an international and interdisciplinary journal of postmodern cultural sound, text and image
Volume 11, April - September 2014,
ISSN 1552-5112
H.L.A. Hart on
International Law
In chapter 10 of The Concept of
Law, Hart (1994) considers whether International Law is genuinely law or is
better seen as international morality, and argues that it is indeed law, though
differing in some important respects from municipal law. This chapter is of
more than purely historical interest, but has been discussed less than most of
Hart’s work. There is, though, a recent
excellent article by Mehrdad Payandeh (2010). My conclusions are indeed similar
to those of Dr. Payandeh, and to those of Jeremy Waldron, but there are further
issues regarding the details of Hart’s argument and the practical consequences
of what he says which I will go into in this article.
The issue of whether
international law is truly law has been discussed by many writers since Hart;
and few, if any, deny that international law is law. Even Goldsmith and Posner
(2005) do not make this claim, but maintain rather that, though it is law,
there are considerable limits to what it can accomplish, there is no automatic
moral requirement of states to obey it, and in practice, states obey it only
when it is in their interest to do so. All these points, if one substitutes
“individuals” for “states”, could be, and have been, made with regard to
municipal law; which no one denies, is law.
Nevertheless, it remains instructive to consider why the arguments that
international law is not law do not succeed, and what the arguments are for
asserting that it is law. A critical examination of Hart’s arguments has
relevance both for the theoretical understanding of law and for practical
political concerns: this is true both of those of his arguments that remain
valid and those which on examination prove to be inadequate. It is important to note that Hart’s argument
was concerned with international law in its current form. If international law
were to become more widely accepted in practice as well as theory, and more
enforceable and systematic (as some recent writers on just war theory, such as
Rodin (2002) and Fabre (2011) have argued that it could and should) then some
of the considerations that Hart raises might no longer apply. But it will, at
best, be some time before this happens.
We need to begin by considering Hart’s account of the methods one should
use in order to decide whether something is or is not law. As in his work as a
whole, he used ideas found in contemporary work at Oxford and elsewhere,
notably J.L. Austin’s ‘ordinary language philosophy’, found particularly in
papers such as ‘A plea for excuses’ (1961), and Winch’s The Idea of a Social Science (1958). From Winch, Hart took the view that to
understand what people do, you must understand how they themselves see what
they are doing. Hence to understand law, you must understand how people living
under a legal system view the law. In adapting Winch’s theory to jurisprudence,
Hart added the idea that it is of special importance to understand how law is
understood by those who administer it, though one must certainly also consider
how it is understood by those who live under it.
From Austin, Hart took the
analogous but not identical idea that in order to elucidate a concept, such as
law, one must as a first move understand how the term, or terms, referring to
that concept are actually used, i.e. when, according to usage, it is correct to
call something ‘law’ and when it is not. Hart followed
Hart also maintains that
international law differs from a legal system as described in the earlier part
of his book. The book argues that a developed, ‘non-primitive’ legal system
consists of the union of primary rules, which require, or forbid, types of behaviour,
and secondary rules, which determine how primary rules are to be created,
changed and applied. The secondary rules must include an ultimate, or basic,
rule of recognition, defining the sources of law in that system, e.g. statute,
precedent and custom, and what criteria must be satisfied if a law or rule is
to be valid. But Hart says that this is an elucidation rather than a definition
of law (p.213); and it is a further question whether systems, or sets, of rules
which do not meet these criteria should still be regarded as law, or indeed, as
Hart reminds us on the same page, whether systems which do meet them but are
radically unjust should be regarded as valid legal systems. So for Hart we
begin by noting that international law is called law; we then have to consider
the objections to this, and the force of these objections, and in the light of
this to decide whether our practical and theoretical aims are best served by
retaining existing usage or by changing it.
Of the two standard objections to calling international law ‘law’, Hart
rejects one altogether, and develops the other along lines suggested by his own
theory. The objection he rejects is the argument that international states,
while being sovereign, cannot be legally bound. This objection can take two
different forms, only one of which is fully considered by Hart, though they are
both worth at least brief consideration. First, it may be held that it is
logically impossible for a sovereign state to be legally bound in any way.
