Abstract
AbstractSome scholars assume that the content and validity of international legal norms turns upon the existence of convergent attitudes and behaviors of state representatives and other ‘international legal officials’. By converging upon the criteria for what counts as a ‘formal source’ of international law and what does not, such officials provide a ‘rule of recognition’ in relation to which the normative content of the international legal system is determined. In this Article I present two theoretical problems with this view, arguing that, depending on exactly what role this rule is intended to fulfil within international legal theory, it is either metaphysically insupportable or fundamentally at odds with the disagreements that persist in relation to the formal sources of international law. Both problems risk undermining the rationality of international legal argumentation and that any reliance upon the existence of an international rule of recognition should be eschewed as a result.
Highlights
By converging upon the criteria for what counts as a ‘formal source’ of international law and what does not, such officials provide a ‘rule of recognition’ in relation to which the normative content of the international legal system is determined
In this Article I present two theoretical problems with this view, arguing that, depending on exactly what role this rule is intended to fulfil within international legal theory, it is either metaphysically insupportable or fundamentally at odds with the disagreements that persist in relation to the formal sources of international law
Both problems risk undermining the rationality of international legal argumentation and that any reliance upon the existence of an international rule of recognition should be eschewed as a result
Summary
The formal sources of international law, which impart both legal validity and prescriptive content upon its constitutive norms, are often explained through contrast with its material sources. The judicial decisions and writings listed in subsection 1(d)—referred to there as subsidiary sources—are not generally considered to be sources of law themselves but rather means through which the content of legal standards can be clarified.[24] Outside the sources listed in Article 38, the unilateral commitments of governments are considered by some scholars to count, either as an independent source of international obligations, or as inchoate treaties,[25] whilst the writings of bodies such as the International Law Commission (ILC) and the International Committee of the Red Cross (ICRC) are held by some to be additional subsidiary sources.[26] To streamline the analysis that follows, I will assume from this point on that only the social facts implicit in subsections 1(a) to 1(c) of Article 38 count as formal sources of international law These include: The text of treaty documents, along with any relevant reservations; the behavior and statements of state representatives that suggest the existence of customary norms; and any textual or behavioral evidence of generally recognized legal principles that are neither customary nor treaty-based. In the following subsection I describe Hart’s approach and show it to be active within a significant volume of international legal scholarship
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