, Harvard
University Press, 2001).
18 Capps (n 3) 18.
19 See Nardin (n 15) 16.
20 ibid 9–11, 17 and passim.
180 Domestic Analogy, the Rule of Law

normative order. Such order is artificial and justifiable only if it can be linked to
the concrete wills and interests of individuals. Second, it assumes that once cre-
ated, social order will become binding on these same individuals. They cannot
invoke their subjective opinions to escape its constraining force. If they could,
then the point and purpose of their initial, order-creating will and interest would
be frustrated.21
This kind of rationale should be familiar from the analysis of Chapter 3,
reflecting—at least in part—the pervasive ‘discourse of institutional auton-
omy’, which, as we saw, has tended to see in the rule of law not simply a
basis of association, but a means by which to hold political power to account
at the global level.22 The systemic character of international law is thus
implicated in this understanding, particularly its doctrine of sources, insofar
as it presupposes a foundational commitment on the part of states (and
other relevant international actors) to be bound by rules which are ‘enacted’
in accordance with agreed-upon processes (source criteria).23 For instance,
Philip Allott explains this rationale at work in customary international law
with an explicit reference to the social contract tradition:
Customary law … shares in the transcendental aspect of constitutionalism …
at least to the extent that it is systematically independent of the will of current
society-members, especially current controllers of the public realm. Customary
law may also be said to depend on an implicit form of ‘social contract’ theory,
which finds the authority of the law in the hypothetical ‘consent’ of the subjects
of the law, where consent is postulated as a corollary of their participation in the
society in question, including its law-making system.24
Of course, the analogy is somewhat clumsy25 and the use of consent (whether
explicit or implicit) as a justification for legitimate authority is not without
controversy, both in practical-philosophical terms26 and as a basis for the
authority of international law specifically.27 However, Allott’s point—as he

21 Koskenniemi (n 3) 21–22.
22 See above in Ch 3, section III in particular.
23 On the relation between the rule of law and a legal system, and the specific role of inter-

national law’s sources in this regard, see S Besson, ‘Theorizing the Sources of International
Law’ in S Besson and J Tasioulas (eds), The Philosophy of International Law (Oxford, Oxford
University Press, 2010) 163, at 172 and passim.
24 P Allott, ‘The Concept of International Law’ (1999) 10 European Journal of Interna-

tional Law 31, at 39.

25 See the criticisms of, eg, J Finnis, Natural Law and Natural Rights, 2nd edn (Oxford,

Oxford University Press, 2011) 247–48; and HLA Hart, The Concept of Law, 3rd edn (Oxford,
Clarendon Press, 2012) 224.
26 See, alternately, the discussions in T Christiano, ‘Authority’ in EN Zalta (ed), The Stan-

ford Encyclopedia of Philosophy (spring 2013 edn), available at: http://plato.stanford.edu/

archives/spr2013/entries/authority and L Green, ‘Legal Obligation and Authority’ in EN Zalta
(ed), The Stanford Encyclopedia of Philosophy (Winter 2012 edn), available at: http://plato.
stanford.edu/archives/win2012/entries/legal-obligation.
27 See, eg, the discussion in OA Elias and CL Lim, The Paradox of Consensualism in Inter-

national Law (The Hague, Kluwer Law International, 1998); and F Kratochwil, ‘The Limits of
Contract’ (1994) 5 European Journal of International Law 465.
 Domestic Analogy and the Discontinuity Thesis 181

goes on to clarify—is not to suggest a theory of voluntarism of the sort that

was rejected so persuasively by Lauterpacht’s generation in the aftermath of
the First World War (outlined at length in Chapter 2). Rather, he uses the
analogy in more illustrative terms to stress how the institutional form of
customary international law embodies within itself a certain kind of justi-
ficatory commitment to the objectivity of publically promulgated, binding
rules as an answer to the inherent subjectivities of the pluralist international
society.28 Rather than suggesting explicit consent, therefore, we can use the
social contract analogy—in line with the analysis of Part II—as illustra-
tive of a ‘practical-philosophical’ justification for international law’s specific
institutional form.29
Whilst accepting that the exact nature of this justification remains contro-
versial and contested, my more immediate concern is to point to an obvious
disjuncture in the chain of reasoning which, in the social contract tradi-
tion, leads from consent (however implicit or tacit) to the specific institu-
tional form of the state and, in international legal and political theory, tends
instead only to justify the decentralised institutional form of the interna-
tional legal order.30 In the main, political theorists and international lawyers
alike have tended not to endorse the idea of a universal state as a realisable
or desirable form of international organisation.31 There are a variety of rea-
sons often mooted as to why international relations either cannot or should
not be constituted or organised in the same way, including both descriptive,
empirical arguments (eg, that states as moral or legal persons in interna-
tional society cannot be considered as perfect analogues of the individual
within the state, or that the nature of international society is fundamentally

28 Allott (n 24) 39–40.

29 This is exactly how, for instance, Capps explains Rousseau’s notion of the ‘general will’,
or what Kant might call ‘omnilateral will’, which is not an aggregated form of consensual
validation, but a notion of the common good that structures the legitimate institutional form
of the legal order in question. See Capps (n 14) 158.
30 ibid 215–18; and, generally, Capps (n 3).
31 For instance, Gaetano Arangio-Ruiz claims that it is ‘self-evident’ for most of the disci-

pline that the analogy cannot go as far as justifying explicitly a world-state. See G Arangio-
Ruiz, The UN Declaration on Friendly Relations and the System of the Sources of International
Law (Alphen aan den Rijn, Sijthoff & Noordhoff, 1979) 199. Insofar as some international
lawyers have endorsed this ambition, it is often seen as a more utopian, distant ideal and is
very often heavily qualified. For instance, Lauterpacht’s views are often interpreted this way,
but his ambition was only to bring about the ‘realizable and certainly not infinite ideal of the
Federation of the World conceived as a commonwealth of autonomous States exercising full
internal independence’. (emphasis added) See H Lauterpacht, ‘The Nature of International
Law and General Jurisprudence’ in E Lauterpacht (ed), International Law: Being the Collected
Papers of Hersch Lauterpacht—Volume 2: The Law of Peace, Pt 1 (Cambridge, Cambridge
University Press, 1975) 1, at 47. On the other hand, Kelsen did seem to endorse something like
a universal state as a distant goal to finally overcome the defects of international law’s decen-
tralisation. See, eg, H Kelsen, Law and Peace in International Relations: The Oliver Wendell
Holmes Lectures, 1940–41 (Cambridge, MA, Harvard University Press, 1942) 272–79; and see
further in Ch 2, section II above.
182 Domestic Analogy, the Rule of Law

different from the character of domestic society), as well as more normative

arguments (essentially that it would be unjust to impose centralised com-
mand over the more pluralistic society of states)—though the two claims are
obviously not mutually exclusive.32
Capps labels this type of normative disjuncture the Discontinuity Thesis.33
As he puts this most prosaically: ‘It is often said that while the [Hobbe-
sian] state of nature hypothetically existed, it actually does or did exist in
some form in international relations.’34 Whilst for many theorists (Hobbes
included), this discontinuity might be taken to undermine the legal quality
of international law,35 usually the effect is simply to differentiate the nature
or quality of legal order thus created. Indeed, whilst the idea of the social
contract has—at least since Locke—come to be identified more precisely
with a community’s submission to the authority of a ruler (and in that sense
seems to fit with an idealised view of law as a largely hierarchical system
of institutionalised authority), we may well be able to use the same logic as
a justification for a society’s submission to legal order in a less hierarchical
sense. The Lockean contractarian tradition36—as opposed to, for example,
the Hobbesian approach37—presupposed a two-step contract: the first step
a coming together of peoples to form a society in terms of a collective pact,
with each bound only by their pledge to each other; and the second a more
submissive act to form a government above that society.38 Whilst the second
step naturally follows the first in forms of constituted authority within states
(though this mandate may, according to Locke, be revocable thereafter),39
the second step need not necessarily occur as a result of the first in all forms
of political association. As Hannah Arendt once claimed in a comment on
this tradition:
The mutual contract by which people bind themselves together in order to form
a community is based on reciprocity and presupposes equality; its actual content
is a promise, and its result is indeed a ‘society’ or ‘cosociation’ in the old Roman

32 Capps (n 14) 216 ff; Capps (n 3) 28–40. To give just one example of this form of reasoning,

in defending the institutional structure of international law as a decentralised legal order, Lassa
Oppenheim claimed that the social conditions which apply at the level of the state that give
rise to the conditions of its legitimate authority do not pertain at the international level in the
more limited relations between states. See L Oppenheim, International Law: A Treatise, Vol 1,
3rd edn (London, Longmans, Green & Co, 1920) 6.
33 Capps (n 3) 17 and 28–40; and see Ch 9 of Capps (n 14) 215–41.
34 Capps (n 3) 18. On the ‘state of nature’, see Hobbes (n 16) 183–88 [60–64].
35 Hobbes (n 16) 187–88 [63].
36 See, eg, sections 95–99 of Locke’s Second Treatise: J Locke, Two Treatises of

Government: A Critical Edition with an Introduction and Apparatus Criticus by Peter Laslett
(Cambridge, Cambridge University Press, 1967) 348–51.
37 For an overview, see J Hampton, Hobbes and the Social Contract Tradition (Cambridge,

Cambridge University Press, 1986).

38 Capps (n 3) 27–28.
39 See sections 135–42 of Locke’s Second Treatise: Locke (n 36) 375–81.
 Domestic Analogy and the Discontinuity Thesis 183

sense of societas, which means alliance … In the so-called social contract between
a given society and its ruler, on the other hand, we deal with a fictitious, aboriginal
act on the side of each member, by virtue of which he gives up his isolated strength
and power to constitute a government.40
As such, without necessarily meaning to endorse the cogency of the
social-contractarian explanation, which clearly has conceptual limits,41 I
employ this logic here simply to illustrate the conceptual possibility and,
importantly, the desirability of a form of political organisation which is
inherently non-hierarchical in character.42 Rather than presupposing sub-
mission to any higher authority, this form of political community places
importance upon the kind of authority created in acts of mutual agreement
or, as Arendt puts it, the act of promising itself (pacta sunt servanda).43 It is
this kind of practical association that Hedley Bull intended when he spoke
of the ‘anarchical society’, which was not meant as a denial of the pos-
sibility of international relations, but a description—and, to some degree,
a normative defence—of the idea of the inter-state system, founded on
common rules, as the most appropriate form of order in the pluralistic
conditions of international society.44 On these terms, and in a continua-
tion of the analogy, we might follow Allott in describing international legal
order as a ‘permanent negotiation of a social contract, the forming and
re-forming of a legal basis of social co-existence from day to day, with a
necessary and inherent deep-structural mutuality of legal relationships’.45
Although it is doubtful that this picture gives a complete and (in Allott’s
view) completely satisfactory characterisation of the nature of contemporary
international law, in pointing to the ‘deep-structural mutuality’ of the legal
relationship that is reflected in the specific institutional form of international
law, this contractarian logic still proves informative. The question that it is
necessary to consider further, therefore, is how far and in what ways this

40 H Arendt, On Revolution (New York, Penguin, 2006) 161.

41 For (critical) discussion, see Kratochwil (n 27) 477–86.
42 Nardin (n 15) 40 and passim.
43 H Arendt, ‘What is Freedom?’ in Between Past and Future: Eight Exercises in Political

Thought (New York, Penguin, 1977) 143, at 164; and see the discussion in J Klabbers, ‘Pos-
sible Islands of Predictability: The Legal Thought of Hannah Arendt’ (2007) 20 Leiden Journal
of International Law 1, at 9.
44 See, primarily, Chs 3 and 4 of H Bull, The Anarchical Society: A Study of Order in World

Politics, 4th edn (Basingstoke, Palgrave Macmillan, 2012).

45 Allott (n 24) 44. For a similar rationale, see Hurd (n 3) 367: ‘Interstate relations … rest

on a different model of the relation between agents and law. Some elements which are essential
to the domestic rule of law (for instance, a certain kind of control over political authority)
do not translate well to the international setting. But others (such as the legitimacy of trans-
ferring obligations via consent) are better suited to the international than to the domestic
realm—international actors (i.e. states) make very explicit acts of consent to binding legal
instruments, while domestic social-contract theory has endless trouble specifying how or when
individuals give consent to their state.’
184 Domestic Analogy, the Rule of Law

discontinuity and specific justification for international law’s decentralised

institutional structure might impact our understanding of the rule of law as
it applies, insofar as it does, at the international level. As I will now demon-
strate, the answer to this question will depend both on what we take the rule
of law to necessarily require of law in general and, more particularly, what
specific institutional demands this places on international law.

II. AN INTERNATIONAL RULE OF LAW?

What does it mean to say that there should be a rule of law in international
affairs? It is by now perhaps trite to recognise that the concept of the rule
of law is somewhat ambiguous and amorphous, capable of thinner (more
formal) and thicker (more substantive) applications. At the thinner end of
the spectrum, it can be said to encompass a commitment to ‘legality’ in a
systemic, procedural sense—encompassing values like legal certainty, equal-
ity, non-retroactivity etc—which, as argued by Lon Fuller, go to make up a
healthy legal system.46 At the thicker end, it is also often taken to require
more substantive protections of basic rights and liberties of the citizen.47 For
instance, the UN uses the rule of law in this thicker, more ambitious sense in
its commitment to domestic legal reforms around the world:
[T]he rule of law refers to a principle of governance in which all persons, institu-
tions and entities, public and private, including the State itself, are accountable
to laws that are publicly promulgated, equally enforced and independently adju-
dicated, and which are consistent with international human rights norms and
standards. It requires, as well, measures to ensure adherence to the principles
of supremacy of law, equality before the law, accountability to the law, fairness
in the application of the law, separation of powers, participation in decision-
making, legal certainty, avoidance of arbitrariness and procedural and legal
transparency.48

46 Fuller gives eight desiderata for the existence of a state of ‘legality’: the law’s general-

ity, public promulgation, non-retroactivity, clarity, non-contradiction, capacity to be obeyed,

constancy, and a reasonable level of congruence between law in the books and law as it is
practised by authorised officials. See L Fuller, The Morality of Law, revised edn (New Haven,
CT, Yale University Press, 1969) 39 and passim. For an application of Fuller’s theory to inter-
national law, see J Brunnée and SJ Toope, Legitimacy and Legality in International Law:
An Interactional Account (Cambridge, Cambridge University Press, 2010).
47 For discussion, see J Raz, ‘The Rule of Law and its Virtue’ (1977) 93 Law Quarterly

Review 195; G Palombella, ‘The Rule of Law and its Core’ in Palombella and Walker (eds)
(n 8) 17–42; P Craig, ‘Formal and Substantive Conception of the Rule of Law: An Analyti-
cal Framework’ (1997) Public Law 467; and, perhaps most extensively, BZ Tamanaha, On
the Rule of Law: History, Politics, Theory (Cambridge, Cambridge University Press, 2004)
91–113.
48 Report of the Secretary-General, The Rule of Law and Transitional Justice in Conflict and

Post-conflict Societies, 23 August 2004, UN Doc S/2004/616; available at: http://www.un.org/

en/ga/search/view_doc.asp?symbol=S/2004/616.
 An International Rule of Law? 185

It is quite apparent that this thicker conception of the rule of law is

particularly wedded to the modern state context, being difficult to disen-
tangle from the peculiar constitutional relationship enjoining citizen and
sovereign.49 In fact, it is hard to find such an ambitious conceptualisation of
the rule of law used to make sense of the role of law in international politics.
Where there have been explicit studies into how the rule of law could, or
should, be applied in the international context, scholars will usually attempt
to ‘externalise’ a thinner, more formal version of the concept.50 This under-
standing would not therefore suggest any commitment to any particular
set of global public goods, but instead only the kind of procedural values
inherent in a well-functioning legal system.51
Nevertheless, even when applied in this less ambitious sense, it is doubtful
that this concept is easily reconcilable with international law’s decentral-
ised institutional structure. This argument has been taken up recently by
Ian Hurd, who adopts a fairly uncontentious characterisation of the rule
of law as it might apply in the national context, requiring: (i) that ‘society
should be governed by stable, public, and certain rules’; (ii) that such
rules ‘should apply equally to the governed and to the rulers’; and that
(iii) they ‘should be applied equally and dispassionately across cases and
people’.52 Inevitably, there are considerable obstacles in applying these
criteria in a coherent way to the contemporary functioning of international
law—notwithstanding (and I will return to this point again in Chapter 9)
that we may now recognise forms of ‘governance’ at the international level
(eg, in international institutions like the UN Security Council).53 At a more
basic and foundational level, the problems of certainty and generality in the

49 For a critique in this respect, see A Somek, ‘Administration without Sovereignty’ in

P Dobner and M Loughlin (eds), The Twilight of Constitutionalism? (Oxford, Oxford Univer-
sity Press, 2010) 267, at 272.
50 See, for instance, S Beaulac, ‘The Rule of Law in International Law Today’ in Palombella

and Walker (eds) (n 8) 197, at 204 ff.

51 As Samantha Besson has suggested: ‘To identify a society as having a system of law, as

opposed to some other sort of order, is to identify it as satisfying some or all of the require-
ments associated with the Rule of Law.’ Besson (n 23) 172.
52 Hurd (n 3) 369. Whilst, as he notes, different scholars give slightly different formulations

of these three elements, the ‘differences are minor because there is a great deal of overlap in
the core propositions’. For instance, perhaps the most influential recent model is that devel-
oped by Brian Tamanaha, which includes: (i) the necessity of formal legality (ie, the ability to
distinguish valid law in order to be able to coordinate social conduct according to the law);
(ii) the idea of sovereign limitation (though we might say limitation of public authority more
broadly); and (iii) the notion of non-arbitrariness (that is, the rule of law as opposed to the rule
of man). See Tamanaha (n 47) 114–26. A similar formulation is also found in G Palombella,
‘The Rule of Law as an Institutional Ideal’ in L Morlino and G Palombella (eds), Rule of Law
and Democracy: Internal and External Issues (Leiden, Brill, 2010) 3, at 9 ff. For discussion, see
further in R Collins, ‘The Rule of Law and the Quest for Constitutional Substitutes in Interna-
tional Law’ (2014) 83 Nordic Journal of International Law 87, at 102–07.
53 See, eg, Hurd (n 3) 376–90.
186 Domestic Analogy, the Rule of Law

law caused by the deep inter-subjectivity of international legal relations sug-

gest an inherent ‘lack of fit’ on these terms:
[T]he international legal system cannot satisfy the standard expectation in a rule-
of-law society that law be clear and stable and known in advance. No matter
how clearly it is written, it cannot indicate whether an action is legal or illegal
independent of the identity of the actor-state in question. Because states are free to
tailor their commitments to suit their needs and interests, the bundle of laws that
attach to each state are unique to that state and the legality of an act may not be
determinable as a general matter. What it means to ‘comply’ with international
law depends on who is doing it, and what that state has done and said about the
rule in the past and what it might do and say in the present case … The legality of
an act is endogenous to the choices of the state in question, rather than independ-
ent of it as it is in the domestic setting.54
One might, of course, accuse Hurd of sticking too rigidly to an account of
the rule of law as it pertains to the hierarchical political relationships within
states however, even where these rule of law criteria are formulated in a
looser, less literal sense, their application fares little better. For instance,
in one of the more balanced assessments of the rule of law applied at the
international level, Stephane Beaulac comes up with the following tripartite
formulation of the concept, which he believes can be more meaningfully
‘externalised’ beyond the state. This includes: ‘(1) the existence of principled
normative rules, (2) [that are] adequately created and equally applicable to
all legal subjects and (3) enforced by accessible courts of general jurisdic-
tion’.55 Unsurprisingly, Beaulac still finds significant problems in meeting
these requirements, not only, again, in terms of the generality and certainty
of the law, but particularly in relation to his call for enforcement of the
law through courts of accessible, general jurisdiction. In part, this problem
relates to the consensual basis of jurisdiction of the International Court of
Justice (ICJ), but also the overwhelming national influence over interna-
tional judicial decisions more generally.56 Beaulac is certainly not alone in
raising such concerns about the capacity of the international judicial func-
tion to live up to rule of law standards.57 Furthermore, others have expressed
doubts about the adequacy of the international law-making process from a
rule of law perspective, which, as Arthur Watts observes, is ‘not a process
calculated to produce precision and clarity’.58

54 ibid 380.
55 Beaulac (n 50) 203–04. For similar views, see also Chesterman (n 10); Brownlie (n 10)
213–14.
56 Beaulac (n 50) 197, at 212–20.
57 See, eg, Y Shany, ‘No Longer a Weak Department of Power? Reflections on the Emer-

gence of a New International Judiciary’ (2009) 20 European Journal of International Law 73,
at 74–75; Crawford (n 10) 10–12; A Watts, ‘The International Rule of Law’ (1993) 36 German
Yearbook of International Law 15, at 37.
58 Watts (n 57) 28.
 An International Rule of Law? 187

Bearing in mind the argument developed in this volume so far, it is hardly

surprising that these sorts of discrepancy are interpreted as fundamental
structural weaknesses, deficiencies or defects, undermining the coherence
and importance of international law as compared to state-based legal
orders. Whatever its best interpretation and however loosely these kinds of
criteria are applied, the realisation of an international rule of law seems to
be judged, for the most part, in terms of the capacity of international legal
rules to actually control the conduct and determine the political choices of
states and other powerful international actors.59 As we saw in Chapter 3,
this kind of view is implicated in the pervasive ‘discourse of institutional
autonomy’ that tends to structure debate on the nature and potential of
modern international law.60 As such (and as noted above by Blum in par-
ticular), even without precise definition there seems to be a broad consensus
that international law should act as ‘the final arbiter of the exercise of power
and [that] states must comply with its provisions’.61 Mattias Kumm puts
this same idea in much starker terms, arguing that at its most basic level the
international rule of law requires ‘that nations, in their relationships to one
another, are to be ruled by law’.62
On these terms, then, it becomes difficult to avoid the conclusion that
decentralisation itself is inherently problematic from the point of view of the
rule of law. Whilst most of the studies in this area tend to acknowledge the
necessary structural differences between domestic and international orders,
in attempting to hold the international system to account on the same
basis, they seem still to push in the direction of a necessary centralisation of
authority. For instance, in a recent, influential book addressing the rule of
law in both its domestic and international settings, the late Tom Bingham
argued passionately that the differences between national and international
legal orders did not negate the fact that the latter should be subjected to sim-
ilar standards and expectations, such that the international rule of law was
merely its domestic counterpart ‘writ large’.63 Bingham was not suggesting
an overly simplistic analogy in applying these standards, but was merely
claiming that the expectation of strict compliance with the law should be

59 As Hurd argues, whether applied in a domestic or international setting, it is commonly

assumed that ‘the rule of law is an alternative to the arbitrary exercise of power; and that the
ultimate product of a rule-of-law system is the choice by the law’s subjects to comply with the
rules’. Hurd (n 3) 367.
60 See C Reus-Smit, ‘The Politics of International Law’ in C Reus-Smit (ed), The Politics

of International Law, (Cambridge, Cambridge University Press, 2004) 14, at 36–37; and the
discussion above in Ch 3, section I.
61 Blum (n 13) 332.
62 M Kumm, ‘International Law in National Courts: The International Rule of Law and

the Limits of the Internationalist Model’ (2003–04) 44 Virginia Journal of International Law
19, at 22.
63 T Bingham, The Rule of Law (London, Penguin, 2010) 111.
188 Domestic Analogy, the Rule of Law

the same at the international and national levels, and therefore that similar
institutional characteristics would be required in order to ‘complete’ the
international legal system.64 As he puts it:
If the daunting challenges now facing the world are to be overcome, it must be in
important part through the medium of rules, internationally agreed, internation-
ally implemented and, if necessary, internationally enforced. That is what the rule
of law requires in the international order.65
Amongst international lawyers, James Crawford reaches similar conclusions
as to the relativity of the distinction between international and national
legal orders, suggesting certain institutional requirements, in particular a
strong independent judiciary, as being critical to the realisation of an inter-
national rule of law.66 Whilst there is rarely a suggestion (and I do not
think that Bingham nor Crawford are necessarily suggesting) that a full suite
of constitutional institutions would be feasible or, indeed, desirable—that
is, a centralised legislative body, a global executive or enforcement arm,
and compulsory international courts of general jurisdiction—the argument
is often simply that the rule of law still requires greater certainty in the
promulgation and identification of international legal rules, as well as a
more effective means for the law’s application and enforcement in the last
measure.
On these terms, one might therefore be tempted to agree with Simon
Chesterman ‘that there is presently no such thing as the international rule of
law, or at least that international law has yet to achieve a certain normative
or institutional threshold to justify use of the term’.67 But to conclude in this
way appears to leave us in something of a bind, with a choice between two
equally unpalatable alternatives. Following the argument set out in Part II,
to simply abandon the idea (or ideal) of an international rule of law would
seem to suggest that states, diplomats, international lawyers and other inter-
national legal participants are deluded in the value they attach to this com-
mitment to legality in international relations. At the same time, to suggest
that international law has ‘yet to achieve a certain normative or institutional
threshold’ serves only to confirm an apparent structural or constitutional
deficiency, which itself begs the obvious question of how an international
rule of law might be more feasibly realised without undermining the plural-
istic justification for international law’s non-hierarchical institutional struc-
ture. This impasse suggests that we need to rethink and, perhaps, radically
reformulate our understanding of the rule of law as it might pertain to the
context of international relations. I consider this possibility further in the
following and final section.

64 ibid 112–13.
65 ibid 129.
66 Crawford (n 10) at 12 in particular.
67 Chesterman (n 10) 358 (footnote omitted).
The Rule of Law as the Basis of Association in International Relations 189

III. THE RULE OF LAW AS THE BASIS OF ASSOCIATION

IN INTERNATIONAL RELATIONS: ON THE SPECIFIC
CHARACTER OF INTERNATIONAL LAW

So far, I have argued that there has been widespread (though most often
implicit) reliance on a form of domestic analogy in structuring understand-
ing of international law, which seems to presume the rule of law as the basis
of association in international relations. I have developed this argument not
necessarily to suggest that the state can be analogised like the individual in
some kind of Hobbesian state of nature—though, clearly, this more literal
analogy has often been employed over the years—but only that there is
a similar basis of legitimacy at play in structuring understanding of inter-
state relations and the role of law therein.68 In other words, the analogy
holds only in the structural sense, insofar as it identifies a similar liberal
theory of politics, whereby the artificial or institutional rationality of law
provides a solution to the inevitable clash of subjective wills characteristic
of international society. At the same time, I have argued that the analogy
is necessarily qualified insofar as we recognise a normative disjuncture (or
discontinuity) in this contractarian reasoning, which recognises the specific
conditions of political legitimacy that pertain in international relations, and
which therefore justifies the specific institutional form of international law
in comparison to a paradigmatic state-based legal order. In the previous
section, I demonstrated how this disjuncture tends to undermine, or at least
make problematic, the application of even the most minimal formulation of
the rule of law at the international level.
We might well conclude from this problem that international law is still
deficient in some form, but if the solution to this deficiency is seen to require
a centralisation of international authority—that is, exactly the kind of insti-
tutional structure that was rejected under the Discontinuity Thesis—any
such conclusion would be inherently problematic. International law’s insti-
tutional form is not an omission or a sign of its immature development, but
an important aspect of its overall legitimacy: it is deliberately structured
so as to defer back to states on questions of the existence, meaning and
application of international legal norms.69 Whilst this argument does not
disprove the claim that international law might be deficient in some other
way, my point is that one cannot simply reach such a conclusion based
solely on its dissimilarity to domestic law, that is, the simple fact of its
decentralisation—or, consequently, its apparent structural indeterminacy.
Indeed, to do so would seem to be a logical non sequitur. As Nardin notes:
[W]e cannot say how the rule of law might be more fully realized in the rela-
tions of states until we have a clear conception of what it is, in the circumstances

68 Koskenniemi (n 3) 22.
69 Nardin (n 15) 165–67.
190 Domestic Analogy, the Rule of Law

of the society of states. It does not follow from the conclusion that legislation,
enforcement, or even authoritative determination by a common judge are neither
essential features nor necessary conditions of law that international law might not
be strengthened if these institutions were to develop in international society. But
neither can one simply assume that the remedy for the deficiencies of international
legal order lies in policies intended to model it more closely on the modern state.
The society of states is not itself a state, and therefore judgments concerning the
existence and prospects of legal order within it must take account of the specific
character and circumstances of that society.70
Accordingly, if the rule of law has any useful application in the international
context, this must be worked out by reference to the kind of legitimacy
dynamic at play in international law, specifically, by taking account of its
‘deep-structural mutuality’. We cannot therefore fix on some idealised insti-
tutional structure that makes sense only because of the very different politi-
cal conditions or structural dynamic of domestic society. In this respect, as
Hurd goes on to argue, many of the accounts of an international rule of law
set out above appear ‘conceptually inconsistent and empirically unrealis-
tic’.71 In particular, referring back to his three-pronged definition of the rule
of law, he claims that these criteria are ‘more than procedural requirements:
they require a substantive commitment to dividing political power in a cer-
tain way’.72 (emphasis added)
This lack of fit thus sets up the question of whether it is possible to retain
the broadest ethos of the rule of law—a commitment to ‘legality’—and still
make sense of this ideal in a society defined by its diffuse and decentralised
political relations and its non-hierarchical institutional form. In taking up
this challenge, Hurd suggests that such a reformulation is indeed possible,
but it requires that we abandon some of our preconceptions about what a
‘well-functioning’ legal system would necessarily require:
The rule of law is central to both the conception of the modern state and to the
study of international law and international politics. The two versions of the rule
of law, domestic and international, were invented as solutions to very different
problems. In domestic society, the rule of law addresses the problem of centralised
authority. It is meant to place limits on the exercise of state power and to create a
stable set of known rules that apply equally to all citizens. In international affairs,
the rule of law is a response to the absence of such centralised authority—and to
the externalities, inefficiencies, and other implications of the formally decentral-
ised and atomised arrangement of authority that is characteristic of the sovereign
state system.73

70 ibid 147–48.
71 Hurd (n 3) 366.
72 ibid 369.
73 ibid 366–67.
The Rule of Law as the Basis of Association in International Relations 191

Hurd’s account of the rule of law is not simply a justification for watering
down the requirements of the concept applied in the international context.
Rather, his point is that this form of ‘accommodation’ makes little sense
in a legal order that is very much defined by its openness and indetermi-
nacy. For Hurd, therefore, the international rule of law inheres simply in
‘the idea that all state behaviour should conform to whatever international
legal obligations relate to it … which in practice means that [states] will use
the resources of international law to explain and justify their policies’.74
Whilst he characterises this as an ‘instrumental’ understanding of interna-
tional legality, this description seems to underplay his ‘intellectual and polit-
ical commitment’ to international law’s decentralised institutional form.75
This view is in many respects similar to what I referred to in the previous
chapter—in explicitly non-instrumental terms—as a commitment to inter-
national law’s ‘abstract’ or ‘systemic’ autonomy.76 Whilst Hurd is clearly
correct that international law is an inherently instrumental form of norma-
tive practice, the important point is that its utility as such requires that we
recognise the non-instrumental value of the deep ‘constitutional structure’
of the system itself—that is, the structure that allows states’ particular com-
mitments to be expressed in legal form.77 As Nardin also notes, this frame-
work is important in allowing states not only to justify their decisions by
reference to international law, but also to hold other decision-makers to
account on the same basis. In other words, a commitment to the rule of law
on these terms ensures that ‘there exist procedures for evaluating these deci-
sions and thus implementing the principle of accountability’, as well as that
such procedures are ‘known, public, alterable only by some regular proce-
dure, and consistently applied’.78 This account of the international rule of
law thus places significant emphasis on the legal form, but recognises the
particular character of this form as important to secure some measure of
accountability at the international level.
As such, we might refer to this kind of rule of law ideal in terms of what
Koskenniemi has called ‘a culture of formalism’, which recognises the
structural indeterminacy of international law as an important aspect of
its legitimacy and acceptability in practice.79 Rather than seeing law as a

74 ibid 391.
75 ibid.
76 See above in Ch 6, section III.
77 Hurd (n 3) 390.
78 Nardin (n 15) 183.
79 See M Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International

Law 1870–1960 (Cambridge, Cambridge University Press, 2001) 494–509; M Koskenniemi,

‘What is International Law for?’ in M Evans, International Law, 4th edn (Oxford, Oxford
University Press, 2014) 29, at 47–49 in particular.
192 Domestic Analogy, the Rule of Law

means to depoliticise the inherently political practices of international legal

relations, this commitment—what, elsewhere, Koskenniemi calls a ‘consti-
tutionalist mindset’—aims simply to bring those politics into clear view,
helping to level the playing field of substantively unequal political relations
through the juridical equality embedded in international law’s structural
form.80 As he puts it:
[I]t is international law’s formalism that brings political antagonists together
as they invoke contrasting understandings of its rules and institutions. In the
absence of agreement over, or knowledge of, the ‘true’ objectives of political
community—that is to say, in an agnostic world—the pure form of international
law provides the shared surface—the only such surface—on which political adver-
saries recognize each other as such and pursue their adversity in terms of some-
thing shared, instead of seeking to attain full exclusion—‘outlawry’—of the other.
In this sense, international law’s value and its misery lie in its being the fragile
surface of political community among social agents—States, other communities,
individuals—who disagree about their preferences but do so within a structure
that invites them to argue in terms of an assumed universality.81
This kind of formalism may well sound like an apologetic description of
the status quo, as a justification for the kinds of power play that arguably
only perpetuate global injustice, but I believe that any such criticism misses
the important point—already outlined to some degree in Chapter 3—that
law can only serve more progressive ends insofar as it is able to distinguish
its own rationality. The point of committing to the rule of law is precisely
to limit one’s subjective motivations and political ambitions by agreeing to
adhere to a formal legal framework. Such formalism not only secures some
degree of accountability in how actors relate to one another, but it also pro-
vides a structure upon which we can agree to cooperate further towards any
more substantive goals and ambitions.
Nevertheless, as plausible as this view seems, it also seems somewhat
inadequate or insufficient in giving a full account of the way in which the
rule of law has come to be understood, in many respects, in its opposition
to the externalities and inefficiencies of the inter-state legal form. In fact, this
kind of formalist logic seems increasingly outdated and anachronistic in the
light of the kind of structural shifts and institutional innovations witnessed
from the early to mid-twentieth century onwards. With the emergence and
proliferation of a growing number of regimes and institutions, the rule of
law has come to seem more meaningful as a call to restrain the political
interests of powerful actors in order to realise certain agreed-upon ends or
ambitions—peace, order, human rights, global justice etc. Indeed, Nardin

80 M Koskenniemi, ‘Constitutionalism as Mindset: Reflections on Kantian Themes about

International Law and Globalization’ (2007) 8 Theoretical Inquiries in Law 9.

