Hart what is law

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In the following I will therefore analyse whether at the beginning of the 21st century the international legal system contains structures of law-making, adjudication, and law-enforcement which distinguish it from a simple social system and which help overcome the defects of such a primitive system.

In light of these considerations, are Hart's objections against the existence of international legislation sustained? Or does the international legal order consist of secondary rules of change? He rather stipulates that international law resembles in form a simple regime of primary law or custom, and that some theorists have minimized the formal differences and exaggerated the analogies between international law-making and municipal legislation.

For Hart legislation necessarily contains a vertical element of subordination between the legislator and the persons or entities governed by the law. At first sight international law does not seem to contain such law-making mechanisms comparable to those of the domestic legal system. International treaties are regularly adopted by majority vote or by consensus without a formal vote.

But they challenge the idea of the treaty-making process as solely dominated by the will of sovereign states. Hart uses the notion of custom as a contrast to the more flexible and sophisticated process of legislation in a modern municipal legal system. With regard to the contemporary understanding of customary international law, this antagonism has to be relativized.

International practice has incrementally softened the two constitutive elements of customary international law: general practice of states and opinio juris. According to the ICJ state practice over a short period of time may be sufficient if the conduct of states is in general consistent. The identification of a norm of customary international law is a highly subjective and often result-oriented process. A further development which Hart could hardly have foreseen is the emerging law-making activity of international organizations.

Insofar as international organizations are capable of adopting legally binding decisions they can be understood as first occurrences of a centralized international legislature. But although it is generally recognized that the General Assembly contributes to the development of international law in manifold ways, its resolutions are not formally binding.

Legislative elements can be found in the creation of the ad hoc tribunals for the former Yugoslavia and for Rwanda. Another development which calls into question Hart's assessment of the international legal order lacking legislative structures is the incremental rise of importance of peremptory norms of international law jus cogens. At the core of this concept — which was for the first time formally recognized as part of international law in Article 53 of the Vienna Convention on the Law of Treaties — lies the insight that some rules of international law incorporate values and interests so fundamental to the international community that they have to be kept from the disposal of individual states.

The dissent of individual states is therefore no obstacle in the development of a peremptory norm. It is, however, a mechanism of the international community — albeit of rather limited practical relevance — normatively to incorporate and entrench fundamental community values in international law. In conclusion, the international legal order encompasses mechanisms of law-making which transcend the image of a primitive social order as painted by Hart.

While it lacks a comprehensive centralized legislature comparable to the legislative branch of government in a municipal system, it consists of manifold instruments to translate community values into binding community rules. This system is far from perfect and cannot in every case avoid factional interests obstructing legislation in the interest of the international community. Yet, it is far more sophisticated than Hart suggests. The fact that no state can be brought before an international court or tribunal against its will is reason enough for Hart to dismiss any insinuation that international law consists of a system of adjudication.

The international legal order does not comprise an international judiciary with comprehensive and compulsory jurisdiction. However, the comparison loses its persuasive force if it is extended to public and constitutional law within the municipal legal order. Municipal legal orders do not generally contain comprehensive mechanisms of adjudication with regard to the rights and duties of public officials and bodies of government.

And again, an evaluation of the structure of international adjudication has to be seen in light of the specific function Hart ascribes to adjudication. For Hart the introduction of secondary rules of adjudication is necessary to overcome the problem of inefficiency. Primitive social systems do not contain mechanisms authoritatively to determine whether a primary rule has been violated.

To remedy this defect, rules of adjudication identify persons or bodies which authoritatively determine violations of primary rules and stipulate procedures for the identification of such violations. Its jurisdiction is limited to disputes between states and requires the consent of the states which are parties to the dispute.

The international judiciary consists of a multitude of courts and tribunals with specialized jurisdiction, at both the universal and the regional level. Nevertheless, they constitute remarkable progress which could not have been possible even a few decades ago. International law is no longer characterized by an absolute absence of adjudication.

Violations of the law can be determined authoritatively in an ever increasing number of cases. Does this suffice for rules of adjudication in the sense of Hart? It certainly does not if the evaluation of international adjudication is based on a comparison with domestic criminal and private law.

In a domestic legal system the rules of adjudication identify the persons who are to adjudicate and the procedure to be followed. However, the same is true for the realm of national constitutional law. Constitutional courts are usually courts of limited jurisdiction.