This, as Hart notes, though with regard to the less strong version of the
theory, which he himself considers (see below), is both unsupported by any
argument and also contrary to the observed facts. States clearly do enter into
relationships defined by treaties, and consider themselves bound by those
treaties. There is a question whether these bonds are legal or moral; but this
cannot be settled a priori, with no reason being given as to why they should be
moral rather than legal, especially when those who enter into them consider
them to be legally binding.
In reply to this, it might be held that whenever a state binds itself,
its sovereignty is thereby limited, so that by definition it ceases to be
sovereign. This is a possible way of defining sovereignty, but not a useful
one. It would have the consequence that in practice there are no sovereign
states, since all states do limit themselves in this way by treaties. Also, it
would have the consequence that it is better for a state to be non-sovereign
than to be sovereign, since many treaties are beneficial for all the parties
concerned. Finally, the consequence for international law would be that,
admittedly, it does not apply to sovereign states: but it would apply to all
actual states, since on this definition none of them are sovereign. So the
argument that international law cannot be law, because it is logically
impossible for a sovereign state to be legally limited, fails either way. On
one definition of sovereignty this assertion is simply false, because sovereign
states do limit themselves legally. On another definition it is true, but the
consequence is that no actual states are sovereign, so that it does not follow
that international law cannot be applied to them as law.
But the version of this objection with which Hart is concerned is that a
state can limit itself, but only by self-imposed obligations, e.g. by signing a
treaty. This is not at first sight necessarily an objection to the existence of
international law, since one might hold, with Kelsen, though, as we shall see,
not Hart himself, that the basic norm of international law, i.e. the principle
from which its obligations are ultimately deduced, is the principle that
treaties should be kept, pacta sunt
servanda, a position which Kelsen developed in his account of International
Law (Kelsen, 1949). But Hart points out that no argument has yet been produced
to support the thesis that all a state’s obligations must be self-imposed: ‘Is
there anything to support it besides the fact that it has often been repeated?’
(p.224).
Moreover, there are at least two situations in which it is agreed that a
state is bound by international law even though it has signed no treaty. First,
(p.226) ‘It has never been doubted that when a new, independent state emerges
into existence…it is bound by the general obligations of international law’;
and it does not have the option of refusing to be bound by them. Secondly, a
state may change, for example by acquiring territory, in such a way that it
automatically comes under new obligations: Hart’s example is of a previously
land-locked state acquiring a coastline, and thereby automatically becoming
subject to all the rules governing territorial waters. So we may conclude that
so far there is no reason to deny that states can be and are legally bound, and
not only because they have voluntarily bound themselves: the claim that this is
logically impossible has no argument to support it, and requires us to suppose
that the whole international body is systematically mistaken about the nature of
a state’s obligations without being able to explain why this universal error
exists. We should note also that according to Hart these examples of a state
acquiring obligations in ways other than by signing a treaty show that the
principle that treaties should be kept cannot be a basic principle supporting
the whole of international law, but would be one principle out of several
(pp.233-4).
But there is another objection to regarding international law as law,
which is seen by Hart as much stronger but still not conclusive. It is the
argument that the obligations imposed by international law are largely
unenforceable; and are therefore moral rather than legal. International law can
be enforced against defeated countries, or weak countries, or countries which
happen to be unpopular; even then, its enforcement is often arbitrary and
haphazard. Against strong countries, or victors, or countries in which the
world is uninterested, even haphazard enforcement may be impossible. So the
question is: should unenforceable obligations still be regarded as legal, or is
it better to admit the unenforceability and regard them as simply moral?
If Hart’s theory of law is correct, this unenforceability is a direct
consequence of the way in which international law currently differs from
municipal law. In municipal law, according to Hart’s theory, there are, as was
said above, primary rules giving instructions as to what one must do or refrain
from doing, and secondary rules which determine how the primary rules are to be
created, changed or applied. Under the secondary rules there will be a
centralised system of policing and adjudication (though Hart has little if
anything to say about policing), with such aims as applying the primary rules
correctly, especially with regard to settling disputes, determining when they
have been breached, and punishing those breaches in accordance with prescribed
penalties. There will be a recognised legislature and a recognised procedure
for making new law; and the sources of law, though there may be more than one,
(e.g. statute, precedent and custom) will be clearly recognised.