81 Koskenniemi, ‘What is International Law for?’ (n 79) 48.
 Conclusion 193

himself concedes as much, arguing in particular that since the creation of

the UN, the rule of law has come to be thought of less as a pre-existing
basis of association (which would allow political actors to engage in such
institutionalised cooperation in the first place) and more as a goal to be
achieved through enhancing the institutional capacity of international law
to secure agreed-upon values or objectives.82 Koskenniemi makes a similar
point, arguing that for a considerable period of time now, there have been
‘two types of logic at play in the international rule of law’, with a more
pragmatic, institutional and functional view competing with, and providing
a critical counterpoint to, the more formalist understanding set out above.83
There would appear to be an inherent tension and instability between
these seemingly opposed perspectives. From the point of view of this alterna-
tive, more instrumental account, my previous argument appears vulnerable
to both empirical and normative critique: susceptible to the charge of not
only ignoring important structural changes in the international legal order,
but also of potentially over-fetishising its inter-state institutional form (and
thereby undermining the possibility of a more effective international insti-
tutional architecture). From this alternative point of view, the hope would
be that international institutions are able to move beyond the structural
limitations of their inter-state constitutions in order to adequately uphold
agreed-upon objectives in opposition to sovereign freedom.84 This is obvi-
ously therefore a serious challenge to the rather less demanding account of
an international rule of law that I have just set out, and in the next chapter I
will consider this argument at length. However, in doing so, I will show why
it is impossible to completely follow through on this kind of instrumentalist
logic without also undermining the equally important formalist counter-
point—that is, an account of the rule of law which will aim to minimise or
contain the structural impact of such empowered global institutions in order
to adhere to an important principle of accountability at the global level.

IV. CONCLUSION

In this chapter, I have considered the plausibility of a widespread under-

standing of international law built upon a kind of implicit domestic anal-
ogy that sees in the rule of law a means to structure international relations.
There are obvious limitations and problems in this analogy, in particular
the ever-present risk of distorting understanding of the actual functioning
of the international legal system. However, I have highlighted the analogy

82 Nardin (n 15) 105–12.

83 Koskenniemi, ‘What is International Law for?’ (n 79) 39 ff.
84 Nardin (n 15) 71, 77 and 83.
194 Domestic Analogy, the Rule of Law

here primarily to bring out certain differences and points of tension in order
to stress the distinctive basis of legitimacy inherent in the institutional form
of international law as a decentralised legal system. Insofar as the rule of
law therefore remains meaningful in this political context, I have argued
that it must be understood—at least in part—as a commitment to rule-
based association, which necessarily implies the importance of formal legal
rules as a normative counterpoint to the plural subjectivities inherent in
international politics. However, as I have equally noted, this kind of for-
malism and commitment to international law’s decentralised institutional
framework is increasingly contested, particularly as a result of some of the
normative and structural shifts witnessed in the evolving international legal
system. Specifically, with the increasing ‘institutionalisation’ of interna-
tional law since the start of the previous century, a more communitarian,
functional logic appears to challenge the adequacy and legitimacy of the
kind of formalist understanding I have outlined above. I will now turn to
consider the cogency of this critique and its implications for understanding
the institutional problem as outlined thus far.
 8
Form and Function
in the Institutionalisation
of International Law
Perhaps international law is at present in a stage of transition towards
acceptance of … [certain] forms which would bring it nearer in
structure to a municipal legal system. If, and when, this transition is
completed the formal analogies, which at present seem thin and even
delusive, would acquire substance, and the sceptic’s last doubts about
the legal ‘quality’ of international law may then be laid to rest.
Till that stage is reached the analogies are surely those
of function and content, and not of form.
HLA Hart, The Concept of Law1

I
T IS BY now perhaps a trite point to say that modern international law
has been steadily transformed by the emergence and growing normative
influence of international organisations from the early twentieth century
onwards.2 Since the creation of the League of Nations and the Permanent
Court of International Justice (PCIJ) after the First World War, there have
been successive attempts to re-order or re-structure international relations
through institutional mechanisms which bear more than a superficial resem-
blance to parliamentary-style diplomacy, executive enforcement and judicial
dispute settlement.3 With the proliferation of international organisations
witnessed since the end of the Second World War, many international
lawyers have held out the hope that through the enhanced autonomy of
these institutions, there might be realised a more mature, more authorita-
tive international legal order capable of securing the restraint of arbitrary
political power.

1 HLA Hart, The Concept of Law, 3rd edn (Oxford, Clarendon Press, 2012) 236–37.
2 Koskenniemi notes how: ‘From the outset, international institutions were conceived less in
terms of routine administration than progressive transformation of the international system.’
M Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument
(Cambridge, Cambridge University Press, 2005) 611.
3 D Kennedy, ‘The Move to Institutions’ (1987) 8 Cardozo Law Review 841, at 857–59.
196 Form and Function in the Institutionalisation of International Law

For some time, it seemed that this desire was beginning to bear fruit.
The post-war institutions—the UN family of organisations, Bretton Woods
institutions, regional integration organisations and human rights bodies,
amongst many others—have in many ways transformed international law
at both a substantive and a structural level. The resulting changes have
been variously described in terms of, inter alia, a shift from a private, trans-
actional view towards a more ‘public’ or constitutional understanding of
international law,4 from sovereignty towards community5 or—as Wolfgang
Friedmann most famously described it—from a law of ‘co-existence’ to
one of ‘co-operation’.6 However one characterises it, it may now appear
as something of a ‘truism to state, or so it seems, that international law is
increasingly starting to look like the sort of legal order we are familiar with
from our domestic legal systems’.7
Nevertheless, the hesitancy in these remarks is particularly telling, for
these sorts of progress narrative tend towards over-simplification and are
apt to mislead, potentially misconstruing the nature of the transformation
that has been witnessed. As I will demonstrate in this chapter, whilst it is
difficult to deny a growing depth and complexity to modern international
law as a result of its institutionalisation, the peculiar institutional form of
intergovernmental organisations, itself parasitic upon the decentralised
institutional form of international law, suggests a number of problems in
understanding this transition as a simple ‘maturation’ or ‘constitutionalisa-
tion’ of the international legal system. Such descriptions pay scant attention
to the way in which this legal form both shapes the kind of authority exer-
cised by international institutions and at the same time necessarily restricts
their normative influence within international law overall. Whilst I think it is

4 B Simma, ‘From Bilateralism to Community Interest in International Law’ (1994-VI) 250

Recueil des Cours 221; C Tomuschat, ‘International Law: Ensuring the Survival of Mankind
on the Eve of a New Century, General Course on Public International Law’ (1999) 281 Recueil
des Cours 9.
5 C Warbrick and S Tierney (eds), Towards an International Legal Community? Sovereignty

of States and the Sovereignty of International Law (London, British Institute of International
and Comparative Law, 2006).
6 W Friedmann, The Changing Structure of International Law (London, Stevens & Sons,

1964). More recently, former ICJ Judge Mohammed Bedjaoui also adopts this idea of transi-
tion, though he also talks about a move from an ‘oligarchic law to a law of community’, from
a ‘law of states to a law for people’ and from a ‘law of co-ordination to one of finalities’. See
M Bedjaoui, ‘General Introduction’ in M Bedjaoui (ed), International Law: Achievements and
Prospects (Dordrecht, Martinus Nijhoff, 1991) 1, at 5–17 in particular. For others, interna-
tional law may have already moved past cooperation: Wellens asserts a move from cooperation
to ‘solidarity’; see K Wellens, ‘Solidarity as a Constitutional Principle: Its Expanding Role and
Inherent Limitations’ in R St J Macdonald and DM Johnston (eds), Towards World Constitu-
tionalism: Issues in the Legal Ordering of the World Community (Leiden, Martinus Nijhoff,
2005) 775–807; whilst Capaldo asserts, instead, a new ‘global law’ phenomenon or, as she also
terms it, an international ‘law of “integration”’; see GZ Capaldo, The Pillars of Global Law
(Aldershot, Ashgate, 2008) 173.
7 J Klabbers, ‘Setting the Scene’ in J Klabbers, A Peters and G Ulfstein, The Constitutionali-

zation of International Law (Oxford, Oxford University Press, 2010) 1, at 11.

 Form and Function in the Institutionalisation of International Law 197

necessary to look beyond the treaty base of institutions like the League or,
more latterly, the UN in order to understand their role and influence in
contemporary international law, their functions cannot simply be equated
with those of the kind of constitutional ‘organs’ found at the state level. The
point is not simply that intergovernmental institutions cannot be considered
as ‘organs’ or ‘officials’ of the international legal system in any formal sense,
nor is it that their actual functions only superficially reflect what we might
expect from a functioning rule of law state. Rather, the very fact of their
intergovernmental character, their origin and grounding in decentralised
international law, makes their functional authority within international law
overall far more contingent and contestable.
As such, the interplay of the competing formalist and functionalist logic
inherent in the international rule of law—as described at the end of the pre-
vious chapter—necessarily undermines the explanatory potential of any pro-
gress narrative describing an increasing centralisation of authority within,
or the maturation of contemporary international law. Insofar as institution-
alisation has resulted in certain structural and normative changes to the
nature and functioning of the international legal system, in many respects
these changes seem to exist in a growing state of tension with international
law’s decentralised legal form. The structural impact of institutionalisation
seems increasingly to have heightened rather than assuaged concerns for a
global rule of law. In fact, it is precisely because of the perceived impact of
the functional autonomy exhibited by a range of powerful global institu-
tions that many international lawyers have begun to describe an emerging
legitimacy crisis, increasingly finding expression through the ‘postmodern’
leitmotifs of ‘fragmentation’ and ‘deformalisation’ in international law.
I will say more about these concerns specifically in the following chapter.
Here, my ambition is to better understand the structural constraints of the
international legal order which help to explain why such concerns might
arise in the first place.
The chapter is structured as follows. In the opening section (I), I chart
how the emergence and growing influence of international institutions has
often been interpreted, at least in part, as an attempt to compensate for the
perceived deficiencies of a decentralised legal order. In particular, I describe
how international lawyers have tended to stress the plausibility of this kind
of ‘constitutional compensation’ only by dislocating the function of institu-
tions like the League or the UN from their underlying legal form (grounded
in an intergovernmental treaty agreement). In section II, I consider the
cogency of these claims, assessing the undoubted impact of ‘institutionali-
sation’ on the contemporary functioning of international law. In doing so,
I show how the influence of international organisations has in many ways
re-shaped our understanding of the nature, scope and institutional capac-
ity of the international legal system. In reviewing these changes, however,
I argue that the system overall appears to be ‘straining’ under the weight
of institutionalisation, seemingly incapable of effectively accommodating
198 Form and Function in the Institutionalisation of International Law

(or constraining) the functional autonomy exhibited by many powerful

institutional actors. In section III, I therefore consider how the structural
limitations of international institutions, derived from the formal constraints
of the international legal order, reveal a much more complicated view of
their legal nature, as well as their structural impact on international law
overall. International organisations embody within themselves an irresolv-
able tension between their functionality (their openness to the international
legal order) and the legal form in which they fit into international law (as
‘closed’ legal actors in their own right), which I argue undermines, or at least
fundamentally limits, their capacity to act as functional ‘organs’ of the inter-
national legal system as a whole. In recognising this structural condition,
I conclude with some thoughts on how the emergence of so-called ‘global
governance’ through international organisations has precipitated growing
concern over certain legitimacy and accountability deficits. It is this concern,
in particular, which I will address in the following and final chapter.

I. FORM AND FUNCTION IN THE INSTITUTIONALISATION

OF INTERNATIONAL LAW

Given the problem outlined in this volume thus far, it is hardly surprising
that, in the main, the discipline has tended to interpret international law’s
‘move to institutions’ as a means of correcting, fixing or compensating for
the perceived structural weaknesses of the international legal order.8 Even
before the creation of the League of Nations in 1919, many late nineteenth-
century jurists had already tied the fate of the international legal system
to the development of an integrated international organisation capable of
securing some means for the creation, adjudication and enforcement of the
law.9 As the very first rudiments of the modern intergovernmental organisa-
tion began to develop throughout the nineteenth century—with experiments
in conference diplomacy, great power alliance and forms of international
administration10—it began to seem feasible to imagine a transition towards

8 See Kennedy (n 3).

9 Of the more abstract proposals for international organisation conceived according to a
model of domestic governance, see, eg, P Fiore, International Law Codified and its Legal Sanc-
tion; or the Legal Organization of the Society of States, translated from the 5th Italian edn by
Edwin M Borchard (New York, Baker, Voorhis & Company, 1918) 467–70 and passim; and
J Lorimer, The Institutes of the Law of Nations: A Treatise on the Jural Relations of Separate Polit-
ical Communities, Vol II (Edinburgh and London, William Blackwood and Sons, 1884) 179–87.
10 The emergence of the modern intergovernmental organisation is most often traced to

three particular nineteenth-century trends: first, the emergence of multilateral conference diplo-
macy; second, the creation of an administrative bureaucracy through the creation of public
international unions (PIUs); and, finally, the organisation of the great powers into a form of
hegemonic alliance. See, eg, IL Claude Jr , Swords into Plowshares: The Problems and Progress
of International Organization, 4th edn (New York, Random House, 1971) 38–39; J Klabbers,
‘The Life and Times of International Organizations’ (2001) 70 Nordic Journal of International
Law 287, at 291–92; and C Brölmann, The Institutional Veil in Public International Law:
International Organizations and the Law of Treaties (Oxford, Hart Publishing, 2007) 14–17.
 Form and Function in the Institutionalisation of International Law 199

a more centralised institutional architecture for international law.11 Of the

more modest readings, the emerging international bureaucracies in the Pub-
lic International Unions (including bodies such as the International Telecom-
munications Union and the various River Commissions) were described as
part of an emerging ‘international administrative law’.12 More ambitiously,
others saw in the Hague Conferences of 1899 and 1907 a broader move
towards a more centralised, federal structure for international law.13 Even
the avowed legal positivist Lassa Oppenheim read these institutional devel-
opments as instigating a transformation in the character of international
law-making, with a tentative recognition of the phenomenon of ‘interna-
tional legislation’ through the multilateral treaty form.14
However, it was not until the creation of the League and, shortly there-
after, the PCIJ in the wake of the First World War that there was more
widespread recognition of the impact of ‘institutionalisation’ on the con-
temporary functioning of the international legal order. Taken together, these
developments seemed to suggest a movement towards the centralisation of
international law-making, enforcement and dispute settlement functions.
This reading was not just scholarly ambition or the vision of some utopian
international federalists. EH Carr, one of the pioneering ‘realist’ scholars
of the twentieth century, noted how much of this ambition was shared by
statesmen themselves, who, fuelled by Wilsonian idealism in the wake of
the Great War, saw the necessity of subjecting inter-state relations to the
demands of the rule of law, with the League being the first tentative step in
this direction.15

11 On the trend towards a view of administrative cooperation as contributing to a more

‘federal’ ordering of the international system, see particularly D Bederman ‘The Souls of
International Organizations: Legal Personality and the Lighthouse at Cape Spartel’ (1996) 36
Virginia Journal of International Law 275, at 337–38.
12 Se, eg, P Kazansky, ‘Théorie de l’administration internationale’ (1902) IX Revue Générale

de Droit International Public 366; and particularly PS Reinsch, ‘International Administrative

Law and National Sovereignty’ (1909) 3 American Journal of International Law 1, at 18, who
described such administrative developments as contributing to a ‘the feeling of a common
humanity’ which through further integration would necessarily lead to more peaceful relations
between states.
13 See, eg, W Schücking, The International Union of the Hague Conferences, Charles

G Fenwick (trans) (Oxford, Oxford University Press, 1918). The American jurist Frederick
Holls even went as far as describing the Hague Conventions as the ‘Magna Charta of Interna-
tional Law’: see FW Holls, The Peace Conference at the Hague, and its Bearing on Interna-
tional Law and Policy (New York, MacMillan, 1900) 354.
14 L Oppenheim, ‘The Science of International Law: Its Task and Method’ (1908) 2 Ameri-

can Journal of International Law 313, at 320–21 and 348–49. Oppenheim was himself giving
effect to Heinrich Triepel’s concept of the Vereinbarung – on which, see Ch 1, section II above.
On the functional nature of the distinction between ‘law-making treaties’ and other types of
treaties, see C Brölmann, ‘Law-Making Treaties: Form and Function in International Law’
(2005) 74 Nordic Journal of International Law 383, at 384–85.
15 EH Carr, The Twenty Years’ Crisis 1919–1939: An Introduction to the Study of Inter-

national Relations, 2nd edn (London, MacMillan, 1946) 27–28; and see the discussion in
JE Alvarez, International Organizations as Law-Makers (Oxford, Oxford University Press,
2005) 18–19.
200 Form and Function in the Institutionalisation of International Law

In many respects, the League Covenant seemed to offer up significant

evidence in support of this reading. For example, provisions on collective
security16 or mechanisms—albeit somewhat tentative and weak—for effect-
ing legal change17 clearly aimed to reach beyond the institution’s treaty base
to have a broader effect on the structure of the international legal order
overall. Importantly, Article 20 of the Covenant—a precursor to Article 103
of the UN Charter18—was seen as attempting to create a de facto hierarchy
between the Covenant and other international agreements.19 For this reason,
most contemporary reflections on the League tended to stress the sui gen-
eris character of its constituent instrument compared to other multilateral
treaties,20 which, in particular, highlighted the difficulties many inter-bellum
jurists faced in reconciling the somewhat revolutionary ambition of the
organisation with the decentralised institutional architecture of international
law overall.21 As we saw already to some degree in Chapter 1, Oppenheim,
towards the end of his life, acknowledged the ‘unprecedented’ nature of the
League’s ambition and its effect on international law—ultimately giving rise
to an attempt ‘to organise the hitherto unorganised community of States by
a written constitution’.22
This apparent dichotomy between the League’s perceived ‘constitutional’
function—or, at least, ambition—and its more limited ‘contractual’ legal
form became a recurring narrative around this time. One can see this also
in the cautious assessment of Alfred Zimmern, who, in a famous study on

16 The collective security provision was included in the ill-fated art 10, which provided that

the League’s members ‘undertake to respect and preserve as against external aggression the ter-
ritorial integrity and existing political independence of all Members of the League’.
17 For example, art 19 provided that: ‘The Assembly may from time to time advise the

reconsideration by Members of the League of treaties which have become inapplicable and
the consideration of international conditions whose continuance might endanger the peace of
the world.’
18 See below at n 36.
19 The text of art 20 reads, inter alia, that the League’s members agree ‘that this Covenant

is accepted as abrogating all obligations or understandings inter se which are inconsistent with
the terms thereof, and solemnly undertake that they will not hereafter enter into any engage-
ments inconsistent with the terms thereof’.
20 See, eg, discussion in Claude Jr (n 10) 38–39. A Nussbaum, A Concise History of the

Law of Nations (New York, Macmillan, 1954) 200; Klabbers (n 10) 291–94; Brölmann (n 10)
56–57; ND White, The Law of International Organisations, 2nd edn (Manchester, Manchester
University Press, 2006) 14–15.
21 For an excellent discussion of the difficulties of coming to terms with the independent iden-

tity of international organisations from the inter-war years onwards—particularly contrasting

more formalist continental readings with the pragmatism of Anglo-American approaches—see
Bederman (n 11), particularly at 333–49.
22 L Oppenheim, International Law: A Treatise, Vol. 1, 3rd edn (London, Longmans, Green

& Co, 1920) 269. See further L Oppenheim, Future of International Law (Oxford, Clarendon
Press, 1921) 11–13 and 66–67; see also EA Whittuck, ‘Professor Oppenheim’ (1920–21) 1
British Yearbook of International Law 1, at 8. For a critical assessment in this respect, see
M Schmoekel, ‘Consent and Caution: Lassa Oppenheim and His Reaction to World War I’ in R
Lessafer (ed), Peace Treaties and International Law in European History: From the Late Middle
Ages to World War One (Cambridge, Cambridge University Press, 2004) 270, at 281–82.
 Form and Function in the Institutionalisation of International Law 201

the League assessed from a rule of law perspective, described the Covenant
as neither entirely contractual nor constitutional.23 Zimmern drew on the
work of Max Huber, who had been an enthusiastic proponent of the institu-
tionalisation of international law since the early experiments with inter-state
arbitration at the Hague, the significance of which for him lay ‘less in what
[these institutions] are, as seen from a formally legal perspective … than in
the moral weight that they lend to the ideas and aspirations which led to
their creation and which they embody at least in part’.24
As was noted in Chapter 2, this more functional (and aspirational)
approach was, at least in part, a reaction against the perceived formalism
of late nineteenth-century international law. In their urge to modernise the
law, most inter-bellum jurists trod an uneasy path between the certainty of
legal form and a more purposive functionalism: for example, as we saw,
by reading Article 38 of the PCIJ (now ICJ) Statute into a kind of quasi-
constitutional position as a kind of functional meta-norm—or rule of rec-
ognition—with the ambition of concretising the law’s formal qualities as
a legal system.25 This kind of reading carried over into a new approach to
multilateral treaties more broadly, which were increasingly seen to perform
a myriad number of contractual, constitutive and ‘legislative’ functions.
This is nowhere clearer than in the leading work on the law of treaties from
this era by Arnold McNair, who argued that the treaty was ‘the only instru-
ment available for doing many of the things which an individual state would
do by means of its legislature’.26 Accordingly, if the international commu-
nity wished to ‘enact a fundamental, organic, constitutional law, such as the
Covenant of the League of Nations was intended to be and in large measure
is in fact, it employs the treaty’.27
This functional reading of the nature of multilateral treaties was influen-
tial amongst his contemporaries and has arguably remained so since, despite

23 A Zimmern, The League of Nations and the Rule of Law, 1918–1935 (London, MacMillan

and Co, 1936) 284–85. See also White (n 20) 14.

24 M Huber, ‘Die soziologischen Grundlagen des Völkerrechts’ [‘The Sociological Founda-

tions of International Law’], reprinted in M Huber, Gesellschaft und Humanität—Gesammelte

Aufsätze (Zürich, Artemis, 1948) 147, and cited in D Thürer, ‘Max Huber: A Portrait in Out-
line’ (2007) 18 European Journal of International Law 69, at 71. As Thürer further comments
(at 72), for Huber, these institutional developments formed ‘a symbol of an international legal
system’ around which public opinion would coalesce, helping in turn to further enhance the
institutionalisation of international law. In line with the analysis in Ch 2, in fact, it was Huber’s
modern, sociological approach—‘his sensitivity to the facts and the history of law’—which
enabled him ‘to perceive tendencies which would have remained concealed if the situation were
viewed from a purely positivist perspective’.
25 For an analysis of the controversy in this respect, though ultimately endorsing such a

functionalist reading, see GM Danilenko, Law-Making in the International Community

(Dordrecht, Martinus Nijhoff, 1993) 30–43.
26 A McNair, The Law of Treaties (Oxford, Clarendon Press, 1961, first published in 1938)

259.
27 A McNair, ‘The Functions and Differing Legal Character of Treaties’ (1930) 11 British

Yearbook of International Law 100, at 101.

202 Form and Function in the Institutionalisation of International Law

the evident difficulties in explaining legislation as a decentralised process.28

James Brierly, for instance, made a similarly cautious endorsement of the
League Covenant’s constitutional ambition and effects:
The real justification for ascribing a law-making function to these treaties is the
practical one … that they do in fact perform the function which a legislature per-
forms in a state, though they do so only imperfectly; and that they are the only
machinery which exists for the purposive adapting of international law to new
conditions and in general for strengthening the force of the rule of law between
states … It is right that we should look behind the form of these treaties to their
substantial effect.29 (emphasis added)
Similarly, Lauterpacht was careful to stress the importance of the formal
differences between treaties compared to legislation, but by taking a par-
ticular view on the law-creating (rather than obligation-inferring) effects of
treaties, he sought to highlight a similar functional interpretation based on
a purposive reading of state sovereignty. In other words, if ‘freedom of con-
tract’ prevailed amongst states, then this had to be interpreted as a freedom
to create any law, including one which elevated the League Covenant to a
higher status.30
Whilst the collapse of the League project with the outbreak of the Second
World War may have further highlighted the already-evident gap between
substantive ambition and structural legal form, for most this failure did not
undermine that ambition, instead merely confirming that the League had
not gone far enough in its realisation.31 The Covenant had been, in other
words, ‘too formal and inflexible’.32 By tying a collective security model
to a conference structure grounded in unanimity, the League was seen to
be paralysed from the outset.33 Its constitutional architecture reflected an
outmoded form of international politics: to paraphrase Martti Koskenniemi,

28 See, eg, A McNair, ‘International Legislation’ (1933–34) 19 Iowa Law Review 177, at

178–79; and later CW Jenks, ‘The Conflict of Law-Making Treaties’ (1953) 30 British Year-
book of International Law 401. For commentary, see also Brölmann (n 14).
29 JL Brierly, The Law of Nations: An Introduction to the International Law of Peace,

2nd edn (Oxford, Oxford University Press, 1936) 48–49.

30 H Lauterpacht, ‘The Covenant as the Higher Law’ (1936) 17 British Yearbook of Inter-

national Law 54, 64–65. On Lauterpacht’s commitment to the constitutionalisation of inter-

national politics generally, see also M Koskenniemi, The Gentle Civilizer of Nations: The Rise
and Fall of International Law 1870–1960 (Cambridge, Cambridge University Press, 2001)
376–88. Of particular importance in Lauterpacht’s reading of the League Covenant’s status
was the wording of art 20, as set out above at n 19.
31 See, eg, M Koskenniemi, ‘The Politics of International Law’ (1990) 1 European Journal

of International Law 4, 6; F Kratochwil, ‘How do Norms Matter?’ in M Byers (ed), The

Role of Law in International Politics: Essays in International Relations and International Law
(Oxford, Oxford University Press, 2000) 35, at 39.
32 M Koskenniemi, ‘The Police in the Temple. Order, Justice and the UN: A Dialectical View’

(1995) 6 European Journal of International Law 325, at 334.