Not every case that arises under constitutional law can be adjudicated in a judicial forum. The constitutional system of the United States, for example, does not provide for a general procedure in which disputes between the branches of government could be solved. Even if such cases reach the US Supreme Court the political question doctrine will prevent an authoritative judicial decision. In Goldwater v. Carter , for example, the Supreme Court declined to decide a dispute between the Senate and President Carter with regard to the rescission of a treaty, declaring it to be a political question.

Against this background international law — just like constitutional law — cannot be expected to offer a comprehensive system of adjudication comparable to municipal private and criminal law regimes.

However, this does not necessarily make it a primitive system with regard to adjudication. While international law has, for a long time, tried to emulate domestic legal systems, it becomes incrementally clear that the differences between the international and the national social orders pose limits to such an approach. The international social order is, by its very nature, much more diffuse than a national community.

The relevant international actors and subjects differ significantly in size, power, interests, and internal structure. The diffuse international order is characterized by fragmentation and pluralism. According to Hart, the problem of inefficiency is mitigated further by the centralization of social pressure. In a more sophisticated legal system the primary rules prohibit or limit the use of force and self-help by private actors.

In exchange the system introduces additional secondary rules of adjudication which specify or limit possible penalties for the violation of primary rules and which direct the application of penalties by public officials.

Among the most important accomplishments of modern international law is the absolute prohibition of the use of force laid down in Article 2 4 of the UN Charter and recognized as customary international law and even part of peremptory international law jus cogens. However, international law encompasses only an embryonic system of centralized sanctions.

As a result, the practice of the Security Council is characterized by a tendency of decentralization. Instead of directing the use of force itself, the Security Council authorizes the use of force by individual states or groups of states, as in the case of military action against Iraq following the invasion of Kuwait in The development of international law does therefore not fully follow the evolution of a centralized system of sanctions within the municipal system.

While in the municipal system — following the philosophical insights of Thomas Hobbes and Jean Bodin — the enforcement of the primary rules is, for the most part, monopolized in the state and its representatives, international law is characterized by a diffusion of enforcement mechanisms.

The system still relies on self-help. States are primarily responsible for enforcing the obligations that other states owe to them. All states are to cooperate to bring serious breaches of norms which incorporate community values to an end; and all states are prohibited from recognizing as lawful a situation created by such a serious breach and from rendering aid or assistance in maintaining such a situation.

Just as in the case of judicial adjudication, law enforcement in international law does not follow the municipal model of centralization.

Again this departure of international law from the municipal model can be explained by the different social structure of the international system which limits the prospects of success of a more centralized system of sanctions and suggests a more diffuse exercise of social pressure.

The rule of recognition lies at the core of Hart's concept of law. Hart develops it as a response to the deficit of a simple society which has a set but not a system of social rules. Disputes about the rules can therefore not be settled by reference to an authoritative text or a person who could authoritatively declare a rule to be valid.

This uncertainty could be solved only by introducing a rule of recognition, a rule which determines which rules are binding. Hart rejects the proposition that international law consists of a unifying rule of recognition.

Hart sees a first indication of the lack of an international rule of recognition in the problems international lawyers have in formulating such a rule. The pacta sunt servanda principle could not be the rule of recognition because not all international obligations arise from treaties or agreements. Legal scholars have the same problems formulating a rule of recognition for a specific municipal legal system as they have for the international system.

The core function of the rule of recognition in Hart's concept of law is to identify criteria for the validity of primary rules and to provide criteria for governing the relationship between different sources of law.

Article 38 1 of the ICJ Statute lists, in a declaratory manner, the generally recognized sources of international law: international treaties, customary international law, and general principles of law. Hart also recognizes that the municipal legal order can consist of multiple sources of law — for example statutes, customary law, and judicial precedents.

In the United States, common law coexists with statutory law. Neither should the recognition of sources other than those listed in Article 38 1 of the ICJ Statute be considered problematic. Legislation by an international organization, for example, can be recognized as deriving its legitimacy from the constituent treaty of that international organization, therefore from a recognized source of international law.

In a municipal legal system similar forms of derivative law-making exist, for example with regard to ordinances which derive their legal validity from statutes. According to Hart, a new law-making mechanism is incorporated by the rule of recognition if it is generally accepted in society.

A possible objection to a rule of recognition in international law could be that the international legal order does not contain a written constitution which provides general criteria of validity for the rules of international law.

Hart himself does not require the rule of recognition to be written. Furthermore, written constitutions usually do not provide for an exhaustive list of the sources of primary rules. While Article I of the US Constitution, for example, provides for the enactment of statutes, it does not contain any provisions with regard to customary law or judicial precedents as sources of law.