In international law the situation is very different. The enforcement,
such as it is, is carried out by individual states or by tribunals set up to
deal with a particular set of breaches of international law, such as the
In particular, it would seem
that, while in municipal law there is notoriously a great problem in
interpreting the documents that contain the law, in international law there can
be a further problem of deciding whether or not a particular document is part
of the law at all. To take an example from after Hart’s time, Lord Slynn, in
giving judgement in the first case of General Pinochet (W.L.R.1456: H.L.1998),
which concerned the question as to whether under international law the charges
against the former ruler of Chile were such that he should be extradited from
the UK to face trial, refers to ‘movements toward the recognition of crimes
against international law’, seen in conventions, such as the Genocide Convention
of 1948, charters setting up tribunals, decisions of national courts, the 1946
resolution of the UN General Assembly, reports of the International Law
Commission and writings of jurists. He then comments that ‘some of the
statements read as aspirations’, which seems to imply that at times, though not
always, there is a question, about which courts may disagree, as to what is
part of international law and what is still only an aim or an ideal.
It seems, moreover, that this can
go in two directions: there can be formal documents, such as UN resolutions,
which nevertheless express aspirations rather than establishing law; and there
can be informal statements and agreements which create legal precedents. Thus
Walzer says (2006, pp.44-5):
<I>nternational law arises out
of a radically decentralised legal system, cumbrous, unresponsive, and without
a parallel judicial system to establish the specific details of the legal
code…the legal handbooks are not the only place to find the war convention, and
its actual existence is demonstrated …by the moral arguments that everywhere
accompany the practice of war. The common law of combat is developed through a
kind of practical casuistry.
We should note that this refers
to what currently is the case: it may not be inevitable. But it has the
consequence not only that, as Hart points out, international law is not simply
often unenforceable, but also that there is a more fundamental problem, of
which unenforceability is only part. Hart takes this problem to be that
international law does not have secondary rules at all, and especially does not
have a basic rule of recognition: ‘the rules which are in fact operative
constitute not a system but a set of rules’ (p.236). This situation might change,
Hart suggests, if it became recognised that multilateral treaties could bind
states which are not parties to them, and thereby have the force of law. But
until that happens, on Hart’s view—and probably, he would say the same if
writing today—international law is law, for reasons we will go on to discuss,
but is like what he called “primitive law”, consisting of primary rules alone.
In this Hart seems to be wrong. Indeed, many writers, such as Payandeh
(op. cit.) have pointed out that there are secondary rules in international
law. It would be more correct to say that the secondary rules exist, but are
not always clear and not always effective. The sources of international law can
be stated (see below), and indeed Lord Slynn gives a list of them. They are
varied; but in municipal law, rules of recognition, including the ultimate rule
of recognition, may similarly have several clauses and recognise more than one
source of law. There can, as we have seen, be problems of determining which
documents are agreed to form part of international law, and which are disputed,
because it is unclear whether they are intended to determine existing law or to
establish future aims: but there is also a large area of agreement. There are a
large number of courts and tribunals which can try cases under international
law, and there can be disputes as to jurisdiction: but again there is a
considerable area of agreement as to which courts and tribunals have this
authority and how they should proceed. There are many breaches of international
law which go unchallenged; but not all of them do.
Finally, though there is no central law-making body, international law
does change, and there are areas of international law where it is very clear to
what document appeal should be made: thus the law regulating force at sea is
based on eight conventions on naval warfare adopted at the Second International
Peace Conference at The Hague in 1907, updated in various sources and then
consolidated in the rules issued in 1994 by the San Remo Institute of
International Law. As a final point, one might suggest that, pace Hart, there is in any case no such
thing as ‘primitive’ law, in his sense: all law necessarily involves rules of
recognition, change and adjudication, whether or not these are made explicit.
