Charlotte Ku and Paul F. Diehl noticed that at first sight, ‘International' and ‘Law' sound contradictory: “how can one imagine a structured and developed legal system functioning in a political environment that is diffused, disparated, unregulated and conventionally described as anarchic?” Indeed, the ‘instinctive' breaking down of the term tends to confirm that. In modern Western democracies, law is seen as a ‘set' of legislatures, police and courts which create law, enforce it and punish those who violate it whereas ‘International' is associated with the United Nations, the global level and economic, cultural and political differences. Is this impression of incompatibility justified? Can it be overcome? Considering “the extent to which international law (IL) is law, or ‘really law' or ‘law properly-so-called'” requires, firstly, defining what is meant by international law, law, ‘really law' and ‘law properly-so-called'. Secondly, it calls for attempts to relate these terms to each other. Both stages entail a critical analysis of some prejudices and surface discrepancies. This is the purpose of this essay.
[...] Indeed, deciding on the extent to which IL is law or ‘really law' or properly so-called' leads us to the observation that the evolution of IL challenges the consensus on the very concept of law. I. Positivist Views on International Law: Rise and Fall of the Predominant Paradigm From Bentham's Introduction to the Principles of Morals and Legislation to H.L.A. Hart's The Concept of Law Late 18th century early 19th century: the emergence of the concept of International Law by Blackstone, Bentham and Story Our starting point will be Lord William Blackstone's work[2]. [...]
[...] Consider the extent to which international law is law, or ‘really law' or properly so-called' with reference to legal and other theorists Table of Contents Introduction I. Positivist Views on International Law: The Rise and Fall of the Predominant Paradigm From Bentham's Introduction to the Principles of Morals and Legislation to H.L.A. Hart's The Concept of Law The Consequences of Modernity on International law: the increasing haziness of the discipline in theory and in practice II. Semantic attempts to frame the development of International law-related realities A wide range of realities vs narrow definitions: a search for the happy medium Concept of Legalization” and other ‘shades' of law: the end of the black and white era Conclusion Bibliography Introduction Charlotte Ku and Paul F. [...]
[...] As far as the rule of law is concerned, it can be challenged or, as in the case of the WTO, substituted for ‘rule orientation'. This term “implies a less rigid adherence to rules and allows for more fluidity in approach, thereby facilitating a ‘system of bargaining and negotiating which permeates the WTO system”[27]. Eventually, according to Kenneth Abbott and Duncan Snidal[28], the concept of ‘soft law', law, especially international law, could be based on consensus and not ‘command' and respected just because of the benefits it offers and/or the fear of ‘ostracism'[29]. [...]
[...] What distinction does he draw between properly so-called” and “positive morality”? What are their respective ‘hallmarks'? order to clarify the distinction between law and morality, which he considered to be blurred by doctrines of Natural Law, he elaborated his definition of law as a species of command. According to Austin, commands are expressions of desire that another shall do or forbear from some act and are accompanied by a threat of punishment (the "sanction") for disobedience. Commands are laws "simply and properly so-called" when they prescribe courses of conduct, not specific acts, and are "set" by the "sovereign" (i.e., the person or persons to whom a society renders habitual obedience and who render no such obedience to others). [...]
[...] a legal principle set by the decision in an appellate case, as "the rule in the case of Murray v. Crampton is http://dictionary.law.com/ International Law: Classic and Contemporary Readings, C. Ku & Paul F. Diehl, “International Law as an Operating System and a Normative System: an Overview”, explanation of categories created by Hart international law really Anthony D'Amato, Northwestern University Law Review, 1984-1985 Future of Statehood”, Martin Koskenniemi, Harvard International Law Journal vol http://www.enm.justice.fr/centre_de_ressources/dossiers_reflexions/culture_a mericaine/2_interpretation.htm, Oliver Wendell Holmes Concept of Legalization”, K. [...]
Bibliographie, normes APA
Citez le doc consultéLecture en ligne
et sans publicité !Contenu vérifié
par notre comité de lecture
