Is international law Really a law?
The most seen to; issue regarding those who study international law is whether or not it can be seen as ‘real law’. There are two different types of thoughts that can be perceived through this, one being from the realist view and the other from a liberal view. I will be looking at both then coming to a conclusion on whether or not I believe International law is really a law.
To being tackling this question, it is vital to comprehend with some of the more basic schools of thought based around what ‘law’ is and this will then in tern help us to understand what international law really is; thus, enabling me to create an unbiased argument and reach a conclusion. Perhaps the inability to answer the question as to whether international law is real law or not stems from the fact that the concept of law itself is quite a difficult and controversial concept to define. Thus, the law has been defined in different ways by different scholars and as such, there is no universally accepted definition of what law is. The entire concept of law is challenging to define and has meant different interpretations are open for discussion, one interpretation can be taken from [John Austin (1885) “Lectures on Jurisprudence: or the Philosophy of Positive Law”]
He defined law to be as this; 'A rule laid down for the guidance of an intelligent being by an intelligent being having power over him.”
Looking at this definition I can extract that in Austin’s eyes Law was seen to be a set of rules and principles that over time were enforced and created recognised authority.
Another extract I used is by
He explained the law as a system made up of rules in order to regulate and control behaviour within communities, in some senses giving people a way of life in order to behave; also, setting some sort of expectations for them, furthermore adding consequences if they were to perhaps do the contrary.
Lastly, I will use a piece of literature I read from [“St Thomas Aquinas called (2006) “Summa Theologica: Part I-II”] his interpretation of the law was “Nothing else than an ordinance of reason for the common good, made by him who has the care of the community and promulgated.” From this piece of literature, I can see that law is seen as that to promote the common good, allowing people to abide by these laws set in place for them.
Law can be seen as a set number of rules that are to be followed by members of societies in effort to regulate behaviour and call for more of a harmonious community. Law is used to reach a common goal and has somewhat basic characteristics such as its universal application and how it is coercive and liberal.
Now that the fragment of ‘Law’ has been explained and differing views from literally scholars have been extracted in order for you the reader to view the interpretation of the word ‘law’ in an unbiased perspective, we can now delve into why there may be a need for law.
Besides the countless obvious reasons we see the law as a necessity, if we were to somewhat tear open the fundamentals in why ‘Law’ is such a prominent act within our own lives and why it effects those within our societies and communities we would be able to reach a conclusion that it is specifically put there in order to regulate the behaviour of those within our societies. However one may say without Laws put in place there is the extreme likelihood of chaotic behaviour and violence to florish; without laws, we would be living in a constant state of violence. If I was to refer back to a scholar I would to Thomas Hobbes he believes that “laws are essential when trying to govern and regulate the behaviour of societies and preserve life within a community”. – [Thomas Hobbes (2002) - Moral and Political Philosophy]
Laws inevitably make things easier when living in a community everyone, knows what laws they should abide by as well has the punishments that occur when the contrary is done, thus, in a way forcing our community to abide by these laws enabling them to live harmoniously.
So now that I have defined law and it has been made clear that we need it in order to shape and mould our societies, we must now delve into what I think international law is.
International law has differing characteristics when compared to domestic laws. When trying to answer the question on whether or not international law is really considered real law. We should view the differing arguments posed by two different schools of thought, enabling us to debate this question thoroughly.
If we are viewing this from a realist point of view, then International law will not be considered a ‘real’ law. Whereas domestic law is considered a ‘real’ law. Some of the arguments used to back this school of thought idea are the following; Firstly, a realist school of thought believes that national interest is above all in terms of importance when regarding states. States will most likely never bargain their national interest for international law. So, in a fact, if there was per say some sort argument or rift caused between the national interest of a country/state and international law, it is paramount that all states would rather their national interest be met above all compared with international law.
A countries foreign policy has one main driving force, and that is the national interest; thus, meaning that some states will only comply with international law when and if it is in accordance with their national interest, however when posed with a conflict involving the national interest of a country and international law the obvious answer, that being national interest will be picked. Realists believe that real law should replace all interests and compliance should be given to it regardless. Realists further believe that a real law should replace all interests and compel compliance regardless of whether it is in one’s interest or not, but since national interest supersedes international law in the relations of countries among themselves, then international law is not a real law.
Furthermore, international law when compared to the strong power and stature that comes with ‘real law’ realists believe that it has an almost unsteady structure. This, meaning that from a realist point of view they would be somewhat unable to enforce their legislation in the same effective way domestic laws can. Somewhat coercive power in needed to compel force among individuals and frankly realists don’t believe that is possible for this to be done by international law.
Lastly, the issue of authority and power is a firm problem when considering international law and whether or not it can be considered a ‘real’ law. As there is no seen to be legislature it becomes uncertain where these laws are coming from. Now if we were to view things from a liberal point of view they believe the complete and total opposite, that international law is in fact a ‘real law’. The main argument the liberals pose is that even though international law is seen to be violated by some more coercive states, it does not however make international law invalid, as all states know that there is such thing as international law and in their best efforts try to abide by the legislation set in place. We can take the 2003 invasion of Iraq by the USA, as an example. Social security were contacted to in order to find some sort of a resolution in order to give the war the go ahead, the reason why this is a good example is the USA had to seek some form of approval in terms of international law in order to continue. This shows that indeed International Law holds some stature and even super countries like the USA needed approval.
Furthermore, when talking about law, if said laws are breached usually punishments are placed to realign the unlawful. Now there are plenty of cases where countries have breached international laws and there have been punishments put in place. However, we can admit that there have been some cases where international law has been breached and those countries have managed to get away with it, however, this has happened in a mere handful of occasions.
Finally, before I conclude I will mention that in terms of this argument on whether international law is or isn’t a ‘real’ law international law is seen to be less utilisable when compared to domestic law, as it has more prevalence in our day to day beings then the contrary.
To conclude this debate, both realists and liberals have made good points in regards to whether or not international law is really law, however, I believe that this debate will not come to an abrupt halt after this essay is published; as quite frankly there are too many variations when it comes to how law is defined, and the question of international law being real law or not is simply definitive of what the reader’s personal views are and their outlook on law and its definition.
In terms of my own personal views; I do believe that international law is a real law, and just because some countries don’t abide and breech these laws, this doesn’t necessarily make it any lesser of a coerce then domestic laws are, as even those are broken daily by citizens.
When these international laws are repetitively broken by states it is more of an economic ‘put off’ then anything else, for other states to be involved in terms of investing and thus leaving them (the offender) in an economic predicament. So just because there are no ‘international police officers’ per say, doesn’t mean that international law can’t be effective and coercive, as it can and it has the capabilities and just as much backing as domestic laws do.
- John Austin (1885) “Lectures on Jurisprudence: or the Philosophy of Positive Law”
- ·Professor Hart (1963) “The Concept of Law” - Duke University School of Law
- “St Thomas Aquinas called (2006) “Summa Theologica: Part I-II”
- Thomas Hobbes (2002) - Moral and Political Philosophy