Anthropological work on law in traditional societies, such as Gluckman’s work
in the 1950s on the legal process among the Barotse of Northern Rhodesia (now
But although Hart may be wrong in saying that international law has no
secondary rules, he might still be right in saying that a) it is still a set of
rules rather than a system, and b) that it has no ultimate rule of recognition,
with the result that ‘we must wait and see whether a rule gets accepted as a
rule or not’, whereas if there is ‘a basic rule of recognition’ (even with
several clauses), ‘we can say before a rule is actually made, that it will be valid if it conforms to the requirements of the rule of recognition.’ ( p.235).
From their very different standpoints, both Lord Slynn and Walzer would seem to
agree with Hart, as regards some parts of international law.
However, Hart seems to be wrong in saying there is no basic rule of
recognition. For example, Article 38.1 of the Statute of the International
Criminal Court lists the sources of international law as treaties;
international customs and general principles, giving globally accepted
standards of behaviour; judicial decisions and scholarly writings. This shows that
the problem is not that a rule of recognition does not exist but that some of
its clauses cannot easily be applied with precision. For example, when may
scholarly writings be used to determine what the law is, and when should they
be seen as simply the scholar’s personal observations? There are analogous
problems in municipal law: for example, how does one decide which of a judge’s
observations in giving judgement constitute the principle of the decision and
set a precedent, and which are general comments? But it remains fair, I think,
to say that the problem of determining what the law is in international law,
though different probably only in degree from the problem in municipal law,
nevertheless continues to present greater difficulties. In comparison with
municipal law, international law tends to be more unclear; and not simply
because a document is ambiguous, but also because it is sometimes uncertain
whether the document has the force of law, even if it is agreed that it may
come to do so.
Also, international law is often, though by no means always,
ineffective, and lacks any central authority either to make it or to enforce
it. Most crucially, perhaps, it lacks any permanent and neutral central
authority to settle disputes and adjudicate whether the law has been breached
and what the penalty should be. Legislation, enforcement and adjudication all
take place, and can all be the work of a recognised authority, international or
national, temporary or permanent; but all three are partial, haphazard to some
extent, and involving several authorities rather than one. It is true that this
is a long way from the state of nature imagined by political theorists, in
which either justice does not exist, because there is no authority with the power to adjudicate (a
Hobbesian state of nature) or in which
individuals have to adjudicate and police for themselves (a Lockean one) . But
it is also some way from the typical situation of municipal law, even though
municipal law is never perfectly enforceable or perfectly clear.
This is certainly a reason for saying that international law is not
‘really’ law; but is it conclusive? Hart gives three reasons why it is not
conclusive, and why we should still regard international law as law rather than
morality; to these ideas, two further reasons can be added. The first point is
that international law differs in structure from morality: ‘the appraisal of
states’ conduct in terms of morality is recognisably different from the
formulation of claims, demands, and the acknowledgements of rights and
obligations under the rules of international law’ (p.228). This in itself could
be construed as a difference between justice and other moral considerations;
but Hart points out later on the same page that what states appeal to in disputed
matters of international law are ‘references to precedents, treaties and
juristic writings; often no mention is made of moral right and wrong’. That is
to say that international law proceeds like other kinds of law, appealing to
written documents and to precedents, and not directly to considerations of
justice or human welfare. It may well be that, as in municipal law, there is a
concern to interpret the documents in a way that accords with justice; but this
is not the same as a direct moral appeal.
Moreover, as Hart goes on to say, there are in international law, as in
law generally, rules which exist simply because there is a need for a rule, and
not because in themselves they have any moral superiority to alternative rules:
those who steer ships and pass each other on the right are not on that account
better than those who drive cars in the UK and pass on the left. Just as
municipal law has to decide such things as how many witnesses are need to make
a will valid, international law has to decide such things as the width of
territorial waters. Not all legal rules are of this sort, but no moral rules
are: ‘a morality cannot (logically) contain rules which are generally held by
those who subscribe to them to be in no way preferable to alternatives…Law, however,
though it also contains much that is of moral importance, can and does contain
just such rules’(p.229). Hart does not of course mean that these rules are not
regarded as preferable to the absence of rules, or that any decision would be
equally good, but merely that there is an arbitrary element in them, so that,
though there is a moral obligation to keep to them once they have been
formulated, they are not in themselves moral rules, in the way that ‘Do not
steal’ is a moral rule. Morally, what is required is only that there be a rule:
it is morally essential that there be a rule either that traffic keep to the
right or that it keep to the left, but one rule is no better or worse than the
other.
