Teaching Law Through Saying and Doing

Relative Normativity in International Law,” by Ulrich Fastenrath, EJIL: The European Journal of International Law, Vol 4 No 3, 1993, ppg 305-340, http://www.ejil.org/journal/Vol4/No3/art1.html.

It’s time for more boring class notes. This was read along with Why We Teach and Constructing Maps.

In a well-known article published ten years ago1 Prosper Weil spoke out against several developments in the theory and practice of international law which aim at a gradual differentiation of the normativity of international legal norms: (i) the emergence of soft law, culminating in a fierce debate on the legal effects of certain resolutions of the UN General Assembly; (ii) the distinction made by the ILC between international crimes and international delicts, based on the further distinction between obligations erga omnes and obligations which are owed only to individual States; as well as (iii) the recognition of ius cogens as confirmed in Articles 53 and 64 of both the 1969 and the 1986 Vienna Conventions on the Law of Treaties. Professor Weil regarded these developments as pathological; they are to cause concern to the lawyer in his role as a ‘system builder by vocation’. According to him, international law would no longer be capable of fulfilling its function – the ordering of international relations in a heterogeneous, pluralist world – were the existence of rights or obligations to be determined through the importation of material criteria into the law. That would be to give uncertain weight to such rights
and obligations and to abandon a neutral evaluation to be effected through the application of formal legal criteria.

Legal Positivism is a form of positivism. The latter is, in general philosophical terms, based on the idea that, logic and mathematics apart, only phenomena which can be recognized by the senses are amenable to scientific knowledge. Thus, science is restricted to observable events and regularities or to a purely structural methodology devoid of content. Applied to the field of law, this premise of positivism has the consequence that jurisprudence may only concern itself with (i) internal or (ii) external behaviour of human beings, (iii) with the material embodiment of law in legal texts, judgements, etc. [so nearly useless! decontextualized! “New Criticism” from literary theory! — tdaxp], or alternatively, (iv) that it must disregard the content of rules and view itself as a general theory of law, taking note only of fundamental concepts which are necessary for all legal thinking.

In contrast to the Vienna School, H.L.A. Hart regards the existence of a constitution as a luxury. International law which, in his opinion, is primitive requires only individual recognition of each norm as a legal norm [so International Law is just socialization that is called law? — tdaxp]. Gidon Gottlieb and Friedrich V. Kratochwil find evidence of such acceptance in the fact that international actors feel bound by such norms or have recourse to them without questioning them or giving reasons for their validity.

Such vagueness is a necessity in the case of multilingual international legal texts, which, as a consequence of the use of different national languages, may remain deeply rooted in national legal terminology. Where concepts have no natural, predetermined existence but rather arise in response to the requirements of normal life, different languages may develop divergent semantic fields, that is, impose different categorizations upon the world. This is common in the face of different living conditions and, in particular, as a result of different cultural perceptions. For it is language and its classification that enables individuals to create their own world along the lines of their cultural perception; the world we experience is no more than the reflection of what we have made of it for ourselves. The greater the degree of cultural diversity the less likely it is that concepts will have a common meaning. This is particularly true for legal language, since each national legal system can be regarded as the ‘property’ of the nation concerned. In Europe alone, many different legal cultures have developed their own divergent legal institutions, often without counterparts in the other systems [so no coherent international law? — tdaxp]. To comprehend the legal framework of even more distant cultures within the categories of our domestic legal systems is all the more impossible. Divergent semantic fields in different languages and the creation of different legal institutions within various legal systems not only lead to extreme difficulties of translation,26 they also demand openness in the use of language. It is only in such a way that, despite a plurality of authentic texts in various languages, treaties may retain a common meaning, as presumed in Article 33(3) of the Vienna Convention on the Law of Treaties.

