you agree by treaty that your won't go to war except in self defence or with UN security counsel approval then not abiding by those rules makes the law illegal. If you want to argue you aren't bound by treaties then you shouldn't sign them in the first place
Just as observation. You're not going to convince an American that they are subject to world opinion or international law to the extent it violates its personal opinion of what it ought to do. Domestically, opposition to the war had little to do with the various UN procedural violations, but more so with the concern there really were no WMD and that the war would only make things worse. The UN really isn't seen here as having a whole lot of authority, which I can see as frustrating to European nations because it really is the only avenue for smaller nations to have a say on the world stage.
If the UN had all the authority you want it to have, then there would be some court enforcing it, but there's not. In fact, if the UN somehow took an aggressive stance against the US, the casualty would be the UN, not the US.
Reply to Hanover I know this but that doesn't mean it wasn't illegal by international law standards, which, by the way, the US tried to underline again by pretending SC 1441 gave implicit permission. The lack of an enforcement mechanism isn't an argument that something isn't part of the legal order. That would mean that bike theft would be legal in the Netherlands because 99% of them are not followed up and remain unresolved.
That would mean that bike theft would be legal in the Netherlands because 99% of them are not followed up and remain unresolved.
There's a difference between an inept police force and an intentional decision not to enforce the law. There's a significant difference, for example, in California now that they've legalized pot and the feds have indicated they won't enforce the federal law than there was 20 years ago when the law was laxly enforced.
If the US doesn't view the UN resolutions as truly binding and there's no way to get them to obey them, then in what meaningful way are they "law."?
You guys need to put GPS finders on your bikes. Just an idea.
There's a difference between an inept police force and an intentional decision not to enforce the law. There's a significant difference, for example, in California now that they've legalized pot and the feds have indicated they won't enforce the federal law than there was 20 years ago when the law was laxly enforced.
If the US doesn't view the UN resolutions as truly binding and there's no way to get them to obey them, then in what meaningful way are they "law."?
You guys need to put GPS finders on your bikes. Just an idea.
Of course there's a difference. I was responding to the idea that enforcement is a criteria between whether something is the law or isn't. I guess we agree then it's not enforceability per se?
Based on your comment then if the US promises to do something and puts that in writing then that promise doesn't bind it because there's no court to enforce it? Seems an interesting take on treaties, to say the least. Governments make all sorts of promises to each other that aren't enforceable but they tend to keep those promises for good reason. That's why pacta sunt servanda is considered customary law. The argument that the US can afford to break the law without repercussions is not an argument against the law in my view (especially when whenever they do it, they appeal to the rules they signed up to). It becomes an issue of politics and not law.
I was responding to the idea that enforcement is a criteria between whether something is the law or isn't. I guess we agree then it's not enforceability per se?
I don't know. I think a law without a remedy is only a recommendation. It reminds me of the exclusionary rule declared by the US Supreme Court for unreasonable searches and seizures. The Constitution doesn't say illegally seized evidence is to be excluded, but without fashioning that remedy, it's not much of a law.
Based on your comment then if the US promises to do something and puts that in writing then that promise doesn't bind it because there's no court to enforce it? Seems an interesting take on treaties, to say the least.
I'm describing reality, not what ought to be.Quoting Benkei
That's why pacta sunt servanda is considered customary law. The argument that the US can afford to break the law without repercussions is not an argument against the law in my view (especially when whenever they do it, they appeal to the rules they signed up to). It becomes an issue of politics and not law.
What you're describing is what ought to be. If the House of Hanover passes a law that it never follows and it never enforces and no one gives a shit about it, I wouldn't call it a law. Its something, not sure what, but not much of a law.
Have you given any more thought to my idea for GPS tracking for Dutch bikes?
I don't know. I think a law without a remedy is only a recommendation. It reminds me of the exclusionary rule declared by the US Supreme Court for unreasonable searches and seizures. The Constitution doesn't say illegally seized evidence is to be excluded, but without fashioning that remedy, it's not much of a law.
I think there's a fundamental difference then, which was exactly the reason I raised the example of inability to enforce first. A more extreme example, to tease out what you really mean then. Most extreme: it ain't a crime if you don't get caught.
But I suspect that's not your position. What about murder in far of places where there's no police to investigate? I don't think "don't murder" only becomes a recommendation as a result but is still the law. If for whatever reason 10 years from now there's plenty of police to investigate, all the murders committed during those 10 years would result in charges and possible convictions without the necessity to pass any "law" to do so. As you can see, I have trouble understanding exactly what such a rule would still mean to you.
What you're describing is what ought to be. If the House of Hanover passes a law that it never follows and it never enforces and no one gives a shit about it, I wouldn't call it a law. Its something, not sure what, but not much of a law.
Why would the house of Hanover bother to do this? Obviously we pass laws, enter into treaties and contracts with the intent that the rules are followed, promises are kept and that counterparts have a reasonable expectation about what will happen. That some countries can decide to break those promises without signficant repercussions does not diminish that. I assume the US law system recognises the enforceability of treaty rules as law after signature and ratification?
At least that's how I understand the supremacy clause:
Constitution:This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding.
BitconnectCarlosJuly 05, 2021 at 14:09#5617000 likes
Interesting discussion on laws and enforceability. In my home state of Massachusetts we have a number of antiquated laws that are technically on the books but are never enforced and it would take too much time and effort to remove them. Lawmakers have more important things to do.
In basic military training, wake up time is 4:45am and this rule is on the books and considered binding to recruits. However, it is an institutional norm (at least in the later weeks of basic training) for recruits to wake up before 4:45am to get a jump on the day and allow for better preparation. Drill sergeants turn a blind eye to this because it makes their lives easier (I would not mention this to them, however.) This practice was considered widespread when I went through.
So in some cases institutional norms precede rules/laws. After all humans run society, not words written on pieces of paper by people decades ago who would have likely agreed that practices can change over time and that their words are not to be considered eternal ritual.
But I suspect that's not your position. What about murder in far of places where there's no police to investigate? I don't think "don't murder" only becomes a recommendation as a result but is still the law. If for whatever reason 10 years from now there's plenty of police to investigate, all the murders committed during those 10 years would result in charges and possible convictions without the necessity to pass any "law" to do so. As you can see, I have trouble understanding exactly what such a rule would still mean to you.
And I see @Ciceronianus the White has joined us. We did have a similar debate previously. His position, and I don't mean to misstate it if I do, is that he recognizes only positive law as being the law, meaning only those formally passed laws are to be considered. This is in opposition to natural law, which would arise regardless of what our legislatures do.
Our current debate, on the other hand, doesn't really delve into what is natural law (except to a limited degree, which I'll point out), but more so asks what is a meaningful positive law. That is, if a law is passed illegalizing murder but it imposes no consequence and no means of enforcement, then does the fact that it's toothless deem it no longer a law?