33 The backbone of the League’s approach to collective security was contained in art 10, on

which see above at n 16.

 Form and Function in the Institutionalisation of International Law 203

the system relied for its effectiveness on the existence of precisely the kind
of community which the League had attempted, and failed, to bring about
in the first place.34
The more realist political climate after the Second World War may have
arguably blunted any overt enthusiasm—at least initially—for reading
the UN Charter as a constitution for the international system (or indeed the
UN itself as a form of proto-world government). In fact, not only was the
institution immediately hidebound by Cold War politics and constitutional
crises, but the seemingly more ‘constitutional’ provisions establishing the
pre-eminence of the Security Council,35 combined with Article 103 (the
so-called ‘supremacy clause’),36 only suggested, if anything, that the drafters
had put political realism before any transformative ambition—with such
provisions, in effect, further institutionalising the political hegemony of the
‘great powers’.37 Nevertheless, as the UN grew in size, scale and ambition
over the years, it would not take long before similar constitutional analogies
would begin to colour reflections on the Charter and the ‘UN system’ over-
all. Although few would come to see the Charter as an actual constitution
for the international system—with some notable exceptions, of course38—at
the very least, the UN institutions (often combined with other international
institutional organs, courts and regimes) have come to be seen in more com-
pensatory terms, ‘gap-filling’ for the lack of actual constitutional organs
at the international level:39 for example, the Security Council as fulfilling

34 Koskenniemi (n 32) 333, summing up the views of Carr (n 15).

35 The effects of arts 24 and 25 taken together are essentially to transfer primary responsibil-
ity for peace and security on the Council and to make the members subordinate to its authority.
When combined with the Council’s power under Chapter VII (art 42, in particular, giving the
Council a monopoly on the use of force in international affairs), the effect of the Charter can
be read as effectively legalising a de facto hegemony.
36 The text of art 103 is somewhat ambiguous in providing that in case of a ‘conflict between

the obligations of the Members of the United Nations under the present Charter and their obli-
gations under any other international agreement, their obligations under the present Charter
shall prevail’. For some, this has been taken to override provisions of customary international
law, to secure the almost omnipotent authority of the UN Security Council; for others, it has
been construed more narrowly to deal with other agreements between states which may com-
promise the operation of the Charter collective security system. For discussion, see R Livoja,
‘The Scope of the Supremacy Clause of the United Nations Charter’ (2008) 58 International
and Comparative Law Quarterly 583.
37 Koskenniemi (n 32) 336 and passim; see further in Ch 6 of G Simpson, Great Powers and

Outlaw States: Unequal Sovereigns in the International Legal Order (Cambridge, Cambridge
University Press, 2004) 165–93.
38 Though such a reading certainly has not been uncommon, particularly (though not

exclusively) amongst German academics: see, eg, A Verdross and B Simma, Universelles
Völkerrecht: Theorie und Praxis, 3rd edn (Berlin, Duncker & Humblot, 1984); B Fassbender,
The United Nations Charter as the Constitution of the International Community (Leiden, Mar-
tinus Nijhoff, 2009), especially the works he surveys at 27–51; and see also R St J Macdonald,
‘The International Community as a Legal Community’ in Macdonald and Johnston (n 6) 853–
909; and, more tentatively perhaps, P-M Dupuy, ‘The Constitutional Dimension of the Charter
of the United Nations Revisited’ (1997) 1 Max Planck Yearbook of United Nations Law 1.
39 See, eg, A Cassese, International Law in a Divided World (Oxford, Clarendon Press, 1986)

401–03; A Cassese, International Law, 2nd edn (Oxford, Oxford University Press, 2005) 66–67.
204 Form and Function in the Institutionalisation of International Law

executive (as well as quasi-legislative) functions; the ICJ as the upper tier
of the international judiciary; as well as recognition of the soft-legislative
normative influence of the General Assembly.40
Most of these readings have, once again, stressed the need to look beyond
the strict legal form of the UN, which remains grounded in a treaty agree-
ment between its member states, and the underlying effect of the institu-
tion on the contemporary functioning of international law. Generations of
lawyers, from the late 1950s and 1960s onwards, have embraced this kind
of pragmatic, functionalist approach not only in order to understand the
nature of the perceived structural change brought about by the post-war
institutions, but also, more normatively, as a means of further enhancing
the rule of law at the international level.41 At times, this approach has been
subtle in influence—for example, in the post-war direction of Lauterpacht’s
work42—and at other times much more explicit: for instance, in the academic
works or judicial reasoning of some of the most prominent names of mid-
to late twentieth-century international law, such as Philip Jessup,43 Wilfred
Jenks,44 Manfred Lachs45 or Wolfgang Friedmann.46 The latter half of the
twentieth century increasingly saw ambitions for progress in international

40 See, eg, J Crawford, ‘The Charter of the United Nations as a Constitution’ in H Fox (ed),

The Changing Constitution of the United Nations (London, British Institute of International
and Comparative Law, 1997) 3–16; ND White, ‘The United Nations System: Conference, Con-
tract or Constitutional Order?’ (2000) 4 Singapore Journal of International and Comparative
Law 281; and I Brownlie, ‘The United Nations as a Form of Government’ in JES Fawcett and
R Higgins (eds), International Organization: Law in Movement (Essays in Honour of John
McMahon) (Oxford, Oxford University Press, 1974) 26–36, in particular at 27, where he
claimed that: ‘As a matter of description it is much less accurate to say that the United Nations
is not a form of government than to say that it is.’
41 On this turn generally, see Koskenniemi (n 30) 474–80. For a more comprehensive discus-

sion, see DM Johnston, ‘Functionalism in the Theory of International Law’ (1988) 26 Cana-
dian Yearbook of International Law 3.
42 Contrast the tone and tenor of Lauterpacht’s The Development of International Law by

the International Court (London, Stevens and Sons, 1958) with his earlier more theoretical
works (canvassed above in Ch 2), for example. For discussion, see M Koskenniemi, ‘Lauter-
pacht: The Victorian Tradition in International Law’ (1997) 8 European Journal of Interna-
tional Law 215, at 255–63.
43 See PC Jessup, A Modern Law of Nations: An Introduction (New York, Macmillan,

1952) 2–3, 8–12 on the defects of a sovereign-centred and decentralised legal order. See also his
stress on function over form in his separate opinion in the South West Africa case: ICJ Reports
1966, 319, at 411; and see further on this case below, at n 53, and in Ch 3, at n 30.
44 See, eg, the functional orientation of CW Jenks, ‘Craftsmanship in International Law’

(1956) 50 American Journal of International Law 32, and developed at length in The Com-
mon Law of Mankind (London, Stevens and Sons, 1958). Whilst in the latter, Jenks claims that
international law now possessed formal universality as a result of the creation of the UN (at
77–79), he constantly stresses that a more pragmatic, functionalist method is required of the
international lawyer, particularly in perceiving the effects of international organisation on the
law (eg, at 173–207).
45 M Lachs, ‘Some Reflections on Substance and Form in International Law’ in

W Friedmann, L Henkin and O Lissitzyn (eds), Transnational Law in a Changing Society:

Essays in Honour of Philip C Jessup (New York, Columbia University Press, 1972) 99–112.
46 See, most famously, Friedmann (n 6).
 Form and Function in the Institutionalisation of International Law 205

law—for instance, in regulating the use of force, realisation of human

rights, or tackling environmental or other global problems—expressed in
institutional rather than substantive terms.47 As José Alvarez notes, many
twentieth-century international lawyers began to see:
[P]rospects for multilateral cooperation in the promise that IOs [international
organisations] have become international legal persons to some extent independ-
ent of the states that have established them and that IO processes will encourage
the consideration of ‘community’ interests and not merely the interests of self-
interested states.48
This functional, institutionalist agenda49 has arguably been further encour-
aged by the approach of the ICJ in its progressive readings of the UN
Charter during the organisation’s formative years, which is particularly
evident in the approach taken by judges such as Alejandro Alvarez.50 This
is nowhere clearer than in the Court’s recognition of the UN’s legal person-
ality,51 certain ‘implied powers’,52 and a presumption against ultra vires
in cases where UN organs were deemed to have developed competencies
beyond the strict terms of the Charter.53 In turn, many of these judgments
would foster the development of important principles in the emerging field
of ‘international institutional law’, itself further buttressing the apparent

47 As Abi-Saab notes, ‘the law of cooperation approach is deeply institutional, precisely

because of the more ambitious tasks it tackles … norms resulting from the law of coopera-
tion approach … cannot have a real social hold without adequate institutional arrangements
for applying them’. G Abi-Saab, ‘Whither the International Community?’ (1998) 9 European
Journal of International Law 248, at 256 (footnotes omitted), quoting from his ‘Cours général
de droit international public’ (1987-VII) 207 Recueil des Cours 9, at 93. For a similar perspec-
tive, see also A Paulus, ‘International Law and International Community’ in D Armstrong (ed),
Routledge Handbook of International Law (Abingdon, Routledge, 2009) 44, at 47–48. For a
critical discussion of a similar view of the realisation of progress through the creation of judi-
cial fora, see T Skouteris, The Notion of Progress in International Law Discourse (The Hague,
TMC Asser Press, 2010) 175–79.
48 Alvarez (n 15) 585.
49 This is not necessarily as ambitious as the functionalist movement in political science,

which has particularly influenced late twentieth-century international law scholarship in the
US. However, there is clearly some synergy between this idea—promoting greater systematic-
ity and rule of law values through institutional integration—and what is suggested here. For a
discussion, see in particular Johnston (n 41) 28–29 ff.
50 See, eg, his Dissenting Opinion in Competence of the General Assembly for the Admis-

sion of a State to the United Nations, Advisory Opinion, ICJ Reports 1950, 12, at 17–18.
51 See, eg, Reparation for Injuries Suffered in the Service of the United Nations, Advisory

Opinion, ICJ Reports 1949, 174, at 179, where the court directly combines intent based argu-
ments with the functional needs of the international community. See further on this case below
at nn 101–109.
52 See particularly the generous reading of implied powers in Certain Expenses of the United

Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, ICJ Reports 1962, 151,
at 168; and for commentary, see White (n 20) 86–87.
53 South West Africa, Second Phase, Judgment, ICJ Reports 1966, 6, at 16, para 89; see

also J Klabbers, ‘The Changing Image of International Organizations’ in J-M Coicaud and
V Heiskanen (eds), The Legitimacy of International Organizations (Tokyo, United Nations
University Press, 2001) 221, at 235.
206 Form and Function in the Institutionalisation of International Law

autonomy of international organisations in international law overall.54

Perhaps freed from some of the practical and ideological limitations of the
preceding Cold War years,55 in 1996, the ICJ would come to give one of its
most explicit endorsements of this ‘functionalist’ reading of the constituent
instruments of international organisations:
From a formal standpoint, the constituent instruments of international organiza-
tions are multilateral treaties, to which the well-established rules of treaty inter-
pretation apply … But the constituent instruments of international organizations
are also treaties of a particular type; their object is to create new subjects of law
endowed with a certain autonomy, to which the parties entrust the task of real-
izing common goals.56
Nevertheless, in recognising their ‘certain autonomy’ in this way, the ICJ
also acknowledged the impossibility of completely moving out of the inter-
state framework which grounds international institutions: both in terms of
the formal treaty instrument underlying the organisation and in the rather
derivative, or delegated, nature of the functional autonomy they thereafter
enjoy. Therefore, whilst their recognition as separate actors—or ‘subjects’—
clearly has a significant impact on the shape, substance and operation of
modern international law, this complex interplay between decentralised
legal form and limited functional autonomy means that their impact cannot
be interpreted as any kind of centralisation of authority in the international
legal system overall. Insofar as this functional autonomy can—and indeed
often does—have a normative impact outside of the specific institutional
legal order, seen from the outside, their authority is necessarily more contin-
gent and contestable. As I will now go on to explain, in fact, the impact of
institutionalisation has been somewhat schizophrenic from the point of view
of the international rule of law—an effect which is arguably reflective of the
tensions inherent in that ideal itself—seemingly necessary to overcome the
perceived inefficiencies and externalities of a decentralised legal system, but
also potentially threatening to the overall coherence of the system.

II. THE IMPACT OF INSTITUTIONALISATION: STRAINING THE SYSTEM

Looking back on the impact of international organisations throughout and

since the twentieth century, it is difficult to deny that international law has

54 For a general overview, see R Collins and ND White (eds), International Organiza-

tions and the Idea of Autonomy: Institutional Independence in the International Legal Order
(Abingdon, Routledge, 2011).
55 Compare, for instance, Jenks, Common Law (n 44) 173–74; and GI Tunkin, Theory of

International Law (Cambridge, MA, Harvard University Press, 1974) 322–64. For comment,
see White (n 20) 10–11.
56 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion,

ICJ Reports 1996, 66, at 74–75, para. 19.

 The Impact of Institutionalisation: Straining the System 207

been shaped by their presence and influence in numerous and quite sig-
nificant ways.57 The number and scale of intergovernmental organisations,
agencies, regimes and specialist dispute settlement bodies has grown to such
an extent that such institutions can be said to ‘now address virtually every
field of human endeavour’.58 Not only has this growth impacted on the scale
of international legal regulation at a substantive level, it also brings with it
‘[n]ew forms of dispute resolution, executive action, administrative deci-
sion-making and enforcement, and legislation’, which, together, are taken as
transforming the law at a deeper, structural level: the emergence of ‘a trans-
national legal process that influences national conduct, transforms national
interests, and helps constitute and reconstitute national identities’.59
By the end of the Cold War, with an emerging atmosphere of ideological
triumphalism, it became easy to see in such developments the beginnings
of a transition in the very nature of international law itself. A quick review
of the annual Hague Academy lectures from the late 1980s onwards, given
by some of the discipline’s most prestigious names, reveals a broadly ‘con-
stitutionalist’ narrative that describes a movement away from Westphalian
‘transactionalism’ towards a more communitarian, more authoritative inter-
national law, which increasingly penetrates state sovereignty to secure the
protection of community interests.60 In perhaps the most spirited endorse-
ment of this progress narrative, Christian Tomuschat declared a transition
between ‘the traditional model of sovereign self-sufficient states and a world
with a hierarchical structure, topped by a single command structure’.61 In a

57 See, inter alia, D Pulkowski, ‘Structural Paradigms of International Law’ in T Broude and

Y Shany (eds), The Shifting Allocation of Authority in International Law: Considering Sov-
ereignty, Supremacy and Subsidiarity (Oxford, Hart Publishing, 2008) 51, at 69–72; Alvarez
(n 15) 23–24 and passim; D Vignes, ‘The Impact of International Organizations on the Devel-
opment and Application of Public International Law’ in R St J Macdonald and DM Johnston
(eds), The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine,
and Theory (The Hague, Martinus Nijhoff, 1983) 809, at 809 ff.
58 JE Alvarez, ‘International Organizations: Then and Now’ (2006) 100 American Journal

of International Law 324, at 325. See also NM Blokker and HG Schermers (eds), Proliferation
of International Organizations: Legal Issues (The Hague, Kluwer, 2001).
59 HH Koh, ‘Why Do Nations Obey International Law?’ (1997) 106 Yale Law Journal

2599, at 2631.
60 See, for instance, Abi-Saab’s lecture from 1987 (n 47), as well as T Franck, ‘Fairness in

the International Legal and Institutional System: General Course on Public International Law’
(1993-III) 240 Recueil des Cours 9; C Tomuschat, ‘Obligations Arising for States Without
or against their Will’ (1993-IV) 241 Recueil des Cours 195; Simma (n 4); Tomuschat (n 4);
P-M Dupuy, ‘L’unité de l’ordre juridique international: Cours général de droit international
public’ (2002) 297 Recueil des Cours 9; T Meron, ‘International Law in the Age of Human
Rights: General Course on Public International Law’ (2003) 301 Recueil des Cours 9, particu-
larly at 228 and passim, criticising the structural and institutional limitations of Westphalian
international law for the protection of human rights. On the progressive orientation of the
Hague General Course, see M Koskenniemi, ‘Repetition as Reform: Repetition as Reform:
Georges Abi-Saab Cours Général de droit international public’ (1998) 9 European Journal of
International Law 405, at 406–07.
61 Tomuschat (n 4) 90.
208 Form and Function in the Institutionalisation of International Law

perhaps more sober reflection, Bruno Simma and Andreas Paulus described
a movement in which:
[T]he world of the famous ‘Lotus principle’, according to which states are only
bound by their express consent, seems to be gradually giving way to a more
communitarian, more highly institutionalized international law, in which states
‘channel’ the pursuit of most of their individual interests through multilateral
institutions … the system as a whole increasingly permeates state boundaries for
the sake of protection of individual and group rights.62
At one level, one can in fact present a compelling body of evidence in support
of these sorts of claim. On the structural side, first of all, international law-
yers have noted a fundamental change in the enforcement capacity of inter-
national law brought about as a result of the prohibition on the use of force
under the UN Charter and the peace and security function bestowed upon
the Security Council.63 Similarly, organisational fora such as the UN Gen-
eral Assembly are deemed to play an increasingly important role in the pro-
cesses of international law-making and application,64 with UN-sponsored
conferences seen to be ‘centralising’ the multilateral treaty-making process65
or even ‘democratising’ law-making in general by engaging non-state actors
such as NGOs.66 Similarly, whilst limited to more technical fields, organisa-
tions such as the World Health Organization (WHO) and the International
Labour Organization (ILO) enjoy considerable ‘law-making’ powers in
terms of regulatory standard-setting and other policy initiatives.67 In other
fields, a proliferation of dispute settlement bodies in particular regional and
technical organisations has led to claims of an increasing ‘legalisation’ in
the conduct of international politics,68 which in turn is seen as potentially

62 B Simma and A Paulus, ‘The ‘International Community’: Facing the Challenge of Globali-

zation’ (1998) 9 European Journal of International Law 266, at 276.

63 See, eg, the discussion in GG Fitzmaurice, ‘The Foundations of the Authority of Interna-

tional Law and the Problem of Enforcement’ (1956) 19 Modern Law Review 1, at 3–4; for a
more recent view of the UN Security Council as a proto-global ‘executive’, see JA Frowein and
N Krisch, ‘Introduction to Chapter VII’ in B Simma (ed), The Charter of the United Nations:
A Commentary, 2nd edn (Oxford, Oxford University Press, 2002) 701, at 702 in particular.
64 See, perhaps most famously, R Higgins, The Development of International Law through

the Political Organs of the United Nations (Oxford, Oxford University Press, 1963); see also,
more recently, Alvarez (n 15) 259–60; JL Charney, ‘Universal International Law’ (1993) 87
American Journal of International Law 529, at 543–50; and ND White, ‘Separate But Con-
nected: Inter-governmental Organizations and International Law’ (2008) 5 International
Organizations Law Review 175, at 181–87.
65 Brölmann (n 10) 101–12.
66 S Charnovitz, ‘Nongovernmental Organizations and International Law’ (2006) 100

American Journal of International Law 348, at 359–63.

67 For an overview, see Alvarez (n 15) 217–44; A Boyle and C Chinkin, The Making of

International Law (Oxford, Oxford University Press, 2007) 108–41.

68 J Goldstein et al (eds), Legalization and World Politics (Cambridge, MA, MIT Press,

2001).
 The Impact of Institutionalisation: Straining the System 209

enhancing the determinacy of law and compensating for the kinds of defi-
ciencies outlined in the previous chapter.69
In addition, international organisations have arguably added ‘dimen-
sionality’ to the systemic nature of international law, particularly in terms
of its sources and subjects. For instance, a number of institutional devel-
opments are seen to have introduced degrees of normativity—or ‘relative
normativity’—into international law.70 Codification exercises undertaken
by the UN’s International Law Commission (ILC) have resulted in treaty
and customary recognition that certain norms possess a peremptory
(jus cogens) character, thus signalling an emerging normative hierarchy,71
which in turn has been accepted and tentatively progressed by international
courts and tribunals.72 Alvarez, for example, describes the critical role of
institutional fora in this development:
Jus cogens and erga omnes obligations are products of the age of IOs [interna-
tional organisations] precisely because they made real (or more real than ever
before) the idea of a ‘community of states as a whole’ on which such hierarchi-
cal concepts could be built. The articulation of jus cogens—in Article 53 of the
Vienna Convention on the Law of Treaties—resulted from the kind of ‘package
deal’ that characterizes treaty making in institutionalized global venues involving
UN expert bodies … and UN-authorized treaty-making conferences.73

69 See, eg, JE Alvarez, ‘The New-Dispute Settlers: (Half) Truths and Consequences’ (2003)

38 Texas International Law Journal 405, at 408.

70 For an enthusiastic embrace of the blurring of the normativity threshold in international

law in this respect, see Charney (n 64); D Shelton, ‘International Law and “Relative Normativ-
ity”’ in M Evans (ed), International Law, 4th edn (Oxford, Oxford University Press, 2014)
137–65. For a critical reflection, see P Weil, ‘Towards Normative Relativity in International
Law?’ (1983) 77 American Journal of International Law 413.
71 On the applicability and effect of jus cogens norms, see arts 53 and 64 of the Vienna

Convention on the Law of Treaties 1969; on the responsibility of states for breaches of per-
emptory norms of international law and on the possibility of invocation of responsibility by
third states for breaches of obligations erga omnes, see arts 41–42 and 48, respectively, of the
Draft Articles on Responsibility of States for Internationally Wrongful Acts, available (with
commentary) at: http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf.
However, note that the customary law status of these provisions, particularly with regard to
third party enforcement of community interests, remains somewhat controversial.
72 For example, on the jus cogens status of the prohibition of unlawful force in interna-

tional law, see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v
United States), Merits, Judgment of 27 June 1986, ICJ Reports 1986, 14, at 100–101; on the
peremptory status of human rights norms as limiting the powers of the UN Security Council,
see also the following before the European Court of First Instance: Case T-306/01, Yusuf and
Al Barakaat International Foundation v Council and Commission, 21 September 2005 [2005]
ECR II-3533; Case T-315/01, Kadi v Council and Commission, 21 September 2005 [2005]
ECR II-3649.
73 Alvarez (n 58) 327.
210 Form and Function in the Institutionalisation of International Law

As he goes on to note, it is also the UN family of organisations—human

rights treaty bodies, the ILC, the ICJ and others—which has been most likely
to cite the peremptory status of particular norms, increasing the UN’s recog-
nition—amongst many at least—as the ostensible representative of the inter-
national community as a whole.74 Furthermore, to recall from Chapter 3,
the ‘normative’ output of the General Assembly has had a significant impact
on traditional sources doctrine, with its resolutions increasingly recognised
as important evidence of emerging customary international law,75 if not also
constituting in themselves a new ‘soft’ form of international obligation, with
significant normative force.76
Meanwhile, in terms of the subjects of the law, not only have organisations
themselves been recognised as legal persons,77 but institutional develop-
ments in the protection of human rights and the prosecution of international
criminal law have also strengthened the recognition of the individual as
bearer of rights and responsibilities in international law.78 Overall, as David
Bederman notes, since the ICJ’s recognition of the personality of the UN in
1949,79 an increasingly functional view of legal personality has pertained
which recognises the legal standing of various non-state actors on the basis
of the contemporary needs of the international community.80
Taken together, these trends clearly suggest that the impact of interna-
tional institutions has been significant, radically altering the structural

74 ibid. See also D Shelton, ‘Normative Hierarchy in International Law’ (2006) 100

American Journal of International Law 291.

75 AE Roberts, ‘Traditional and Modern Approaches to Customary International Law:

A Reconciliation’ (2001) 95 American Journal of International Law 757.

76 See generally A Boyle, ‘Soft Law in International Law-Making’ in Evans (n 70) 118–36;

KW Abbott and D Snidal, ‘Hard and Soft Law in International Governance’ (2000) 54 Inter-
national Organization 421; Boyle and Chinkin (n 67) 211–29; and, more particularly, White
(n 64) 179–87.
77 This change is normally attributed to the recognition of the legal personality of the UN in

the Reparations Advisory Opinion (n 51); see the discussion in Bederman (n 11).
78 For a general overview of this development, as well as the recognition of individual legal

personality through international criminal law and human rights law, see Chs 6 and 7 respec-
tively of R Portmann, Legal Personality in International Law (Cambridge, Cambridge Univer-
sity Press, 2008) 80–172.
79 See Reparations (n 51).
80 Bederman (n 11) 279. This functional approach seems to have won out as the dominant

approach to legal personality for non-state actors. This is the approach adopted explicitly by
the International Law Association recently: see ILA, First Report of the Committee on Non
State Actors in International Law, Hague Conference 2010, 4–5; available at: www.ila-hq.org/
en/committees/index.cfm/cid/1023; and see further, M Noortmann, ‘The International Law
Association and Non-state Actors: Professional Network, Public Interest Group or Epistemic
Community?’ in J d’Aspremont (ed), Participants in the International Legal System (Abingdon,
Routledge, 2011) 233–47.
 The Impact of Institutionalisation: Straining the System 211

landscape of international law. Many of these institutional innovations are

indeed quite difficult to reconcile with the idea of international law as a
decentralised legal order existing primarily—even if not entirely—between
sovereign states. In fact, already in 1958, when reflecting on the impact of
institutionalisation, Jenks had contrasted the increasingly ‘public’ substance
of international law brought about largely through the post-war interna-
tional organisations with its formal, inter-state nature:
[I]t does not suffice to attempt to relate these developments to a pre-existing
structure and arrangement of the law originally evolved on the assumption that
international law is a law between ‘States solely and exclusively’ and to give an
account of them within, or by somewhat haphazard and illogical modifications of
or accretions to, a pre-established framework.81
This perception seems to have only intensified in recent years. The introduc-
tion of institutional innovation and hierarchy, and the increasingly commu-
nitarian or humanistic focus of international law seem difficult to explain
and legitimise simply on the basis of treaty consent and intergovernmental
cooperation.82 A more ‘constitutional’ regulatory order seems to have been
‘bolted on’ to the more traditional ‘Westphalian’ legal form, resulting in
a degree of ‘ad-hocism’ at the institutional level.83 As a result, not only
does this structure seem incapable of adequately securing many of the more
communitarian values and goals brought about through institutional inno-
vation, but it also seems itself to push in the other direction: invoking a
growing sense of accountability deficit and legitimacy crisis. On the one
hand, the intergovernmental nature of international institutions seems to
inhibit their ability to adequately represent community interests in oppo-
sition to state concerns.84 This results in the ironic position where inter-
governmental cooperation through international institutions is credited as
having brought about the shift in international law’s substantive focus, but a
continuing reliance on intergovernmental institutional structures to deliver

81 Jenks, Common Law (n 44) 7–8.

82 See, eg (though far from exclusively), Simma (n 4); Tomuschat (n 4); and J Delbruck,
‘Prospects for a “World (Internal) Law?” Legal Developments in a Changing. International
System’ (2002) 9 Indiana Journal of Global Legal Studies 401.
83 A Bianchi, ‘Ad-Hocism and the Rule of Law’ (2002) 13 European Journal of Interna-

tional Law 263, particularly at 268–89. And see further JHH Weiler, ‘The Geology of Interna-
tional Law—Governance, Democracy and Legitimacy’ (2004) 64 Zeitschrift für Ausländisches
Öffentliches Recht und Völkerrecht 547.
84 See, eg, Simma (n 4) 233 and 373–74; Tomuschat (n 4) 44 and 47. See also B Simma,

‘International Crimes: Injury and Countermeasures: Comments on Part 2 of the ILC Work
on State Responsibility’ in JHH Weiler, A Cassese and M Spinedi (eds), International Crimes
of State: A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility (Berlin,
De Gruyter, 1989) 283, at 315. And see also the discussion in T Nardin, Law, Morality, and
the Relations of States (Princeton, NJ, Princeton University Press, 1983) 161–62.
212 Form and Function in the Institutionalisation of International Law

(or protect) global public goods threatens to potentially undermine those

same values, interests and goals.85 As Cassese laments:
[T]he momentous advance represented by the emergence of a network of norma-
tive standards has not gone hand in hand with commensurate progress in the
setting up of international law enforcement machinery … In this vacuum, the UN
has been called upon to play the role of an implementation mechanism.86
As we saw in Part I, this kind of reflection is an oft-heard decrial of the
inefficiency and inadequacy of relying on the institutional architecture of
a decentralised international legal order to secure community goals and
protect global public goods.87 On the other hand, however, and as noted in
the previous chapter, it seems difficult to comprehend how further institu-
tionalisation might occur within international law without further strain-
ing or undermining a core aspect of its coherence as a decentralised legal
system: the very same system which underpins and gives legal force to many
of these institutional innovations. In fact, to the extent that such institu-
tions are seen to possess increasingly significant normative powers, exer-
cising authority in a manner that is difficult to reconcile with traditional,
‘Westphalian’ international law, there also appears to be a growing anxiety
pushing in the opposite direction. Many of these institutional developments
seem to be undermining more traditional channels for legitimating the exer-
cise of public power (at the global as well as the national level).88 Indeed,
despite long-standing hopes that further institutionalisation would secure
global public goods in the face of national interests, as the post-Cold War
years have unfolded, the once benevolent image of international institutions

85 See, eg, recently S Villalpando, ‘The Legal Dimension of the International Community:

How Community Interests are Protected in International Law’ (2010) 21 European Journal
of International Law 387, at 409–10. As Shelton claims, ‘in most cases the problem is one of
ensuring compliance by States that have freely consented to [peremptory norms of interna-
tional law] and not one of imposing obligations on dissenting states’. Shelton (n 70) 148. On
the under-developed nature of international law and the need for further institutional devel-
opment of the law-making function, see Danilenko (n 25) 11–15 and passim; and similar
concerns in Abi-Saab (n 47); M Cherif Bassiouni, ‘The Philosophy and Policy of International
Criminal Justice’ in LC Vorah et al (eds), Man’s Inhumanity to Man: Essays on International
Law in Honour of Antonio Cassese (Leiden, Martinus Nijhoff Publishers, 2003) 65, at 67–68;
and A Pellet, ‘Brief Remarks on the Unilateral Use of Force’ (2000) 11 European Journal of
International Law 385, at 391, who points to the lack of effective institutional protection of
community interests as directly causative of the increasing trend towards unilateral enforce-
ment of those interests.
86 Cassese, International Law (n 39) 66–67.
87 This is most evident in many of the contributions to Simma (n 63); for a critical review

in this respect, see A Orford, ‘The Gift of Formalism’ (2004) 15 European Journal of Interna-
tional Law 179.
88 For a representative view of concerns from an international law perspective, see Weiler

(n 83); and A von Bogdandy, ‘Globalization and Europe: How to Square Democracy and
Globalization’ (2004) 15 European Journal of International Law 885.
 On the Complex Character of International Institutions 213

seems increasingly to be called into question, prompting demands for

greater scrutiny and control of institutional activities. I will return to con-
sider these concerns in more detail in the next chapter. To understand better
why they arise in the first place, however, it is necessary first to cast a more
critical eye over some of the limitations (both conceptual and practical) of
thinking of international institutions (or, indeed, any global actor) as fulfill-
ing, or at least compensating for, the kinds of constitutional functions that
appear necessary to secure this more purposive rule of law ambition.

