The Philosophical Poverty Of Hart’s Concept Of Law: David Hume, The International Legal System And Sovereignty As ‘Effective Control’

Abstract

This essay demonstrates that the positivist predisposition to philosophicallyimpoverish their arguments leads to inadequate and imprecise understanding of law. In contrast, by taking a whole systematic philosophical argument, in this case from David Hume, and examining it through Philosophical-Policy and Legal Design, the philosophical poverty of Hart’s concept of law can be fully illuminated. Instead of a positivist concept of law based on false classification of norms, and the denial of international law as law, the true nature of international law in the evolution of social convention, Justice-As Sovereignty and ‘effective control’ as its rule of recognition will be illuminated. The increased complexity and norm-sensitivity of Hume’s concept of law will be argued to create a greater philosophical space for the practice of international law and evidence of how Hume’s logic of concepts maps onto practice in terms of the both the Lotus case and the Isle of Palmas arbitration will be explained.