A further source of doubt with regard to an international rule of recognition could be seen in the indeterminate character of the sources of international law. While there is little dispute about the criteria of validity for international treaties, the requirements for the emergence of customary international law are characterized by severe incertitude. Even in municipal constitutional systems which codify the process of statutory law-making disputes about the rules of the law-making process persist.

And even the most fundamental questions of law-making are not fully settled. Under the US Constitution, for example, it is still debated whether amendments outside the procedure laid down in Article V are possible. The comparable level of uncertainty with regard to criteria for the validity of primary rules becomes even more obvious when the analysis is extended to the interpretation of the primary rules.

Martti Koskenniemi has famously argued that the existence of different patterns of argument in international law leads to an incoherence in methodology which challenges the objectivity of international law. Regardless of how persuasive this criticism against the existence of a rule of recognition is, it would be no less an argument against the existence of a rule of recognition within the municipal legal system.

Within the United States, for example, there are no generally recognized rules or modalities of interpreting the Constitution or statutes. These uncertainties are no more pressing in international law than they are in municipal legal systems. It might be argued that the lack of an authoritative interpreter in international law constitutes a structural difference when compared with the municipal legal system.

But on the one hand, the jurisprudence of the ICJ has contributed to the identification and clarification of a number of important rules in international law, and its decisions are generally considered to have a high degree of authority. And on the other hand, municipal legal systems also do not clearly establish an authoritative interpreter of statutes or the constitution. But structurally similar problems arise within municipal legal systems.

It is therefore not convincing to deny the existence of a rule of recognition in international law on the basis of the lack of certainty such a rule can provide within the international legal order. The second function of the rule of recognition is to govern the relationship between the different sources of law.

However, while the report emphasizes that normative conflicts are endemic to the unhierarchical and decentralized nature of international law, it also highlights the function of interpretative mechanisms in mitigating the consequences of the fragmentation of international law.

Although there is no formal hierarchy of the sources of international law, normative order is maintained by conflict rules such as lex specialis derogat legi generali and lex posterior derogat legi priori. These secondary rules of international law may not be able to prevent or solve every rule conflict in a general way, but they significantly decrease the negative consequences of the diffuse and decentralized nature of international law.

And again, it may be emphasized that national law exhibits comparable developments which undermine its internal coherence. Nevertheless, the status of international treaties within the domestic legal order is open to doubt. While according to the US Supreme Court treaties share the same rank as federal statutes, scholars have argued both for a higher as well as for a lower rank of treaties.

Finally, Hart's conclusion that international law is law but does not constitute a legal system is problematic in light of Hart's understanding of the two concepts. In Chapter V he describes law — and not a legal system — as the union of primary and secondary rules. Hart sees the existence of secondary rules as a luxury which is necessary for the existence of a legal system but not for characterizing a set of social rules as law.

While in a primitive society the validity of primary rules depends on their social acceptance, the rule of recognition in a legal system can account for the legal validity of primary rules even if they are not comprehensively practised by society. However, such an approach would give only an incomplete account of international law, a system which consists of some norms which are practised never or at least not over a considerable period of time.

Article 94 2 of the UN Charter which grants the Security Council the authority to decide upon measures to enforce judgments of the ICJ has hardly been used in practice. It is doubtful whether states accept and practise their obligation to prevent and punish the crime of genocide under Article I of the Genocide Convention. International legal practice, however, does not reflect such doubts. Legal norms are considered normatively valid when they come into being in the generally recognized procedures according to Article 38 1 of the ICJ Statute.

Whether they are subsequently implemented or adhered to is a question which is not considered to have an influence on the normativity or legal validity of norms. Following Hart's general concept of law, only a characterization of international law as a legal system, consisting of secondary rules of recognition, change, and adjudication, does justice to international law as it presents itself as a normative order in practice and scholarship.

Hart claimed that international law could not be regarded as a legal system because of the differences in form between municipal law and international law, due to the lack of an international legislature, judiciary, and centralized system of sanctions, and the absence of a uniform rule of recognition. This claim of Hart has to be challenged. His methodological approach does not imply the consequence that a legal system has closely to resemble a municipal legal order in form and structure.

And even if Hart's assumption is accepted, he presents only an incomplete account of the municipal legal order. If Hart's analysis is extended to the sphere of public law, and in particular constitutional law, the divide between municipal law and international law does not seem as antagonistic as Hart's different characterization of municipal law as a legal system and international law as a mere set of primary rules suggests.