As to you question above, I would say that if there is a law with no means of enforcement, I'm comfortable saying it's not a positive law. If there is a means of enforcement, but it's rarely enforced, it's still a law. It's just not used often. An interesting example are the marijuana laws in the US and to some degree the immigration laws. The Code is abundantly clear that pot is illegal and immigration without proper documentation is illegal, but public policy is such that these laws are formally unenforced. I think it is a reasonable question to ask what the state of the law is regarding pot, for example, in Oregon where the federal law clearly declares it illegal but it is formally declared not to be enforced.
Back to the natural law angle here: You continually quote the ancient Latin "pacta sunt servanda", suggesting that there is some higher law that applies always. It would be like me quoting ancient Hebrew law that declares "thou shalt not lie." Are these axioms something that exist in every system and must be adhered to. They sound like higher principles to me, and this does seem at least a partial nod to natural law, which explains your questioning how could anyone really believe it's ok to agree to a treaty, but then declare it null and void because there's no way you can get the signor to abide by it.
we did have a similar debate previously. His position, and I don't mean to misstate it if I do, is that he recognizes only positive law as being the law, meaning only those formally passed laws are to be considered. This is in opposition to natural law, which would arise regardless of what our legislatures do.
Yes. I took the legal positivism position, essentially. When people speak of "natural law" or "higher law" they speak of something that isn't necessarily the law but which they wish was the law.
Our current debate, on the other hand, doesn't really delve into what is natural law (except to a limited degree, which I'll point out), but more so asks what is a meaningful positive law. That is, if a law is passed illegalizing murder but it imposes no consequence and no means of enforcement, then does the fact that it's toothless deem it no longer a law?
I think when we speak of a law, we mean something recognized as regulating conduct, though we may disagree with it, enforceable through the imposition of some penalty or liability (thought it may not be in practice).
Reply to Benkei "We are a nation of laws." I've heard this said by various pontificating politicians who want to emphasize how civilized we are, or something.
Having laws on the books in itself is not all that significant. Lots of acreage around the world is covered by laws on the books that are both ignored and not enforced. You'd want body guards for an evening stroll, never mind a trip to the bank to deposit cash.
Unobserved and unenforced laws are dead letters. Citizens' adherence to the law and enforcement of infractions is what makes a society "a nation of laws". Law functions as a framework for managing everyone's behavior. There is often a big space between the wording of the law and its enforcement.
For something that is supposed to be clear, the law seems to require a lot of interpretation.
Many prefer that the people be law abiding, thereby minimizing the need for enforcement. The people also interpret the law on their own...
Reply to Benkei If the law is not binding, and there is no remedy, it would be as if the law didn't exist in the first place. If the law exists, then it means that most people, or at least groups and persons affected by it want it to exist, so they wouldn't have commited the crime even before the law existed, for example people would not kill even if the law forbiding killing did not exist. So a binding law is put in place along with remedies if the law is uncontroversial.
If, however, the law is non-binding, then it means there is no established consensus, which means some people think it is right to do what the law recommends not to do, and those people are not obligated to obey the law, so they would not hesitate to do whatever the law recommends not to do.
So, if people end up doing it anyway, then it is as if the law didn't exist. So, I don't think it can be considered as a law, it's more of a recommendation.
I'm not convinced I'm arguing for higher laws or principles and I'm not sure what I said that makes you interpret what I said this way. Pacta sunt servanda is a rule of customary international law and not a higher principle. I'll try to describe how I get to that rule by first discussing contracts and then apply that to treaties.
In my view, there are rules implied in performative acts. Let's imagine a society without any courts, means of enforcement or existing rules to regulate our behaviour. When we enter into a contract, doing so implies rules that arise from that act itself for that act to make sense. Let's say I'll wash your clothes in return for a meal.
You say "I promise if you wash my clothes I'll cook you a meal" and I say "If you are going to cook me a meal I'll wash your clothes". Implied here is that if I don't do anything, you'll never cook me a meal. We don't need enforcement or courts to "sanction" my non-performance.
Now, I do my part of the bargain but you don't. You broke your promise. But you promised this in the first place because you knew you would otherwise have to wash your own clothes. That is then the second implied rule, if one party performs their side of a bargain, the other party must do so too. Or to put it differently, I have a right to your performance. Why is this the case? Because otherwise you could've demanded or forced my performance and avoided making a promise but you had to give a promise because those options were not available to you for whatever reason. And not keeping your promise is sanctioned as well but less directly: I'll never enter into a bargain with you under these sort of circumstances again and if other people are aware, they will avoid bargaining with you as well, worried they'll be abused.
Now, of course, if you have a resource that everybody wants, you start to get a power imbalance. For instance, if you have all the food people will still need to bargain with you and accept the risk of abuse. That doesn't, however, negate the implicit rules established above with regard to promises. People will still expect you to keep the promise and this would become apparent when you would want to barter about other things than your monopolised resource. Chances are, in fact, that you'd get less favourable conditions as a result.*
The entering into a contract creates expectations between us about the nature of promises and rights and it also creates expectations in a wider community if they are aware of the promises we made. As a result, we've established rules intended to regulate behaviour through performative acts (two promises). It's these expectations and the underlying intent that is aimed at creating such expectations that, in my view, create law.
I don't think this is fundamentally different where it concerns treaty obligations. The system of national laws sets out that any treaty signed and ratified is accepted as binding and that national laws will be set aside in favour of the treaty rules. If this is not the case, then why bother including a supremacy clause and go through the public spectacle of voting on it (performative acts)? These are promises too and the direct sanction is that if you break treaties other signatories are not required to uphold their part of the bargain and the indirect sanction is waning of "soft power".
This is why I don't think enforcement is necessary for a rule to be law, because I think it's about intent and expectations; or, the meaning that arises from the promises made.
I hope that made sense and I wonder how much of this difference in views is the result of growing up in different legal traditions...
*This is precisely why I believe multilateralism is beneficial to everyone involved in the long run. But different discussion.
ChatteringMonkeyJuly 06, 2021 at 13:13#5621000 likes
The entering into a contract creates expectations between us about the nature of promises and rights and it also creates expectations in a wider community if they are aware of the promises we made. As a result, we've established rules intended to regulate behaviour through performative acts (two promises). It's these expectations and the underlying intent that is aimed at creating such expectations that, in my view, create law.
I don't think this is fundamentally different where it concerns treaty obligations. The system of national laws sets out that any treaty signed and ratified is accepted as binding and that national laws will be set aside in favour of the treaty rules.
