Nature and Genesis of International Law

Abstract

The nature of international law displays a highly problematical issue in the Western legal theory. This is due to the fact that many writers, when they speak of law, think of it in terms of national or municipal law, and, consequently, judge the nature of international law by the same standards. This analysis convinced some to deny international law the definition of law since the international society lacks the three indispensable elements required for producing a rule of law; namely, the legislature, the executive and the sanction. Others endeavour to prove that the international society combines the three premises, and, thereby, the phenomena of international law could be described by rules of law of the same kind as the rules by which national law may be described. A third group, among whom is Kelsen, try to compromise by advocating a common criterion for the concept of law. “Thus, the antagonism of freedom and coercion — fundamental to social life — supplies the decisive criterion. It is the criterion of law, for law is a coercive order.” Claiming that this argument is correct, it is possible to describe so-called international law as law in the same sense as national law. Assuming that international law is law in the same sense as national law, how can we define the normative or categorical relation between the two systems ? Western writers are not agreed on this topic.