Peaks and valleys: Contemplating the authority of international law

Abstract

International law claims the authority to guide conduct of states and other actors. This idea, although it is truistic, cannot be fully accounted for from the standard jurisprudential view of authority. In this standard jurisprudential view, the authority of law is typically described through three interrelated theses: the agency thesis (authority is a role or function of a person, natural or legal), the identity thesis (authorities play the critical role in identifying the law), and the hierarchy thesis (authority is a relation of subordination). None of these theses fully apply to international law, especially to treaties and customary international law. The standard account assumes the image of authority of law as necessarily involving institutional mediation, with courts, governmental bodies, parliament, etc. (the authorities). International law, although it has some institutional mediation, is still predominantly horizontal. Consequently, the normative landscape of international law has both peaks (various institutional arrangements) and valleys (horizontal and institutionally unmediated customary and treaty norms). This contribution suggests, building upon Joseph Raz's influential account of authority, that authority of international law does not necessarily involve the institutional mediation. This unmediated structure of authority still performs the key normative function, that of pre-emption. Both mediated and unmediated structures of authority exist to pre-empt practical reasons, but they achieve this result in different ways. While in the mediated structure the pre-emption is achieved primarily through delegation of practical deliberations, in international law and its unmediated authoritative structure such delegation rarely occurs. As a result, low-lying valleys of customary and treaty norms have a more fluctuating pre-emptive capacity, and so their authority is uneven.