Laws are rules approved by an organ that has legislative power. Treaties become law in a country if they are ratified by parliament. That is why ratification is necessary. Note that often treaties are not ratified even if they were signed by a country, in which case they wouldn't be law... I don't quite see how contractual expectations would have much bearing on whether something is a law or not.
This is why I don't think enforcement is necessary for a rule to be law, because I think it's about intent and expectations; or, the meaning that arises from the promises made.
Yeah enforcement isn't necessary for something to be a law, it just makes the law largely ineffective. It is about intent and expectations, they are normative after all, but I wouldn't say that is what makes something a law. Whether something is a law or not is determined by it being approved in a legislative organ or not.
you agree by treaty that your won't go to war except in self defence or with UN security counsel approval then not abiding by those rules makes the law illegal. If you want to argue you aren't bound by treaties then you shouldn't sign them in the first place
Splitting hairs a bit probably... but signing a treaty is done by some executive power. In itself that doesn't lend legal power to that treaty. It's only after ratification (by a legislative power) that it gets that status in an internal legal order of that country... and even then, laws do conflict with eachother (even aside from treaties), it will depend on the internal rules of conflict resolution and hierarchy of norms which law should take precedence.
Yeah enforcement isn't necessary for something to be a law, it just makes the law largely ineffective. It is about intent and expectations, they are normative after all, but I wouldn't say that is what makes something a law. Whether something is a law or not is determined by it being approved in a legislative organ or not.
I reject procedural requirements because you end up with circular reasoning. Procedural laws are after all laws themselves, so you end up with: the law is only law when passed in accordance with the law. That strikes me as rather meaningless.
Splitting hairs a bit probably... but signing a treaty is done by some executive power. In itself that doesn't lend legal power to that treaty. It's only after ratification (by a legislative power) that it gets that status in an internal legal order of that country... and even then, laws do conflict with eachother (even aside from treaties), it will depend on the internal rules of conflict resolution and hierarchy of norms which law should take precedence.
I mentioned this explicitly in my previous post but I tend to just refer to "signing" to avoid long sentences. I assumed current posters here know this and will forgive the inaccuracy.
He was a man of principle, this man. His principle was there are no principles.
The rule (aka law) can be there are no rules (laws). The Paradox of Rules (Laws). The Law Of The Jungle! Deathmatch! Free-For-All! No-Holds-Barred! You get the idea.
In chaos, anything and everything is possible, that includes order, another name for law/rule.
Chaos is indistinguishable from Order. :point: The Problem Of Induction; so-called pseudo-randomness.
ChatteringMonkeyJuly 06, 2021 at 14:32#5621250 likes
I reject procedural requirements because you end up with circular reasoning. Procedural laws are after all laws themselves, so you end up with: the law is only law when passed in accordance with the law. That strikes me as rather meaningless.
But this is what it ultimately is, circular. You have a constitution usually, which is a subtype of law requiring special majority to change, that determines how laws can be passed. Of course, behind those procedural requirements there are philosophical ideas, in case of democracies the legislative organ consists of representatives that are voted in by the people etc... So ultimately yes laws are rules that are devised according to a procedure that a certain community has decided on to be the procedure of passing laws.
I mentioned this explicitly in my previous post but I tend to just refer to "signing" to avoid long sentences. I assumed current posters here know this and will forgive the inaccuracy.
Sure, but the splitting of hairs does lay bare a distinction that is I think important for the discussion. If some executive power, like say trump, would decide to declare war in violation of a ratified treaty, that would be illegal. If however parliament would decide on declaring a war in violation of a ratified treaty, I'm not so sure that decision would necessarily be "illegal"... because they decide what is law. Then you presumably have a conflict between two norms of equal value, and it would depend on the particular legal system which one takes precedence.
But I'll grant you that in most countries, as far as I know, treaties usually take precedence above a regular law... which makes sense because, as you pointed out, if you - as a country - don't follow up on your contractual obligations, other parties typically won't be as willing to deal with you in the future.
But this is what it ultimately is, circular. You have a constitution usually, which is a subtype of law requiring special majority to change, that determines how laws can be passed. Of course, behind those procedural requirements there are philosophical ideas, in case of democracies the legislative organ consists of representatives that are voted in by the people etc... So ultimately yes laws are rules that are devised according to a procedure that a certain community has decided on to be the procedure of passing laws.
It is a theory but it's not recognised as such in analytical jurisprudence. The closest to it would probably be legal positivism which suffers from "turtles all the way down". Kelsen reaches the undefinable and conceptually useless "Grundnorm", which is just "natural law" dressed up in different wording. I don't like the theory for the reason given in the previous post, the weakness inherent to it in establishing what is and isn't law and the fact I'm a firm believer in bad law, not being law. Civil disobedience is required sometimes.
The closest to it would probably be legal positivism which suffers from "turtles all the way down".
In what way does it do so? Legal positivism merely addresses the existence of law. It's possible also to address the sources of the law, and why it's considered the law, but it seems to me that you're simply claiming that the law must have merit to the the law, which is just what legal positivism insists is not the case. If you claim that the law must be "good law" to be the law, I think the likelihood is you're the one who'll be looking for turtles to stack.
ChatteringMonkeyJuly 06, 2021 at 15:14#5621320 likes
It is a theory but it's not recognised as such in analytical jurisprudence. The closest to it would probably be legal positivism which suffers from "turtles all the way down". Kelsen reaches the undefinable and conceptually useless "Grundnorm", which is just "natural law" dressed up in different wording. I don't like the theory for the reason given in the previous post, the weakness inherent to it in establishing what is and isn't law and the fact I'm a firm believer in bad law, not being law. Civil disobedience is required sometimes.
Ok, I guess I don't understand why 'turtles all the way down' would be a problem in this case. You have to start somewhere...
I do agree that there are bad laws, I still would call them laws though even if they are bad. And yes civil disobedience should be possible at all times, it's a form of politics... and politics ultimately takes precedence over law because it determines who gets to decide what the laws are going to be or how they should be changed.
Reply to Benkei I agree generally with what you said, but I think you underestimate the significance of bargaining power and that complex interactions involve complex agreements that go far beyond the four corners of a contract, especially when that contract is a highly complex and politically sensitive issue like a treaty.
Consider your father told you that if you do the wash, he'll pay you $10. You do the wash, but he doesn't pay. Next week he asks you to do the wash, you protest over your outstanding debt, and then he explains how your debt to him is far greater than his to you and that the repercussions of your not doing the wash will far outweigh the relief of not having to do that wash. And so what do you do? You do the wash.
So your dad in this example isn't the greatest of role models, is perhaps a bully, and you'd have more appreciated him just insisting you do the wash as part of being a good family member as opposed to dangling a carrot out there that he never intended to give you.