As law affects society, (technical) language employed in legal propositions (Rechtssätze) must stand the test of daily social usage. In this context, individual acts of application may be seen as continuous extensional definitions of the terms embodied in the text of the treaty [teaching is not just a text — it is a continuous process — tdaxp]. It is in this sense that one of the Special Rapporteurs of the ILC on the law of treaties, Sir Humphrey Waldock, saw in subsequent practice ‘an authentic interpretation comparable to interpretative agreement’.30 Also, the commentary of the ILC on Article 27 of its final draft on this subject-matter states that subsequent practice ‘constitutes objective evidence of the understanding of the parties as to the meaning of the Treaty’.31 It is with good reason, therefore, that Article 31(3)(b) of the Vienna Convention identifies such practice as a legitimate tool for the interpretation of treaties. A similar function may be ascribed to decisions of international courts and to statements made by individual States, by organs of international organizations, as well as by scholars of international law. Thus, through the evaluation of the (il)legality of individual acts and through the provision of, at least, interpretational suggestions for the relevant legal propositions (Rechtssätze), the process of concept-building continues.

The importance of such informal instruments in the development of law intra legem has frequently been confirmed by judicial decisions and doctrine. For instance, the US Court of Appeal for the Second Circuit stated in Filartiga v. Pena Irala40 that ‘[These] UN declarations are significant because they specify with great precision the obligations of Member States under the Charter. Since their adoption, members can no longer contend that they do not know what human rights they promised in the Charter to promote.’ Judge Jiménez de Aréchaga took an analogous view in his separate opinion in the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) case:’… even if a new accepted trend does not yet qualify as a rule of customary law, it may still have a bearing on the decision of the Court, not as part of applicable law, but as an element in the existing rules or an indication of the direction in which such rules should be interpreted’.41 In legal literature, Daniel Thürer has declared soft law to be ‘an orientational aid to interpretation’ while Alfred Verdross and Bruno Simma claim that certain resolutions of the General Assembly lay down ‘the perimeters for future arguments as to the applicable law’ [the OODA loop and Soft Law! — tdaxp]

Meta-legal linguistic conventions (to which even legal positivism must have recourse if it is to ensure that legal propositions (Rechtssätze) have any meaning at all) may have different degrees of authority. They receive different levels of acceptance from different States, also at different points of time. In addition, they are always subject to adjustments, themselves of varying degrees of authority. Thus, legal positivism is unavoidably forced to accept a graduation of normativity at the level of content. Since such variations in the use of language will mostly be of minor significance they will, as a rule, only affect the periphery of a concept. In some cases, however, these differences can have an impact on the very core of a concept. The liberal versus the Marxist-Leninist concept of ‘freedom’ in the understanding of human rights constituted a classic example [fall of Soviet Union as “teaching experience” — Victory as a “lawful” form of instruction? — tdaxp]. In such instances, the delimitation of a concept, and with this the clarification of the scope of the legal proposition (Rechtssatz) concerned, will depend upon the degree of authority and acceptance ascribed to the linguistic conventions in question.

In contrast to international treaties, both international customary law and general principles of law as defined in Article 38(1)(c) of the Statute of the ICJ, lack an authentic wording. Instead, such rules are formulated by international and national judges, organs of States and international organizations, or in scholarly writings through induction on the basis of State practice, of enunciated legal opinions, or through comparison of domestic law. Legal positivism would only be able to maintain its (purely positivist) approach if it were possible to draw unambiguous legal propositions (Rechtssätze) from this factual substratum. However, the simple fact that lawyers differ in their formulation of rules of customary law and general principles proves this to be impossible.