III. ON THE COMPLEX CHARACTER

OF INTERNATIONAL INSTITUTIONS

The point of the previous analysis was not to suggest that all, or indeed most,
international lawyers subscribe to an explicitly ‘constitutionalist’ reading of
international law. However, in line with the concerns of the previous chap-
ter, there does seem to have been a broad assumption at play that through
the development of autonomous international institutional mechanisms,
we might compensate for the lack of centralised institutions at the interna-
tional level.89 As Gaetano Arangio-Ruiz has argued, this kind of reading is
not merely the preserve of utopian federalists, but is part of a widespread
disciplinary commitment that draws on the idea that certain institutional
innovations, introduced through inter-state agreements, are beginning to re-
structure international law towards a more hierarchical legal form.90 As
he puts it himself, this approach—what he refers to as the doctrine of the
‘organised international community’91—can be seen to:
[D]raw upon the notion that in any society the ultimate sources of law are social
facts and structures not always—especially at the inception—translated into

89 I have written elsewhere on the way in which ‘international constitutionalism’ in this

context is often merely the continuation of more mainstream international law concerns: see
R Collins, ‘Constitutionalism as Liberal-Juridical Consciousness: Echoes from International
Law’s Past’ (2009) 22 Leiden Journal of International Law 251. Similarly, on the positivist
orientation of much of the constitutionalisation literature, see also WG Werner, ‘The Never-
Ending Closure: Constitutionalism and International Law’ in N Tsagourias (ed), Transnational
Constitutionalism: International and European Perspectives (Cambridge, Cambridge Univer-
sity Press, 2007) 329, at 330.
90 As he puts it himself, ‘this tendency manifests itself in a great variety of degrees. In most

cases the analogy is neither deliberately adopted nor organically developed. It is just assumed:
and it goes without saying that no one pushes the analogy so far as to assert, for example.,
that the United Nations is the World State’. G Arangio-Ruiz, The UN Declaration on Friendly
Relations and the System of the Sources of International Law (Alphen aan den Rijn, Sijthoff
& Noordhoff, 1979) 199.
91 ibid, particularly the ‘Appendix’ to this volume on ‘The Concept of International Law

and the Theory of International Organization’, at 199–301.

214 Form and Function in the Institutionalisation of International Law

formal rules. This would be particularly true in a society in transition like the
international society, moving as it is from a state of so-called ‘decentralisation’ of
the law-making and law-determining (and law-enforcing) functions to a state of
progressive ‘centralisation’.92 (emphasis added)
Arangio-Ruiz’s analysis is useful in highlighting some of the theoretical dif-
ficulties that beset this reading. As he notes, this view of international law
seems to be premised upon the (for him, misapprehended) idea that inter-
governmental organisations created within the formative rules and struc-
tures of the international legal order can, at the same time, radically alter or
re-structure international law. Organisations such as the League or the UN
may be constituted ‘horizontally’ between their member states, but thereaf-
ter are seen to re-structure those relations on a more vertical basis—to some
degree placing law above them.93 For Arangio-Ruiz, this seems to misun-
derstand the nature of such institutions, which within their legal orders can
indeed re-structure inter-state relations towards a more hierarchical legal
paradigm—the European Union being a prime example in this respect—
but, being subordinate and separate legal orders, this internal hierarchy has
no bearing on the overarching rules of international law. The nature of the
organisation is such that it is constituted within international law and in
that respect is subordinate to the constitutive rules of this ‘higher’ law, mak-
ing it impossible in formal terms for it to alter those constitutive rules to any
degree.94 As he notes:
[T]he constituent treaty is not a legal instrument of the international community
of men designed to alter the system’s structure by delegating to other entities some
of the functions allegedly exercised by States as ‘organs’ of a universal community.
The inter-State compact involves really … neither the universal society as a whole
nor the peoples of the constituent states … any organisation set up by inter-State
compact bears within itself … an ‘original flaw’, inherent in the very nature of
the transaction which is at the basis of its existence: the inter-State compact …
[which is] a far less sophisticated phenomenon than the ‘constitutionalists’ seem
to believe it to be.95
Accordingly, he sees the creation of an international organisation, however
‘constitutional’ in nature or function, as fundamentally different from a
‘constitutional moment’96 in the renegotiation of an existing social order.
Unlike the foundational authority which the act of constituting a pol-
ity brings to all subsequently enacted law, in signing up to membership in

92 ibid 30–31.
93 ibid 211–14.
94 ibid 255–58.
95 ibid 43–44.
96 The term ‘constitutional moment’ is often attributed to Bruce Ackerman; see, eg, BA

Ackerman, ‘Constitutional Politics/Constitutional Law’ (1989) 99 Yale Law Journal 453; BA

Ackerman, ‘Transformative Appointments’ (1988) 101 Harvard Law Review 1164.
 On the Complex Character of International Institutions 215

an international organisation, ‘States and their peoples seem to remain in

their respective places, and in the condition in which they respectively were
before the operation’.97 In other words, the treaty may bring into being a
new legal order, one which in certain respects may legitimately be labelled
‘constitutional’, but this act does not itself serve to reconstitute international
law in any structural sense.
On the terms of the previous chapter, the domestic analogy therefore
remains incomplete; the discontinuity impacts not only on the legal char-
acter of international law, but also on the institutions created within its
parameters. This point is picked up by Terry Nardin, who makes a similar
argument as to the capacity of states, as well as the institutions, courts and
other bodies they create, to act as ‘organs’ of the international community
in the sense suggested:
The term ‘organ’ implies a body authorized to create and apply rules for the com-
munity, one whose decisions can be attributed to the community. But the acts
of a state do not in themselves create international law, nor are they authorized
by the international community as a whole. These limitations apply to the col-
lective action of states in concluding treaties or establishing international agen-
cies and tribunals, as well as to unilateral state acts. Although the joint action of
some number of states may in various ways modify general international law as it
applies to themselves, it does not alter the law as it applies to other states.98
These arguments are, to this extent at least, logically consistent and compel-
ling. They certainly should not be interpreted as conservatism or outright
scepticism: neither author denies the possibility of evolution and transition
in the nature of international law, nor indeed the idea of international organ-
isations being more than the sum of their constituent parts (their member
states). Their point is merely that insofar as this autonomy translates into
any kind of hierarchy, this will have only an internal effect within the con-
fines of the institutional order itself.99 Insofar as this autonomy finds expres-
sion in international law generally, it can only be accommodated in the form
of the institution’s distinct legal personality, placing it alongside (rather than
above) states as a separate legal actor in its own right.100 In fact, Arangio-
Ruiz takes this argument further in a critique of the reasoning of the ICJ in
the Reparations Advisory Opinion, briefly outlined above,101 with its reli-
ance on a functional autonomy-based argument to justify the international

97 Arangio-Ruiz (n 90) 244–45.

98 Nardin (n 84) 162–63.
99 On this tension, generally, see principally J Klabbers, An Introduction to International

Institutional Law, 2nd edn. (Cambridge, Cambridge University Press, 2009) passim.
100 Arangio-Ruiz (n 90) 245–50. See further T Gazzini, ‘The Relationship between Inter-

national Legal Personality and the Autonomy of International Organizations’ in Collins and
White (n 54) 196–212.
101 Reparations (n 51).
216 Form and Function in the Institutionalisation of International Law

legal personality of the UN. According to Arangio-Ruiz, though he is by no

means alone in this respect,102 whilst states may have equipped the organi-
sation with the necessary characteristics capable of giving rise to its person-
ality under international law, the criteria for determining personality at this
level can only really be settled by a rule of general international law.103
From a formal perspective, Arangio-Ruiz is clearly correct to point out
the inconsistent reasoning in the advisory opinion. As I have had reason
to point out elsewhere,104 there are a number of troubling aspects in the
Court’s ruling, particularly in its amalgamation of functional and will-based
argument: for instance, its stress on the intent of member states, whilst also
noting the opposability of international legal personality to non-member
states,105 or the somewhat troubling contention that there could exist vari-
ous degrees or ‘measures’ of legal personality.106 At the same time, however,
it is precisely because the Court has to eschew a completely formalist logic
that the case is so significant, highlighting the actual character of the UN
and the way in which it overlaps with general international law.107 The
ICJ sums up this functionalist logic in its conclusion that the UN is ‘at
present the supreme type of international organization, and it could not
carry out the intentions of its founders if it was devoid of international
personality’.108
The case therefore serves, somewhat ironically, as a good example of the
limitations of the overly formalist approach of Arangio-Ruiz. Faced with a
legal problem which had not yet been tested, ie, the existence or otherwise
of the personality of a non-state actor (the UN), it is hardly surprising that
the ICJ reconciled the will of the creators of the organisation and a more
functional argument in the (rather pragmatic) way that it did. However,

102 See also White (n 20) 44–45; Gazzini (n 100) 197.

103 See Arangio-Ruiz (n 90) 247, at fn 118, where he elaborates this point further, but essen-
tially reconciles the so-called ‘subjective’ and ‘objective’ views of international legal personality
in this way.
104 See R Collins, ‘Non-state Actors in International Institutional Law: Non-state, Inter-state

or Supra-state? The Peculiar Identity of the Intergovernmental Organization’ in J d’Aspremont

(ed), Participants in the International Legal System: Multiple Perspectives on Non-state Actors
in International Law (Abingdon, Routledge, 2011) 311, at 315–20.
105 See, eg, the discussion of Brölmann (n 10) 78–79; and J Klabbers, ‘The Concept of Legal

Personality’ (2005) 11 Ius Gentium 35, at 50–56.

106 As White claims, international legal personality is either there or it is not, the Court

seemingly confounding the organisation’s level of autonomy vis-a-vis its member states with its
objective personality in international law. ND White, ‘Discerning Separate Will’ in WP Heere
(ed), From Government to Governance: The Growing Impact of Non-state Actors on the
International and European Legal System (The Hague, TMC Asser Press, 2004) 31–38. See
also White (n 20) 30–31, 40; Gazzini (n 100) 199.
107 Bederman (n 11) 367. For an explicitly pragmatic approach to international legal per-

sonality—the idea of ‘presumptive personality’—see also Klabbers (n 99) 49–51.

108 Reparations (n 51) 179.
 On the Complex Character of International Institutions 217

what is most significant about the case is the Court’s inability to completely
close off the internal order of the institution and the broader constitutive
rules of general international law: to do so would have undermined the
purpose and function of the organisation, which was clearly intended by its
member states to effect a certain level of change in international law overall.
As Bederman notes, whilst the functional autonomy of institutions like the
UN can find formal expression solely in terms of legal personality, the court
recognises the reality that for the states that use these institutions, they exist
more as ‘communities’ of interest.109 In other words, they function as a
means through which states participate in the international legal order, even
at times—as I have suggested above—changing the rules or affecting the
operation of that same order.
Accordingly, whilst the kind of conceptual distinction outlined by
Arangio-Ruiz is logically consistent and theoretically coherent, it might still
betray the ‘internal point of view’, that is, the collective understanding of
international legal participants, which, as argued in Part II, remains critical
to an effective conceptual understanding of international law in this broad-
est sense. This is particularly evident in institutions like the UN, where in
many areas it is impossible to effect a strict separation between the internal
legal order of the institution and the broader rules of international law over-
all. Whilst Arangio-Ruiz’s argument may be more plausible with regard to
closed, regional or more technical organisations, one cannot confine or limit
the impact of the organs and rules of the UN system in this way. This is not
simply because of the near-universal membership of the institution—though
that alone makes the distinction somewhat more artificial—but more
because many of the constituent rules of the UN Charter—for instance,
those relating to the sovereign equality of states or the principle of
non-intervention110—overlap with and give meaning to many of the ‘con-
stitutive’ rules of general international law more broadly.111 This is particu-
larly the case in relation to the rules on the use of force, which prove almost
impossible to disentangle from the rules of general international law overall.112
Furthermore, the effect of the ‘supremacy clause’ in Article 103 of the

109 Bederman (n 11) 371.

110 Article 2 of the UN Charter.
111 See further R Collins and ND White, ‘International Organizations and the Idea of

Autonomy: Introduction and Overview’ in Collins and White (n 54) 3, at 15. On the external
‘ripples’ of internal law more generally, see Alvarez (n 15) 122–45.
112 Indeed, although the Court in Nicaragua recognised the separate conceptual co-existence

of Charter law and general international law in relation to self-defence, in effect it recog-
nises the influence of Charter law, as well as institutional practice (particularly through UN
General Assembly Resolutions), in giving content to the customary rule as it had developed
since the signing of the Charter. See Nicaragua (n 72) 92–117; and for critical commentary, see
A d’Amato, ‘Trashing Customary International Law’ (1987) 81 American Journal of
International Law 101.
218 Form and Function in the Institutionalisation of International Law

Charter seems to be to further entrench, and arguably give greater authority

to, these rules as part of general international law.113
Nevertheless, one can see still how the two identities of international
organisations—one formal, grounded in a treaty between the member states
and expressed outside the institution as legal personality, and the other
functional, suggesting the constitutional character of the treaty and recog-
nising the impact that institutions have upon international law’s function-
ing more broadly—give them a somewhat ambiguous character overall.
To understand the nature of international institutions and their impact on
contemporary international law, we need to account for these formal and
functional aspects together. They result in a legal entity which is ‘neither
entirely “open”, in the sense that it blends with general international law,
nor entirely “closed”, in the way of states’.114 This is well described by
Catherine Brölmann’s conceptualisation of international organisations as
‘transparent’ entities: ‘a systemic condition, resulting from the continuous
tension between the organisation’s servicing, functional, open aspect, on the
one hand, and its independent, centralised, closed aspect, on the other’.115
At the same time, we also need to consider the impact of these formal and
functional aspects on our understanding of the changes recounted above.
Specifically, the increasing autonomy of international organisations does
not result in a one-dimensional increase in the authority of the regime vis-
a-vis the member states, but ‘complex interplays of equal and subordinate
relations with states, with other organisations, and within the organs of the
entity itself ’.116 On a functional level, organisations are open to the broader
international legal order, but remain servants of their member states. States
can in this respect use organisations to create complex governance arrange-
ments, hierarchy and centralisation, but these internal institutional char-
acteristics cannot effect any hierarchy more broadly (and formally) due to
the ‘flat’ structural plain of the decentralised international legal system,117
which can only recognise the organisation (again, in formal terms) by clos-
ing it off from general international law as a distinct legal actor in its own
right.118
One can easily see, therefore, how the tension between these formal and
functional aspects colours the operation of universal organisations such as

113 Though see its rather ambiguous text, and discussion of this ambiguity by, inter alia,

Livoja (n 36).
114 Brölmann (n 10) 30.
115 ibid 32.
116 Bederman (n 11) 371. For a more detailed extrapolation of the complex interplay of

authority claims between the international, the institutional and the state, see also IF Dekker
and RA Wessel, ‘Governance by International Organizations: Rethinking the Normative Force
of International Decisions’ in IF Dekker and WG Werner (eds), Governance and International
Legal Theory (Leiden, Martinus Nijhoff, 2004) 215–36.
117 Nardin (n 84) 152, 162–63.
118 Brölmann (n 10) 28–29.
 On the Complex Character of International Institutions 219

the UN. It seems somewhat illogical to deny the obvious fact that in creat-
ing the UN, states did intend in many ways to re-shape the nature of the
international legal order: for example, to introduce elements of hierarchy
(the role of the Security Council), to create more efficient means for develop-
ing international law (for example, through ILC codification exercises and
UN-sponsored conferences), as well as a general system of adjudication for
the international legal order as a whole (in the ICJ). But none of this is to
see UN organs as having any formal status as constitutional ‘organs’ of the
international community overall or, indeed, to effect any structural change
to the underlying formal character of international law as a legal system.
The external normative influence of UN organs in shaping general inter-
national law depends either upon states’ express legal commitments in the
Charter itself or remains always contestable and potentially controversial
(as is the case, for instance, in relation to the normative influence of General
Assembly resolutions, either as evidence of customary international law or
as representing a discrete ‘source’ in its own right).119
Accordingly, we can concede that Arangio-Ruiz is right in one sense: rec-
ognising that states work through institutions in this functional way does
not necessarily alter the legal situation of the underpinning legal order. To
the extent that underlying many of the purported changes outlined above
are foundational legal acts, the validity of which derives from the consti-
tutive rules of international law, the changes are still explicable, however
formalistically, within the structural tenets of the decentralised interna-
tional legal order. Even where institutions have taken on important roles
in influencing how international law now works—again, the influence of
the General Assembly on the customary law-making process is a good
example—these institutional innovations, in isolation or in aggregation, are
unable—without going a step further—to impact the theoretical ability of
states to re-structure, withdraw from or negate all such commitments if
the collective will is present. To put this another way, whilst international
law may be generally understood as a more complex, more institutionalised
form of legal order as a result of the changes and developments recounted
above, of itself this realisation does not also negate the acceptance of the tra-
ditional sources thesis which underlies and gives authority to this functional
situation, and which—on the terms of the previous chapter—remains a still
important aspect of international law’s legitimacy and acceptability overall.
This argument is not deference to legal form for form’s sake, but merely
to suggest that international law’s underlying decentralised architecture
still matters to legal participants; there is no other acceptable alternative.
It would be illogical to say that states could not, if they so choose, effect a
shift in the constituent rules of international law overall, or even radically

119 For a fairly comprehensive discussion of these problems, see GJH van Hoof, Rethinking

the Sources of International Law (Deventer, Kluwer, 1983) 180–87.

220 Form and Function in the Institutionalisation of International Law

re-structure that same legal order, if the underlying will to do so is present.

From a theoretical perspective, there is nothing immutable about interna-
tional law’s legal form in this way. My point is rather that there remain
strong normative justifications for this legal form. If the rule of law has
any meaningful application at the international level then it must at least
require a culture of respect for the legal framework agreed between legal
participants themselves.
At the same time, we can also see how Arangio-Ruiz’s strict formalism
causes him to miss the reality of the change that has occurred and its impact
on our understanding of international ‘legality’ in broad terms. The func-
tional and formal understandings of the international rule of law play off
against each other, with the instrumental urge towards institutional effec-
tiveness causing a strain from the perspective of the formal rules of the
system, and the formal rules of the system seemingly limiting the attainment
of communitarian goals. As such, one begins to understand more clearly
the fragile balance of authority claimed by treaty-based institutions: their
functionality (as opposed to constituted sovereignty) makes their claim
to authority always contingent, revisable and challengeable—ultimately
dependent upon the continued support of the states underlying the institu-
tion. Where organisations are deemed to be fulfilling ‘governance’ functions
at some remove from intergovernmental control, these de facto expressions
of ‘public authority’ cannot rely upon any a priori legitimacy. From a formal
point of view, the only mediatory point of legitimacy is the intergovern-
mental authorisation within the rules of general international law. This cre-
ates a certain tension and strain, as the kind of functions fulfilled by many
institutions seem to require a different form of legitimisation beyond the
intergovernmental treaty that underpins them, thus highlighting significant
accountability gaps.
To push the functional too far at the expense of the formal, then, is to
potentially undermine something intrinsic to the identity and legitimacy
of international organisations, as well as to strain the systemic coherence
of international law to the detriment of the international rule of law. As
Bianchi notes:
It may well be true that the ever-increasing expansion and complexity of interna-
tional law is credited to its maturity … However, the very same phenomenon is
likely to produce deep anxieties among international lawyers and to cause some
objective difficulties in ensuring the smooth functioning of the system. Inevitably,
in a highly complex normative system without any centralized authority, issues of
coordination and conflict among its different components are likely to arise and
their solution may not be immanent.120

120 A Bianchi, ‘Looking Ahead: International Law’s Main Challenges’ in D Armstrong (ed),

Routledge Handbook of International Law (Abingdon, Routledge, 2009) 392, at 404.

 Conclusion 221

This realisation is in fact given added support by the sense of a growing

legitimacy crisis in the years following the end of the Cold War, as the
increasing recognition of the phenomenon of ‘global governance’ through
autonomous institutional structures seems to have further heightened such
rule of law concerns. As I will now show in the next and final chapter, these
concerns highlight that institutionalisation cannot be seen, necessarily, as
resulting in greater unity, coherence or hierarchy within the international
legal order, as the functional autonomy of international institutions in the
plural, ‘post-national’ political space seem to constantly threaten disunity,
incoherence and heterarchy.121

IV. CONCLUSION

The above reflections reveal deep theoretical and practical problems in a

popular narrative that suggests that the institutionalisation of international
law is inevitably pushing it towards a more centralised, or at least more
authoritative, structural architecture akin to that often found at the state
level. In other words, I have suggested certain problems in the idea that
international law is equipping itself with institutional mechanisms of legal
change, adjudication and enforcement, such as would be required to correct
the widespread perception of a structural or constitutional deficiency at the
core of the international legal order. This view of the effect of institutionali-
sation fails to take proper account of the specific legal form of international
law, which is itself mirrored in the legal nature of international institutions
themselves. Whilst this means that it is perfectly feasible to create demand-
ing, more centralised and authoritative arrangements through the creation
of international organisations, and whilst those institutional arrangements
may well ‘spill-over’ to impact on the contemporary functioning of inter-
national law overall, this impact does not specifically change the structural
character of the international legal system, even if it does necessarily com-
plicate its operation. In fact, the effect of institutionalisation—as I will now
go on to demonstrate—has in many ways been to create discrete sites of
variegated authority and normative power that sit outside of any formal
hierarchy and that, in many instances, have begun to create deep anxieties
over the impact of ‘global governance’ activities on the overall structural
coherence of international law.

121 See, eg, M Koskenniemi, ‘Global Governance and Public International Law’ (2004)

37 Kritische Justiz 241, at 242–43; N Krisch, ‘International Law in Times of Hegemony:

Unequal Power and the Shaping of the International Legal Order’ (2005) 16 European Journal of
International Law 369, at 390–95.
 9
International Law as Governance:
An Emerging Legitimacy Crisis?
There is … governance, but critically there is no government and
no governed. It is Governance without government and without
the governed.
JHH Weiler, ‘The Geology of International Law’1

I
N THE YEARS that have passed since the end of the Cold War, it is hard
not to note a certain disciplinary angst emerging amongst international
lawyers in response to the intensification of forms of governance activi-
ties through international organisations. After an initial wave of enthusi-
asm and ideological triumphalism,2 fuelling hopes for the revitalisation of
the authority of intergovernmental organisations such as the UN that were
previously seen as hidebound by superpower rivalry and ideological divide,3
much of this optimism has been increasingly called into question. The image
of international organisations has suffered due to perceived ideological
biases, coupled with a growing sense of legitimacy deficit, as the pervasive
normative influence of global regimes seems to penetrate state sovereignty
without any countervailing means of constitutional accountability.4
The emergence of global governance has thus resulted in increasing politi-
cal contestation at both ‘horizontal’ (from states and between diverse inter-
national actors) and ‘vertical’ levels (with growing popular discontent that

1 JHH Weiler, ‘The Geology of International Law—Governance, Democracy and Legiti-

macy’ (2004) 64 Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht 547, at 560.
2 This enthusiasm was no better expressed than in Francis Fukuyama’s polemical The End

of History and the Last Man (New York: Avon Books, 1992). For the impact of this kind of
rhetoric in international legal scholarship, see in particular S Marks, ‘The End of History?
Reflections on Some International Legal Theses’ (1997) 8 European Journal of International
Law 449.
3 See, eg, T Franck, ‘United Nations Based Prospects for a New Global Order’ (1990)

22 New York University Journal of International Law and Politics 601.

4 See, eg, J Klabbers ‘The Changing Image of International Institutions’ in J-M Coicaud and

V Heiskanen (eds), The Legitimacy of International Organizations (Tokyo, United Nations

University Press, 2001) 221–55, as well as many of the other contributions in the same volume,
noting issues of accountability and perceived institutional bias.
 International Law as Governance: An Emerging Legitimacy Crisis? 223

international standard-setting and regulation is undermining fragile consti-

tutional safeguards at the national level).5 To give just some of the most
prominent examples, one could cite the increasing cynicism at the purported
universality of the free trade and economic liberalisation agendas of the
World Trade Organization (WTO)6 and International Financial Institutions
(IFIs),7 leading to calls for greater democratic representation and avenues
for legal contestation;8 concerns over the growing activism and the potential
illegality of the conduct of the UN Security Council, precipitating calls for
legal restraint, whether through institutional reform9 or judicial review by
the ICJ or other international courts;10 and serious accusations of human
rights abuses by UN peacekeepers,11 and alarming reports of institutional
corruption, garnering enthusiasm for enhanced forms of internal political
accountability,12 as well as external forms of legal control.13
Whilst my aim in this chapter is not to focus specifically on existing or
emerging mechanisms of accountability and responsibility in international
law, I do want to consider how the structural impact of the phenomenon of
global governance is seen as impacting the structural coherence of modern
international law. In particular, this growing concern is illustrative of the
fact that institutionalisation is increasingly seen to contribute to, as much as
alleviate, certain rule of law deficits at the international level. In particular,

5 See JE Alvarez, ‘International Organizations: Then and Now’ (2006) 100 American

Journal of International Law 324, at 341–2; and further in JE Alvarez, International

Organizations as Law-Makers (Oxford, Oxford University Press, 2005) 630–40.
6 This was manifest in particular in widespread popular protest, as famously populated in

the so-called ‘Battle in Seattle’: see, eg, RM Buchanan, ‘Protesting the WTO in Seattle: Trans-
national Citizen Action, International Law, and the Event’ in F Johns, R Joyce and S Pahuja
(eds), Events: The Force of International Law (Abingdon, Routledge, 2011) 221–33. On legiti-
macy concerns in general, see R Howse, ‘The Legitimacy of the World Trade Organization’ in
Coicaud and Heiskanen (n 4) 355–407.
7 See, eg, A Anghie, ‘International Financial Institutions’ in C Reus-Smit (ed), The Politics

of International Law (Oxford, Oxford University Press, 2004) 217–37.

8 See, eg, the discussion in E Stein, ‘International Integration and Democracy: No Love at

First Sight’ (2001) 95 American Journal of International Law 489.

9 See the useful summary of reform proposals and the debate surrounding them in

B Fassbender, ‘Pressure for Security Council Reform’ in D Malone (ed), The UN Security
Council: From the Cold War to the 21st Century (Boulder, CO, Lynne Rienner, 2004) 341–71.
10 The literature in this area is voluminous, but see particularly on review and limitations

to the Security Council’s powers: A Orakhelashvili, ‘The Impact of Peremptory Norms on

Interpretation and Application of the UN Security Council Resolutions’ (2005) 16 European
Journal of International Law 59; E de Wet, The Chapter VII Powers of the United Nations
Security Council (Oxford, Hart Publishing, 2004).
11 See, eg, AJ Millar, ‘Legal Aspects of Stopping Sexual Exploitation and Abuse in U.N.

Peacekeeping Operations’ (2006) 39 Cornell International Law Journal 71.

12 J Wouters, N Hachez and P Schmitt, ‘Managerial Accountability: What Impact on Inter-

national Organizations’ Autonomy?’ in R Collins and ND White (eds), International Organi-

zations and the Idea of Autonomy: Institutional Independence in the International Legal
Order (Abingdon, Routledge, 2011) 230–56.
13 See J Klabbers, ‘Autonomy, Constitutionalism and Virtue in International Institutional

Law’ in Collins and White (n 12) 120, at 127–30.

224 International Law as Governance: An Emerging Legitimacy Crisis?

two discrete but related anxieties have begun to preoccupy international

lawyers. On the one hand, insofar as these different regimes and institu-
tions are seen to develop a range of normative instruments, standards and
forms of policy influence which fall outside of the recognised sources of
international law, the rule of law seems compromised by the apparent defor-
malisation of international law. On the other hand, where such regimes and
institutions do apply, interpret or enforce formal legal rules, the worry is
rather that the structural bias of each may well contribute to the apparent
fragmentation of international law, thereby undermining its overall systemic
coherence. Taken together, these more ‘postmodern’ anxieties reveal a grow-
ing ambivalence as to the perceived benefits of institutionalisation: the inter-
national rule of law seems to necessitate the development of autonomous
institutional structures to overcome or alleviate the perceived inefficiencies
and externalities of a decentralised legal order and secure agreed-upon legal
objectives, but the more autonomous and effective such regimes and insti-
tutions become, the more they appear threatening to that very same ideal.
In this final chapter, I will argue that this tension is not only inevitable,
but may even be desirable and important in giving effect to some degree of
accountability within the procedural parameters of the international legal
order. Specifically, I will claim that far from signalling some kind of aberra-
tion or deviation from the norm, fragmentation and deformalisation should
be seen as the inevitable result of the push for institutional effectiveness
within a decentralised legal order. This is not to suggest that the identified
legitimacy and accountability deficits are of no concern, but only that the
formal, open, decentralised framework of international law still remains
an important legitimacy and accountability restraint in this regard. In par-
ticular, the retention of the formal-informal binary opposition ensures that
when global governance actors make claims to authority or normative influ-
ence, we are left to evaluate these claims on their own terms, without giving
them any a priori legitimacy they may well not deserve.
I will return to explain this rationale more clearly towards the end of
the chapter. Before I do so, however, the rest of the chapter is structured
as follows. I will first of all illustrate the impact of institutionalisation
through the twin optics of fragmentation and deformalisation. I describe
each concern in detail in section I, noting how both can be seen as distinct
products of the push for institutional autonomy outlined in the previous
chapter. Next, in section II, I turn to consider how these distinctive concerns
are illustrative of a broader legitimacy crisis in contemporary international
law. I frame this apparent crisis by reference to the tension inherent within
the ideal of an international rule of law, as outlined in Chapter 7, insofar
as it appears to simultaneously pull in opposing formalist and functional-
ist directions: on the one hand, measuring the legitimacy of international
law substantively by reference to its ability to reach beyond its inter-state
framework to more effectively realise agreed-upon objectives; and, on the
 Postmodern Anxieties 225

other hand, measuring legitimacy procedurally by insisting on the need to

play by the rules of this same inter-state system. For this reason, in section III,
I highlight a number of difficulties in much of the recent disciplinary
response to this emerging legitimacy crisis, insofar as it appears to advocate
the need to take a distinctly less formal approach to the question of inter-
national ‘legality’ in its broadest sense. Specifically, I show how the crisis
has prompted a number of lawyers to argue for a more evaluative legality
standard inspired by certain public law principles and practices. In response,
however, I argue that by side-stepping the issue of formal source-based legal
validity and attempting to introduce a more evaluative legitimacy standard,
such perspectives miss the way in which such determinations are merely left
to inter-subjective assessment, thus allowing political actors to legitimise
potentially illegitimate conduct. In other words, these perspectives ignore
the unavoidable structural indeterminacy in international law. By attempt-
ing to impose a framework of legality and legitimacy derived from a very
different institutional form, such idealisations tend only to distort rather
than clarify our understanding of the complex interplay of political forces
apparent in the increasingly institutionalised, yet perennially decentralised
international legal order. Accordingly, I conclude by stressing the residual
importance of this legal form as a necessary foundation for modern interna-
tional law, leaving open a space for legal accountability by resisting its own
instrumentalisation towards any apparently universal purpose or end.