But one day (and you can mark the days on your bedpost for that glorious day to arrive), your dad will grow weak and frail, he will need a lift to the doctor for his medicine, but his failing health will leave him homebound, and you'll be able to respond to his request for aid by saying "where's my fucking $10 with interest old man." The consequence of taking advantage of position is that the winds inevitably shift and paybacks are hell. I do agree that the benefits of good citizenship in treating all as equals avoids the real problem of karmic justice eventually bitch slapping you.
As to whether you and your father had a contract prior to reneging, did you? What about subsequent times, would those be contracts, now knowing he doesn't honor his agreements? Could you see a reason to enter into subsequent agreements with him, maybe out of sense of requirement, maybe out of the hope this time he'll give you something, or maybe to gain a better relationship with him for other reasons? Like I said, the contract isn't just that concise spoken agreement, but it's a small part of a very complicated interaction.
I reject procedural requirements because you end up with circular reasoning. Procedural laws are after all laws themselves, so you end up with: the law is only law when passed in accordance with the law. That strikes me as rather meaningless.
But what if I simply make the procedural requirement part of the definition of the term "law"? Noone says the definition for a law must itself be a law. Like all definitions, it's arbitrary.
Which causes me to wonder why we're asking what a law is in the first place? What problem are we seeking to solve by posing the question?
Reply to Echarmion Hanover and I have a long-standing disagreement about whether, for instance, international law is law or not.
And I disagree that all definitions are arbitrary. If we are attempting to describe reality, in this case a sociological phenomena like law, just making stuff up doesn't really cut it. Just including a "procedural requirement" in the definition of law doesn't resolve much. Is this procedural law a law? Yes, it was done by procedure. Until you end up with the first law, which wasn't established by procedure and we have to conclude it isn't law, subsequently invalidating all laws deriving from it.
It also ignores the role of customary law. When a judge applies a rule based on custom, the judgment recognises a certain custom as law but it was law before the judge recognised it as such otherwise he would not have had an obligation to apply it in his judgment.
I agree generally with what you said, but I think you underestimate the significance of bargaining power and that complex interactions involve complex agreements that go far beyond the four corners of a contract, especially when that contract is a highly complex and politically sensitive issue like a treaty.
Consider your father told you that if you do the wash, he'll pay you $10. You do the wash, but he doesn't pay. Next week he asks you to do the wash, you protest over your outstanding debt, and then he explains how your debt to him is far greater than his to you and that the repercussions of your not doing the wash will far outweigh the relief of not having to do that wash. And so what do you do? You do the wash.
Is this still a contract though? Or has it become an order? Or is it a promise made under duress? That's not to say orders can't form the basis of laws but I generally consider treaties the exchange of promises. A treaty established under duress (treaty of Versailles?) doesn't seem like an actual promise, just as me promising a mugger to "empty my pockets" isn't much of a promise either.
While it is true I spent very little time on bargaining power, which might give the impression I think little of it, I didn't really deal with it because I didn't think it's relevant for this question. The reason I don't think it fundamentally changes what I said is because where bargaining power is successfully exercised, it skews the results of what one party gets out of it as opposed to the other party. So the promises exchanged are more favourable for one party than the other. However, I don't think it fundamentally affects the underlying rule that promises ought to be kept because this is implied in a promise.
I'll certainly accept that there will be grey areas where duress, orders and promises cannot be clearly distinguished. And I think it's making me realise my idea of law is incomplete because where it concerns contracts and treaties, the basis is cooperative when promises are exchanged freely and only if done freely can we reasonably derive implicit rules from such acts. Orders can be given based on powers freely transferred at some earlier time and if those orders move to far away from what a population in general would agree to if they were free to negotiate terms themselves, I guess we get bad law.
But back to treaties. In my view, a way of accepting breaking treaties "for convenience", is arguing that promises made by governments (legal entities with legal personality) are fundamentally different from promises people make but that seems inconsistent with the fact that trust in government (by its citizens and, by extension, validly existing legal entities) is based on the government keeping its word. The only thing that really changes is to whom the promises are made, which in this case is another government. I don't see how the nature of the recipient of the promise, changes the nature of a promise itself though.
I'm also wondering how you see the Supremacy Clause in relation to a ratified UN Charter. What status do you think the rules of the UN Charter have in the US legal system, if any, taking into consideration the Supremacy Clause, and why?
EDIT: I realise I didn't reply to all your points. Sorry, time constraints and I don't want to put off answering for too long as that tends to kill discussions.
Hanover and I have a long-standing disagreement about whether, for instance, international law is law or not.
It's a pretty well tread argument. But why do we want to know whether international "law" is actually law? Would anything change about international relationships if it were called, say international norms?
And I disagree that all definitions are arbitrary. If we are attempting to describe reality, in this case a sociological phenomena like law, just making stuff up doesn't really cut it.
But describing isn't the same as defining. You can base your definition explicitly on a description, but it's going to be a generalisation with frayed edges.
Just including a "procedural requirement" in the definition of law doesn't resolve much. Is this procedural law a law? Yes, it was done by procedure. Until you end up with the first law, which wasn't established by procedure and we have to conclude it isn't law, subsequently invalidating all laws deriving from it.
Why would the first law not be established by procedure? The procedure doesn't need to be established by law. A constitutional assembly has / is a procedure, and isn't necessarily itself based on a law.
Indeed if we did make an empirical study of laws, I think one can argue that laws are characterized by a process from which they derive their legitimacy, which is either a specific procedure or the more general process of custom.
It also ignores the role of customary law. When a judge applies a rule based on custom, the judgment recognises a certain custom as law but it was law before the judge recognised it as such otherwise he would not have had an obligation to apply it in his judgment.
On the other hand, if a judge or chamber sets a precedent by a specific ruling, that ruling will acquire the force of law only after it is established. And I think it's not convincing to argue that judgements only apply or "discover" laws. Every judgement also generates new law, even in civil law traditions. Law is in this sense better understood as a living matter, consisting of a constant feedback loop between custom, codification and application.
We can take these elements together to arrive at a plausible description of a law: a law is an abstract and general rule governing behaviour that derives it's authority from a specific process of formation and is (at least intented to be) applied to individual cases by a formal process of interpretation.
This of course only focuses on some aspects, not others. Whether or not this is a "correct" description doesn't not depend solely on my knowledge on comparative law, but also significantly on what the point of making the description is in the first place.
It's a pretty well tread argument. But why do we want to know whether international "law" is actually law? Would anything change about international relationships if it were called, say international norms?
Does anything change because we discussed it here? I'm discussing it because I think it's interesting and I'm in a good mood which means I'm more open to different viewpoints.
Why would the first law not be established by procedure? The procedure doesn't need to be established by law. A constitutional assembly has / is a procedure, and isn't necessarily itself based on a law.
