International Law

Abstract

International law suffers from what D. J. Harris wittily calls “the Austinian handicap”:

“Is international law ‘law’?” is a standard sherry party question. Its sometimes irritating persistence is very largely the responsibility of John Austin. (Harris 1998, 6)

For Austin, familiarly, to qualify as law in the proper sense, a norm must be a command from a political superior—a sovereign—to a political inferior, and backed by a threat of evil in the even of non-compliance. What is “usually styled the law of nations or international law [...] consists of opinions or sentiments current among nations generally. It therefore is not law properly so called” (Austin 1954, 141-2). Austin is fundamentally correct in saying that international law does not qualify as law by his test for law. But Austin’s test takes as a paradigm for law a system of municipal law.¹ On the face of it, therefore, there is no special reason why we should expect international law to satisfy the test. But then a different question arises: If international law is not law by Austin’s test, and Austin’s test is inappropriate, by what other, appropriate test for law might international law qualify?

Much has been written in analytical jurisprudence about whether even municipal legal systems satisfy Austin’s test, but that is a topic for another time.