Applying Hart's concept to international law with these shortcomings of Hart's theory in mind, secondary rules of recognition, change, and adjudication can be identified in international law.

However, international law is, to a larger extent than municipal law, characterized by unhierarchical structures and a fragmentation of legal regimes. This plurality of international law should be viewed not only as a defect but as an endemic feature of international law as a legal system. A jurisprudence which chooses the municipal legal system as the sole baseline and point of reference for an evaluation of international law will necessarily misconceive these characteristics and regard them as pathologies.

International law has deficits which challenge its efficiency and significance as a social rule system with the function of governing the conduct of states and state officials and of containing the use of force and power in international relations. These deficits are openly visible and, in the case of blatant violations of fundamental community values and displays of power by individual states, frustrate international lawyers and external beholders of the system alike.

However, structurally comparable deficits exist within municipal legal orders, to a varying degree and with varying intensity.

The differences between the two legal orders justify a conceptual distinction. But they do not challenge the notion that the international order is founded on an international legal system, just as the national polity is governed by a municipal legal system.

Shapiro for valuable comments on earlier drafts of this article. Hart, The Concept of Law 2nd edn, Hart, Essays in Jurisprudence and Philosophy , at — Ripstein ed. Kramer et al. However, insofar as legal realism is based on political realism, it tends to deny or diminish the legal status of international law. Political realism is the view of international relations according to which these are ruled only by governments or State interest, and such interests are fundamentally derived from a will of absolute power.

So that for political realism international the law can only be a device for acquiring or maintaining State power, and never for submitting such power to an equitable rule of law. It is, in short, condemned to sway back and forth between — to use a more recent, fortunate expression — apology and utopia.

For the former, international law was something behind which lurks Carl Schmitt's Grossraumordnung , imperial hegemony. As a matter of fact, Kelsen was one of the greatest international lawyers of his time and has published extensively on the subject. I would like to remember his gigantic treatise on the United Nations of nearly a thousand pages.

Kelsen was also heavily involved in the legal preliminaries to the Nuremberg trials whose actual proceedings, however, he criticised. Following Kelsen there are no conceptual difficulties in considering international law as a complete form of law. We might remember that according to him rules are legal, are law, only if they deal on sanctions.

Now, one of the arguments against the legal character of international law is that there are no proper international law sanctions. Kelsen objects to such view. International law — he says — provides for a specific form of sanctions. This is war. Please, note that war here is legal, in so far as it is the reaction to a break of international law. Now, an important implication of such view is that a pre-emptive or anticipatory war, that is, a military intervention prior to an open violation of international law, would be unlawful.

Dualism purports that international law and municipal law are both law, but that they are not related the one with the other. Each law is valid in its own domain, and there are no relations of supremacy in one sense or the other between the two. This is, for instance, the stance taken by the Italian Constitutional Court, when dealing with the alleged supremacy of European Community law.

Monism by contrast affirms that one of two kinds of law prevails over the other, in the sense that the validity of the one is derived or inferred from the validity of the other. As is well known, there are two kind of monism: statist monism , affirming that international law is just a derivation of municipal law, or — as the German philosopher Hegel said — "external municipal law"; international monism on the contrary believes that national law is somehow subordinate to international law.

The latter position, international monism, is — we know — the one taken by Kelsen. The lowest legal layer is given by judicial decisions; a higher level is the one of legislation authorizing judicial discretion; a still higher level is the constitution setting the tules for law-making. Now, higher than the constitutional level in the legal order pyramid is the international law layer. The constitution — according to what Kelsen says at least in some of his works — draws its validity from international law rules, in particular from the master rule of international law which is given by the so-called principle of effectiveness.

The principle of effectiveness prescribes one to consider an effective State as a subject of international law, that is a fully valid legal order. Kelsen's doctrine, therefore, not only recognizes the fully legal character of international law, but in addition makes the cornerstone of the entire positive legal order of such a law. For some theories, international relations are very like the state of nature where human beings live before entering in a civil state ruled by law.

In the natural state subjects strive, fight, for survival and are ruled only by one principle: the preservation of life and, therefore, self-defence. Such is — as is well known — the view held by Thomas Hobbes or Baruch Spinoza.

Jean-Jacques Rousseau is not very far from assuming a similar stance. For this second kind of natural law doctrines, then, there could not be any real doubt about the binding, fully legal character of international law.

At first Hart seems to assume an anti-sceptical attitude, by refusing the dogma of sovereignty. One of the most persistent sources of perplexity about the obligatory character of international law — he writes in chapter ten of The Concept of Law — has been the difficulty felt in accepting or explaining the fact that a state which is sovereign may also be "bound" by, or have an obligation under, international law. This form of scepticism is, in a sense, more extreme than the objection that international law is not binding because it lacks sanctions.