Indeed if we did make an empirical study of laws, I think one can argue that laws are characterized by a process from which they derive their legitimacy, which is either a specific procedure or the more general process of custom.
If the procedure isn't law, what binding force does it have? None whatsoever. So it's entirely unsatisfying to consider it a requirement for a law. It's not the process that matters, it's the performative act of one or more persons, their intent on the outward effects of those performative acts and the social understanding and acceptance of a community of that intent and effect. Such performative acts can certainly be a process, for instance where codification is concerned, but can be as "formless" as one person making a promise to another.
On the other hand, if a judge or chamber sets a precedent by a specific ruling, that ruling will acquire the force of law only after it is established. And I think it's not convincing to argue that judgements only apply or "discover" laws. Every judgement also generates new law, even in civil law traditions. Law is in this sense better understood as a living matter, consisting of a constant feedback loop between custom, codification and application.
Yes, precedents create law too. But when a judge applies a customary rule, the rule existed prior to the judge declaring it law. It was law before the judgment or the judge wouldn't have included it in his judgment. The content of law is living, sure. I never suggested otherwise. I'm also not alluding to objective sources of law - I specifically disavowed that early on.
Reply to Ciceronianus the White Hart remained sweetly superficial, describing and classifying law without explaining what law is. That was his point of course. I happen to think he's missing something even if there's a lot in Hart that I agree with. There's some overlap with what I'm trying to get at here and Hart's distinction between habit and social rule and how and why those differ. For me personally though, Hart's main worth was in identifying some aspects that are necessary for a law to be a good law (such as, for instance, universality).
Law is little more than a collection of prescriptions serviceable to rulers. They function as justifications for the exploitation and enslavement of populations.
@NOS4A2
In the main I fully agree with this. Especially in the implementation of the law.
But the masses also want a legal system for protection,so the rulers and masses feed off each other,with the lions share going to the rulers and the very wealthy.
Reply to Benkei
My inclination is to consider the law as something which derives from our interaction with each other and the rest of the world of which we're a part, and from the view of a practicing lawyer. As a result, I have sympathy for American Legal Realism and, in certain respects, Legal Positivism. I'm leery of the idea of a "Basic Norm" as I'm generally leery of efforts to find a single source of or basis for law, just as I am with efforts to establish a single source of or basis for many other vast, complex systems or things.
My inclination is to consider the law as something which derives from our interaction with each other and the rest of the world of which we're a part,
That's a bit of an "open door" as we say in Dutch. Dancing could be a source of law based on such a description. I was hoping to go a bit deeper than that!
Reply to Benkei
Dancing HAS BEEN a source of law, in fact. Ordinances, case law that I know of. A form of expression granted First Amendment protection here in God's Favorite Country.
My reference to Legal Realism and positivism was intended to go a bit deeper in describing my views, but the primary point of my post was to explain my thought that we shouldn't seek a "Basic Norm."
Reply to Ciceronianus the White Then at least with regard to the Grundnorm we're in agreement. I hated it already in my first year of law school. Hart always made the most sense, for a legal positivist that is.
Does anything change because we discussed it here? I'm discussing it because I think it's interesting and I'm in a good mood which means I'm more open to different viewpoints.
That's not quite what I mean. I don't want to make the boring "arguing about it on the internet won't change anything" argument.
I want to ask what additional information the claim "the principle of non intervention is international law" transports above and beyond, say: "the principle of non intervention is a commonly accepted rule for state behaviour".
If the procedure isn't law, what binding force does it have? None whatsoever.
What is "binding force" in this context? If I have a gun and dictate a procedure, that procedure is certainly backed up by force. But you seem to refer to something more metaphysical.
It's not the process that matters, it's the performative act of one or more persons, their intent on the outward effects of those performative acts and the social understanding and acceptance of a community of that intent and effect.
I agree with this in general, but it describes essentially any form of social construction whatsoever. Since we're talking about what law is it seems there is something special about law compared to other social constructions.
Such performative acts can certainly be a process, for instance where codification is concerned, but can be as "formless" as one person making a promise to another.
I'm not really convinced that the bilateral promise or contract makes for a good base model of law. One of the common aspects of law is that it comes into effect precisely when bilateral relations break down.
Yes, precedents create law too. But when a judge applies a customary rule, the rule existed prior to the judge declaring it law. It was law before the judgment or the judge wouldn't have included it in his judgment.
How does a custom turn into a customary law though? I'm not familiar with that field, but isn't cutomary law usually called that because it has been applied by courts or other systems of dispute resolution in the past?
As to you question above, I would say that if there is a law with no means of enforcement, I'm comfortable saying it's not a positive law. If there is a means of enforcement, but it's rarely enforced, it's still a law. It's just not used often. An interesting example are the marijuana laws in the US and to some degree the immigration laws. The Code is abundantly clear that pot is illegal and immigration without proper documentation is illegal, but public policy is such that these laws are formally unenforced. I think it is a reasonable question to ask what the state of the law is regarding pot, for example, in Oregon where the federal law clearly declares it illegal but it is formally declared not to be enforced.
I do not really understand the discussion and there is a lot to go through, but why would international law somehow not be law just because there is a violator of international law powerful enough to get away with it? Enforcement mechanisms sometimes do exist in international law, but most often they do not because the treaties that govern a certain field do not allow them. Even if they do allow them, such as the Rome statute in international criminal law, than it is still for all kinds of reasons very difficult to enforce the Rome statute in practice. However, practical problems erode the efficacy of the law, not its status as law itself. Even for the US international law has force of law because it will first try to get its actioned sanctioned before flouting it.
As for the emergence of law, even HLA Hart offers in the end a sociological account if I am not mistaken. The rule of recognition in his scheme (I believe it to be influenced by Kelsen's grundnorm, but I might be wrong) is that law that is seen as such by legal professionals. The US constitution is law because of the consensus among legal practitioners and lay people alike that it is. In debates about the nature of law is about the status of legal principles and what sort of beast they are. Hart does not acknowledge them and argues for judicial discretion in hard cases. I find that unconvincing because the judge also decides what case is hard and what is not. Therefore that notion spirals into judicial discretion pure and simple and the notion that the law is what the judge had for breakfast, indeed the (caricaturised) position of the legal realists.
I do not think that is what judges do or what they should do. In continental scholarship there is a notion that is problematic.. but also telling, there is something like ' the legal order'. Our interaction with each other has, since time immemorial as lawyers like to put it, shaped our expectations vis a vis each other an created iterations and reiterations of rules that became part of our legal mental furniture. Pacta sunt servanda is one of them, as is the notion that ' time heals all wounds' and that is why we have the statute of limitation for instance. There are many more such rules, for instance that you cannot profit from your own wrong doing, or that if you paid for something without having to pay it need to be reimbursed. Whether it be international law, such as just war theory, or the pettiest breach of contract such principles play a role and became fundamental to the law.