I. POSTMODERN ANXIETIES: THE DEFORMALISATION

AND FRAGMENTATION OF INTERNATIONAL LAW

Within a decade or so of the fall of the Berlin Wall, in the infancy of a post-
Cold War world, much of the enthusiasm surrounding an increasingly insti-
tutionalised international legal order had already begun to seem somewhat
naïve and utopian. Whilst an array of autonomous institutions and regimes
had come to be increasingly effective ‘law-makers’ and regulators, often
with a significant impact at the state level, this normative influence had come
at the price of an apparent gap in any countervailing means of account-
ability or democratic scrutiny.14 Whilst concerns were initially voiced more

14 The literature in this area is vast, encompassing political perspectives on globalisa-

tion and global governance, and more legal literature suggesting strains in the theoretical
coherence of international law. From the political side, see most explicitly A Buchanan and
RO Keohane, ‘The Legitimacy of Global Governance Institutions’ (2006) 20 Ethics and Inter-
national Affairs 405; for a penetrating legal critique, see Weiler (n 1). For an overview of
legitimacy concerns, see also the useful summary of literature included in Alvarez, ‘Inter-
national Organizations: Then and Now’ (n 5) 342–47. This concern also appears to have
prompted a great number of inter-disciplinary studies: see, eg, the contributions to R Wolfrum
and V Röben (eds), Legitimacy in International Law (New York, Springer, 2008), as well as
Coicaud and Heiskanen (n 4).
226 International Law as Governance: An Emerging Legitimacy Crisis?

in the political than the legal literature—the ideas of ‘governance without

government’15 and ‘new medievalism’16 becoming popular leitmotifs in inter-
national relations literature from the mid-1990s onwards—by the end of
that decade, international legal scholars had begun to take the phenomenon
of globalisation and its impact on international law much more seriously.17
In other words, it had soon become apparent that international law’s institu-
tionalisation had failed to secure the rule of law in terms of greater account-
ability and systemic coherence, and had instead resulted in an increasingly
fragmented and kaleidoscopic ‘disorder of normative orders’.18
As such, the kind of functional authority exercised by global institutions
is increasingly seen in a more qualified light. Rather than enhancing the sys-
temic coherence and effectiveness of international law in holding powerful
actors to account, there has instead emerged a rather complex, fragmented
regulatory landscape, the normative impact of which is very difficult to
square with the formal doctrines of international law.19 As Paulus claims,
Today, this institutionalist reading of international law has fallen prey, in a certain
regard, to its own success. While an increasing institutionalization and organisa-
tion of [international law] … can hardly be doubted, the general impression is
one of fragmentation rather than constitutionalization of the international legal
system. In other words, the diverse and divergent institutions fail to come under a
single scheme; rather, the systemic character of international law seems threatened
by a multiplicity of international régimes without obvious coherence.20

15 See, eg, JN Rosenau, ‘Governance, Order, and Change in World Politics’ in JN Rosenau

and E-O Czempiel (eds), Governance without Government: Order and Change in World
Politics (Cambridge, Cambridge University Press, 1992) 1–29, as well as the individual con-
tributions that follow. On the globalisation debate generally, see P Hirst and G Thompson,
Globalization in Question, 2nd edn (Cambridge, Polity Press, 2000); and D Held and
A McGrew (eds), The Global Transformation Reader: An Introduction to the Globalization
Debate, 2nd edn (Cambridge, Polity Press, 2003).
16 For an overview, see J Friedrichs, ‘The Meaning of New Medievalism’ (2001) 4 European

Journal of International Relations 475.

17 For an early and critical response, see P Alston, ‘The Myopia of the Handmaidens:

International Lawyers and Globalization’ (1997) 8 European Journal of International Law

435; followed by A von Bogdandy, ‘Globalization and Europe: How to Square Democracy,
Globalization, and International Law’ (2004) 15 European Journal of International Law 885;
and Weiler (n 1).
18 N Walker, ‘Beyond Boundary Disputes and Basic Grids: Mapping the Global Disorder of

Normative Orders’ (2008) 3 International Journal of Constitutional Law 373.

19 I comment on this more directly in R Collins, ‘Mapping the Terrain of Institutional

“Lawmaking”: Form and Function in International Law’ in E Fahey (ed), The Actors of Postna-
tional Rule-Making: Contemporary Challenges of European and International Law (Abingdon,
Routledge, 2015) 27–46. See also M Koskenniemi, ‘Constitutionalism as Mindset: Reflections
on Kantian Themes about International Law and Globalization’ (2007) 8 Theoretical Inquiries
in Law 9, at 12–13; and M Koskenniemi and P Leino, ‘Fragmentation of International Law?
Postmodern Anxieties’ (2002) 15 Leiden Journal of International Law 553, at 558–60.
20 A Paulus, ‘The International Legal System as a Constitution’ in JL Dunoff and

JP Trachtman (eds), Ruling the World? Constitutionalism, International Law, and Global Gov-
ernance (Cambridge, Cambridge University Press, 2009) 69, at 69–70.
 Postmodern Anxieties 227

Bearing in mind the structural condition of international organisations

explained in the previous chapter, however, it is perhaps unsurprising that
such anxieties should arise. The push for effectiveness has precipitated the
development of a number of institutional fora for the management of con-
temporary global problems, which in their institutional structure can be
seen to overcome many of the perceived limitations and inefficiencies of the
decentralised and customary international legal order. However, insofar as
the normative effects—or ‘ripples’21—of these regimes are not entirely self-
contained, the impact of institutionalisation on international law overall is
a complicating one: the normative influence of autonomous institutional
actors does not so much restructure international law as sit in an acute
tension with its underlying legal form. As noted towards the end of the last
chapter, in particular, where institutional autonomy manifests itself, it does
so internally in terms of a dynamic of competing authority claims between
the member states and the institution, but in international law overall, this
autonomy cannot translate into any kind of formal hierarchy or relationship
of constitutional subordination.22 Rather, organisations exist as separate
legal actors, on the same flat ‘Westphalian’ plain as states—a situation of
structural heterarchy as opposed to hierarchy.23
This realisation, then, gives rise to two specific anxieties. First, insofar
as the normative influence of international institutions seems increasingly
difficult to square with the formal doctrines of international law, particu-
larly the doctrine of sources, one sees increasing anxiety as to the apparent
deformalisation of contemporary international law.24 Second, and relatedly,
these discrete sites of uncoordinated normative authority precipitate con-
cern over the apparent fragmentation of international law, undermining its
overall systemic coherence.25 In many respects, these ‘postmodern anxieties’
are inter-related and overlap, but it is worth dealing with each in turn to
give a clearer picture of how they seem threatening to the kind of rule of law
idealism that propels contemporary international legal discourse.
Deformalisation can be understood as an inevitable reaction to the per-
ceived institutional problem outlined so far. The rule of law ambition to

21 Alvarez, International Organizations as Law-Makers (n 5) 122–45.

22 See Ch 8, section III above; and on this point in particular, see G Arangio-Ruiz, The UN
Declaration on Friendly Relations and the System of the Sources of International Law (Alphen
aan den Rijn, Sijthoff & Noordhoff, 1979) 249–52.
23 See, eg, D Pulkowski, ‘Structural Paradigms of International Law’ in T Broude and

Y Shany (eds), The Shifting Allocation of Authority in International Law: Considering Sover-
eignty, Supremacy and Subsidiarity (Oxford, Hart Publishing, 2008) 51, at 72–76.
24 J d’Aspremont, Formalism and the Sources of International Law: A Theory of the Ascer-

tainment of Legal Rules (Oxford, Oxford University Press, 2011) 2–3 and passim.
25 Koskenniemi and Leino (n 19); and see further Koskenniemi (n 19) 13. See also

M Koskenniemi, ‘Global Governance and Public International Law’ (2004) 37 Kritische Justiz
241, at 242–43; and M Prost, The Concept of Unity in Public International Law (Oxford, Hart
Publishing, 2012) 4–8 and passim.
228 International Law as Governance: An Emerging Legitimacy Crisis?

secure order through the normative restraint of formal legal rules is seen
to be frustrated by the decentralised institutional structure of the interna-
tional legal order—its structural indeterminacy. Accordingly, the desire to
find institutional solutions to complex normative problems has increasingly
led to the creation of innovative institutional solutions rather than concrete
legal obligations; that is, by seeking solutions in more informal, management
arrangements or compliance mechanisms, or delegating authority to institu-
tional decision-makers.26 In short, deformalisation can be understood as a
move towards ‘procedures or broadly formulated directives to experts and
decision-makers for the purpose of administering international problems by
means of functionally effective solutions and “balancing interests”’.27
The phenomenon of deformalisation is therefore closely related to the
recognition of so-called ‘soft law’,28 which in its broadest sense implies a
situation where ‘legal arrangements are weakened along one or more of
the dimensions of obligation, precision, and delegation’.29 In situations of
protracted conflict, the choice may be between a binding, but nonetheless
vague and indeterminate, legal norm (a form of ‘soft negotium’) or a non-
binding form of instrument which is, however, more definitively prescrip-
tive or proscriptive as the need arises (a form of ‘soft instrumentum’).30 The
two forms of soft normativity tend to lead into one another: in order to
garner agreement, legal standards are often watered down to a framework
commitment—what Tom Franck might have called ‘sophist’ as opposed
to ‘idiot’ rules31—which then allows solutions to common problems to be
managed or negotiated further through regimes and agency relationships in
the context of intergovernmental organisations.32 As Franck himself puts it:
‘While an idiot rule more-or-less applies itself, sophist rules usually require
an effective, credible, institutionalized, and legitimate interpreter of the
rule’s meaning in various instances.’33 However, owing to the structural
condition of international law, the normative output of the particular

26 M Koskenniemi, ‘The Fate of Public International Law: Between Technique and Politics’

(2007) 70 Modern Law Review 1, at 9–10.

27 Koskenniemi (n 19) 13.
28 See generally d’Aspremont (n 24) 1–8, 118–36.
29 KW Abbott and D Snidal, ‘Hard and Soft Law in International Governance’ (2000)

54 International Organization 421, at 422. For a critique of this idea, see both J Klabbers,
‘The Redundancy of Soft Law’ (1996) 65 Nordic Journal of International Law 167 and
J d’Aspremont, ‘Softness in International Law: A Self-Serving Quest for New Legal Materials’
(2008) 19 European Journal of International Law 1075.
30 D’Aspremont (n 29) 1081–87.
31 TM Franck, The Power of Legitimacy among Nations (Oxford, Oxford University Press,

1990) 67–90.
32 Abbott and Snidal (n 29) 430–31.
33 Franck (n 31) 81.
 Postmodern Anxieties 229

regime or institution—whether in the form of decisions, standards or other

instruments—will inevitably fall outside of the formal sources of interna-
tional law, even though it often exerts a strong normative compliance pull.34
As Christine Chinkin puts it:
The complexity of international legal affairs has outpaced traditional methods
of law-making, necessitating management through international organizations,
specialized agencies, programmes, and private bodies that do not fit the paradigm
of Article 38(1) of the Statute of the ICJ. Consequently the concept of soft law
facilitates international co-operation by acting as a bridge between the formalities
of law-making and the needs of international life by legitimating behaviour and
creating stability.35
To recognise this institutional problem-solving as a concern is not necessar-
ily to ignore certain benefits of institutionalisation, a phenomenon which
has in many ways secured new means of socialisation and common action
in situations where simple treaty targets and obligations might otherwise be
divisive.36 However, when combined with the kind of push for effectiveness
which emerged in the post-Cold War era, institutionalisation has a tendency
to result in a kind of Weberian bureaucratisation:37 an urge to depoliti-
cise otherwise contentious issues, whilst at the same time masking over the
particular politics and pathologies of institutions themselves.38 This—what
Martti Koskenniemi refers to as a ‘managerial mindset’39 and Joseph Weiler
as a ‘practice management’ approach40—provides a rationalisation for
the exercise of quite significant power at some remove from traditional
intergovernmental decision-making and has a particularly coercive effect

34 The most comprehensive study in this respect is Alvarez (n 5), though see also IF Dekker

and RA Wessel, ‘Governance by International Organisations: Rethinking the Source and Nor-
mative Force of International Decisions’ in IF Dekker and WG Werner (eds), Governance
and International Legal Theory (Leiden, Martinus Nijhoff, 2004) 215–36. This form of soft
governance is particularly evident in the field of environmental law: see, eg, R Churchill and
G Ulfstein, ‘Autonomous Institutional Arrangements in Multilateral Environmental Agree-
ments: A Little-Noticed Phenomenon in International Law’ (2000) 94 American Journal
of International Law 623; D French, ‘Autonomy in International Environmental Law and
Governance: A Case Study of the Actual (Somewhere between the Fable and the Threat)’ in
Collins and White (n 12) 366–79.
35 C Chinkin, ‘Normative Development in the International Legal System’ in D Shelton (ed),

Commitment and Compliance: The Role of Non-binding Norms in the International Legal
System (Oxford, Oxford University Press, 2003) 21, at 42.
36 M Koskenniemi, ‘International Legislation Today: Limits and Possibilities’ (2005)

23 Wisconsin International Law Journal 61, at 80.

37 See, eg, M Weber, Theory of Social and Economic Organization (New York, Oxford

University Press, 1947).

38 M Barnett and M Finnemore, ‘The Politics, Power, and Pathologies of International

Organizations’ (1999) 53 International Organization 699.

39 Koskenniemi (n 19) 13–14; Koskenniemi (n 26) 14.
40 Weiler (n 1) 550 and 557.
230 International Law as Governance: An Emerging Legitimacy Crisis?

within many states, often those whose economic and political independence
depends on continued engagement with such institutions.41 As Koskenniemi
describes it:
[T]he new developments in the law did not point to unity. The more power-
fully [particular regimes or institutions] dealt with international problems …
the more they began to challenge old principles and institutions. Specializations
such as ‘trade law’, ‘human rights law’ … ‘security law’ … and so on started to
reverse established legal hierarchies in favour of the structural bias in the rel-
evant functional expertise. Even though this process was often organised through
intergovernmental organisations, the governmental delegations were composed
of technical (economic, environmental, legal) experts in a way that transposed
the functional differentiation at the national level onto the international plane.
Moreover, the resulting regimes have often been formulated in an open-ended
manner, leaving power to decide … to the legal and technical experts appointed to
the supervisory organs.42
This concern is most obvious where international authority claims direct
superiority over national constitutional structures: for instance, in recent
anti-terror measures approved by the UN Security Council43 or the UN’s
broader involvement in post-conflict territorial administration, where inter-
national standards effectively replace local ones, yet international actors
remain largely unaccountable at this level.44 Nevertheless, the concern
also relates to more indirect standard-setting and regulatory authority,
particularly in bodies such as the WTO,45 to the economic development
policies of the IFIs,46 the effects of ‘soft’ governance, through the deter-
minations of bodies such as the World Health Organization (WHO),47
more informal processes48 or, indeed, the phenomenon of transnational

41 ibid 557–58.
42 Koskenniemi (n 26) 4.
43 A Bianchi, ‘Assessing the Effectiveness of the UN Security Council’s Anti-terrorism Meas-

ures: The Quest for Legitimacy and Cohesion’ (2007) 17 European Journal of International
Law 881.
44 See, eg, Ch 8 of B Knoll, The Legal Status of Territories Subject to Administration by

International Organizations (Cambridge, Cambridge University Press, 2008) 326–403.

45 For one of the most studied assessments of the legitimacy deficit in WTO rule-making, see

A von Bogdandy, ‘Law and Politics in the WTO: Strategies to Cope with a Deficient Relation-
ship’ (2001) 5 Max Planck Yearbook of United Nations Law 609.
46 For a particularly pointed critique in this respect, see A Orford, ‘Locating the Interna-

tional: Military and Monetary Interventions after the Cold War’ (1997) 38 Harvard Interna-
tional Law Journal 443.
47 See, eg, B Reinalda and B Verbeek, ‘Policy Autonomy of Intergovernmental Organiza-

tions’ in Collins and White (n 12) 87, at 87–88.

48 For a good example, see A von Bogdandy and M Goldmann, ‘The Exercise of Inter-

national Public Authority through National Policy Assessments: The OECD’s PISA Policy
as a Paradigm for a New Standard Instrument’ (2008) 5 International Organizations Law
Review 241.
 Postmodern Anxieties 231

‘government networks’,49 all of which impact at the domestic level in a

way which often pre-determines, re-orients or otherwise influences national
policy-making.
As such, the second concern, fragmentation, can be perceived in many
ways as the structural effect of deformalisation: ‘the splitting of law into
functionally defined “regimes” … each geared to further particular types of
interests and managed by narrowly defined expert competence’.50 In other
words, the push for effectiveness means that problems tend to be defined
narrowly in order to secure the possibility of greater autonomy of decision-
making, for example, in the areas of trade, human rights, the environment
etc.51 Accordingly, in order to move beyond the limiting constraints of a
decentralised legal order, specific regimes or institutions incorporate struc-
tures and management solutions that may depart substantially from the
formal rules of international law. This has the effect of potentially bring-
ing a particular institution or regime into conflict with others due to the
specialised nature of its focus or, indeed, the particular structural means of
realising this interest.52
This concern has arisen in particular in terms of a particular preoccupa-
tion with the phenomenon of ‘forum shopping’, which is perceived as a
particular risk to the overall systemic coherence of international law.53 It
was this particular threat to international law’s unity that caused the Inter-
national Law Commission (ILC) to appoint a recent study group to address
the systemic impact of regime fragmentation.54 Forum shopping arises as a
distinct concern primarily because international problems do not present
themselves as isolated specialisations which can be managed by the most
appropriate body; more often, the same problem can be looked at from a

49 See, eg, A-M Slaughter, A New World Order (Princeton, NJ, Princeton University Press,

2004) 12–15 and passim.

50 Koskenniemi (n 19) 13.
51 As Abbott and Snidal (n 29) 443 put it: ‘Effective institutions … require a certain auton-

omy that states may be reluctant to grant over truly important issues.’ See further A Pau-
lus, ‘From Territoriality to Functionality? Towards a Legal Methodology of Globalization’ in
Dekker and Werner (n 34) 59, at 75.
52 Koskenniemi and Leino (n 19) 559.
53 ibid, passim; and for a useful critical overview of the debates, see M Prost and PK Clark,

‘Unity, Diversity and the Fragmentation of International Law’ (2004) 5 Chinese Journal of
International Law 341. Much of the concern has related to the potential for normative clashes,
though others have stressed the potential for institutional overlap and other jurisdictional
issues: see, eg, NM Blokker and HG Schermers, ‘Proliferation of International Organizations:
An Exploratory Introduction’ in NM Blokker and HG Schermers (eds), Proliferation of Inter-
national Organizations: Legal Issues (The Hague, Kluwer Law International, 2001) 1–50. For
a consideration of the relationship between the two elements of fragmentation, see T Broude,
‘Fragmentation(s) of International Law: On Normative Integration as Authority Allocation’ in
Broude and Shany (n 23) 99–120.
54 G Hafner, Risks Ensuing from the Fragmentation of International Law, in International

Law Commission, ‘Report of the Working Group on Long-term Programme of Work’, ILC
(LII)/WG/LT/L.1/Add. 1 (25 July 2000).
232 International Law as Governance: An Emerging Legitimacy Crisis?

number of different perspectives, resulting in different conclusions being

reached accordingly.55 For instance, when the Security Council considers
issues of security, these inevitably involve matters which affect, inter alia,
human rights;56 when WTO dispute settlement panels decide upon the valid-
ity of specific exceptions to free trade rules, they inevitably must consider
conflicts between WTO law and other international rules and principles,
such as environmental law or standards of public health.57
Of course, there are systemic rules—for instance, conflicts of norms prin-
ciples such as lex superior, lex posterior or indeed substantive normative
hierarchies with the development of peremptory norms of international
law58—which allow for the resolution of disputes in the abstract.59 How-
ever, the problem—as we saw in Chapter 3—is not the absence of any possi-
ble solution in the abstract; as always, it is more structural. For instance, to
the extent that the WTO Dispute Settlement Body is empowered to consider
general international law in giving answers to trade disputes, it has to give
its own interpretation of that law—that is, whether it has effect, whether
it applies to the dispute in question and so on. This is particularly evident
in cases like the Beef Hormones dispute between the EU and the US, where
the Appellate Body of the WTO considered that the precautionary principle
developing in international environmental law had no direct legal effect in
the dispute at hand.60 In such cases, the problem is not merely applying the
lex specialis, but the way in which the dispute is characterised in line with
the structural bias of the institution itself.61
This structural bias thus has a distorting effect which inevitably sees
organisations, regimes or other institutional actors prioritise the immediate

55 As Dunoff and Trachtman express it: ‘specialized law making, institution building, and dis-

pute resolution in any particular field tend to be relatively insulated from developments in adjoin-
ing fields, risking inconsistent judgments, conflicting jurisprudence, and outcomes that fail to take
sufficient account of the full range of relevant values’. JL Dunoff and JP Trachtman, ‘A Functional
Approach to International Constitutionalization’ in Dunoff and Trachtman (n 20) 3, at 6.
56 See further below in section III.
57 Koskenniemi and Leino (n 19) 571–74.
58 See generally International Law Commission, ‘Fragmentation Of International Law:

Difficulties Arising from the Diversification and Expansion of International Law: Report of the
Study Group of the International Law Commission, Finalized by M Koskenniemi’, UN Doc
A/CN.4/L.682, 13 April 2006, available at: http://legal.un.org/ilc/documentation/english/a_
cn4_l682.pdf.
59 Though even in the abstract, key issues remain uncertain: for instance, the lack of a clear

hierarchy between customary international law and the law of treaties. See, eg, recently JJ
Bia, ‘The Relations between Treaties and Custom’ (2010) 9 Chinese Journal of International
Law 81, particularly at 84–86.
60 European Communities—Measures Concerning Meat and Meat Products (Hormones),

13 February 1998, WT/DS26/AB/R (13 February 1998), at paras 123–25.

61 This is particularly evident in the three institutions which heard the MOX Plant dispute:

the OSPAR Arbitral Tribunal, the International Tribunal for the Law of the Sea, and the
European Court of Justice. For discussion, see N Lavranos, ‘The MOX Plant and IJzeren Rijn
Disputes: Which Court is the Supreme Arbiter?’ (2006) 19 Leiden Journal of International
Law 223; PJ Cardwell and D French, ‘Who Decides? The ECJ’s Judgment on Jurisdiction in
the MOX Plant Dispute’ (2007) 19 Journal of Environmental Law 121.
 Postmodern Anxieties 233

institutional context over the coherence of international law overall.62 As

Paulus claims:
By dealing with a clearly limited issue area, these institutions may develop a highly
sophisticated jurisprudence. However, specialized judicial bodies have difficulty in
balancing the values embodied in their statute with the values embodied in other
institutions. This creates the danger of overreaching and of a biased approach to
questions of clashes between different values and issue areas. Ultimately, the unity
of international law seems to be at stake.63
The issue of structural bias is not necessarily a problem per se; indeed, we
might just see it as a natural consequence of institutionalisation in a decen-
tralised legal order. However, it appears as a particular concern insofar as
the bias is seen to reflect already dominant political interests:64 for instance,
the ascendency of the permanent five members of the Security Council or the
de facto veto enjoyed by the US in the international financial institutions.65
The example of the development of the International Criminal Court gives
stark focus to this perception: the US remains outside the institution, yet can
use its privileged position in the Council to avoid the Court’s authority,66
whilst at the same time using the Court as a tool through which to tackle
international security concerns.67 In the absence of any truly independent
and international authority, therefore, the threat of neo-imperial domination
and instrumentalisation of global institutions looms large. Furthermore, the
effect of this structural bias tends to be particularly marked insofar as the

62 Koskenniemi (n 26) 5–8; Koskenniemi and Leino (n 19) 574–79. On the idea of struc-

tural bias as inherent in the idea of governance in a decentralised legal order, see M Kosken-
niemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge,
Cambridge University Press, 2005) 600–15.
63 Paulus (n 51) 75.
64 For critical reflections on the pathologies of administrative bureaucracy delivered through

international institutions, see, inter alia, from a political science perspective M Barnett and
M Finnemore, Rules for the World: International Organizations in Global Politics (Ithaca,
Cornell University Press, 2004); and from a more legal perspective Anghie (n 7). For a more
left-leaning, critical concern for ideological bias, see, eg, BS Chimni, ‘International Institutions
Today: An Imperial Global State in the Making’ (2004) 15 European Journal of International
Law 1.
65 On this point, see in particular N Krisch, ‘International Law in Times of Hegemony:

Unequal Power and the Shaping of the International Legal Order’ (2005) 16 European Journal
of International Law 369, at 398–99.
66 SC Res 1422 of 12 July 2002. For discussion, see also R Cryer and ND White, ‘The Inter-

national Criminal Court and the Security Council: An Uncomfortable Relationship’ in J Doria,
H-P Gasser and M-C Bassiouni (eds), The Legal Regime of the International Criminal Court:
Essays in Memory of Igor Blishchenko (Leiden, Martinus Nijhoff, 2009) 455–84; M Weller,
‘Undoing the Global Constitution: UN Security Council Action on the International Criminal
Court’ (2002) 78 International Affairs 693; N Jain, ‘A Separate Law for Peacekeepers: The
Clash between the Security Council and the International Criminal Court’ (2005) 16 European
Journal of International Law 239.
67 Although the power of referral has been open to the Council for some time (under

art 13(b) of the Rome Statute), the first such referral occurred relatively recently in relation to
the situation in Libya under SC Res 1970 of 26 February 2011.
234 International Law as Governance: An Emerging Legitimacy Crisis?

normative influence of powerful global institutions tends to impact more

upon those states in a de facto position of dependence upon the institution.68
Unsurprisingly, the accumulation of these kinds of anxieties has only
further exacerbated existing concerns over institutional accountability and
responsibility.69 To the extent that such concerns have led to welcome institu-
tional reforms and the introduction of oversight mechanisms within particular
organisations,70 and to a growing concern over issues of legal responsibility
in international law overall,71 they are to be particularly welcomed. Never-
theless, trying to conceive of accountability and responsibility at the broadest
level is problematic precisely because it is far from clear, first of all, that much
of this post-national, or post-Westphalian, normative influence fits neatly into
a formal legality-illegality binary and, second, whether there is any available
institutional means to hold many of these actors to account in more practical
terms. Nevertheless, pursuing these specific questions here goes beyond the
immediate scope of my enquiry. Rather, what I am concerned with is how this
phenomenon impacts on our understanding of the international legal system.
It is to this question that I now turn my attention.

II. INTERNATIONAL LAW AS ‘GOVERNANCE’?

The perceived threat of deformalisation and fragmentation seems to confirm

the rather fractured, or even schizophrenic, understanding of an interna-
tional rule of law outlined towards the end of Chapter 7 in particular.72

68 See, eg, Chimni (n 64).

69 It is hardly a coincidence that at the turn of the new millennium, the International
Law Association established a study group on the accountability of international organisa-
tions (see, eg, International Law Association, ‘Accountability of International Organisations’
(Final Report of Committee on Accountability of International Organizations, Berlin Con-
ference, 2004), available at: www.ila-hq.org/download.cfm/docid/6B708C25–4D6D–42E2–
8385DADA752815E8) or that the International Law Commission began to address the topic
of the responsibility of international organizations in 2001 (see most recently ‘Report of the
International Law Commission on the Work of its Sixty-First Session, 4 May to 5 June and
6 July to 7 August 2009’, UN Doc A/64/10, 2009, Ch IV, paras 31–51, available at: http://
legal.un.org/ilc/documentation/english/reports/a_64_10.pdf). It was also at the turn of the
millennium that collections of essays on both the proliferation (see Blokker and Schermers
(eds) (n 53)) and the legitimacy of intergovernmental organisations (Coicaud and Heiskanen
(n 4)) appeared for the first time. The literature in this area has grown considerably since; see,
eg, K Wellens, Remedies against International Organizations (Cambridge, Cambridge Univer-
sity Press, 2002); as well as the contributions to C de Cooker (ed), Accountability, Investiga-
tion and Due Process in International Organizations (Leiden, Martinus Nijhoff, 2005) and
J Wouters, E Brems, S Smis and P Schmitt (eds), Accountability for Human Rights Violations
by International Organisations (Cambridge, Intersentia, 2010).
70 See, eg, recently the discussion in Wouters, Hachez and Schmitt (n 12).
71 See M Hirsch, Responsibility of International Organizations Towards Third Parties:

Some Basic Principles (Dordrecht, Martinus Nijhoff, 1995).

72 M Koskenniemi, ‘What is International Law for?’ in M Evans (ed), International Law,

4th edn (Oxford, Oxford University Press, 2014) 29, at 39–42.