Thirdly, legal rules can be, and are, changed, added to and repealed.
This is a regular feature of international law, even though there is no central
law-making body, and even though repeal is rare, and the main developments are
in the direction of addition and consolidation. But, though positive morality
changes, it cannot be changed by fiat: racial discrimination has been made
illegal in the UK, but, unfortunately, that did not mean that society from then
on regarded it as morally wrong. So there are three crucial respects in which
international law functions like municipal law, and in a way which is unlike
morality: it appeals to documents and precedents; it contains arbitrary, though
still necessary, provisions; and it can be altered by decisions of courts or
treaty makers. This is probably enough to justify calling it law. But there are
two further considerations, not discussed by Hart, but probably points with
which he would not disagree.
Thus Hart points out, as said above, the difference between a moral
appeal, e.g. to conscience, and a legal appeal to custom or precedent or a
particular document. But as well as this formal difference between law and
morality there can also be differences of content; not everything which is
permitted by international law would be held to be morally right, and not
everything which people find morally acceptable is permitted. Two contrasting
examples from Walzer (2006) may be given, the cases of von Leeb and Doenitz.
The case of Field Marshal von Leeb is discussed on pp.166-7, and is an
example of behaviour which is widely considered morally wrong but is permitted
by international law. Von Leeb was in charge of the siege of
The case of Admiral Doenitz of the German U-Boat command (pp.148-51) is
in a way the reverse of this, a case of something being forbidden by international
law but considered necessary by both sides.
In the “Laconia order” of 1942
Doenitz instructed submarines to strike without warning and in no way to help
the crew members of a sunken ship, whether by picking them out of the water,
righting their capsized lifeboats or supplying food and water, even if the ship
was a merchant ship, containing non-combatants. The reason for this was that
such action would increase the likelihood of detection of the submarine, which
might lead to an attack on it by fighting ships in the neighbourhood and so
endanger the lives of its crew. In his defence Doenitz brought evidence,
including testimony from the
A final argument for regarding international law as law is the practical
benefit this brings. To regard a code of international behaviour as law gives
governments a stronger motivation to adhere to it, to use it to settle disputes
and to try to enforce it than would be the case if it were seen simply as a moral
ideal: it shifts it, in principle and sometimes in practice, from the sphere of
what it would be very desirable to do, into the sphere of what one must do. The
result is that the behaviour of states towards each other, in both war and
peace, is, however unsatisfactory, not as bad as it would otherwise be. There
are many factors that contribute to the limitation of fraud and violence in
international relations; and none of them, so far, have had a very great
effect. Nevertheless, some progress has been made, and some of that progress is
due to the sense that justice between nations, even when they are at war,
involves strict legal obligations, for which members of governments and
military commanders may be called to account, and is not merely a matter of
conscience or lofty ideals. The difference between what can be achieved by
appeals to conscience and what can be achieved by appeals to law may not be
very large, especially if the enforcement of the law is extremely partial; but
it does exist. Hence, we should agree with Hart that the crucial question is
whether there are good theoretical or practical grounds for maintaining
existing usage, and saying that there is international law, not merely
international morality. We may then agree with him further that both for the
reasons he gives himself and for the additional ones I have suggested here,
there are indeed both sound theoretical and practical reasons for saying that
international law, though differing in some respects from municipal law,
differs in degree rather than kind, and hence is still law.
