Normativity and the Sources of International Law

Hague Journal on the Rule of Law

Domestic and international jurisprudence exist and develop as two ‘pocket universes’ in a sense that they belong to the same fabric of reality, but at the same time many concepts shift their meaning when moved from one pocket to another. This is of a paramount importance for the idea of the rule of law, which in domestic setting was forged in the flame of civil wars and struggles against the rulers. This history and such struggles are something international law has never known, and thus any direct transplantation of the domestic images of the rule of law to international realm are doomed to fail. This entails a need in deconstructing the rule of law. Its core meaning (‘laws must be obeyed’), brings a normative claim relevant to any legal order. The idea of the (international) rule of law appears to be linked to the idea of authority of (international) law. There are differences of the structures of authority in domestic and international law as authority can be mediated or unmediat...

wisdom

In order to be perceived as legitimate by those subject to it, a system of legal norms should be free of contradictions. The very idea of justice is incompatible with an erratic interpretation and, subsequently, arbitrary application of norms. Systemic contradictions make actions by state authorities unpredictable. However, at the domestic as well as at the international level, considerations of power and interest have often made of the respective body of norms a “hermeneutical minefield.” The international legal order in particular contains contradictions even between the most basic principles such as state sovereignty, self-determination and the rules of international humanitarian law. While, at the national level, the authority of constitutional courts may help to eliminate contradictions and inconsistencies, there exists, apart from limited regional arrangements, no such separation of powers at the international level. The lecture analyzes, inter alia, the systemic, destabilizin...

2012

2.4 The Basic Norm of International Law and Its Place When Conceived of as Primary ... 12 2.5 States and the Law, the Identity Thesis .

2013

The paper briefly presents the Brussels School of Jurisprudence (BSJ) and its pragmatic theory of Global Law. It summarizes the results of several researches carried out during the last fifteen years at the Perelman Centre in various fields of emerging global normativities. The papers argues that the current phase of globalization requires us to enlarge the province of jurisprudence. We should extend our analyses and critiques to other kinds of norms and normative devices that are complementing, sometimes replacing but more often competing with classic legal rules and institutions in the global environment.

British Yearbook of International Law, 2018

2019

This paper addresses some of the conceptual challenges that internationalisation of the rule of law creates for its conventional political and legal doctrines. It is first of all submitted that domestic and international jurisprudence exist and develop as two ‘pocket universes’ in a sense that they belong to the same fabric of reality and share some of the fundamental features, but at the same time many concepts shift their meaning when moved from one pocket to another. This is of a paramount importance for the idea of the rule of law, which in domestic setting was forged in the flame of civil wars and struggles against the absolute powers of kings, princes, and nobles. This history and such struggles are something international law has never known, and for this reason any direct transplantation of the domestic images of the rule of law to international realm are doomed to fail. This entails a need in deconstructing the rule of law and stripping it down of ideological and historical layers. Its core meaning, though seemingly trivial (‘laws must be obeyed’), brings a normative claim relevant to any legal order. For the subjects to obey the law, it must at the very least provide for the practical opportunity of obedience, i.e. law’s claim to authority must be realisable. From such a perspective, the idea of the (international) rule of law appears to be linked to the idea of authority of (international) law. The article further addresses the differences of the structures of authority in domestic and international law by submitting that authority can be mediated or unmediated. Mediation of authority, typical for domestic law, presupposes the existence of officials that are functionally and institutionally differentiated from the subjects of law; this picture of authority also grounds the narrative of the rule of law as developing from ‘thin’ to ‘thick’. Authority of international law is by and large unmediated because of its horizontal nature, which also entails that the metaphor of ‘thin’ and ‘thick’ rule of law is of little relevance here; both formal and substantive virtues of law count together and may get interchanged as pieces of Lego. Such reconstruction allows to reframe the central concern of the international rule of law enquiries. Instead of trying to fit it to the procrustean bed of domestic theories, international legal scholarship must focus on defining conditions under which international law’s claim to authority is realisable.

Revista Juris, 2022

This contribution aims to add arguments to the hypothesis that the basic norm of Hans Kelsen's Pure Theory of Law is inapplicable as the sole foundation of the legitimacy of international law. Legitimacy is understood here as the property of the norm to attract international actors (Subjects of International Law) toward fulfilling the normative command. The basic norm of Hans Kelsen's Pure Theory of Law can be seen as a static element of the legitimacy of norms of international law. The fragmentation and interdependence between norms of international law can be seen as dynamic legitimacy elements. These arguments make up a theoretical set that seeks to explain why and how subjects of international law obey rules of law at the international level. The methodology of this contribution consists of qualitative theoretical research using primary sources referring to the issue of legitimacy in international law.

2014

"The keystone of Kelsen’s Pure Theory of Law is his doctrine of the basic norm. The basic norm is therefore the subject of Jovanović’s critique of Kelsen’s entire theory. According to Kelsen, the basic norm precedes the authority of a state, since it is positioned between the factual social force, which establishes the authority of the state, and the state. According to Jovanović, there is neither the law without a state, nor a state without the law; hence neither can Kelsenian legal norm, perceived as a norm prior to the state, be a positive legal norm, but an abstract, natural law norm. Jovanović discusses and criticizes Kelsen’s solution to the problem of the relationship between national and international law, which depends on the establishment of the basic norm. Keywords: basic norm, sovereignty, international law, state law, Pure Theory of Law, Philosophy of Law "