Hierarchy in International Law: A Sketch

Abstract

Geometry is the archetype of modem mind. The grid is its ruling trope ... Taxonomy, classification, inventory, catalogue and statistics are paramount strategies of modem practice. Modern mastery is the power to divide, classify and allocate - in thought, in practice, in the practice of thought and in the thought of practice. Paradoxically, it is for this reason that ambivalence is the main affliction of modernity and the most worrying of its concerns.' Legal reason is a hierarchical form of reason, establishing relationships of inferiority and superiority between units and levels of legal discourse.2 Sometimes law's hierarchical character is elaborated as an essential aspect thereof. Classical and modem naturalisms, for instance, often conceptualize the law in terms of systemic derivations that assume the existence of relationships of entailment between normative units and levels. St Thomas Aquinas posits a many-layered structure of behavioural norms deriving from other norms, existing at progressively higher hierarchical levels.3 The naturalism of an argument in this respect (i.e., in respect of superior norms), however, is not dependent on its being an explicit part of naturalist theory. The concept of 'fundamental' , used in human rights law, as well as the ideas of jus cogens or imperative norms and rules valid in an erga omnes way each presuppose relationships of normative hierarchy that implicate some form of moral naturalism.4