A judgement of the German Constitutional Court52 may serve as an illustration. The question before the Court was whether attachment of an embassy bank account would be prohibited by customary international law or by a general principle of law in the sense of Article 38(1)(c) of the ICJ Statute. First, the Court attempted to verify a customary rule of very narrow substantive scope, namely regarding the treatment of embassy bank accounts specifically with a view to attachment. In so proceeding, neither sufficient precedents nor domestic rules on the subject were found. Consequently, this approach was relinquished. The Court then had recourse to the highly abstract principle ne impediatur legatio. Obviously it was easy to find sufficient practice in support of such an abstract rule. What this shows is that the more concrete a norm will be formulated, the fewer cases may be found to fall under it and the more difficult it will be to identify that norm as a rule of customary law. Conversely, if a higher degree of abstraction is applied, the range of actions encompassed by the rule will grow. However, it will be as difficult to establish the concrete circumstances under which such a highly abstract rule may be applied as it will be to prove the existence of a rule with a very narrow substantive scope.

The unwritten constitution of international law still does not clarify which formal sources of international law actually exist [making cognitive battles all the more important — but this would seem to imply IL is seperate from social cognition — tdaxp]. Although Article 38(1) of the Statute of the ICJ identifies treaty law, customary law and general principles as largely uncontested sources of international law, this does not make clear on the basis of which criteria these law-creating procedures, and possibly only these, are to be regarded as belonging to the international constitution. In the context of legal positivism, rules would be necessary to address this issue. As these are lacking in international law – with the exception of rules on decision-making by international organizations – reference must be made to other concepts in order to determine the formal sources of international law. One may refer, for instance, to factors like general acceptance, the will of States or general practice in order to establish what counts as a source. This, however, leads to the observation that in legal positivism the validity of a legal proposition (Rechtssatz) and thus of the imperative embodied in it, is always (i.e. not only in the case of customary rules and general principles)
dependent upon contestable claims of varying degrees of authority. Thus, even at the level of the validity of norms legal positivism is unable to succeed in its attempt to exclude relative normativity from international law.

A problem inherent in the ‘constitution’ of international law is that of the hierarchical structure of the legal order. Both Vienna Conventions on the Law of Treaties recognize ius cogens. According to their provisions, treaties violating ius cogens are null and void. However, in contrast to national law, superordinated norms cannot be identified through particular legislative procedures. Instead, Article 53 of the Vienna Conventions gives priority to a norm which is ‘accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of international law having the same character’. [high-intensity, random cycling conditioning? highly-effective in most animals, and makes it hard to unlearn — tdaxp] Such a formulation may leave a lot to be desired. International law does not, however, thereby surrender itself to an incalculable and uncontrollable subjective process. The criterion of general acceptance bars any attempt to make recourse to an unverifiable form of natural law. On the contrary, to the largest possible extent, a positivist, and thus verifiable, definition of ius cogens was chosen. Here, once again, soft law fulfils a useful function in that it provides generally accepted manifestations of widespread and established views as to what is to be regarded as legal and just.

The supporters of legal positivism will hardly find this convincing. They must, however, acknowledge that the international community used the Vienna Conventions to state explicitly that positivist conceptions were not sufficient and that material conceptions of legal validity were required [so power — that is teaching ability — matters — tdaxp]. Legal positivism is thus faced with the choice to either surrender its own premises by ignoring treaty provisions, or to accept these provisions and disclaim the omnipotence of positivist premises.

Voluntarism follows in the tradition of Hobbes: ‘auctoritas, non veritas facit legem’. Law is equated with the will of the law-maker, who decides upon the content and legal character of a norm. Along these lines the PCIJ stated in its judgement in the Lotus case: ‘International law proceeds from their [i.e. the States’] own free will’. [but if states are conditioned, how is this ‘free will’? — tdaxp]

Hence, modern day supporters of natural law also presuppose a positive law which is no longer understood as a reflection of justice. Rather, it is now conceived as an order ‘whose meaning is essentially committed to the value of justice’. This conceptual linkage justifies the power of the law to impose duties and, also, creates a pattern of meaning which, through the identification of the (ultimate) object and purpose of all norms, influences positive law (cf. Art. 31(1) of the Vienna Convention on the Law of Treaties). The ICJ made explicit reference to this role in the Continental Shelf (Tunisia/Libya) case:

when applying positive international law, the court may choose among several possible interpretations of the law the one which appears, in the light of the circumstances of the case, to be the closest to the requirements of justice.