That does not make matters easier, because principles might clash and still a weighing is in order which principle has preference in which case and how that is decided etc. However I think (with Dworkin) that such principles do bind legal professionals and they should take recourse to them when cases are judged. all this law is clay works like clay or mud on the feet and legs or judges when they arrive at a decision. Sometimes they want x, by personal preference but they cannot get there because they weght of case law, statutory law, customary law and principles are stacked against the decision.
Therefore the sources of law would be: treates, statutes, case law, customary law and legal principles. Whether or not someone here views international law as non-law is rather meaningless. It is accepted as such by legal practitioners, also those of the Us and so satisfies the condition of being law. It is also logical that they are accepted because indeed the legal order demands that promises are kept. That sometimes promises are not kept does not violate this legal principle one bit.
?Ciceronianus the White Then at least with regard to the Grundnorm we're in agreement. I hated it already in my first year of law school. Hart always made the most sense, for a legal positivist that is.
That is to me simply a product of the historical circumstances of both Kelsen and Hart. Kelsen's view is simply more etatist coming from the continental tradition with its various states and constitution. The grundnrm is nothing innocent, it is the norm by which the state proclaims itself law giver and establishes its order as the legal one for now. Where it becomes a lot thornier is when a grundnorm is established that runs against the grain of legal tradition as in the case of nazi Germany. I would hold the position that, but it is a tough bullet to bite, nazi law was not law when it ran contrary to deeply established legal principles, such as legal equality, legal certainty, some due process rights. That brings me to a position similar to that of the old Radbruch, but not based on some sort of natural law, but on ' cultural law', the set of legal principles deemed the legal order and which have been elaborated on for generations in canonic as well as secular jurisprudence.
Comments (36)
Just as observation. You're not going to convince an American that they are subject to world opinion or international law to the extent it violates its personal opinion of what it ought to do. Domestically, opposition to the war had little to do with the various UN procedural violations, but more so with the concern there really were no WMD and that the war would only make things worse. The UN really isn't seen here as having a whole lot of authority, which I can see as frustrating to European nations because it really is the only avenue for smaller nations to have a say on the world stage.
If the UN had all the authority you want it to have, then there would be some court enforcing it, but there's not. In fact, if the UN somehow took an aggressive stance against the US, the casualty would be the UN, not the US.
There's a difference between an inept police force and an intentional decision not to enforce the law. There's a significant difference, for example, in California now that they've legalized pot and the feds have indicated they won't enforce the federal law than there was 20 years ago when the law was laxly enforced.
If the US doesn't view the UN resolutions as truly binding and there's no way to get them to obey them, then in what meaningful way are they "law."?
You guys need to put GPS finders on your bikes. Just an idea.
Of course there's a difference. I was responding to the idea that enforcement is a criteria between whether something is the law or isn't. I guess we agree then it's not enforceability per se?
Based on your comment then if the US promises to do something and puts that in writing then that promise doesn't bind it because there's no court to enforce it? Seems an interesting take on treaties, to say the least. Governments make all sorts of promises to each other that aren't enforceable but they tend to keep those promises for good reason. That's why pacta sunt servanda is considered customary law. The argument that the US can afford to break the law without repercussions is not an argument against the law in my view (especially when whenever they do it, they appeal to the rules they signed up to). It becomes an issue of politics and not law.
I don't know. I think a law without a remedy is only a recommendation. It reminds me of the exclusionary rule declared by the US Supreme Court for unreasonable searches and seizures. The Constitution doesn't say illegally seized evidence is to be excluded, but without fashioning that remedy, it's not much of a law.
Quoting Benkei
I'm describing reality, not what ought to be.Quoting Benkei
What you're describing is what ought to be. If the House of Hanover passes a law that it never follows and it never enforces and no one gives a shit about it, I wouldn't call it a law. Its something, not sure what, but not much of a law.
Have you given any more thought to my idea for GPS tracking for Dutch bikes?
I think there's a fundamental difference then, which was exactly the reason I raised the example of inability to enforce first. A more extreme example, to tease out what you really mean then. Most extreme: it ain't a crime if you don't get caught.
But I suspect that's not your position. What about murder in far of places where there's no police to investigate? I don't think "don't murder" only becomes a recommendation as a result but is still the law. If for whatever reason 10 years from now there's plenty of police to investigate, all the murders committed during those 10 years would result in charges and possible convictions without the necessity to pass any "law" to do so. As you can see, I have trouble understanding exactly what such a rule would still mean to you.
Quoting Hanover
All laws describe what ought to be; they're normative after all.
Quoting Hanover
Why would the house of Hanover bother to do this? Obviously we pass laws, enter into treaties and contracts with the intent that the rules are followed, promises are kept and that counterparts have a reasonable expectation about what will happen. That some countries can decide to break those promises without signficant repercussions does not diminish that. I assume the US law system recognises the enforceability of treaty rules as law after signature and ratification?
At least that's how I understand the supremacy clause:
Interesting discussion on laws and enforceability. In my home state of Massachusetts we have a number of antiquated laws that are technically on the books but are never enforced and it would take too much time and effort to remove them. Lawmakers have more important things to do.
In basic military training, wake up time is 4:45am and this rule is on the books and considered binding to recruits. However, it is an institutional norm (at least in the later weeks of basic training) for recruits to wake up before 4:45am to get a jump on the day and allow for better preparation. Drill sergeants turn a blind eye to this because it makes their lives easier (I would not mention this to them, however.) This practice was considered widespread when I went through.
So in some cases institutional norms precede rules/laws. After all humans run society, not words written on pieces of paper by people decades ago who would have likely agreed that practices can change over time and that their words are not to be considered eternal ritual.
Quoting Benkei
And I see @Ciceronianus the White has joined us. We did have a similar debate previously. His position, and I don't mean to misstate it if I do, is that he recognizes only positive law as being the law, meaning only those formally passed laws are to be considered. This is in opposition to natural law, which would arise regardless of what our legislatures do.
Our current debate, on the other hand, doesn't really delve into what is natural law (except to a limited degree, which I'll point out), but more so asks what is a meaningful positive law. That is, if a law is passed illegalizing murder but it imposes no consequence and no means of enforcement, then does the fact that it's toothless deem it no longer a law?