 International Law as ‘Governance’? 235

On the one hand, institutionalisation is seen as necessary to remedy the

perceived weaknesses or deficiencies of a decentralised international legal
order, to restrain arbitrary political power and therefore achieve agreed-
upon global objectives. On the other hand, the more ‘effective’ this institu-
tionalisation has become, the more the rule of law appears threatened by the
perceived weakening or circumventing of the formal structure of the inter-
national legal system.73 This ambivalence surrounding the phenomenon of
global governance is thus helpful in better framing the stakes of a perceived
legitimacy crisis, which appears constantly to threaten or undermine the
coherence of international law in the contemporary era.
With this frame in mind, then, we must move beyond overly simplistic,
teleological explanations of international law’s structural change, which
tend to overemphasise hierarchy or centralisation, and instead focus upon
the more fragmented, layered complexity of what we might still understand
as ‘post-Westphalian’ international law. For instance, Joseph Weiler has sug-
gested that a more plausible understanding of contemporary international
law would try to capture its ‘geological layering’, a metaphor that goes some
way towards unearthing many of the growing strains and tensions recounted
above. This notion of layering is revealing for, as Weiler puts it himself:
‘History emphasizes change; geology emphasizes accretion.’74 According to
this approach, the development of the international legal order now sees a
thickening ‘regulatory’ or ‘governance’ layer (developed through complex
institutional regimes) atop a ‘communitarian’ (that is, constitutional and
legislative) layer, itself atop an original base of Westphalian (‘transactional’)
international law. However, none of these layers displaces the other:
Change … would not be adequately described as a shift from, say, bilateralism to
multilateralism. What had changed was the stratification. Bilateralism persists and
even thrives as an important stratum of international law throughout the century
till this day. Thus, geology allows us to speak not so much about transformations
but of layering, of change which is part of continuity, of new strata which do not
replace earlier ones, but simply layer themselves alongside.75
According to Weiler, this layering has thus not so much transformed the
nature of the law as complicated it, giving rise to tensions within and
between the layers on the basis of the ever more expansive normative and
institutional demands placed on the international legal order overall. For
example, he notes that the ‘communitarian’ layer is distinct from classic
transactionalism not only because of the kinds of interests it aims to protect,

73 We can, in some ways, relate this to what Slaughter labels the ‘globalization paradox’, ie,

the increasing need for, yet growing fear of, international governance. See Slaughter (n 49) 8.
74 Weiler (n 1) 549.
75 ibid 551.
236 International Law as Governance: An Emerging Legitimacy Crisis?

but also because most community interests—whether conceived in terms of

human rights, trade, development etc—tend to be negotiated on a ‘take it
or leave it’ basis, with the institutional arrangements that follow also often
departing from the formal ‘secondary rules’ of international treaty law (for
example, in the case of specific provisions on reservations to human rights
regimes).76 This problem is intensified by the realisation that withdrawal
from many organisations is simply not an option. As José Alvarez notes, for
most states, participation in organisations is as much about guaranteeing as
it is restricting or limiting their sovereignty—a clear sign of ‘the very success
of the Grotian consensus that led to their establishment, proliferation, and
growing legal clout’.77
As such, Weiler sees it as somewhat of a fiction to understand many of
these norms as expressly adopted through, or given continued legitimisation
on the basis of, state consent.78 At the same time, however, he argues that
neither can these structures be legitimised in any direct, participatory way:
the individuals, or groups of individuals, are the ultimate addressees of the
purported values, but remain objects of regulation rather than the embodi-
ment of legislative will. Thus, in line with the argument developed in the
previous chapter, it seems that the ‘deep structure’ underlying the protection
of communitarian interests seems to sit uneasily with the substance of the
interests themselves. Weiler gives the example of the regulation of interna-
tional human rights law to illustrate this point:
The surface language of international legal rights discourse may be neo-Kantian.
Its deep structure is utterly pre-modern. It is a rights notion that resembles the
Roman Empire which regards individuals as an object on which to bestow

76 ibid 557–58. This concern arises in particular from the jurisprudence of the European

Court of Human Rights, which has attempted to construct the Convention as an ‘objective’
regime by departing from the standard treaty rules on the basis of the special nature of the
Convention and the particular ‘constitutional’ position of the Court. See in particular Belilos v
Switzerland, Decision of 29 April 1988, 1988 ECHR, Series A, No 132 and Loizidou v Turkey,
Preliminary Objections, 23 March 1995, 1995 ECHR, Series A, No 310, in both of which the
Court rejected the validity of reservations entered into by the respondent countries. The UN
Human Rights Committee has made a similar observation with regard to reservations to the
International Covenant on Civil and Political Rights. See General Comment No 24: ‘Issues
relating to reservations made upon ratification or accession to the Covenant or the Optional
Protocols thereto, or in relation to declarations under article 41 of the Covenant’, 4 November
1994, in CCPR/C/21/Rev.1/Add.6, available at: http://tbinternet.ohchr.org/_layouts/treaty
bodyexternal/Download.aspx?symbolno=CCPR%2FC%2F21%2FRev.1%2FAdd.6&
Lang=en. However, note that this position has been rejected by, inter alia, the UK and the US.
See Report of the Human Rights Committee, UN Doc A/50/40 (1995), Annex VI, available at:
www.un.org/documents/ga/docs/50/plenary/a50-40.htm.
77 Alvarez, ‘International Organizations: Then and Now’ (n 5) 343.
78 See also in this respect R Wolfrum, ‘Legitimacy of International Law from a Legal

Perspective: Some Introductory Considerations’ in Wolfrum and Röben (n 14) 1, at 10–19.

 International Law as ‘Governance’? 237

or recognize rights, not as agents from whom emanates the power to do such
bestowing. It is a vision of the individual as an object or, at best, as a consumer of
outcomes, but not as an agent of process … The individual in international law
seen, structurally, only as an object of rights but not as the source of authority, is
not different from women in the pre-emancipation societies, or indeed of slaves in
Roman times whose rights were recognized—at the grace of others.79
On the one hand, therefore, this kind of protection of rights appears to
undermine them to some degree; it reveals itself as inadequate as a means
of securing the kinds of interests it seeks to protect. On the other hand, it
also runs the risk of undermining the values underpinning the rights where
their ‘enforcement’ through multilateral action occurs. In fact, in line with
the analysis of the previous section, one can easily see how rights become
instrumentalised simply as triggers for managing problems, for example,
through military intervention,80 or as a form of conditionality in economic
governance,81 as rights holders themselves become side-lined in the ensuing
governance arrangements.82
More troubling still, however, is the idea of governance through Weiler’s
‘regulatory’ layer. The effect of this form of global governance may in fact
be very direct, where international norms essentially replace domestic
norms as governing principles: most obviously, as noted above,83 in the
post-conflict administration of territories by international organisations;84
or more indirect regulation, whether through trade prohibitions (such as in
Article 16 of the WTO Agreement),85 Security Council prescriptions (many
of which increasingly address individuals and non-state actors directly

79 Weiler (n 1) 558.
80 See, eg, M Koskenniemi, ‘International Law in Europe: Between Tradition and Renewal’
(2005) 16 European Journal of International Law 113, at 123.
81 L Bartels, Human Rights Conditionality in the EU’s International Agreements (Oxford,

Oxford University Press, 2005); and for critical engagements, see P Leino-Sandberg, ‘Particu-
larity as Universality: The Politics of Human Rights in the European Union’ (2005) The Erik
Castrén Institute Research Reports 15/2005, available at: http://ethesis.helsinki.fi/julkaisut/oik/
erikc/vk/leino-sandberg/particul.pdf.
82 F Kratochwil, ‘Has the “Rule of Law” Become a “Rule of Lawyers”? An Inquiry into the

Use and Abuse of an Ancient Topos in Contemporary Debates’ in G Palombella and N Walker
(eds), Relocating the Rule of Law (Oxford, Hart Publishing, 2009) 171, at 185–86.
83 See Knoll (n 44).
84 The literature on post-conflict state reconstruction and administration is particularly

extensive, but for perhaps the most damning critique from an accountability perspective, see
R Wilde, International Territorial Administration: How Trusteeship and the Civilizing Mission
Never Went Away (Oxford, Oxford University Press, 2008); and for a good overview of the
literature generally, see S Chesterman, ‘International Territorial Administration and the Limits
of Law’ (2009) 23 Leiden Journal of International Law 23.
85 See in particular art 16(3) and (4), which requires, respectively, for the WTO Agreement

to prevail in a case of conflict with other multilateral trade agreements and that ‘[e]ach Mem-
ber shall ensure the conformity of its laws, regulations and administrative procedures with its
obligations’ under the GATT and other annexed agreements.
238 International Law as Governance: An Emerging Legitimacy Crisis?

through targeted sanctions,86 or require widespread regulatory measures

to be implemented at the domestic level in the fight against terrorism),87 or
more subtly through economic conditionality,88 or forms of soft govern-
ance through reputational assessments or indicators,89 which, despite their
‘softness’, have significant regulatory impacts at the domestic level. It is
hardly surprising, therefore, that when such decisions are taken by inter-
national actors away from the intergovernmental layer (whilst at the same
time impacting internally within states without any means of democratic
mediation), their legitimacy will be brought into question.90
Weiler’s framework is particularly insightful in this respect as, by avoid-
ing the kind of ‘transitional’ language in more teleological explanations of
recent changes, he is able to develop a more nuanced account of how differ-
ent kinds of interests and values pull in different directions and thereby give
rise to legitimacy deficits. However, his approach also suffers from a ten-
dency towards over-simplification insofar as he seems to ignore any impor-
tance attached to international law’s underlying legal form itself—each layer
is simply defined by its substantive character, function or effects. To explain
more clearly, in treating the different geological strata as various, distinct
typologies of international law, and in so doing suggesting that ‘transaction-
alism’ finds its justification only in an outdated philosophical commitment
to state freedom,91 he overlooks, or perhaps deliberately dismisses, the idea
of the transactional layer as in some sense structural and foundational—it
becomes only one more stratum existing alongside others. However, it is far
too easy to portray this basal layer simply as an outdated philosophical com-
mitment to national interest and unrestrained sovereignty, and in that sense
merely an older species of international law, occupying an uneasy space
with a more modern, dynamic, communitarian and, indeed, more ‘public’
international law. However, as I have sought to show thus far, but particu-
larly in Chapter 7, the basal—transactional—layer represents the legal form

86 See, eg, SC Res 1975 of 30 March 2001 against the former incumbent leader of the Ivory

Coast, Laurent Gbagbo. Most obviously, such targeted sanctions have been applied in the
fight against international terrorism: see, eg, SC Res 1267 of 15 October 1999 and a series
of further resolutions in relation to the Taliban and Al-Qaeda. For a discussion of the human
rights implications of these and other resolutions, see M Bothe, ‘Security Council’s Targeted
Sanctions against Presumed Terrorists: The Need to Comply with Human Rights Standards’
(2008) 6 Journal of International Criminal Justice 541.
87 See, eg, SC Res 1540 of 28 April 2004; for a discussion of this and other measures,

see LMH Martínez, ‘The Legislative Role of the Security Council in its Fight against Ter-
rorism: Legal, Political and Practical Limits’ (2008) 57 International and Comparative Law
Quarterly 333.
88 See, eg, Anghie (n 7) at 224–29 in particular.
89 See, eg, KE Davis, B Kingsbury and SE Merry, ‘Indicators as a Technology of Governance’

(2012) 46 Law and Society Review 71.

90 Weiler (n 1) 559–60.
91 ibid 552–53.
 International Law as ‘Governance’? 239

which has allowed states and other actors to give effect to the other layers.
If, as I have argued, there remain strong normative reasons for retaining
international law’s decentralised structural form, then the ‘transactionalism’
of Westphalian international law, as Weiler puts it, plays an important foun-
dational role in supporting the other ‘layers’—it cannot simply be catego-
rised in the same way, however much it seems to be straining under the
weight of that which has been built upon it.
This is a point perhaps better captured in Antonio Cassese’s metaphor,
where he describes the decentralised structural form of international law
as being ‘like a human skeleton that can only be seen on an X-ray being
covered by flesh and skin and clothes. Though momentarily concealed, it
is still very much there, constituting the framework on which all the rest is
based’.92 Looking at it this way—as the legal form upon which the more
complex edifice of modern international law is constructed—does not in
any way prejudice the nature, substance or function of the rules, structures
or institutions of this constructed legal order.93 It does, however, help us to
better come to terms with the reason for the apparent legitimacy crisis that
has emerged as a result of the phenomenon of post-national governance,
insofar as it highlights the growing structural tension between the contem-
porary functioning of the international legal system and its underlying legal
form, and mirrors our competing conceptions—or different sides of—the
international rule of law.
We can imagine the implications of this tension by placing competing
legitimacy claims on two linked axes. International law’s formal legitimacy
comes from the sense that it is structured on a horizontal axis, as a pluralis-
tic order existing between sovereign-equal states (according to the premises
of something like the Discontinuity Thesis outlined in Chapter 7). However,
increasingly, insofar as contemporary international law is seen as a purpo-
sive practice aimed at securing certain communitarian values (eg, human
rights, welfare concerns or other ‘public goods’ that were traditionally con-
ceived to lie within the domestic realm of states),94 its legitimacy is also
measured functionally, on a vertical axis, by reference to the capacity of the
law to penetrate state sovereignty to achieve sovereign restraint.

92 A Cassese, International Law in a Divided World (Oxford, Clarendon Press, 1986) 32.
93 For a similar point, though aimed at a slightly different issue, see Klabbers (n 29) 179–81.
94 See, eg, E Jouannet, ‘What is the Use of International Law? International Law as a

21st Century Guardian of Welfare’ (2008) 28 Michigan Journal of International Law 815.
This concern seems most pronounced perhaps in the continuing debates over the legitimacy of
the international criminal law regime, where the primacy of political considerations seemingly
inherent in a decentralised legal order, as well as reliance on customary law principles, seems
to raise some concerns from the perspective of the rule of law: see, eg, R Cryer, Prosecut-
ing International Crimes: Selectivity and the International Criminal Law Regime (Cambridge,
Cambridge University Press, 2005) 194–99 and 241–42 respectively.
240 International Law as Governance: An Emerging Legitimacy Crisis?

On this basis, we can see how the competing legitimacy claims sit uneasily
with one another: on the one hand, international law’s decentralised legal
form—its ‘transactionalism’, on Weiler’s terms—takes its legitimacy from
its openness and ability to be put to use for a number of cooperative pur-
poses; on the other, the increasingly ‘communitarian’ focus of many of these
collective interests is seen as necessitating more effective, more intervention-
ist institutional solutions—hence the need to develop a more ‘regulatory’
institutional layer. However, it becomes increasingly difficult to maintain
the legitimacy of these community interests, expressed through regulatory
architecture, the more removed they are from the intergovernmental nature
of the system from which they are brought into being—at least those pos-
sessing some formal treaty base. As such, in the absence of appeal to some
a priori legitimacy or in the absence of any other mediatory form of direct
accountability (beyond the intergovernmental), the kind of institutional
autonomy that pushes on the ‘vertical’ axis will necessarily invoke coun-
ter-pulls on the ‘horizontal’ axis.95 As Friedrich Kratochwil puts it, ‘legiti-
misation deficits will appear in all instances of institutionalised inter-state
cooperation that go beyond the classical alliance patterns or ad hoc limited
purpose arrangements’.96

III. RE-INVENTING THE INSTITUTIONAL

PROBLEM: INTERNATIONAL LAW AS PUBLIC LAW?

If, as I have suggested, this apparent legitimacy crisis arises from a ten-
sion ingrained into the structural condition of international law itself, how
might we respond to it? Unsurprisingly perhaps, few have advocated a sim-
ple retreat ‘back to Westphalia’. Insofar as any such retreat is seen as simply
a concession to sovereignty or to state consent, it remains deeply unpopu-
lar (though it does have some adherents in the ‘neo-sovereigntist’ approach
advocated by some US academics).97 Weiler, for instance, is explicit that
there is no going back to a transactional paradigm that places emphasis
on the consent of states. At the same time, he sees limited potential in any
sort of mediatory democratic legitimacy at the global level.98 Whilst there

95 This perhaps goes some way towards explaining what Klabbers terms a ‘changing image’

of international organisations since the mid-1990s: Klabbers (n 5).

96 Kratochwil (n 82) 171, at 178.
97 This threat was perceived particularly acutely from the mid-1990s in the wake of US

opposition to an international criminal court. See, for instance, LF Damrosch, ‘“Sovereignty”

and International Organizations’ (1997) 3 UC Davis Journal of International Law and Policy
159; J Bolton, ‘Should We Take Global Governance Seriously?’ (2000) 1 Chicago Journal of
International Law 220; and for a critical discussion of these positions, see GW Brown, ‘The
Idea of Autonomy: Accountability, Self-determinism and What Normative Claims about Insti-
tutional Autonomy in Global Governance Should Mean’ in Collins and White (n 12) 104–19.
98 Weiler (n 1) 561–2.
 Re-inventing the Institutional Problem 241

have been well-meaning attempts to find some means of democratic legiti-

misation at the international level (though perhaps more amongst politi-
cal scientists than international lawyers),99 many of these proposals remain
far from persuasive.100 With direct forms of political representation at the
universal level being something of a chimera, the only plausible prospect
appears to be to enhance the participatory role and normative influence
of NGOs and other non-state actors as a nascent form of ‘global civil
society’.101 Nevertheless, with long-standing concerns about the account-
ability and representative credentials of many NGOs,102 the idea that this
nascent civil society could serve to legitimise the kind of authority claimed by
many global actors seems to drain democracy of much of its meaning, ulti-
mately premised on a decidedly ‘pre-modern’ idea of constituent power.103
In its place, then, Weiler urges more thinking about ‘alternative legitimat-
ing devices which would make up for the non-applicability of some of the
classical institutions of democracy where that is not possible’.104 The ques-
tion this invokes, of course, is whether any such compensatory approach
is possible (and desirable) beyond the kind of specific institutional mecha-
nisms, briefly outlined above, aimed simply at enhancing accountability in
particular institutional contexts. I remain somewhat sceptical, especially
given the kind of proposals on the table. In the main, international lawyers
have tended to respond to this challenge by reverting to public law analogies
and principles again, in order to find some universal vocabulary by which
it might be possible to bring order to disunity and to restrain the exercise
of arbitrary political power.105 As diverse as these many approaches are
in themselves, they can be understood together as an attempt to restrain
or control institutionalisation rather than to advance it against the sov-
ereignty of states. They are, in other words, a response to the perceived

99 See, eg, D Held, Models of Democracy, 3rd edn (Cambridge, Polity Press, 2006) 275–81,

304–08; though for a push for a deliberative democratic approach to international law, see
S Wheatley, The Democratic Legitimacy of International Law (Oxford, Hart Publishing,
2010); see also A von Bogdandy, ‘Globalization and Europe: How to Square Democracy, Glo-
balization, and International Law’ (2004) 15 European Journal of International Law 885, at
904–05 (and references included therein at fns 98–101).
100 See, eg, Weiler (n 1) 560–61.
101 See, eg, the discussion of JA Scholte, ‘Civil Society and Democratically Accountable

Global Governance’ (2004) 39 Government and Opposition 211.

102 See, eg, J Friedrichs, ‘The Neomedieval Renaissance: Global Governance and Interna-

tional Law in the New Middle Ages’ in Dekker and Werner (n 34) 3, at 11–16.
103 A Somek, ‘The Owl of Minerva: Constitutional Discourse before its Conclusion’ (2008)

71 Modern Law Review 473, at 487–89.

104 Weiler (n 1) 561.
105 See, eg, Koskenniemi (n 19) 18; Dunoff and Trachtman, ‘A Functional Approach to

International Constitutionalization’, above n 55, 5–6. N Krisch, ‘Global Administrative

Law and the Constitutional Ambition’ in P Dobner and M Loughlin (eds), The Twilight of
Constitutionalism? (Oxford, Oxford University Press, 2010) 245, at 246. I discuss this further
in R Collins, ‘Constitutionalism as Liberal-Juridical Consciousness: Echoes from International
Law’s Past’ (2009) 22 Leiden Journal of International Law 251.
242 International Law as Governance: An Emerging Legitimacy Crisis?

erosion of sovereignty caused by global governance—or, rather, caused by

its perceived externalities: the above-noted threats of deformalisation and
fragmentation.106
Of the various strands of this ‘public law’ ambition, the most value-
laden, arguably, has been an explicitly ‘constitutionalist’ agenda, which
aims to find some means of balancing expressions of public authority
with underlying public law values, procedures or accountability mecha-
nisms.107 In contrast to the kind of approach castigated by Arangio-Ruiz in
the previous chapter, however, this kind of constitutional discourse is less
‘architectural’ in its ambition.108 It acts as a ‘compensatory’ discourse109
intended as ‘a desirable reaction to visible de-constitutionalization
on the domestic level’.110 Whilst much of the empirical analysis in the con-
stitutionalist literature is sophisticated and insightful, acknowledging many
of the accountability deficits and structural tensions outlined above, its
more normative ambition is nonetheless beset by a certain incoherence. In
particular, insofar as it advocates a less formal approach to legal normativ-
ity, based around certain constitutional principles, as a response—at least
in part—to the threat of deformalisation, one might accuse international
or global constitutionalists of attempting to fight fire with fire. In other
words, in order to re-imagine international law as already (potentially)
regulated by some constitutional rationality, much of this response has

106 See, eg, the recent project on developing the ‘publicness’ of public international law

under the auspices of the Max Planck Institute of Comparative Public Law and Public Inter-
national Law: A von Bogdandy, P Dann and M Goldmann, ‘Developing the Publicness of
Public International Law: Towards a Legal Framework for Global Governance Activities’
(2008) 9 German Law Journal 1375, as well as the various contributions in the rest of the
symposium that follows. On the recurrence of public law rhetoric as a means of constructing
system in international law, see D Kennedy, ‘The Mystery of Global Governance’ in Dunoff and
Trachtman (n 20) 43–54.
107 The literature on constitutionalism within, and constitutionalisation of, international

law is growing and somewhat diverse; for a good summary of the debates, however, see most
recently J Klabbers, A Peters and G Ulfstein, The Constitutionalization of International Law
(Oxford, Oxford University Press, 2010); and the collections of essays by R Macdonald and
DM Johnston (eds), Towards World Constitutionalism: Issues in the Legal Ordering of the
World Community (Leiden, Martinus Nijhoff, 2005); and Dunoff and Trachtman (n 20).
108 Koskenniemi (n 19) at 18.
109 See, eg, Dunoff and Trachtman, ‘A Functional Approach to International Constitution-

alization’ (n 55) 9. And see further A Peters, ‘Compensatory Constitutionalism: The Func-
tion and Potential of Fundamental International Norms and Structures’ (2006) 19 Leiden
Journal of International Law 579; BO Bryde, ‘International Democratic Constitutionalism’ in
Macdonald and Johnston (n 107) 103, at 115–21; as well as M Kumm, ‘The Legitimacy of
International Law: A Constitutionalist Framework of Analysis’ (2004) 15 European Journal
of International Law 907.
110 Peters (n 109) 580. And for similar ambition, see Paulus (n 20) 71; and A O’Donoghue,

‘International Constitutionalism and the State’ (2013) 11 International Journal of Constitu-

tional Law 1021. On the distinction between these two modes of constitutionalism, see Collins
(n 105) 252 (in fn 4); see further the useful classifications deployed by CEJ Schwöbel, ‘Organic
Global Constitutionalism’ (2010) 23 Leiden Journal of International Law 529, at 530–33.
 Re-inventing the Institutional Problem 243

tended to advocate reading into international law necessary functional

distinctions, normative hierarchies and procedural principles, which
jar uneasily with its non-hierarchical institutional form.111 As Jeffrey
Dunoff and Joel Trachtman argue: ‘A functionalist approach permits con-
ceptual analysis that is not premised upon a definition setting forth a group
of necessary and sufficient conditions which determine whether a given
order is constitutional or not.’112 Similarly, rather than looking for for-
mal institutional hierarchies in international law, Andreas Paulus reflects
‘on whether and how the international legal order fulfils the background
principles of a constitutional order worthy of that name in a constitutional
tradition’.113 In this model, the constitutional character of particular norms
is not derived from their source (or, rather, higher entrenchment)—as the
rule of law would seem to require—but merely their substance or overall
effect.114 Anne Peters makes this point most explicitly:
Since a unified constitutional charter is missing and because a normative hierarchy
within the international legal order is present—if at all—only in relation to the
small subset of jus cogens, the option of establishing a clear distinction based on
formal characteristics is foreclosed. It remains possible to distinguish according
to the substance of the norms in question. Only those norms which have ‘some-
thing fundamental’ to them may be duly qualified as constitutional norms … But
this distinction is inevitably blurry and contestable.115 (emphasis added, footnote
omitted)
The logic here is curious. The motivation behind this constitutionalist read-
ing is to respond, in part, to the effect that deformalisation (and fragmen-
tation) has on achieving rule of law values. As we have seen, however, in
Chapter 7 particularly, the rule of law depends for its coherence on the for-
malism of law’s source; it suggests the arbitrariness of reading legal norms
according to their substance or particular effects. As quoted above, Peters
herself admits that such a substantive reading relies on necessarily ‘blurry
and contestable’ distinctions. As such, to suggest that norms can be assessed
on the basis of their relative importance is to re-state the problem to which
something like the rule of law purports to respond. Matthias Kumm’s
analysis of constitutionalism seen as a means to respond to the apparent
legitimacy crisis outlined above seems to result in much the same problem.

111 See, eg, Peters (n 109) 585.

112 Dunoff and Trachtman, ‘A Functional Approach to International Constitutionalization’
(n 55) 6.
113 Paulus (n 20) 71. Mattias Kumm refers to something similar as the ‘practice conception’

of constitutionalism: see M Kumm, ‘The Best of Times and the Worst of Times: Between Con-
stitutional Triumphalism and Nostalgia’ in Dobner and Loughlin (n 105) 201, at 212–8.
114 See, eg, Peters (n 109) 588; and see the criticisms of A Somek, ‘From the Rule of Law to

the Constitutionalist Makeover: Changing European Conceptions of Public International Law’

(2011) 18 Constellations 567, at 579.
115 Peters (n 109) 599.
244 International Law as Governance: An Emerging Legitimacy Crisis?

Whilst he acknowledges the legitimacy of formal source-based criteria for

legality, following many of the concerns outlined previously, he suggests
now that such formal criteria are not enough on their own to ensure the
legitimacy of contemporary international law. Instead, he argues, this prima
facie legitimacy may be rebutted where other factors such as ‘subsidiarity’,
‘process legitimacy’ and—albeit with some reservations—‘outcome legiti-
macy’ undermine the rational acceptance of a particular legal norm.116
Again, this suggests that a subjective, evaluative determination is necessary
in assessing the validity of the legal norm: one kind of deformalisation is
merely replaced with another.
This problem is only intensified once we move to the concrete level, where
constitutional ‘norm-balancing’ is demanded of particular institutions or
regimes.117 As noted above, even if there is agreement on values and prin-
ciples in the abstract such that clashes between particular normative areas
are capable of resolution, the result of the normative balancing will inevita-
bly be influenced by the particular structural bias of any given institutional
decision-maker. This concern has arisen in institutions seen as having an
inherently limited remit, such as the WTO, with its narrow market-based
focus,118 but the inevitable fragmentary effect seems to apply in any insti-
tutional context. In this respect, constitutionalist discourse seems to have
the paradoxical effect of heightening fragmentation concerns. The EU, for
instance, seems increasingly to be asserting its autonomy from the broader
international legal order by stressing the constitutional nature of its treaty
base119 or by noting the importance of certain fundamental rights which
override other international obligations.120 Even the European Court of

116 Kumm (n 109) 918–27.

117 The most obvious context being the EU: see, eg, JHH Weiler and M Wind (eds),
European Constitutionalism Beyond the State (Cambridge, Cambridge University Press, 2003);
though the same claim is applied to distinctly more ‘intergovernmental’ bodies such as the
WTO, on which see, eg, DZ Cass, The Constitutionalization of the World Trade Organization
(Oxford, Oxford University Press, 2005). For a critical reflection, see J Klabbers, ‘Constitution-
alism Lite’ (2004) 1 International Organizations Law Review 31.
118 This is by now a well-trodden critique of the idea of constitutionalism in the WTO. See,

eg, the criticisms of R Howse, ‘From Politics to Technocracy—and Back Again: The Fate of the
Multilateral Trading Regime’ (2002) 96 American Journal of International Law 94, at 106–07;
R Howse, ‘Human Rights in the WTO: Whose Rights, What Humanity? Comment on Peters-
mann’ (2002) 13 European Journal of International Law 651, at 655; JL Dunoff, ‘Constitu-
tional Conceits: The WTO’s “Constitution” and the Discipline of International Law’ (2006) 17
European Journal of International Law 647, at 665; R Howse and K Nicolaidis, ‘Enhancing
WTO Legitimacy: Constitutionalization or Global Subsidiarity?’ (2003) 16 Governance 73, at
75; P Alston, ‘Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply
to Petersmann’ (2002) 13 European Journal of International Law 815, at 826.
119 For an extremely clear conceptual study of the EU’s claimed autonomy in this respect, see

N Tsagourias, ‘Conceptualizing the Autonomy of the European Union’ in Collins and White
(n 12) 339–52.
120 For example, in the famous Kadi and Yusuf cases: Case T-306/01, Yusuf and Al Barakaat

International Foundation v Council and Commission, 21 September 2005 [2005] ECR II-3533;
Case T-315/01, Kadi v Council and Commission, 21 September 2005 [2005] ECR II-3649.
 Re-inventing the Institutional Problem 245

Human Rights has in some senses separated the operation of the Conven-
tion regime from broader rules of international treaty law by stressing its
constitutional nature.121 By bolstering the constitutionality of the particular
regime, the institution can seemingly isolate itself from the restraining con-
ditions of the constitutive rules of the international legal order upon which
it is built.122
In response to these more institution-specific constitutional ambitions,
some have suggested the need for a broader systemic approach. In particu-
lar, Paulus argues that further normative integration within particular insti-
tutions, bringing particular goals into normative conflict with other values
outside of the internal legal order, will inevitably prompt decision-makers
to look outside the institution to reason according to overarching systemic
rules.123 Again, however, this merely re-states the same structural problem:
the concern is not the existence of a background system in the abstract;
in fact, to reason according to systemic logic in this way merely serves to
bolster the particular authority of any given institution, thus in turn add-
ing to the apparent fragmentation and deformalisation of international law
overall. As Eyal Benvenisti comments:
This [systemic] legal discourse empowers primarily judges … The vision of inter-
national law as a legal system rather than a mix of discrete treaties allows them
to interpret, deduct, draw inferences and resolve conflicts not only by resorting to
the specific treaties at hand but also by relying on the basic principles of the system
and its underlying norms.124
In the absence of any overarching hierarchy of courts, these systemic-
constitutionalist readings of international law may only be used to strengthen
the autonomy of the institution in question, whilst paradoxically reinforcing
the disunity of the international legal order:
If a treaty establishes institutions, the courts will bolster those institutions,
strengthening their authority internally and externally. At the internal level of that
institution, the court will reinforce an institution’s authority and impact vis-à-vis
state parties beyond what the negotiators intended. At the external level, the court
will recognize the institution’s status as a ‘subject’ of international law that must
be treated and recognized as such by non-member states.125

121 See, eg, Belilos v Switzerland (n 76) and Loizidou v Turkey (n 76) at paras 67 and 72 in

particular, distinguishing the special characteristics of the Convention on the basis of its object
and purpose rather than its legal form in the law of treaties. See the discussion to this effect in
Koskenniemi and Leino (n 19) 567–69.
122 See, eg, the discussion in Paulus (n 20) 82–87.
123 ibid 70, 84–85. See further JP Trachtman, ‘The Constitutions of the WTO’ (2006)

17 European Journal of International Law 623, at 624–25.

124 E Benvenisti, ‘The Conception of International Law as a Legal System’ (2008) 50

German Yearbook of International Law 393, at 396.