[so Law as recognized as tool by courts, not as a good in itself. Both ramifications for social cognitive comparison and “lawfulness” generally. So IL is not a progressive Ulema — unless one say Sharia is not a goal in itself, but only as a way of serving God… — tdaxp]

The point of departure for the following discussion is the understanding that a verifiable, ‘true’, concept of law does not exist. ‘The term “law” has no inherent claim, arising out of some conceptual myth, to “mean” something well-defined and nothing else. What law should mean is a question of definition and definitions are only crutches for cognition.’ Thus, all legal theories as well as the norms derived from them are nothing but claims. Legal science is not to be understood as a method which seeks to reconcile law with truth. It is instead a method of operation, whose effectiveness is to be judged by its results [Just like teaching. Also somewhat Pauline. — tdaxp]. As law is given the general task of influencing human behaviour, legal theories must be judged according to how effectively they fulfil this task. In this context, limited effectiveness of a legal theory implies limited normativity

If one acknowledges the possibility of embracing the various legal theories in one overall system one has to suppose the following: (i) law is not a pre-existing system, only in need to be identified; (ii) law is not necessarily a homogeneous system, free from contradictions [the first time I read this I thought it was interesting, but now it seems to be just a refutation of “purfect law,” which clearly does not exist in practice — tdaxp]; (iii) the various legal theories do not exclude each other. Although the first two premises are not simply proven by the foundationlessness of the divergent legal theories, the openness of language and with this, the openness of the concept of law, allows us to accept them. In respect of the third premise I must confine myself to the observation that none of the theories of law which I have presented is self-sufficient and that the various theories are interconnected. For example, legal positivism is obliged to descend from its pure semantic level. In order to clarify the meaning of a norm, legal positivism, too, has to follow Articles 31 and 32 of the Vienna Convention on the Law of Treaties and include a pragmatic dimension by referring to the will of the parties to a treaty, to subsequent practice, to the object and purpose of a norm and to the circumstances of its creation. In so doing, legal positivism relies on determinants drawn from other legal theories. On the other hand, approaches that are based upon the material content of law cannot dispense with linguistic elements. The law-maker can only express her/his will to the addressees of law through language [disagree! the law-maker enforces — teaches through behaviorism — tdaxp]; divergent practice is ‘made the same’ by linguistic categories, and our legal perceptions or reflections on justice must be expressed through these conceptual categories, to be identified by particular verbal expressions. Language is thus not only necessary for articulation, but is much rather a prerequisite for any orderly intellectual examination.

Consequently, a normative contention will be best capable to assert itself if it is generated through a generally accepted source of law, and if it closely reflects the will and the practice of the States, as well as common perceptions of justice [see socialization — “law” can be any socialization action? — tdaxp]. If these conditions are fulfilled, the existence of theoretical divergencies does not necessarily weaken individual normative contentions based upon such concepts. Provided that these contentions display conformity as to substance, they may in effect strengthen each other.7 Where, on the other hand, contentions are contradictory they might paralyse each other. But even this result need not lead to the legal aporia so impressively described by M. Koskenniemi.128 Instead, it will give rise to a struggle of rivalling legal contentions for dominance. Contrary to the epistemological approach of M. Koskenniemi, the authority of such contentions, and thus their strength and their capacity to assert themselves, need not be equal. After all, nobody is required to side with the powerful battalions. The ‘weaker’ contention is also a legal one and may, over time, even win out over the other. The question of which contention to support is a political one and the prevalence of a legal contention thus the result of a political process. As a result of calculations of legal policy, those involved in the process of the creation and application of international law will frequently be prepared to accommodate themselves with other normative contentions, even if these cannot be founded upon finite justifications.

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