Systems Theory and the International Rule of Law

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

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.