As to you question above, I would say that if there is a law with no means of enforcement, I'm comfortable saying it's not a positive law. If there is a means of enforcement, but it's rarely enforced, it's still a law. It's just not used often. An interesting example are the marijuana laws in the US and to some degree the immigration laws. The Code is abundantly clear that pot is illegal and immigration without proper documentation is illegal, but public policy is such that these laws are formally unenforced. I think it is a reasonable question to ask what the state of the law is regarding pot, for example, in Oregon where the federal law clearly declares it illegal but it is formally declared not to be enforced.
Back to the natural law angle here: You continually quote the ancient Latin "pacta sunt servanda", suggesting that there is some higher law that applies always. It would be like me quoting ancient Hebrew law that declares "thou shalt not lie." Are these axioms something that exist in every system and must be adhered to. They sound like higher principles to me, and this does seem at least a partial nod to natural law, which explains your questioning how could anyone really believe it's ok to agree to a treaty, but then declare it null and void because there's no way you can get the signor to abide by it.
Yes. I took the legal positivism position, essentially. When people speak of "natural law" or "higher law" they speak of something that isn't necessarily the law but which they wish was the law.
Quoting Hanover
I think when we speak of a law, we mean something recognized as regulating conduct, though we may disagree with it, enforceable through the imposition of some penalty or liability (thought it may not be in practice).
Having laws on the books in itself is not all that significant. Lots of acreage around the world is covered by laws on the books that are both ignored and not enforced. You'd want body guards for an evening stroll, never mind a trip to the bank to deposit cash.
Unobserved and unenforced laws are dead letters. Citizens' adherence to the law and enforcement of infractions is what makes a society "a nation of laws". Law functions as a framework for managing everyone's behavior. There is often a big space between the wording of the law and its enforcement.
For something that is supposed to be clear, the law seems to require a lot of interpretation.
Many prefer that the people be law abiding, thereby minimizing the need for enforcement. The people also interpret the law on their own...
If, however, the law is non-binding, then it means there is no established consensus, which means some people think it is right to do what the law recommends not to do, and those people are not obligated to obey the law, so they would not hesitate to do whatever the law recommends not to do.
So, if people end up doing it anyway, then it is as if the law didn't exist. So, I don't think it can be considered as a law, it's more of a recommendation.
I'm not convinced I'm arguing for higher laws or principles and I'm not sure what I said that makes you interpret what I said this way. Pacta sunt servanda is a rule of customary international law and not a higher principle. I'll try to describe how I get to that rule by first discussing contracts and then apply that to treaties.
In my view, there are rules implied in performative acts. Let's imagine a society without any courts, means of enforcement or existing rules to regulate our behaviour. When we enter into a contract, doing so implies rules that arise from that act itself for that act to make sense. Let's say I'll wash your clothes in return for a meal.
You say "I promise if you wash my clothes I'll cook you a meal" and I say "If you are going to cook me a meal I'll wash your clothes". Implied here is that if I don't do anything, you'll never cook me a meal. We don't need enforcement or courts to "sanction" my non-performance.
Now, I do my part of the bargain but you don't. You broke your promise. But you promised this in the first place because you knew you would otherwise have to wash your own clothes. That is then the second implied rule, if one party performs their side of a bargain, the other party must do so too. Or to put it differently, I have a right to your performance. Why is this the case? Because otherwise you could've demanded or forced my performance and avoided making a promise but you had to give a promise because those options were not available to you for whatever reason. And not keeping your promise is sanctioned as well but less directly: I'll never enter into a bargain with you under these sort of circumstances again and if other people are aware, they will avoid bargaining with you as well, worried they'll be abused.
Now, of course, if you have a resource that everybody wants, you start to get a power imbalance. For instance, if you have all the food people will still need to bargain with you and accept the risk of abuse. That doesn't, however, negate the implicit rules established above with regard to promises. People will still expect you to keep the promise and this would become apparent when you would want to barter about other things than your monopolised resource. Chances are, in fact, that you'd get less favourable conditions as a result.*
The entering into a contract creates expectations between us about the nature of promises and rights and it also creates expectations in a wider community if they are aware of the promises we made. As a result, we've established rules intended to regulate behaviour through performative acts (two promises). It's these expectations and the underlying intent that is aimed at creating such expectations that, in my view, create law.
I don't think this is fundamentally different where it concerns treaty obligations. The system of national laws sets out that any treaty signed and ratified is accepted as binding and that national laws will be set aside in favour of the treaty rules. If this is not the case, then why bother including a supremacy clause and go through the public spectacle of voting on it (performative acts)? These are promises too and the direct sanction is that if you break treaties other signatories are not required to uphold their part of the bargain and the indirect sanction is waning of "soft power".
This is why I don't think enforcement is necessary for a rule to be law, because I think it's about intent and expectations; or, the meaning that arises from the promises made.
I hope that made sense and I wonder how much of this difference in views is the result of growing up in different legal traditions...
*This is precisely why I believe multilateralism is beneficial to everyone involved in the long run. But different discussion.
Quoting Benkei
Laws are rules approved by an organ that has legislative power. Treaties become law in a country if they are ratified by parliament. That is why ratification is necessary. Note that often treaties are not ratified even if they were signed by a country, in which case they wouldn't be law... I don't quite see how contractual expectations would have much bearing on whether something is a law or not.
Quoting Benkei
Yeah enforcement isn't necessary for something to be a law, it just makes the law largely ineffective. It is about intent and expectations, they are normative after all, but I wouldn't say that is what makes something a law. Whether something is a law or not is determined by it being approved in a legislative organ or not.
Quoting Benkei
Splitting hairs a bit probably... but signing a treaty is done by some executive power. In itself that doesn't lend legal power to that treaty. It's only after ratification (by a legislative power) that it gets that status in an internal legal order of that country... and even then, laws do conflict with eachother (even aside from treaties), it will depend on the internal rules of conflict resolution and hierarchy of norms which law should take precedence.
I reject procedural requirements because you end up with circular reasoning. Procedural laws are after all laws themselves, so you end up with: the law is only law when passed in accordance with the law. That strikes me as rather meaningless.
Quoting ChatteringMonkey
I mentioned this explicitly in my previous post but I tend to just refer to "signing" to avoid long sentences. I assumed current posters here know this and will forgive the inaccuracy.
The rule (aka law) can be there are no rules (laws). The Paradox of Rules (Laws). The Law Of The Jungle! Deathmatch! Free-For-All! No-Holds-Barred! You get the idea.
In chaos, anything and everything is possible, that includes order, another name for law/rule.
Chaos is indistinguishable from Order. :point: The Problem Of Induction; so-called pseudo-randomness.
But this is what it ultimately is, circular. You have a constitution usually, which is a subtype of law requiring special majority to change, that determines how laws can be passed. Of course, behind those procedural requirements there are philosophical ideas, in case of democracies the legislative organ consists of representatives that are voted in by the people etc... So ultimately yes laws are rules that are devised according to a procedure that a certain community has decided on to be the procedure of passing laws.