125 ibid 397–98.
246 International Law as Governance: An Emerging Legitimacy Crisis?

Despite its more limited ambition and rejection of the constitutional-

ist vocabulary of global values, one sees a similar problem in the ‘global
administrative law’ (GAL) project.126 In line with the analysis above, GAL
addresses the increasingly informal means of governance through interna-
tional organisations, informal networks or other non-state actors, attempt-
ing to come to terms with:
[T]he legal mechanisms, principles, and practices, along with supporting social
understandings, that promote or otherwise affect the accountability of global
administrative bodies, in particular by ensuring these bodies meet adequate stand-
ards of transparency, consultation, participation, rationality, and legality, and by
providing effective review of the rules and decisions these bodies make.127
However, as before, to understand this broad sweep of practices as giving
rise to or being regulated by law requires an evaluative judgement on the
substance or effects of legal norms rather than their simple conformity with
source-based criteria. Perhaps the leading proponent of the GAL approach,
Benedict Kingsbury, makes this point explicitly in his (well-reasoned)
account of the concept of law underpinning the GAL project.128 As he notes,
the term ‘global’ is employed to note the broader sweep proposed under
this project, aimed at including the ‘informal institutional arrangements …
and other normative practices and sources that are not encompassed within
standard conceptions of “international law”’ and which go beyond the kind
of norms included in standard sources doctrine. As he continues:
The term GAL is applied to shared sets of norms and norm-guided practices that
are in some cases regarded as obligatory, and in many cases are given some weight,
even where they are not obviously part of national (state) law or standard inter-
state law. The analysis is further complicated because global administrative law
is practised at multiple sites, so GAL norms are also meshed with other sources
of obligation applicable to that site … If a claim to ‘law’ is made in applying
the label GAL in some of these situations, it is a claim that diverges from, and
can be sharply in tension with the classical models of consent based inter-state
international law and most models of national law.129 (emphasis added)

126 The literature here is now somewhat voluminous, but as an introduction, see principally

N Krisch and B Kingsbury, ‘Introduction: Global Governance and Global Administrative Law
in the International Legal Order’ (2006) 17 European Journal of International Law 1; and
see the symposium which follows at 1–278 of the same edition; B Kingsbury, N Krisch and
R Stewart, ‘The Emergence of Global Administrative Law’ (2005) 68 Law and Contemporary
Problems 15 and the rest of the symposium in the same issue, at 1–377.
127 B Kingsbury, N Krisch, RB Stewart and JB Wiener, ‘Foreword: Global Governance as

Administration—National and Transnational Approaches to Global Administrative Law’

(2005) 68 Law and Contemporary Problems 1, at 5.
128 B Kingsbury, ‘The Concept of “Law” in Global Administrative Law’ (2009) 20

European Journal of International Law 23.

129 ibid 25–26.
 Re-inventing the Institutional Problem 247

Kingsbury’s approach tries to avoid a distinctly subjective, value or

content-based analysis of the law—in fact, he refers to it as explicitly posi-
tivist, stressing its social factuality—but at the same time, he attempts to
move away from binary distinctions in order to encompass the idea that dif-
ferent standards or norms (formal or otherwise) have different compliance
pulls or legal effects.130 A similar approach also seems to underpin Alvarez’s
recent study on the law-making activities of international organisations, as
he attempts to legally situate, and re-orient focus upon, what he sees as the
evident normative force of the ‘legislative’ activities of institutions. In order
to capture this, he suggests one measures the ‘normative ripples’ of a par-
ticular output rather than its conformity with formal sources.131 Similarly,
Nigel White argues that one must ‘relativise’ legality to some degree in order
to capture and respond to the normative output of many global institutions:
An understanding of the nature and impact of the legal output of international
organizations is not achieved by simply considering the issue as a matter of the
traditional sources of international law. By widening the context to encompass
ideas drawn from international relations, we are able to see that institutional law-
making is much more influential than a strictly legal approach would allow for.132
A similar trend seems apparent for the group of scholars behind the Max
Planck Institute for Comparative Public Law and International Law’s
(MPIL) project on ‘International Public Authority’, which aims to adopt a
similarly relative, ‘external effects’ based approach,133 in judging the legiti-
mate authority of a range of formal and informal decision-making bodies by
reference to a standard of ‘publicness’.134
Interestingly, Kingsbury explains the rationale behind this more expan-
sive approach to normativity he advocates in terms of a response to the kind
of perceived constitutional deficiency outlined previously. In the absence
of centralised authorities, he places emphasis on the role of subjects, actors
or participants themselves in assigning ‘weight’ to normative standards.

130 ibid 27.

131 Alvarez (n 5) 122–45.
132 ND White, ‘Separate But Connected: Inter-governmental Organizations and Interna-

tional Law’ (2008) 5 International Organizations Law Review 175, at 187.

133 Von Bogdandy, Dann and Goldmann (n 106). A distinctive but still effects-based

approach is also employed by Dekker and Wessel, relying on a ‘speech act’ approach: Dekker
and Wessel (n 34) 218–19 ff.
134 See most recently M Goldmann, ‘A Matter of Perspective: Global Governance and the

Distinction between Public and Private Authority (and Not Law)’ (4 November 2013), http://
ssrn.com/abstract=2260293, in which legitimate international public authority is identified
(at 18) on the basis of whether ‘the actor may reasonably claim to act on behalf of a community
of which the affected person or entity is a member, or a member of such member’. A similar
though not identical approach is taken in A von Bogdandy and I Venzke, In Whose Name? A
Public Law Theory of International Adjudication (Oxford, Oxford University Press, 2014).
248 International Law as Governance: An Emerging Legitimacy Crisis?

As he puts it: ‘Law is a social practice, and it is a feature of the particular

social practices involved in GAL that both validity and weight are impor-
tant.’135 As such, in the absence of a unifying rule of recognition able to cap-
ture the full extent of the authority exercised by global institutions, the two
criteria are combined together—weight and validity—as part of an overall
‘gatekeeper’ standard based on the ‘publicness’ of the normative authority
exercised. Publicness, in essence, is somewhat similar to Lon Fuller’s evalu-
ative standard of ‘legality’, but goes beyond the procedural requirements of
the rule of law in order to recognise substantive public goods, such as the
protection of human rights.136
Once again, this is curious reasoning bearing in mind the motivation
which drives the desire to bring order to the apparently disordered ‘global
administrative space’. Kingsbury openly admits that his approach is partly
conceptual and partly political—indeed, that it aims to amalgamate political
concerns within conceptual analysis—but in so doing, he seems to disre-
gard, or devalue, the potential legitimising effects of such value-laden legal-
ism, which are surely only accentuated by the structural condition of the
international legal order. To move beyond formal source-based criteria to
make determinations based upon evaluative judgement merely offers up a
deeply subjective standard for decision-makers to justify their conduct. As
Alexander Somek argues:
The problem that arises for the GAL project is that owing to its practical ambi-
tion it is inclined to describe processes which do not give rise to legally binding
acts as though they were constituted by administrative law, while these very same
processes can equally plausibly also be described as mere instances of permissible
conduct.137
Although GAL and other public law-based approaches set themselves up
against constitutionalist rhetoric by attempting to avoid the inherent subjec-
tivity of values, by employing a similarly evaluative approach to legal nor-
mativity, they seem to risk precisely the same kind of deformalisation of rule
of law standards.138 If this subjectivism is admitted, this leads us back to the
question of who decides: either it is the administrators this approach purports
to bind or it requires some form of adjudicatory model, the lack of which
prompted Kingsbury (and it seems many others) to read the normativity
of GAL in this way in the first place. As such, it seems that the auto-
interpretation of international law by states is simply replaced by the auto-
application of law by functional decision-makers; the former may appear
inefficient and imperfect, but the latter is hardly an improvement.

135 Kingsbury (n 128) 27.

136 ibid 31–33.
137 A Somek, ‘The Concept of “Law” in Global Administrative Law: A Reply to Benedict

Kingsbury’ (2009) 20 European Journal of International Law 985, at 987.

138 ibid.
 Re-inventing the Institutional Problem 249

In summary, I am sceptical about such attempts at functional

compensation based on public law values. As before, there is a failure to
adequately appreciate the importance of international law’s decentralised
legal form and the agnostic, open indeterminacy which is seen as an impor-
tant aspect of its core legitimacy. If, as I have argued, the legitimacy cri-
sis arises precisely because functional institutional autonomy has emerged
(and been encouraged) in a way which sits uneasily with the formal criteria
of this system, then no means of functional compensation is likely to allevi-
ate that tension; indeed, it is likely only to exacerbate it. As Jan Klabbers
notes, this attempt at reading international law’s normative effects in func-
tional terms requires, in the end, some medium for distinguishing law and
non-law,139 which prompts us either to decry the illegality of certain nor-
mative influences where they occur or else admit that they simply fall out-
side of international law’s reach. Jean d’Aspremont makes a similar point,
ultimately pointing to the self-defeating nature of the argument that the cri-
teria for ascertaining international law can be deformalised and expanded
to address these perceived accountability deficits:
International actors have consciously and purposely placed such a normative activ-
ity outside the traditional framework of international law with a view to eluding …
the mechanisms of accountability provided by international law. If legal scholars,
analysts, or theorists were to succeed in their attempt to bring these forms of the
exercise of public authority in the remit of international law it can be anticipated
that international actors would in turn, again create new normative tools and use
other norm-making channels which allow them to evade accountability.140
As always, the problem is more structural; the system is designed to defer
back to the values and vices, the politics and prejudices and, ultimately, the
responsibility of its constituent members. If we try to imagine an interna-
tional legal world capable of securing accountability by reference to these
kinds of expanded criteria, it seems almost impossible to secure anything
like a functioning international rule of law. In such a model, as Somek
claims, ‘there is neither system nor centre, merely family resemblancess
among different processes’.141 By moving away from formal criteria and
concentrating on legitimacy rather than legality per se, we seem to give
up on law’s autonomy, and the limited accountability it brings with it, in
any form.142 In other words, there is a benefit to retaining a formalist,

139 J Klabbers, ‘Law-Making and Constitutionalism’ in Klabbers, Peters and Ulfstein (n 107)

81, at 102.
140 J d’Aspremont, Formalism and the Sources of International Law: A Theory of the

Ascertainment of Legal Norms (Oxford, Oxford University Press, 2011) 136.

141 A Somek, ‘Administration without Sovereignty’ in P Dobner and M Loughlin (eds),

The Twilight of Constitutionalism? (Oxford, Oxford University Press, 2010) 267, at 272.
142 J Klabbers, ‘The Relative Autonomy of International Law or the Forgotten Politics of

Interdisciplinarity’ (2005) 1 Journal of International Law & International Relations 35.

250 International Law as Governance: An Emerging Legitimacy Crisis?

‘doctrinal’ perspective as a mirror against which we can highlight the

contingent nature of, as well as power imbalances potentially perpetuated
by, much of the rule-making, standard-setting and more indirect normative
influence of this increasingly post-national political space.143

IV. CONCLUSION

This might seem a somewhat conservative—indeed, potentially

unfashionable—conclusion to a chapter concerned very much with evolu-
tion and change in contemporary international law. Nevertheless, I believe
that there remain good reasons for excluding certain types of normative
influence from international law’s formal criteria of validity. To the extent
that many of these practices remain contested and controversial, the ability
to decry their ‘non-legality’ (if not illegality) by reference to some agreed-
upon formal criteria (ie, criteria which do not invoke the very same values
which might be the source of conflict in the first place) still seems impor-
tant to the legitimate authority of the system overall. Whether, and to what
extent, such norms have other normative influence and whether they fall
within some other ‘global’ mode of legality144 may well depend on a range
of non-formal considerations, necessarily implicating the evaluative judge-
ment of states and other actors in the increasingly fragmented and complex
international legal order. My point, however, is that the judgement required
in making such determinations—whether in terms of fairness, legitimacy,
‘publicness’ or some other standard—is not susceptible to being publicly
promulgated without a concomitant acceptance of some prior-agreed pro-
cedure or institution with the ability to determine authoritatively what such
values might mean in any given situation; that is, precisely the kind of cen-
tralised authority which is not only absent, but arguably incompatible with
the very idea of international law.
This conclusion, however, is not to ignore these more informal modes
of authority and normative influence as somehow irrelevant to interna-
tional law. Rather, it seems to me that these innovative governance solu-
tions remain important in securing some cooperation towards common
ends when agreement to formal legal rules is likely only to prevent action
or limit its practical purport. Nevertheless, by retaining the formal legality-
illegality binary and thereby side-lining the normative influence of much of
this global governance activity, we retain some ability to evaluate it on its
own terms, that is, we refuse to grant it any a priori legitimacy of the type

143See on this point Somek (n 137) 993–94.

144See, eg, recently the impressive empirical survey of typologies of ‘global law’ in Ch 3 of
N Walker, Intimations of Global Law (Cambridge, Cambridge University Press, 2014).
 Conclusion 251

bestowed by formal legality. In other words, the authority of this post-

national form of global governance remains ‘content-dependent’, not inde-
pendent, leaving assessments of its normative force susceptible to being
measured by some more value-based framework as the need arises. Indeed,
following the argument developed in this part so far, it may well be the case
that this very act of formal exclusion is the most important consequence of
the attempt to secure the rule of law at the global level.
 Conclusion

I
BEGAN THIS book with a question posed by the late Arthur Watts as
to the importance of international law in the conduct of international
affairs. It might be worth now briefly recalling Watts’ own response
to this question as his argument reflects familiar themes developed in this
work so far. He acknowledged, for instance—as did Henkin—that for the
most part, most rules of international law are obeyed most of the time.1 He
equally noted—as did Hart and, indeed, many international lawyers—that
international law’s objective validity as such can be understood to follow
simply from the fact that actors in the international system recognise a set
(or system) of rules as binding upon them. In doing so, he argued that a
‘climate of legality’ clearly pertains at the international level—that states
believe in ‘the general notion of law as a basis for their behaviour’.2
The reference to ‘legality’ here recalls the problem of an international rule
of law, which I have outlined at length in Chapter 7. For Watts, the exist-
ence of a climate of ‘legality’ in the limited sense I have defended was not
sufficient to secure any form of order in international affairs—a goal which
he saw as intimately related to the very existence of international law itself.
Whilst he therefore argued that the ‘rule of law’ in a strict sense ‘has not
yet been firmly established’, the ‘self-evident’ benefits of rule of law compli-
ance still ‘exert a powerful positive influence’.3 Watts’ analysis—perhaps
unwittingly—draws out the fundamental ambiguities surrounding the idea
of an international rule of law, of achieving a condition of ‘legality’ in inter-
national relations. He noted how ‘State practice is replete with acknowl-
edgements of the importance of international law as a system, and of the
need to observe particular rules of the system’, but he was equally aware of
how the aura of legality acts instrumentally as a powerful legitimising force,
facilitating states’ (and other actors’) unilateral actions to the detriment of a
just, ordered international society.4
Unsurprisingly, Watts’ tone became more cautionary as his focus shifted
to the problem of how international law could secure order and justice at

1 A Watts, ‘The Importance of International Law’ in M Byers (ed), The Role of Law in

International Politics: Essays in International Relations and International Law (Oxford,

Oxford University Press, 2000) 5, at 8–9.
2 ibid 6.
3 ibid 7.
4 ibid.
 Conclusion 253

the same time. The former seems to presuppose an institutional framework

for mediating between the imbalances of power prevalent in any political
community; the latter some form of institutional intervention, to secure
certain purposive, communitarian ends as agreed upon within these institu-
tional frameworks. Whilst at the time of his writing—at the turn of the new
millennium—he saw that international law had made progress in improv-
ing its institutional structure, particularly through the introduction of more
effective international adjudication, Watts still saw that the consensual
nature of such jurisdiction remained problematic from the point of view of
the international rule of law. Similarly, he noted how international law had
evolved at the substantive level: as a system, it was capable of securing legal
change to reflect community interests, particularly through the negotiation
of new treaty regimes, but at the basal level of the system itself, its custom-
ary character still made the process of legal change slow and inefficient, and
indeed more likely to reflect the existing balances of power in international
relations.5
As such, Watts’ essay is revealing of familiar disciplinary concerns: rec-
ognising the importance of the rule of law in international affairs, whilst at
the same time expressing concern over how international law’s institutional
condition prevents the full realisation of this goal. It is also revealing in
its particular disciplinary context. His desire to answer the question of the
importance of international law, and to do so in a volume of essays aimed
at a notoriously sceptical political audience, reflects an all too familiar dis-
ciplinary self-defensiveness. At the beginning of Part I, I sought to show
how the modern discipline emerged as an attempt to prove the relevance of
international law as a positive, systemic legal order on much the same terms
as Watts—and, indeed, against similarly sceptical voices. I argued that this
view of international law presupposed a condition of legal autonomy which
seemed prima facie incompatible with the decentralised institutional order
of international law, and therefore arguably undermined the ambitions of
those who see in the rule of law the potential for legal rules to restrain the
worst excesses of sovereign political freedom. The question that this left
open, and to which the book has tried to respond, is how we should there-
fore react to this apparent institutional problem.
In response, I have sought to do two things. The first is to attempt to re-
orient this problem, to show that insofar as there has long been perpetuated
a view of international law as somehow constitutionally deficient, defec-
tive or primitive, that this view is built on unsustainable presumptions: not
only about international law’s potential and scope in international relations,
but most importantly about the role and function of law in any political
community. In this respect, I have engaged with the dominant analytical

5 ibid 13–16.
254 Conclusion

tradition in jurisprudence to show how within descriptive explanations of

constitutive features of legal order, there remain a number of presumptions
about the necessary governance functions of law and therefore a resultant
need for institutional hierarchy. I have argued that these claims are not only
methodologically problematic, but in substance misunderstand the contin-
gent nature of law’s institutional form—particularly insofar as this form
seeks to give structure to the political relations that pertain in any given soci-
ety. As such, applying this reasoning to international law, I have defended
its decentralised institutional form as important to the legitimacy of legal
rules in international society. This form is not only facilitative in advancing
agreed-upon objectives, but acts as an important basis for inter-subjective
accountability in the agnostic, pluralistic society of states.
My second ambition, therefore, was to engage in a form of imminent
critique of what I believe has been an unhelpful tendency to overlook or
disregard the international legal form in an effort to read into international
law certain functional substitutes for the kind of constitutional or govern-
ance functions seen as necessary to law’s perceived role in bringing order to
international society. Rather than seeing in the international rule of law an
important basis for formal association under conditions of political plural-
ity, which itself therefore facilitates the possibility of more cooperative and
purposive forms of institutional association, it has often been seen simply
as a goal to be achieved through the transformation of international law by
way of a more interventionist institutional structure. By showing not only
the theoretical difficulties of reading existing international institutions in
this way, but also the practical impacts and legitimacy concerns raised by
the intensification of global governance activity, I have sought to demon-
strate the limitations of trying to overcome the institutional problem in this
way. In fact, the problem has arguably only resurfaced in a more ‘postmod-
ern’ form, with growing disciplinary unease over the normative reach and
influence of an increasingly autonomous range of regimes and institutions,
precipitating anxieties over the fragmentation and deformalisation of the
international legal system. However, the point is that these impacts are the
inevitable result of the institutionalisation of a decentralised legal order. By
also showing some of the theoretical and practical difficulties of reading
any actor—state or institution—as authoritatively representing universal
interests or fulfilling ‘official’ functions in international law, I have instead
suggested that the effect of international law’s institutionalisation has been
to complicate contemporary international law, creating a quite noticeable
strain and tension between its functional operation on the one hand and
its formal decentralised structure on the other. However, it is within the
push and pull of these different claims to legitimacy that we can perhaps
find space for continued political engagement with any claim to universal
legitimacy or authority, that is, to leave open the possibility of genuinely
 Conclusion 255

universal values, interests and ambitions, whilst continuing to subject such

claims to scrutiny and contestation.
If the ‘institutional problem’ is therefore a problem after all, it surely
relates to the question of how best to secure this balance: how to leave
open this space for authentically international expressions of solidarity,
whilst continuing to resist international law’s complete instrumentalisation
towards more particular political ends.
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 Index
accountability conceptual analysis, descriptive-
checks and balances 170 explanatory approach to 15, 106, 111,
decentralised character of international 115, 118, 127, 131–36, 146, 148, 153
legal system 14, 224–25, 240, 249, Conventional (social-factual)
254 approach 112–13, 115, 120–23, 133
formalism 192 see also legal officials
Global Administrative Law functionalism versus conventionalism
(GAL) 246 (Hart) 120–21
global governance 12, 14, 198, 211, value neutrality, fallacy of 133–39,
220, 222, 225, 234, 242 146
International Law Association domestic legal paradigm, reliance
(ILA) 234n69 upon 8–9, 99, 106, 110, 116, 119,
international organisations 223, 234, 126, 134 see also legal officials
241 evaluative judgment 68, 116n40,
Judicial review 170, 223 125–26, 132–33, 135–36, 139 see also
legal officials 115 under legal theorist, role of
Non-Governmental Organisations functional method in conceptual analysis
(NGOs) 241 explicit embrace of 128–29
rule of law 184, 191–92, 249 resistance to 116–17, 118, 120–21,
United Nations (UN) 223 127, 131–32
adjudication 60 see also dispute settlement functional presumptions of 8–9, 66, 118,
autonomy of law 73, 152, 157–61, 146, 150
163–65 Hart, HLA (as leading figure) 66, 68,
centralised mechanism, absence of 2, 13, 106–07
94, 126, 162, 253 hierarchy, reliance upon (or presumption
customary international law 91 of) 8, 106, 113–15, 120, 126, 138
dédoublement fonctionnel (‘role internal debate and critique 9
splitting’) 96 international law, relation to 4–5
international organisations 198, 219, legal official, reliance upon concept
221 of 105–27
law-creation (legislation), contrast methodological controversies 68, 106,
with 69–70 120–21, 133–39
legal officials, judges as 107, 110, 114, participant perspective, importance
118 see also law-applying institutions of 130
moral reasoning 73, 167–69 social ordering (or governance) function
rule of law 153, 184 (presumed) 99–100, 105, 115–21,
secondary rule of 79–80, 82, 112, 122, 146, 150
119n56 see also Hart, HLA Anghie, A 27, 32, 36, 46
Allott, P 180–81, 183 Anzilotti, D 31, 35
Alvarez, A 57, 205 Aquinas 145 see also Thomism
Alvarez, JE 205, 209–10, 236, 247 Arangio-Ruiz, G 181n31, 213–17, 219–20,
American Journal of International 242
Law 47 Arendt, H 182–83
analogy see domestic analogy; functional Astorino, S 43
analogy or compensation Austin, J 2, 33–36, 38, 39, 42, 49, 54, 79
analytical legal philosophy 107 see also authority
Hart, HLA; legal officials centralised authority, absence of 28, 33,
Austin, J 33 37, 94, 187, 189–90, 233
Autonomy Thesis, embrace of 153 global governance 224, 226–27, 230,
coercion 106, 118n50, 122 241–42, 245, 250–51
284 Index

international law 12, 94, 105 objectivity of international law

international organisations 11–12, (concreteness and normativity) 32,
196–97, 206, 212, 218, 220–21, 222 44–45, 50, 54, 69, 70, 72, 74, 77, 99
law’s claim to authority (Raz) 4n20, (as) pre-emptive restraint on politics 7,
117–18, 157 9–10, 15, 43–44, 59, 70, 73–75, 77
legal officials 81, 112, 114–15, 143, 144, pure theory (Kelsen) 44, 50–54,
152, 159, 161, 164 57–58, 59, 60, 63, 79
legitimate authority 166, 170–71, rule of law 13, 148, 180, 191,
179–83, 250 see also social contract 249–50
public authority (in international sources doctrine 72–73, 84
law) 247–49 sovereignty 10, 28–29, 62
sovereign authority (states) 9, 11, 35, judicial determination
106 (adjudication) 152, 157–61, 163–65
auto-interpretation 11, 75, 248 legal officials 116, 122–23, 125–26, 152,
auto-limitation (selbstverpflichtungslehre) 157–59, 163
theory 29–31 legal positivism 145–46, 153–54
autonomy of law legal reasoning 154–55, 156–57, 160,
adjudication 73, 152, 157–61, 163–65 163–66
ambiguous (nebulous) nature 153 moral reasoning 152, 154–55, 160
Autonomy Thesis 150–72 natural law 150–51
failure of 159–62 non-instrumental account 163,
hierarchy, reliance upon 157, 165–66
170–71 rule of law 147–48
Institutionalised Autonomy
Thesis 151–52, 158–60 basic norm (grundnorm) 51–52, 73n49,
Integrated Autonomy Thesis 167 79, 83 see also Kelsen H
instrumental rationale 152, 155–56, Beaulac, S 186
159, 163 Bederman, D 210
interpretivist challenge (Dworkin) 160, Beef Hormones case (WTO) 232
162, 166–70 bellum justum (just war) 52, 60, 95
Limited Domain Thesis 155–56 see also enforcement
Pre-emption Thesis 151–52, 155–59, Benvenisti, E 245
162, 165, 172 Bernstorff, J von 30, 75–76
separation thesis, distinguished Besson, S 4, 7, 185n51
from 154 Bianchi, A 220–21
social contract theory 152, 170–71 Bingham, T 187–88
Sources Thesis 155–57 Blum, G 177
content-independent normativity Bretton Woods institutions 196 see also
74, 155 International Financial Institutions (IFIs)
creation myth 116, 150–51, 163, Brierly, JL 45, 55–63, 68–69, 202
165–66, 170, 179 Brölmann, C 218
functional (focal) justification 145–48 Brownlie, I 87
international law Bull, H 183
abstract versus material autonomy bureaucratisation (Weber) 229
(Morgenthau) 45–49
autonomy discourse (defence of Capps, P 20, 129–31, 141–42, 162–72,
international law’s autonomy) 1, 177, 179, 181n29, 182
3–4, 14–15, 19–21, 27, 65, 66–67, Carr, EH 46, 199
68–69, 77, 84, 89, 105, 151 Carty, A 26, 62
constitutional (or structural) Cassese, A 11, 212, 239
deficiency 62–63, 151 centralisation see under decentralised
decentralised character of international character of international legal system;
legal system (problem of legal international organisations
autonomy) 74–77, 99, 105, 162 Chesterman, S 188
legal positivism 26–28, 32, 34n69, Chinkin, C 229
39–40, 42, 44–47, 50–54, 69 coercion 9, 49, 59
legal systematicity 5–6, 19–21, 26, analytical legal philosophy 106,
27–28, 32, 71–74, 77, 89, 191 118n50, 122
 Index 285