That said, one has to concede, as Hart does, that international law is
often uncertain and enforced haphazardly and at the moment is always likely to
be enforced in a biased rather than a fair way. One question here is whether
improvement can be done by degrees and piecemeal, or requires, as some have
argued, a radical rethinking of the whole structure of international law—a very
important question but outside the scope of this paper. But one can at least consider
the theoretical and practical consequences of this uncertainty and haphazard
enforcement, which are not quite what Hart thought they were.
First of all, given that there is
sometimes, perhaps often, uncertainty as to what the law is, one needs to distinguish
politically between governmental actions which are very clearly in breach of
international law, and actions where this is disputable. One also needs to note
that, apart from the problem of determining the law, it is in the area of
international law, often particularly difficult to determine the facts. Hence
statements that the actions of a particular country are or are not in
accordance with international law often need to be treated with great caution.
It would be a very good thing if they were made only when there was good
evidence for them. The political advantages of claiming legality or illegality
are probably sufficient to make this very unlikely: but at least people could
learn to treat them with scepticism, and see them as political point-scoring
rather than serious statements of the position of the law. Sometimes,
though, and in contrast to this, the law
is clear, and clearly being violated, so that action needs, if possible, to be
taken, but in fact is not. There are thus two contrasting problems: that of
members of the international community asserting that there is a clear breach
of international law when in fact this is uncertain, and that of a failure to
speak out when the breach is very clear.
There is in parallel to this a need to remember how haphazard the
enforcement of international law often continues to be. This similarly has two
contrasting consequences. The first is the need to try to increase enforcement,
and make bringing people to justice more normal. The second is not to do this
in such a way that the gap between countries which are required to respect
international law and countries which are not becomes even wider, with the weak
and the unpopular on one side and the strong, the popular and those in which no
one is interested on the other. So justice requires both finding ways of
proceeding against those who currently are unaffected by the requirements of
international law and also not being too ready to proceed when the prima facie
case is poor. A very much larger and more powerful International Criminal
Court, or set of courts, might be what is needed, with political independence,
so that it was not at the mercy of majority political opinion in deciding when
prosecutions should and should not be brought, but with wide powers to
prosecute as well as to adjudicate (judges and prosecutors would of course be
entirely separate). Whether this will ever come into being remains to be seen.
Meanwhile, issues will presumably have to be considered case by case by those
with the opportunity to prosecute, and those in a position to put pressure on
them; and no doubt different countries will act differently.
For international law, though it is law, and, pace Hart, not merely ‘primitive law’, is still largely law in the making:
as we have seen, there are important documents which express what is not yet
law but given time will become law. The negative side of this has been pointed
out above. But there is also a positive side, namely that the form
international law takes can still be shaped by majority opinion in the various
countries, and by the influence of majority opinion on a country’s rulers and
representatives. One needs here to distinguish the general and the particular.
Democratic opinion, whether in one country or several, is likely to be a bad
way of deciding who should be prosecuted, what charges they should face, how
specific disputes should be settled, and in general, individual cases under the
law. Such opinion is always likely to be swayed by prejudice, ignorance or
political advantage; and such decisions are more likely to be fair and just if
in the hands of an independent judicial body.
In contrast, general legislation, and the gradual formation of the code
itself, may well be made more just if as many countries as possible, and as
many citizens of those countries as possible (and this may still be in practice
a very small percentage) have had some hand in influencing its content. We
should reject the arguments for saying that international law is not law, but
point out that, as shown above, parts of it are law in the making rather than
established law, so that it is appropriate for citizens anywhere in the world
to have and to express opinions as to how it should develop. These points have
of course been discussed by many people since Hart; but the concern of this
paper has been with the particular contribution made by Hart, and with its
implications, this being an area of his thought less discussed than some others
but of equal importance and relevance. Our conclusions should be that Hart was
right to argue that international law is law; that indeed there are further
reasons, besides the ones he gives, for saying this; that he was also right to
point out the problems with interpreting and enforcing international law; but
that these do not make international law ‘primitive law’ (which in any case is
an impossibility in practice) but rather law which in parts is still very much
in the making.
an international and interdisciplinary journal of postmodern cultural sound, text and image
Volume 11, April - September 2014,
ISSN 1552-5112
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