Law and the Concept of Law - Beyond the Nation-State

Abstract

<p>Analytic legal philosophy has overwhelmingly based its agenda and its research upon the domestic law of nation-states, often at the expense of other candidates for inclusion under the concept of law. International law is one such candidate, the conceptualization of which has typically resulted in either a breezy rejection of its status as 'law,' or a lukewarm acceptance based on its similarities to domestic law. But neither of these options affords international law the careful scrutiny such an important phenomenon deserves. This project aims to provide a small step in the direction of such an analysis. It examines the applicability of the distinction between 'law' and 'politics' at the international level, and in the process evaluates some prominent traditional theories of law.</p> <p>Two poles are presented with respect to the presence of the political and legal features of international law: at one end is an extreme legal realist position that claims international law necessarily lapses into politics, and at the other end, an extreme legal pluralist position that unreflectively accepts the legality of international law. These two poles are examined and subsequently rejected, and a middle path that acknowledges both features is sketched. A <em>prima facie</em> case for understanding international law as 'law' is presented: the requirements of the 'legal system' are reduced and its existence decoupled from the state, which provides a baseline according to which international and domestic law are similar enough to unite under a single analytic concept. What this suggestion does not do is judge international law according to domestic law as an ideal type. Instead it views domestic law as a stable form of law with its own contingent features, but the intersection of which with international law reveals important things about both, and the concept of law more broadly. It thus affirms the legality of international law.</p>