The purpose of this thesis is to explore two legal theorists' conceptions of law and judgment and then to use these conceptions to analyze which conception is better. illuminates the nature of international law. Hart's theory of international law culminates in seeing international law as definite law, but an underdeveloped form of it. His theory better explains how international law is justified in its normative goals through the principle of salience, and further provides a future, developed vision for international law that would enable it to achieve a more effective place in international society.
INTRODUCTION
Hart also has an interesting section at the end of his The Concept of Law simply called. This is obviously different from Hart's theory because Dworkin's conception of law relies on moral principles to identify law. The importance of this analysis is that these legal opinions can be applied to actual international statutes.
ANALYSIS OF HART’S LEGAL POSITIVISM
Austin's model further distorts the rules of conferring (secondary) power that are obviously present in a legal system (see below). Hart further departs from Austin in that he distinguishes between an "outsider" and an "insider."6 The outsider's perspective is shared by someone who is not bound by the rules of law and sees them simply as an exercise of force. . The insider's view is shared by someone who is rule-driven and accepts the rules as standards of behavior.
LAW AS PRIMARY AND SECONDARY RULES
The rule of recognition is necessary because there must be some authoritative way of identifying laws. The rule of recognition cannot be valid or invalid because it is a judicial custom according to which judges identify the law. In the United States, the rule of recognition might be: 'Whatever bill the president signs is law'.
LAW AND MORALITY
According to "natural law", it also follows that "law" which is immoral is deficient as law, and thus is not a central case of a legal system. This statement confirms his view that there is certainly a contingent relationship between law and morality, but morality is not a necessary, inherent part of law. A union of primary and secondary rules is law, regardless of its moral qualities; Nazi law is law, that is, if it meets the formal criteria of law (ie, if there is a valid rule of recognition that judges use to decide cases and the system is efficient).
IS INTERNATIONAL LAW LAW?
- ON THE RULES OF INTERNATIONAL LAW: TRUE, BINDING
- ON THE SUBJECTS OF INTERNATIONAL LAW: STATE
- INTERNATIONAL LAW: FORM AND
- ANALYSIS OF DWORKIN’S
Hart sees this as one of the most important objections to the binding force of international law. Thus, Hart argues that these international states have also consented to the authority of international law. The rules of international law are sufficiently binding and effective in creating limited obligations, so that an objection fails.
Therefore, international law is less a legal system (law is systematic if it is united by a rule of recognition) and more a set of rules. However, what remains to be analyzed is whether Hart's positivist conception of law is the one that best explains how international law works and how.
LAW AS INTEGRITY
Both of these points are at the core of law as integrity, which I will discuss below. Law as integrity, on the other hand, claims that people have a right to consistency in principle with past political and legal decisions. Law as integrity "insists that the law - the rights and duties derived from past collective decisions and therefore.
Hercules evaluates the next three, arguing that "law as integrity ... requires a judge to test his [or her] interpretation of every part of his [or her] vast network of political structures and decisions. Law as integrity is dependent of the concept of the community personified to recognize that the community as a moral agent stands behind the concept of integrity.His answer is that law as integrity gives us the best answer (through past legal decisions and moral principles), far better than conventionalism or pragmatism.
A judge operating under law as integrity, on the other hand, takes into account the existing legal practice and tries to interpret (not invent) the law in order to make a decision based on most of it. attractive moral principle, to determine what the rights and duties of the parties were and are in that case. The next question then is the following: does law as integrity relate to Dworkin's argument that a true conception of law justifies coercion. Dworkin argues that a state that recognizes law as integrity has a much better case for legitimacy than one that does not.86.
According to the law as integrity, propositions of law are true if they figure in or follow from the principles of fairness, justice and procedural due process that provide the best constructive interpretation of society's legal practice”;91 it is clear that the law as integrity is a unique conception of law , and is definitely different from Hart's law as primary and secondary rules.
