The Concept of International Institution Situated Within the Framework of Obligation and the Framework of Authorization

Abstract

The theory of law developed by Finnis formulates a circular relationship between rules and institutions in the sense that rules determine institutions which, in turn, determine rules. When situated within the framework of obligation, this circular relationship between rules and institutions is problematic, because the hierarchical, vertical structure of which the framework of obligation partakes, only allows unidirectional causality; if, on a higher level, rules determine institutions, it cannot simultaneously be admitted that institutions determine rules, unless these rules are situated at a lower level than the institution. In that hypothesis, however, a differentiation is made between higher level and lower level rules. When situated within the reformulated framework, this circular relationship between rules and institutions does not present a problem because, from that perspective, both rules and institutions are regarded as elements of the constituting of international society by the members of international society. Within the reformulated framework, the constituting of international society by the members of international society is seen in the first instance as giving rise to rules of public international law, which, since they address the dilemma situation of the members of international society of having a power to act, are both enabling and disabling. To the extent that the constituting of international society by the members of international society acquires a more durable form, these rules of public international law may transform into international institutions. From this angle, international institutions may be said to participate in the constituting of international society by the members of international society in the form of producing rules of public international law. These rules of public international law may be said to represent the common good of international society.