Is International Law a Hartian Legal System?

• Date: 01 September 2018
• Published date: 01 September 2018
• Author: Carmen E. Pavel
• DOI: http://doi.org/10.1111/raju.12218

© 2018 The Author. Ratio Juris © 2018 John Wiley & Sons Ltd

Ratio Juris. Vol. 31 No. 3 September 2018 (307–325)

I s I n t e r n a t i o n a l L a w

a Hartian Legal System?

C A R M E N E . PAVE L

A b s t r a c t . H. L. A. Hart proposed one of the most influential accounts of law,

according to which law is a un ion of primary rule s, which guide the behavior of

the law’s subjects, and secondary rules, which g uide officials in re cognizing,

changing, a nd interpreting prim ary rules. Writing at the end of t he 1950s, Hart

had serious doubts about whether international law meets t he necessary criteria

for a legal system. But there are several reasons to recon sider his position. One is

that international law has g rown significa ntly since then, but a more important

reason is that Hart provided an oversimplified description of the necessary and

sufficient conditions for law provided by his accou nt, and therefore of the natu re

of the international legal order. A proper understandi ng of Hart’s view gives us a

richer and more accurate understand ing of the essential features of law, but also a

less precise yardstic k by which to measure and c haracterize the various systems

of rules, including international law. According to this new yardstick, interna-

tional law fails to meet t he criteria for a Hartian legal system, but for reason s other

than those identif ied by Hart.

1 . I n t r o d u c t i o n

The authority of international law depends i n part on whether it has features t hat

mak e it wo rthy of t he na me of law. Law -wort hin ess h as b een t rad itio nal ly as soci ated

with the existence of a sovereign powerful enough to dema nd obedience (Thomas

Hobbes 1994 , John Austin 2012 ), with the close align ment of legal rules with basic

moral requirements (John Fi nnis 2011 ), or with structu ral features of the set of rules

which guide behavior.

H. L. A. Hart ( 2012 ) proposed t his last view, which is now considered one of the

most influential accou nts of law. Law is a union of primary rule s, which guide the

behavior of the law’s subjects, and secondary rules, which g uide officials i n rec-

ognizing, c hanging, and i nterpreting prim ary rules. Law is thus te chnically be st

understood as a legal system in which se condary rules ser ve in the identification of

primary rule s. The parsimony of this account is att ractive. To ascertain whether a

set of rules counts as law, we evaluate whether primary rule s are generally obeyed,

and whether secondary ru les serve for the recogn ition and application of primary

rules by public officials. T hese two criteria for the identification of law enable us to

evaluate legal orders, including international law, with a relatively small and precis e

set of tools.

Carmen E. Pavel308

© 2018 The Author. Ratio Juris © 2018 John Wiley & Sons Ltd. Ratio Juris, Vol. 31, No. 3

Hart believed that there are ma ny examples of legal systems that meet his t wo

criteria, and the law of many advanced democracies certa inly do. However, he con-

sidered international law to be in a t wilight area. Writing at the end of the 1950s

(his Concept of Law was published i n 1961), Hart had s erious doubts about whether

it meets the necessary c riteria for a legal system. Indeed, several ti mes in the book

he likened internationa l law to primitive legal systems, which were not fully grown

legal orders, since for the most part they lack ed secondary rule s (Hart 2012 , 4–5).

But there are several reasons to reconsider hi s position. One is that internation al

law has grown signif icantly since then, but a more importa nt reason is that Hart

provided an oversimplified description of t he necessary and su fficient conditions

for law provided by his account, and therefore of the nature of the i nternational legal

order. Hart’s analysis of international law was doubly misleading. By denying the

existence of an international rule of recognition, he may have mischaracterized the

nature of an internat ional legal order in which such a rule was already operating at

the time his view was t aking shape, but also the nece ssary require ments interna-

tional law must meet in order to quali fy as a legal system.

I w ill argue that Har t overstated the simplicity of his account of law, and that

ultimately, ascertaining whether i nternational law meets Hart ’s criteria for a legal

system is a much more laborious exercise. The point of the arg ument is not to raise

questions about the need to better u nderstand international law, but to cast doubts

on whether parsimonious accounts are pos sible and desirable given the complexity

of legal orders. International law is an es pecially suitable test case for this hypothe-

sis as it unsettle s many of the preconceptions we might develop about the paradig-

matic cases of law derived from national legal system s.

Th is reconsideration of Hart’s account carries a high t heoretical payoff. Hart’s

concepts for describing a nd understanding law are now part of the shared vocabu-

lary of scholars of law and legal t heory. Moreover, his criteria capture plausible fea-

tures of the law—systematicity, internal validity, acceptance by subjects— and

whether these features a re sufficient as a test for any system of laws is worth inves-

tigating (Green 1996 ). But the practical importance of this exercise is no less salient.

Whether a rule is par t of a legal system speaks to its validity, and thus, indirectly, to

the subjects’ evaluation of whether it is a rule t hat is binding on them. Hart’s project

was positivist, preoccupied with identif ying the descriptive features of law, and not

the moral authority of the law, or the reasons the subjects m ay have to comply with

its requirements. Yet although the positivist and t he normative project are distinct,

they are related. That is, whether a group of rules h as the character of a legal system

may offer one, although not the only, reason for the addressees of the rule s to see

them as binding.

1 The proof that i nternational law has the features of a legal system

may offer its subjects—states, individuals, organ izations—an additional reason for

acting in compliance wit h its demands.

2

1 It is impor tant to emphasize t hat most legal positivist s see these two asp ects of the law,

validity and authority, as disti nct, as John Gardner clearly points out in hi s “Legal Positivism:

5½ Myths” (Gardner 2001 , 204 –7). However, it is likely they are closely conne cted in the eyes

of the general public, i.e., the law’s subjects.

2 By dism issing inter national law as not quite wort hy of being called law i n the technic al

sense, Hart hi mself might have given the impression t hat it is not worth studying and under-

standing. See Mehrdad 2010 , 978–9, a nd Waldron 2008 , 68–9.