Autonomy Thesis 171–72 Lauterpacht, H 60–61

Kelsen, H 51–54, 63 League of Nations 60–61, 200–03
Coleman, J 108–9, 111–12, 121 United Nations (UN) 203–04, 213n90,
collective security see under international 219
organisations Coyle, S 138–39
command theory (Austin) 33–36, 39 Crawford, J 92n130, 188
community interests 12, 212n85, 236, 250, creation myth see under autonomy of law
253 see also global public goods criminal law see International Criminal
state sovereignty (impact upon) 196, Court; international criminal law;
207, 211 International Criminal Tribunal for the
Concept of Law, The see under Hart, HLA former Yugoslavia (ICTY)
conceptual analysis see under analytical legal Culver, K 110, 112–14, 117, 125
philosophy; Hart, HLA customary character of international
consent 25, 31, 34, 57–58, 183n45, 208, law 36, 38, 60–61, 76, 83, 87
211, 236, 240 customary international law 85–99 see also
customary international law 88–91 sources doctrine
domestic analogy 180–81 ascertainment of 67
social contract 179–81 chronological paradox 87–93, 97–98
constitutional (or structural) deficiency, consent 88–91
perception of 15, 21, 36, 38–39, dédoublement fonctionnel (role-splitting)
45, 55, 87, 148–49 see also primitive, theory 96–98
international law as indeterminacy 86, 89–91, 94–95
autonomy discourse, effect of 62–63, institutional problem 93–99
151 International Committee of the Red Cross
decentralisation 3–4, 10–11, 13, 47, 65, (ICRC) 92n129
126, 176, 189, 197, 204n43 International Court of Justice (ICJ) 87,
domestic analogy 175–76, 189–90 91, 93
Hart, HLA 66, 67, 75, 77–84, 98–100, judicial reasoning (adjudication) 91
136 modern approach 91–92
incoherence of claim 106, 126–27, Nicaragua case (ICJ) 91, 93–94
253–54 opinio juris 87–91, 97
indeterminacy 8, 66, 75–77, 100, 105 state practice 87–91, 97
institutionalisation (as response to, or Tadic case (ICTY) 93–94
compensation for) 9–11, 63, 98–99, UN General Assembly Resolutions 91
105, 197–98, 209, 235 courts see adjudication; dispute settlement;
legal officials, absence of 109–110, 126 and see specific international courts (eg
rule of law 65–66, 178, 187–88 International Court of Justice (ICJ))
temporary nature of
(Lauterpacht) 59–60 d’Aspremont, J 249
constitutional law 34, 137 decentralised character of international legal
constitutional legitimacy 25, 170–72, 180 system
constitutionalist mindset see under accountability 14, 191–92, 224–25, 240,
Koskenniemi, M 249, 254
constitutionalist reading of international ascertainment of international law 74
law 30, 60–61, 96, 196–97, 226–27 autonomy of international law, as
Brierly, J 60–61 undermining 74–77, 99, 105, 162
dédoublement fonctionnel (role- constitutional deficiency, perception
splitting) 10–11, 95–99 of 3–4, 10–11, 13, 47, 126, 176, 189,
fragmentation, as response to 242–45 197, 204n43
functional analogy or compensation enforcement 34, 36–37, 74, 95
9–12, 62, 95–96, 98, 105–06, 195–221 form-function tension 239–40
passim, 249, 254 see also domestic fragmentation (as consequence of) 231,
analogy 233
global governance, as response importance 14–15, 100–101, 191–92,
to 242–45 219, 224, 239–40, 249, 253
institutionalisation as constitutionalisation indeterminacy (as product of) 3,
of international law 195–221 passim 7–8, 66–67, 73–74, 76, 100, 189, 225,
Jellinek, G 30 227–28
286 Index

inefficiency 192, 206, 212, 224, 227 erga omnes obligations 209
institutionalisation (as impacting Ethics in the Public Domain (Raz)
upon) 12, 195–221, 231, 233 161–62
international organisations (as overcoming European Court of Human Rights 236n76,
or compensating for) 11–12, 15, 41n2, 244–45
45, 52, 63, 98, 195, 196–97, 198–99, European Union (EU) 214, 232, 244
203, 212–13, 218, 219 executive function 60, 204, 207 see also
law-creation 93, 157, 201–02 enforcement, functional analogy or
legitimacy 194, 224, 239–40 compensation
primitiveness 53
rule of law 178, 184–88, 227–28 Finnis, J 83n90, 110, 129, 133, 135,
secondary rules 95 140–42, 145–46, 151, 153, 164, 168
temporary state of (Lauterpacht) 59 First World War 11, 40, 43, 45, 62, 181,
dédoublement fonctionnel (role- 195, 199
splitting) 10–11, 95–99 focal method (or analysis) 129, 140–44,
deficiency see under constitutional (or 147
structural) deficiency, perception of formalism
deformalisation of international law 3, accountability 191–93
197, 224–25, 227–31, 234, 242–45, 254 commitment to, or defence of 191–94,
descriptive-explanatory approach see under 249
analytical legal philosophy ‘culture of formalism’ (Koskenniemi)
Dickson, J 121, 122n68, 130–33 191–92
disagreement see under pluralism (moral or functionalism, in tension with 16, 193,
political) 197, 216, 220, 224–25, 239–40
Discontinuity Thesis see under domestic Kelsen, H 54, 58, 60
analogy; social contract positivism (nineteenth century) 22,
dispute settlement 3, 11–12, 15, 92, 23n14, 46, 201
94, 122, 195, 207, 208–09 see also rule of law 178, 191–92, 193, 197, 199
adjudication fragmentation of international law 3, 16,
World Trade Organization (WTO) 232 197, 254
doctrine of sources see sources doctrine constitutionalisation (as response
domestic analogy 27, 175–94 see also to) 242–45
social contract ‘forum shopping’ 231
consent 180–81 institutionalisation, impact of 224,
constitutional deficiency 175–76, 226–27, 231–34 see also under global
189–90 governance; international organisations
Discontinuity Thesis 179–84, 189, 239 International Law Commission (ILC)
problematic nature of 176–77 5–6, 71, 80n78, 93–94, 231
rule of law 176–77, 179–80, 184–93 structural bias 232–33, 244
state of nature (Hobbes) 182 Franck, T 6, 65, 141, 228
domestic legal paradigm see also analytical Friedmann, W 96n147, 196, 204
legal philosophy; domestic analogy Fuller, L 110, 141, 145–46, 153, 184, 248
incoherence of 21–22, 62, 99 functional analogy or compensation
reliance upon 8–9, 21, 35–38, 99, 106, 9–12, 62, 95–96, 98, 105–06, 195–221
110, 116, 119, 126, 134, 175–76 passim, 249, 254 see also dédoublement
dualism 30–31 fonctionnel (role-splitting); domestic
Dunoff, J 232n45, 243 analogy
Dworkin, R 121–22, 131, 162 functionalism
integrity, law as 167, 169 conventionalism, versus (Hart)
interpretevism 110–11, 160, 166–70 120–21
formalism, in tension with 16, 193, 197,
enforcement 2, 65, 66 216, 220, 224–25, 239–40
bellum justum (just war) 52, 60, 95 International Court of Justice (ICJ)
command theory (Austin) 33–36, 39 205–6, 210, 215–17
decentralisation 34, 36–37, 74, 95 international organisations 197, 201,
self-help 34, 37 204–06, 216–17
society, importance of 32, 34–35 Morgenthau, H 49, 54, 60, 63
sovereignty 32–35 political science 205n49
 Index 287

functionality of law autonomy of international organisations

analytical legal philosophy (and regimes) 218, 221, 224–25, 227,
embrace of functional method 231, 240, 244–45, 249 see also under
128–29 international organisations
Hart, HLA 66–68, 78–79, 81–84, 95, communitarian interests, protection
119–21 of 236–37
presumptions of 8–9, 66, 118, 146, constitutionalism (as response
150 to) 242–45
resistance to functional method decentralisation (as important
116–17, 118, 120–21, 127, 131–32 accountability check) 224–25, 240,
domestic legal paradigm, presumed 8–9, 249, 254
21, 35–38, 99, 106, 110, 116, 119, 126, deformalisation 3, 197, 224–25, 227–31,
134, 175–76 234, 242–45, 254
functional method, defence of 115, democratic legitimacy, as
120–21, 127, 128–49 passim undermining 238, 240–41
autonomy of law 145–48 economic conditionality 237–38
descriptive-explanatory method, formalist-functionalist tension 16, 220,
weaknesses of 133–39 224–25, 239–40
evaluative judgment 132–33, 135–36, fragmentation 3, 16, 197, 224, 226–27,
139 231–34, 242–45, 254
focal method (or analysis) 129, global administrative law (GAL)
140–44, 147 project 246–48
Hart, criticisms of 133–39 global public goods 211–12, 239, 248
methodological controversies 128–33 international legal order, impact upon
participant perspective 129–31, 134, coherence of 221, 235
139, 142–43, 146 law-making 225, 228–29, 247
practical reasonableness 140, legitimacy 12, 198, 220, 224–25,
144–45 238–40, 241, 243–44, 249–50
practical viewpoint (or managerialism 229–30
perspective) 140, 142–48 Non-Governmental Organisations
rule of law 140–41, 146 (NGOs) 241
international law, presumed function public law inspired approaches
of 13, 39–40, 66, 74–75, 77, 84, 242–50
95, 135 regulation 223, 235, 226, 235–38, 240
legal officials 106, 115–20, rule of law 224, 226, 227–28, 234–35,
126–27, 143 243, 248–49, 251
rule of recognition, functions of soft governance 230–31, 238
(Hart) 81, 83, 119–21, 123 soft law 228–29
social ordering (or governance) function standard-setting 223, 224, 229–30
(presumed) 8, 13, 39–40, 99, 99–100, structural bias 232–33, 244
105, 115–21, 122, 136–38 see also transactionalism 238–39
autonomy of law global law 14, 196n6, 250 see also global
‘thin functionalism’ (Twining) 125–26 administrative law
see also ‘law jobs’ (Llewellyn) global public goods 12, 185, 211–12, 239,
248
gemeinwille 30 see also Triepel H globalisation 225–26
general principles of law 58, 61, 85 see governance function, law as fulfilling see
also sources doctrine under functionality of law
Giudice, M 110, 112–14, 117, 123n69, Green, L 113, 121
125 grundnorm see basic norm (grundnorm);
global administrative law (GAL) see also Kelsen, H
project 246–48
global governance see also international Hague Academy lectures 207
organisations Hague Conferences (1899/1907)
accountability (of international 25, 199
organisations) 12, 14, 198, 211, 220, Hall, WE 35–36
222–23, 225–57, 234, 241–42, 245, Hart, HLA see also analytical legal
250–51 philosophy; legal officials
288 Index

analytical legal philosophy, as most benefits versus risks of 13, 95,

influential approach within 66, 68, 119n56, 136
106–07 change, rules of 79–80, 82, 112,
autonomy of law 153–54 119n56
command-based approach (Austin), conduct-guidance, function of 82
rejection of 33, 49, 79 distinguished from primary
conceptual analysis 130–33, 35 rules 79–80
Concept of Law, The 99, 106–08, international law 80–81, 84, 95–97
121–22, 131, 133, 135 legal officials (use and acceptance
conduct-guidance (as function of of) 79–81, 82, 107, 112
law) 121–22 value neutrality, claimed 133–38
evaluative judgment 68, 132–36 Hegel, GWF 29–30
functional presumptions 66–68, 78–79, Henkin, L 2, 252
81–84, 95, 119–21 hierarchy see also legal system, international
functionalism versus law as
conventionalism 120–21 analytical legal philosophy (reliance upon,
hierarchy, reliance upon 81–82 presumption of) 8, 106, 113–15, 120,
internal point of view 3n11, 49n38, 126, 138
79–80, 87, 96, 108, 130, 133–35, 144, see also legal officials
217 Autonomy Thesis (reliance upon) 157,
international law 170–71
analogical reasoning, rejection domestic legal paradigm 36, 37
of 96–97 Hart, HLA (reliance upon) 81–82
constitutional deficiency of 66, 67, 75, heterarchy, in contrast to 221, 227 see
77–84, 98–100, 136 also fragmentation of international law
international lawyers, influence international law, absence of institutional
upon 67–68 hierarchy in 92–94, 162, 188, 190,
legal system, denial of 2, 66–67, 71, 243–45
78, 79 international organisations (as
primary-secondary rule distinction, creating) 12–13, 207, 209, 200, 211,
absence of 78 213–15, 218–19
primitive nature of (claimed) 2n9, 78, Kelsen, H 51
95, 99, 119n56, 134 League Covenant (Article 20) 200
reality of 3, 79 legal-systemic 71–72, 232
rule of recognition, absence of 83 social contract 182–83, 186
secondary rules 80–81, 84, 95–97 UN Charter (Article 103) 200
methodological criticisms of (Finnis Hobbes, T 33, 151, 170, 182, 189
et al) 129, 131–39 Holland, TE 35–37
open texture (‘relative indeterminacy’) of Huber, M 201
legal rules 7, 70, 83 Hudson, MO 42, 57
‘practice theory’ (of rules) 107, 129 human dignity 164, 167–69
rule of recognition 72, 79 human rights 7, 75, 192, 196, 205,
ambiguous function of 119–20 207n60, 210, 223, 230–31, 232, 236–37,
conventional nature of 108–09, 114, 238n36, 239 see also European Court of
136 Human Rights
criticism (coherence of) 107–08, 112 Hurd, I 7n37, 183n45, 185–86, 187n59,
determinacy, as providing 82–83, 95 190–91
distinguished from basic norm
(Kelsen) 79–80 ICJ see International Court of Justice (ICJ)
legal officials (use and acceptance indeterminacy
of) 79, 82–83, 95, 97, 105–27 customary international law,
passim, 143–44 ascertainment of 86, 89–91, 94–95
sources doctrine as (claimed) law-applying institutions (role
international rule of recognition 72, in countering normative
80–81, 84, 95, 97 indeterminacy) 116, 152, 160, 164,
secondary rules 168 see also under autonomy of law
adjudication, rules of 79–80, 82, 112, legal official, indeterminacy in the concept
119n56 of 113–15
 Index 289

moral indeterminacy 145, 160 accountability 12, 14, 198, 211, 220,
open texture (‘relative indeterminacy’) of 222–23, 225–57, 234, 241–42, 245,
legal rules 7, 70, 83, 86, 157 250–51
secondary rules 82–83 adjudication 198, 219, 221
soft law 228 authority 11–12, 196–97, 206, 212, 218,
sources doctrine 74, 86 220–21, 222
structural indeterminacy (of international autonomy 3, 12, 195, 205–06, 213,
law) 215–218, 221, 224–25, 227, 231, 240,
constitutional deficiency, perceived 244–45, 249 see also under global
as 8, 66, 75–77, 100, 105, 228 governance
decentralisation (as cause of) 3, 7–8, centralisation within 214, 218, 221
66–67, 73–74, 76, 100, 189, 225, collective security 41n2, 200, 202,
227–28 203n36
defence of (Koskenniemi) 76–77, 100, constitutionalisation 196–97, 200–03,
191, 249 211, 213–14, 226
institutionalisation of international law see decentralisation of international law,
under international organisations as overcoming or compensating
inter-bellum period 41–63, 200–01 for 11–12, 15, 41n2, 45, 52, 63, 98,
intergovernmental organisations see 195, 196–97, 198–99, 203, 212–13,
international organisations 218, 219
internal point of view see under Hart, HLA deformalisation of international law,
International Court of Justice (ICJ) 70, 73, contribution to see under global
94, 186, 204, 210, 219 governance
Article 38 of the ICJ (previously PCIJ) executive functions 195, 203–04, 207
Statute see under sources doctrine First World War (‘move to
customary international law 87, institutions’) 11, 195, 198
91, 93 form versus function 11, 196–97,
functionalist approach (to international 200–06, 211–12, 216, 218–21
organisations) 205–6, 210, 215–17 fragmentation of international law,
judicial review 223 contribution to see under global
International Covenant on Civil and Political governance
Rights 236n36 functional analogy or compensation 11,
International Criminal Court 233 198–99, 203–04
international criminal law 210, 239n94 functionalism 197, 201, 204–06, 210,
International Criminal Tribunal for the 216–17
former Yugoslavia (ICTY) 93 hierarchy, creation of 12–13, 200, 207,
International Financial Institutions 209, 211, 213–15, 218–19
(IFIs) 223, 230 implied powers 205
international institutional law 205–06 institutionalisation (impact upon
international institutions see under international law) 11–12, 63,
international organisations 195–221, 224, 226–27, 231–34
International Labour Organization intergovernmental character 11–12,
(ILO) 208 196–97, 211, 213–21
International Law Commission (ILC) 67, International Court of Justice (ICJ)
91, 209–10, 219 205–6, 210, 215–17
fragmentation of international law International institutional law 205–06
(study) 5–6, 71–72, 80n78, 93–94, law-making 11, 86, 91, 208, 210, 219,
231 224
legal system, international law as 5–6, law of treaties 201–02, 206, 215
71–72 legal personality 205, 210, 215–18, 227
primary-secondary rule distinction see also Reparations opinion (ICJ)
(Hart) 67, 80n76, 80n78 legislative function 201–02, 204, 207
responsibility of international legitimacy 12, 211, 220–21, 222 see also
organisations 234n69 under global governance
state responsibility 92n130, 93n135 organs of international legal system, denial
international organisations see also global of status as 11–12, 197–98, 215, 219
governance; and see specific organisations proliferation of 3, 12, 13, 63, 65, 195,
(eg League of Nations) 207
290 Index

responsibility 234 indeterminacy 7–8, 66, 74–77, 94–95,

rule of law 12, 192, 197, 199, 201, 100
202, 204, 205n49, 206, 213, 220–21, legal system, international law as 5–6,
223–34, 236, 235 71–72
sovereignty, impact upon 222, 236, 239, ‘managerial mindset’
241–42 (deformalisation) 229
structural bias see under global objectivity (legal) 54n61, 69–70, 72
governance rule of law 191, 193
ultra vires 205 Kratochwil, F 240
International Relations (discipline) 44, 46 Kumm, M 187, 243–44
International Telecommunications Union
199 Lachs, M 204
interpretivism see under Dworkin, R Lauterpacht, H 43, 45, 55–63, 68–69,
98n153, 142, 167n62, 181, 202, 204
Jellinek, G 2, 29–31, 35 law-applying institutions 115, 117–18,
Jenks, CW 204, 211 153, 157, 159–161 see also under
Jessup, P 204 adjudication;
judicial function see adjudication legal officials
jurisprudence, see under analytical legal law-ascertainment
philosophy customary international law 67,
jus ad bellum 77 85–99
jus cogens (peremptory norms) 209–10, decentralisation 74
212n85, 232, 243 dédoublement fonctionnel (‘role
splitting’) 97–99
Kammerhofer, J 87, 89 deformalisation 249
Kant, I 30, 145, 151, 168, 175, 236 indeterminacy 86, 88, 89–91, 94–95
Kelsen, H 31, 50–53, 79 judicial function 73, 94
autonomy of (international) law 50, law-creation, as distinguished from 70
52–53, 59 legal officials 79, 115, 122, 124
basic norm (grundnorm) 51–52, 73n49, rule of recognition (Hart) 72, 79, 95, 97,
79, 83 115, 122, 124
bellum justum (just war) 52, 60, 95 secondary rules 82–83, 94–95
centralisation of international law 52 sources doctrine 61, 67, 72, 86, 88
coercion 51–54, 63 ‘law jobs’ (Llewellyn) 125
content independence 51 law-making institutions, absence of 38, 74,
dynamic versus static normative 89 see also legislative function; sources of
orders 51 international law
formalism 54, 58, 60 law of nations, older tradition of 19, 39
hierarchy 51 Lawrence, T 24–25, 35–36
legal validity 51, 58 League of Nations 41n2, 42, 46, 60–61,
monism 52 195, 199, 200–203
neo-positivism 50, 57 Lefkowitz, D 89n113, 97–98, 119
objectivity (legal) 50–53 legal autonomy see under autonomy of law
primitive nature of international law 2, legal form see decentralised character of
52–53 international legal system; formalism
pure theory 44, 50–53, 60, 63 legal officials
systematicity 50–53, 79, 96n147 accountability 115
Kennedy, D 23n14, 28–29 analytical legal theory (reliance on concept
Kingsbury, B 26, 32, 246–48 of) 105–27
Klabbers, J 216n107, 240n95, 249 authoritative resolution function
Koskenniemi, M 27, 28, 49, 179–80, 116–17, 119
202–3, 230 authority 81, 112, 114–15, 143, 144,
autonomy of international law 71–72 152, 159, 161, 164
concreteness-normativity (apology-utopia) autonomy of law, as contributing to 116,
dichotomy 42, 54, 69–70, 72 122–23, 125–26, 152, 157–59, 163
formalism, culture of (‘constitutionalist circularity (in definition of) 113–14
mindset’) 191–92 functional definition, rejection of (Raz
fragmentation (ILC) 5–6, 71–72, 93–94 et al) 116–17
 Index 291

functionality of law, contribution to 95, legal system, international law as 1–2, 5–6
106, 115–20, 126–27, 143 see also under decentralised character of
identification of, problems in 110–15 international legal system; Hart, HLA
indeterminacy (in concept of) 113–15 autonomy 5–6, 19–21, 26, 27–28, 32,
international law 71–74, 77, 89, 191
absence of official-subject defects of, perceived see under
distinction 66, 109–110, 126, constitutional (or structural) deficiency,
158–59 perception of
international organisations (as organs or defence of 2, 5–6, 9, 78, 80–81, 123,
officials) 11–12, 215, 219 252–53
law-applying institutions, importance denial of (Hart) 2, 66–67, 71, 78, 79
of 108, 115, 117–18, 120, 153, fragmentation (as undermining coherence
157, 159–61 of) 224, 226, 230–33, 245
law-ascertainment function 79, 115, hierarchy 8, 71–72, 232
122, 124 indeterminacy 3, 7–8
legitimacy (of officials’ role) 161–62, institutional requirements 42, 50, 79–81,
166 119–20, 187–88 see also under legal
rule of recognition, use and acceptance officials
of 79, 82–83, 95, 97, 105–27 institutionalisation (impact upon) 12,
passim, 143–44 195–221 passim, 231, 233
secondary rules, use and acceptance International Law Commission (ILC)
of 79–81, 82, 107, 112 5–6, 71–72
social-factual nature of account of Kelsen, H 50–53, 79, 96n147
officialdom 112–13, 115–16, lex posterior 5, 73
123–24 lex specialis 5, 73, 232
states (dédoublement fonctionnel) rule of law 177, 179–80, 184, 185n51,
10–11, 95–99 191, 194
legal personality (international secondary rules 5, 73, 80–81, 95–96
organisations) 205, 210, 215–18, 227 sources doctrine (Article 38) 61–62, 73,
see also Reparations opinion (ICJ) 81, 84–99, 180
legal positivism see also Hart, HLA; legal theorist, role of
analytical legal philosophy evaluative judgment, importance of
autonomy of (international) law 26–28, 13–14, 129, 132–33, 135–36, 139,
32, 34n69, 39–40, 42, 44–47, 50–54, 140–43
69, 145–46, 153–54 participant perspective (as starting point
constitutionalist approaches (international for conceptual enquiry) 13–14,
law) 213n89 130–31, 148
Global Administrative Law legislative function 59, 60, 74, 80, 96, 113,
(GAL) 247 169, 188, 190, 201, 204, 217 see also
modern positivism (international law) 69 law-making
natural law approaches, synthesis legitimacy
with 145–46 constitutional legitimacy 25, 170–72,
neo-positivism, Hans Kelsen’s (pure 180
theory) 44, 50–53 decentralised character of international
nineteenth century (international legal system 194, 224, 239–40
law) 21–24, 26–28, 30–39 passim global governance 12, 198, 220,
command theory (Austin) 33, 35–36, 224–25, 238–40, 241, 243–44,
39 249–50
criticism, inter-bellum jurists’ 42–47, legal officials 161–62, 166
53–54, 55–57 legitimate authority of international
society, reliance upon 31–33, 35 law 166, 170–71, 179–83, 250
sovereignty 28, 30–31 Llewellyn, KN 45–46, 125
teleology, reliance upon 28, 38–39 Locke, J 170, 182
normative positivism 116n40, 145 Lotus case (PCIJ) 28n38, 42
separation thesis (distinguished from
Autonomy Thesis) 154 MacCormick, N 112, 128–29, 136–37,
social thesis 130 144–45, 169
sources thesis 6n30, 217 McNair, A 201
292 Index

Maine, HS 38–39 Perry, S 111n23, 135–36

Marmor, A 114, 117, 122–23, 125, Peters, A 243
139n39 pluralism (moral or political) 6, 12–13,
Martin, M 68n18, 116, 150, 153n14, 100, 145–46, 148, 154, 159–63, 168,
161–62 178–83, 188, 194, 239, 254
Max Planck Institute for Comparative Public Politis, N 43
Law and International Law (MPIL) 247 Poole, T 176–77
Merrills, J 94 positivism see under legal positivism
monism 29, 30, 52 Postema, GJ 130n4, 143–44, 146, 151–67,
moral autonomy 164, 168–69 170, 172
moral objectivity, question of 167, 169 Pound, R 45–46, 55
moral reasoning see under adjudication; practical association (Bull) 183
autonomy of law practical reasonableness 15, 140, 144–45,
Morgenthau, H 43n10, 45–55, 56n68, 57, 168–69
60, 63 practical viewpoint (or perspective) 140,
142–48
Nardin, T 10–11, 178–79, 189, 191–92, pre-emption see also under autonomy of law
215 Autonomy Thesis 151–52, 155–59, 162,
natural law 68–69, 110 165, 172
inter-bellum period: renaissance of natural exclusionary character of law (Raz) 116,
law (international law) 53–62 118, 162
nineteenth century (international international law (as pre-emptive restraint
law) 22–27, 33, 38n89, 42–43 on politics) 7, 9–10, 15, 43–44, 59,
synthesis with modern positivism 145 70, 73–75, 77, 99, 105, 135
Thomism (Finnis) 145 see also Aquinas, primitive, international law as 2, 3, 27,
T; Finnis, J 36–39, 78–79, 95, 99–100, 119n56,
Nicaragua case (ICJ) 91, 92n129, 93, 129, 134, 253 see also under constitutional
209n72, 217n112 (or structural) deficiency, perception of
Nippold, O 41 Prost, M 82–83
Non-Governmental Organisations
(NGOs) 208, 241 Rawls, J 179n16
Raz, J 108, 113, 116–18, 121, 131, 151,
objectivity of law see also autonomy of law; 153–54, 156n19, 157, 161–62
rule of law Reparations opinion (ICJ) 205n51,
autonomy of (international) law 32, 210n77, 215–17
44–45, 54n61, 99 Reus-Smit, C 24–25
concreteness and normativity, role-splitting see under dédoublement
requirements of (Koskenniemi) 44–45, fonctionnel (‘role splitting’)
50, 54, 69, 70, 72, 74, 77 Ross, A 110
decentralisation (as undermining) 74, Rousseau, J-J 175
77, 105 rule of law
neo-positivism, or pure theory ambiguous (contested) character 7, 147,
(Kelsen) 50–53 176, 184, 252, 254
rule of law 6–7, 175, 178, 181 autonomy of law 147–48
officialdom see legal officials functional (focal) method 140–41, 146
Olsen, HP 156, 167, 170 global governance 224, 226, 227–28,
Oppenheim, L 25–27, 31, 34–36, 38, 234–35, 243, 248–49, 251
41n2, 47, 59, 95, 182n32, 199–200 international law
organs (of international law) see under accountability 184, 191–92, 249
international organisations; legal officials autonomy 13, 148, 180, 191, 249–50
basis of association (Nardin) 179–80,
Palombella, G 147, 176n8 189–93, 254
Paulus, A 208, 226, 233, 243, 245 constitutional (or structural) deficiency
Payandeh, M 78n64, 95 (as impacting upon) 12, 65–66, 178,
peremptory norms see under jus cogens 187–88
Permanent Court of International Justice decentralised character of international
(PCIJ) 28n38, 42–43, 57n71, 60–61, legal system (as undermining) 178,
195, 199 184–88, 227–28
 Index 293

difficulties in applying concept to 147, Article 38 of the ICJ (previously PCIJ)

177–78, 185–88 Statute 61–62, 72–73, 81,
domestic analogy 176–77, 179–80, 84–86, 201
183, 189, 193–94 ascertainment of 61, 67, 72–73,
formalism 13, 178, 191–92, 193, 197, 86, 88
199, 243, 249–50, 254 autonomy of international law 72–73,
form-function tension, necessary 16 84
idealism 1, 4, 7, 15–16, 21, 24, indeterminacy 74, 86 see also under
176–77 customary international law
institutionalisation (as necessary to international organisations (impact
achieve international rule of law) upon) 224, 227
193–94, 197, 199–200, 202, 204 rule of recognition for international
legal system 177, 179–80, 191, 194 law (claimed) 72, 80–81, 84,
rival formal and instrumental 95, 97
versions 147–48, 178, 193–94, 197, systematicity of international law, as
220, 224, 234, 239, 252–54 securing 5, 61–62, 73, 81,
systematicity 191, 194 84–99, 180
international organisations 12, 192, 197, South West Africa opinion (ICJ) 70,
199, 201, 202, 204, 205n49, 206, 213, 204n43
220–21, 223–34, 236, 235 Sovereignty 59, 202
legality, requirements of (Fuller) 146, autonomy of law 10, 28–29, 62
184, 248 community interest, in opposition
legal system 7, 180n23, 184–85 to 196, 207, 211
objectivity 6–7, 175, 178, 181 enforcement of law 32–35
thinner versus thicker international organisations (as impacting
formulations 184–85 upon) 222, 236, 239, 241–42
United Nations 177n11, 184–85, 193 legal positivism (nineteenth century)
rule of recognition see under Hart, HLA; 22–23, 24, 27, 28–33, 42, 57
legal officials neo-sovereigntism 240
sovereign authority (states) 9, 11, 35,
Scelle, G 10, 56, 95–96, 98n154–55 106
Schachter, O 7, 72–74, 81 Suganami, H 176
Schmoekel, M 31
Second World War 46, 62, 63, 64, 195, Tadic case (ICTY) 93
202, 203 Tamanaha, B 112, 117–18, 120, 123–25,
secondary rules see under Hart, HLA 138, 185n52
selbstverpflichtungslehre see under auto- Tasioulas, J 4
limitation (selbstverpflichtungslehre) teleological argument 28, 38–39
theory 29–31 Thomism (Finnis) 145
Shapiro, S 109, 112–13, 128–29, 137–38 Toddington, S 156, 167, 170
Simma, B 208 Tomuschat, C 207
Simmonds, N 144, 165–66, 168, 171 Trachtman, J 243, 232n55
social contract treaties 27, 30, 245
Autonomy Thesis as social contract form versus function 60, 201–02, 204,
theory 152, 170–71 206, 214–15, 218, 220
consent 179–81 law-making (‘legislative’)
Discontinuity Thesis 179–84, treaties 199n14, 201–02
189, 239 law of treaties 80, 92n132, 209, 232n59,
domestic analogy 179–84 236, 245
hierarchy 182–83, 186 sources doctrine 85–87
Social mores (or norms) 165 Triepel, H 30–31, 35
sociological jurisprudence (inter-bellum Twining, W 124–25, 138
period) 44–46
soft law 228–29 Unger, R 153
Somek, A 10, 12, 65–66, 78, 248–49 United Nations (UN) 11, 222 see also
sources doctrine see also soft law; specific International Court of Justice (ICJ);
sources of international law (eg customary International Law Commission (ILC)
international law) accountability 223
294 Index

Charter 217–18 Vienna Settlement (1814–15) 25

Article 103 (‘supremacy clause’) 200,
203, 217–18 Waldron, J 135–36, 145–46, 169
constitution, considered as 203–04, Warbrick, C 8
213n90, 219 Watts, A 1, 186, 252–53
enforcement 212 weaknesses of international law see under
function versus legal form 196–97, 205, constitutional (or structural) deficiency,
210, 216–19 perception of
functional analogy 203–04 Weber, M 140, 229
General Assembly 91, 177n11, 208, Weiler, JHH 175n2, 229–30,
210, 219 235–41
Human Rights Committee Westlake, J 26n25, 32, 35–38, 56
236n76 White, N 216n106, 247
implied powers 205 Williams, G 3
law-making 210, 219 Wilson, President 199
legal personality 205, 210, 215–17 World Health Organization (WHO) 208,
peacekeeping 223 230
rule of law 177n11, 184–85, 193 World Trade Organization (WTO)
Security Council 185, 203, 208, 219, 223, 230, 232, 244 see also under dispute
223, 230, 233 settlement
ultra vires 205
use of force 52, 208, 217 Zimmern, A 200–201