International Legal Theory of the Present Time:
Common Consensual Theory
Definition of the Public International Law
Public international law is the law pertaining to the structure and the conduct of the sovereign states, intergovernmental organizations and analogous entities. In a narrow scope, the public international law could also includes the multinational corporations and individuals, which is recently developing well beyond the conventional legal interpretation and enforcement. Its use and importance has increased greatly throughout the previous century, mainly because of the improvements in global trade, communications and transportations.
The public international law is not to be confused with the private international law, which is concerning the resultion of conflict of laws and legal jurisdictions. This legal discipline generally consists of two main branches: the law of nations and international agreements and conventions which were based on separate foundations.
The issue of International Law
There are ongoing debates regarding to the status of “public international law”, and to a wider extent, the “international law” whether it is really a “law” in the usual context or merely a set of “norms”. This is mainly due to the fact that this discipline of International Law is still relatively young compared to other branches of law; it rose only less than a century ago.
Hart argued that the legality of International Law is problematic because it “…resembles law in form though not at all in content, a simple regime of primary or customary law”. The doubt that international law is really a law comes from these factors: 1.
The absence of a centralized official law maker;
Vertical relationship between that law makers and its legal subjects; 3.
The absence of secondary rules or even the rule of recognition which lies at the foundation of a full-fledged and autonomous legal system However, despite the factors, most experts argue that international law is clearly more than a set of social norms, but at the same time it does not suit the concept of law used in domestic law entirely. This leads to another question of who or which has the authority to garner compliance to the international law, or if it does not have authority as domestic law, why does it has caused the sovereign states to comply to it somehow.
Theories on the Source of Authority of the International Law
To resolve the issue mentioned above, some theories have been developed particulary in regards to the fact that the sovereign states are willing to comply to international law (including, but not limited to: international resolutions, regulations or decrees issued by international conventions, etc.) even if the compliance would limit the sovereignity of the state even in a small amount. Said theories are as follows:
The Command Theory (proposed by Austin)
The Command Theory of Law is a jurisprudential concept developed by John Austin that proposes that law is a command backed by threat and is meant to be ubiquitous in its application. Otherwise, Austin stated that the law is not a “positive law”. In short, Austin believed that every legal system had to have a sovereign who creates the law whilst remaining unaffected by it and is not subject to other’s command. Thus, international law, because it is not made up of commands, is properly to be regarded as a species of ‘positive morality’ and is exists beyond the province of jurisprudence.
This theory, however, had many opposers, famously led by Hart. Hart likens Austin’s theory to the role of an armed bankrobber in a bank and tries to establish the differences between the bankrobber’s orders and those made by law. Hart then draws three important differences: content, origin and range. In terms of content, not every laws are imperative or coercive. Some are facilitative and allowed the creation of contracts or other legal relations.
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