This article has been written by Ritika Bhasin. Ritika is currently a fourth-year student in National Law University, Delhi.
The Positivist theory holds that the power to lay down the law vested only with the state or the political superior. In the absence of any political superior or sovereign above the states, it became difficult for them to accept ‘international law’ as ‘law’. According to them, “international law flows from the express or the tacit consent of states”.
John Austin defined law as “the command of a sovereign over his subjects which creates an obligation on their part to obey the command”. Applying the command theory, he concluded that both constitutional law and international law did not constitute ‘law’ in the strict sense of the term, but were merely ‘positive morality’. In the absence of sovereign coercion, the duties imposed by international law could be enforced only by moral sanctions like the fear of invoking general hostility, public opinion of other nations and societal conventions.
Austin focussed on only one element of law and failed to look beyond its ‘author’ and ‘form’. He excluded all other elements of law which are equally important to be included within the definition of law. Law needs to be understood as a system of both rights and duties that regulates the behaviour of not just the subjects but also the one formulating them. His theory on law comes out to be narrow and arbitrary as he neglected the significance of ethical sanctions (customs) in the enforcement of law. In order to be effective, sanctions need to be certain and serious irrespective of whether they form part of a top-down model or not.
Jeremy Bentham believed that moral sanctions might be sufficient to ensure obedience to a law, although they did not possess similar efficacy as political sanctions. He recognised it as a “primitive system of law”. He defined international law as the law which related to “the mutual transactions between sovereigns as such“.
Like Austin, Bentham too did not look beyond the elements of ‘command’ and ‘sanctions’ in law. It was only when he moulded his command theory to suit the international conditions that he was able to see international law as more than mere morality. However, the deficiency of his theory is brought about by the fact that he perceived international law as only a collection of rules that govern states and their correspondence. He left other elements like the processes and structures for the enforcement of such rules out of the ambit of law.
H.L.A. Hart too recognised international law as “a primitive form of law”. He had a much broader understanding of law, which consisted of ‘primary rules’ that impose duties and ‘secondary rules’ that allocate power. According to him, international law was a union of only primary rules. It lacked all the three secondary rules.
There have been some major changes in the international sphere since the time Hart propounded his theory. The United Nations was established in 1945 with the objective of maintaining international peace and security and sought to initiate the process of codification of international law. An adjudicatory authority in the form of the International Court of Justice has been established. The sources of international law have been listed under Article 38.1 of the Statute of the International Court of Justice as “treaties, international customs and general principles, giving globally accepted standards of behaviour, judicial decisions and scholarly writings”. This would very well constitute the rule of recognition as required by Hart. A couple of other adjudicatory bodies (tribunals) like the European Court of Justice and the European Court of Human Rights have also been established. Hart’s understanding of international law in the present times might have been quite different. He might have given international law the status of law in the presence of a potential rule of recognition and rules of adjudication.
The top-down approach as adopted by the Positivists ensues to be a major hindrance in recognising international law as law. There need not necessarily be a vertical relationship between the author of rules and those governed by them. The merit of laws has to be judged in terms of their characteristics and the effect that they have on governing the behaviour of individuals in society.
Another factor that prevents them from seeing international law as law is their belief that morality does not form part of law. The significance of normative values in ensuring conformity to international norms cannot be undermined. They failed to see value judgments as part of law irrespective of the fact that even judges engaged in law-making while dealing with the ideological and ethical content of the disputes that they sought to resolve.
Also, customs were not a source of law according to Positivists. In the international sphere, customs form a major source of law. Rules and norms are an outcome of long usage and thus, states are forced to abide by them out of necessity in their own interests.
Another deficiency in the Positivist theory on international law is that they consider only states as subjects of international law and not individuals. They neglected that international law also includes individual rights and obligations.
There have been numerous developments after the Positivist theories on international law were advocated. It is possible that Positivists would have had quite a different understanding of international law in the present day and age.
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 Supra note 5
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