Systems Theory and the International Rule of Law

Author:Kevin W. Gray
Position:JD candidate at Osgoode Hall Law School
Pages:2-16
SUMMARY

Systems theorists have been criticized for failing to provide an adequate account of the features of the international legal system. This criticism of systems theory parallels a similar critique of international law advanced by positivists working in the Anglo- Saxon legal tradition. Systems theory’s critics have attempted to use Hart’s argument against international as an argument against... (see full summary)

 
FREE EXCERPT
KEVIN W. GRAY: SYSTEMS THEORY AND THE INTERNATIONAL RULE OF LAW
ANCILLA IURIS 2019, 1 2 CC BY-NC 4.0
Abstract
Systems theorists have been criticized for failing to
provide an adequate account of the features of the
international legal system. This criticism of systems
theory parallels a similar critique of international
law advanced by positivists working in the Anglo-
Saxon legal tradition. Systems theory’s critics have
attempted to use Hart’s argument against interna-
tional as an argument against systems theoretic
account of international law.
The factors which influenced Hart’s critique of
international law are well-known: it is open-textu-
red, structurally decentralized, and lacks a single
clear rule of recognition. In this paper, I attempt to
answer some of these criticisms. I argue that the
positivist critique of systems theory mischaracteri-
zes the nature and structure of international law. To
make this argument I first develop a broadly Luh-
mannian account of international law and the inter-
national rule of law and argue for an autopoietic
account of international law-making. Second, I sug-
gest that systems theory does a better job of answe-
ring positivist criticisms of international law than
similar versions. I conclude by arguing that systems
theory does a better job of identifying and explaining
the unique features of international law and the
international the rule of law.
I.
WHAT SYSTEMS THEORISTS MEAN WHEN
THEY TALK ABOUT INTERNATIONAL LAW
AND THE INTERNATIONAL RULE OF LAW1
To the innocent eye, the formal structure of in-
ternational law lacking a legislature courts with
compulsory jurisdiction and officially organized
sanctions, appears very different from that of
municipal law. It resembles … in form though not
at all in content, a simple regime of primary or
customary law. Yet some theorists, in their anx-
iety to defend against the sceptic the title of in-
ternational law to be called ‘law’, have suc-
cumbed to the temptation to minimize these
formal differences, and to exaggerate the analo-
gies which can be found in international law to
legislation or other desirable formal features of
municipal law (HLA Hart).2
In his comments on systems theoretic accounts of
international law, Paulus criticizes systems theo-
rists – notably Teubner and Fischer-Lescano – for
failing to provide an adequate account of how legal
systems emerge in the international arena and of
the international rule of law generally.3 I aim to fill
this gap in this paper. I provide an outline of a theo-
retical account of a international law, show how
such a theory would answer common positivist and
monist objections to international legal pluralism,
and how such a theory would conceive of the exis-
tence of international law and the international
rule of law.
Claims for the existence of an international legal
system, including stronger claims for the existence
of an international rule of law, are often met with
the long-standing scepticism that has surrounded
claims for the existence of international law qua
law.4 The problems from the Anglo-Saxon perspec-
tive with providing a clear definition of interna-
tional law are well-known. International law is gen-
erally open-textured and structurally decentra-
lized.5 It lacks a clear rule of recognition. Multiple
courts exist with different jurisdictions which
apply different bodies of law.
Since international law lacks the formal features of
municipal legal systems, positivists have been
quick to accuse those who believe that international
law is still law in the relevant way of downplaying
the importance of formal features to make interna-
tional law ‘law’. Others have gone further still,
rejecting the premise entirely that international
law is properly law, have described it as an agonistic
terrain of struggle where political disputes can be
put into a common vocabulary. Even more radical
theorists, such as Koskenniemi, have argued, echo-
ing the work of other critical legal theorists, that
international law is not so much a legal system gov-
erned by the rule of law as a method of bringing
diverse political disputes under the rubric of the
same system:
In the absence of agreement over, or knowledge
of, the ‘true’ objectives of political community –
that is to say, in an agnostic world the pure
form of international law provides the shared
surface – the only such surface – on which polit-
ical adversaries recognize each other as such
and pursue their adversity in terms of something
shared, instead of seeking to attain full exclusion
– ‘outlawry ’ – of the other. In this sense, inte rna-
tional law’s value and its misery lie in its being
1*Kevin W. Gray is a JD candidate at Osgoode Hall Law School.
1 I wish to thank Hengameh Saberi for her helpful comments on an earlier
draft of this paper, as well as the very helpful suggestions for improve-
ment by a blind reviewer. I benefited greatly from discussions with
Richard Collins as I was writing this paper.
2H.L.A. Hart. The Concept of Law, 3rd edition (Oxford 2012), 232.
3 Andreas L. Paulus, “Commentary to Andreas Fischer-Lescano & Gun-
ther Teubner. The Legitimacy of International Law and the Role of the
State,” Michigan Journal of International Law 25(4) 1047-1058, P. 1052
4Richard Collins, The Institutional Problem in Modern International Law
(London 2016), 2.
5 Ibid., 7; H. L.A. Hart. The Concept of Law, 3rd edition (Oxford 2012) 124-
28.

To continue reading

REQUEST YOUR TRIAL