RIGHT ANSWER THESIS
As seen earlier, Hercules chooses the best and most attractive principle that applies to that case so that the case can best fit the legal practice and be the best it can be. Law as integrity therefore ends in the consequence that in difficult cases there really is no law....95 Dworkin's answer to this objection is perhaps even more interesting than his original conception of law. In Law's Empire and also in his Objectivity and Truth: You'd Better Believe It, Dworkin argues that there is a right answer in almost every case.
Dworkin distinguishes external from internal skepticism in Chapter 2 of Law's Empire, where external skepticism can be understood as outside a practice, either. Internal skepticism, on the other hand, applies the standards of practice and says that practice cannot yield real answers. External skepticism is not an interpretive or moral position, but rather is a metaphysical theory96 that asserts that there are no fundamental moral principles out there in the universe that can be proven, and thus there is no reason to believe in objective moral truth. not to believe.
Dworkin argues that the point of external skepticism, that there are no tangible moral principles out there in the universe, is meaningless. If pressed, Dworkin writes, his theory must claim that the moral opinions are true, and that this has strong consequences.100 One of these consequences, of course, is that there is one right answer that can be reached if the trial in question interpreted correctly. Or is it more realistic to say that there is simply no right answer?”101 This does not mean that everyone who interprets the law will arrive at the same answer, or if they did, it would be based on the same reasoning.
This view accurately captures Dworkin's astonishing belief that there is a correct interpretive answer to virtually every legal question, and that a judge could always arrive at it given enough time.
RESPONSE TO HART
ANALYSIS OF INTERNATIONAL LAW
At this point in this project I have the two legal views of H.L.A. Hart and Ronald Dworkin, in order to evaluate from each perspective whether international law is law at all, and, if so, how and to what extent. In the section on Hart, the author covered international law so well that I think his opinions on how his conception of law relates to international law are best left in that section, and I will refer to his arguments rather than repeat them here to summarize.
Remember how I addressed the concern that Hart's theory does not address the bulk of international law, which concerns the enforcement of determinate moral principles against cruelty and human rights. It seems that his theory, by accepting these as established rules of international law, accepts that some things are illegal under international law because they are wrong in a moral sense. This comes dangerously close to his theory (as Dworkin claims) being an underdeveloped form of law as integrity, because he seems to believe that certain norms of international law are law because of their moral quality rather than a rule of recognition that identifies them as such.
I will begin by discussing the sources of international law as set out in Article 38(1) and (2) of the Statute of the International Court of Justice. In this discussion I will use Dworkin's theory to investigate whether international law is the right law, and how and to what extent international law can be understood as law at all. These four sources of international law explain what international law is in relation to any case or decision.
This appendix is interesting because it addresses the question of state agreement and consensus, which Dworkin argues cannot be the true basis for the force of international law in the following pages.
DWORKIN ON INTERNATIONAL LAW
CONCLUSION
The Security Council shall determine the existence of any threat to the peace, breach of the peace or act of aggression and shall make recommendations, or decide what to do. Such interim measures shall not affect the rights, claims or position of the parties involved. Such actions may include demonstrations, blockades and other operations by air, sea or land forces of members of the United Nations.
The agreement or agreements will be negotiated as soon as possible on the initiative of the Security Council. Plans for the application of armed force will be made by the Security Council with the assistance of the Military Personnel Committee. The Military Personnel Committee shall consist of the chiefs of staff of the permanent members of the Security Council or their representatives.
The Military Staff Committee is responsible under the Security Council for the strategic direction of all armed forces placed at the disposal of the Security Council. The Military Staff Committee may, with the consent of the Security Council and after consultation with the competent regional authorities, establish regional subcommittees. Such decisions shall be implemented directly by the Members of the United Nations and through their actions in the competent international organizations of which they are members.
The Members of the United Nations shall cooperate in providing mutual assistance in the implementation of the measures decided upon by the Security Council.