In fact. The question for municipal law is: what is the extent of the supreme legislative authority recognized in this system? For international law it is: what is he maximum area of autonomy which the rules allow to states? We should rather focus directly on the phenomenon which we would like to assess without prejudices of any sort.

Such was, for instance, the doctrine defended by the Austrian scholar Georg Jellinek, actually one of Kelsen's teachers. Against the idea of international law as a product of States' self-limitation Hart presents three arguments. These theories — he writes — fail completely to explain how it is known that states 'can' only be bound by self-imposed obligations, or why this view of their sovereignty should be accepted, in advance of any examination of the actual character of international law.

The state acquiring territory or some other change, which brings with it, for the first time, the incidence of obligations under rules which previously it had no opportunity either to observe or break, and to which it had no occasion to give or withhold consent. Hart thus intends to object against both natural law doctrines and especially against John Austin's view of international law in terms of "positive morality".

Morality's sanction is appeal to the individual conscience, leading to feelings of guilt or shame. The same does not apply to international law. A more important ground of distinction is the following. The rules of intyernational law, like those of municipal law, are quite indifferent.

A rule may exist because it is convenient or necessary to have some clear fixed rule about the subjects with which it is concerned, but not because any moral importance is attached to the particular rule. There is — he says — no moral obligation from which we could simply infer international law. Moral obligation does not lay at the root of international law. However, Hart's conclusions do not take this direction.

There is no permanent compulsory jurisdiction in international law — points out Hart. Therefore, we cannot affirm that there is anything close to rules of adjudication concerning international law. There is not any permanent law-making body either.

Accordingly there cannot be any rule of change. Finally, since we do not find any well established body of fundamental international legal rules, we should also conclude that there is no international rule of recognition. A mature system of law — says Hart — is one structured along a functional hierarchy of rules. Otherwise, we will have to deal with under-developed, primitive legal phenomena, which do not even deserve to be qualified as "systems".

They are only static "sets" of rules, without any clear coordination and hierarchy and with a very law degree of determinacy. Such primary and secondary rules to be valid are only to be accepted without necessity of recurring to a reflexive standard such as the rule of recognition. In the simpler form of society we must wait and see whether a rule gets accepted as a rule or not; in a system with a basic rule of recognition we can say before a rule is actually made, that it will be valid if it conforms to the requirements of the rule of recognition.

We could further wonder whether such problem is solved once it is transposed at the level of the "rule of recognition", which — according to Hart — can only be used but cannot be identified from the internal point of view, so that that the existence of the rule of recognition can only be a question for the external point of view.

Is then John Bolton, U. Sub-Secretary of State for arms control eventually right? In particular, Hart tries to include in the legal domain, in addition to rules, principles as well. He thus affirms that the rule of recognition can consist of or contain moral principles. I cannot enter here into the subtle controversy connected with this point. I would only draw your attention to the fact that, once the rule of recognition consists of principles, one of Hart's main objections against the full legality of international law should be dropped, that is, that there are no rules building up an international rule of recognition.

This now however — once one accepts that the rule of recognition can consist also of principles and not merely of rules — could be offered by moral principles. As a matter of fact, the supreme rule of validity, actually the rule of recognition, of international law is said by doctrine to be given by two basic principles : consuetudo est servanda one ought to follow customary rules ; and pacta sunt servanda agreements are to be followed.

Then, there is perhaps still hope for international law. Traditionally the law is conceived as a hierarchical experience. This mainly happens in two ways. He thus reintroduces a sharp hierarchy between officials as superiors and citizens as inferiors. Whether he does so successfully or not I have tried to question in this paper.

With an introduction by H. Herbert L. Totowa, N. Kenneth I. Oxford: Hart Publishing. Italics are the author's. Italics are in the text. Italics are mine. Germaneto Caranzaro Italy. Site map — Subscriptions — Publisher — Syndication.

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Full text PDF k Send by e-mail. To illustrate this view, please, allow me to read an excerpt from Mary Wollstonecraft book A Short Residence in Sweden, Norway, and Denmark : My head turned round, my heart grew sick, as I regarded visages deformed by vice; and listened to accounts of chicanery that were continually embroiling the ignorant. Fuller, thinks of the legal profession: 1 Winston — The best definition I ever heard of a lawyer was that given by the young daughter of a friend of mine.

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