Quoting Benkei
Sure, but the splitting of hairs does lay bare a distinction that is I think important for the discussion. If some executive power, like say trump, would decide to declare war in violation of a ratified treaty, that would be illegal. If however parliament would decide on declaring a war in violation of a ratified treaty, I'm not so sure that decision would necessarily be "illegal"... because they decide what is law. Then you presumably have a conflict between two norms of equal value, and it would depend on the particular legal system which one takes precedence.
But I'll grant you that in most countries, as far as I know, treaties usually take precedence above a regular law... which makes sense because, as you pointed out, if you - as a country - don't follow up on your contractual obligations, other parties typically won't be as willing to deal with you in the future.
It is a theory but it's not recognised as such in analytical jurisprudence. The closest to it would probably be legal positivism which suffers from "turtles all the way down". Kelsen reaches the undefinable and conceptually useless "Grundnorm", which is just "natural law" dressed up in different wording. I don't like the theory for the reason given in the previous post, the weakness inherent to it in establishing what is and isn't law and the fact I'm a firm believer in bad law, not being law. Civil disobedience is required sometimes.
In what way does it do so? Legal positivism merely addresses the existence of law. It's possible also to address the sources of the law, and why it's considered the law, but it seems to me that you're simply claiming that the law must have merit to the the law, which is just what legal positivism insists is not the case. If you claim that the law must be "good law" to be the law, I think the likelihood is you're the one who'll be looking for turtles to stack.
Ok, I guess I don't understand why 'turtles all the way down' would be a problem in this case. You have to start somewhere...
I do agree that there are bad laws, I still would call them laws though even if they are bad. And yes civil disobedience should be possible at all times, it's a form of politics... and politics ultimately takes precedence over law because it determines who gets to decide what the laws are going to be or how they should be changed.
Consider your father told you that if you do the wash, he'll pay you $10. You do the wash, but he doesn't pay. Next week he asks you to do the wash, you protest over your outstanding debt, and then he explains how your debt to him is far greater than his to you and that the repercussions of your not doing the wash will far outweigh the relief of not having to do that wash. And so what do you do? You do the wash.
So your dad in this example isn't the greatest of role models, is perhaps a bully, and you'd have more appreciated him just insisting you do the wash as part of being a good family member as opposed to dangling a carrot out there that he never intended to give you.
But one day (and you can mark the days on your bedpost for that glorious day to arrive), your dad will grow weak and frail, he will need a lift to the doctor for his medicine, but his failing health will leave him homebound, and you'll be able to respond to his request for aid by saying "where's my fucking $10 with interest old man." The consequence of taking advantage of position is that the winds inevitably shift and paybacks are hell. I do agree that the benefits of good citizenship in treating all as equals avoids the real problem of karmic justice eventually bitch slapping you.
As to whether you and your father had a contract prior to reneging, did you? What about subsequent times, would those be contracts, now knowing he doesn't honor his agreements? Could you see a reason to enter into subsequent agreements with him, maybe out of sense of requirement, maybe out of the hope this time he'll give you something, or maybe to gain a better relationship with him for other reasons? Like I said, the contract isn't just that concise spoken agreement, but it's a small part of a very complicated interaction.
But what if I simply make the procedural requirement part of the definition of the term "law"? Noone says the definition for a law must itself be a law. Like all definitions, it's arbitrary.
Which causes me to wonder why we're asking what a law is in the first place? What problem are we seeking to solve by posing the question?
Hanover and I have a long-standing disagreement about whether, for instance, international law is law or not.
And I disagree that all definitions are arbitrary. If we are attempting to describe reality, in this case a sociological phenomena like law, just making stuff up doesn't really cut it. Just including a "procedural requirement" in the definition of law doesn't resolve much. Is this procedural law a law? Yes, it was done by procedure. Until you end up with the first law, which wasn't established by procedure and we have to conclude it isn't law, subsequently invalidating all laws deriving from it.
It also ignores the role of customary law. When a judge applies a rule based on custom, the judgment recognises a certain custom as law but it was law before the judge recognised it as such otherwise he would not have had an obligation to apply it in his judgment.
Quoting Hanover
Is this still a contract though? Or has it become an order? Or is it a promise made under duress? That's not to say orders can't form the basis of laws but I generally consider treaties the exchange of promises. A treaty established under duress (treaty of Versailles?) doesn't seem like an actual promise, just as me promising a mugger to "empty my pockets" isn't much of a promise either.
While it is true I spent very little time on bargaining power, which might give the impression I think little of it, I didn't really deal with it because I didn't think it's relevant for this question. The reason I don't think it fundamentally changes what I said is because where bargaining power is successfully exercised, it skews the results of what one party gets out of it as opposed to the other party. So the promises exchanged are more favourable for one party than the other. However, I don't think it fundamentally affects the underlying rule that promises ought to be kept because this is implied in a promise.
I'll certainly accept that there will be grey areas where duress, orders and promises cannot be clearly distinguished. And I think it's making me realise my idea of law is incomplete because where it concerns contracts and treaties, the basis is cooperative when promises are exchanged freely and only if done freely can we reasonably derive implicit rules from such acts. Orders can be given based on powers freely transferred at some earlier time and if those orders move to far away from what a population in general would agree to if they were free to negotiate terms themselves, I guess we get bad law.
But back to treaties. In my view, a way of accepting breaking treaties "for convenience", is arguing that promises made by governments (legal entities with legal personality) are fundamentally different from promises people make but that seems inconsistent with the fact that trust in government (by its citizens and, by extension, validly existing legal entities) is based on the government keeping its word. The only thing that really changes is to whom the promises are made, which in this case is another government. I don't see how the nature of the recipient of the promise, changes the nature of a promise itself though.
I'm also wondering how you see the Supremacy Clause in relation to a ratified UN Charter. What status do you think the rules of the UN Charter have in the US legal system, if any, taking into consideration the Supremacy Clause, and why?
EDIT: I realise I didn't reply to all your points. Sorry, time constraints and I don't want to put off answering for too long as that tends to kill discussions.
Ach, du lieber! I would side with Hart when it comes to such thinking, I'm afraid.
It's a pretty well tread argument. But why do we want to know whether international "law" is actually law? Would anything change about international relationships if it were called, say international norms?
Quoting Benkei
But describing isn't the same as defining. You can base your definition explicitly on a description, but it's going to be a generalisation with frayed edges.
Quoting Benkei
Why would the first law not be established by procedure? The procedure doesn't need to be established by law. A constitutional assembly has / is a procedure, and isn't necessarily itself based on a law.
Indeed if we did make an empirical study of laws, I think one can argue that laws are characterized by a process from which they derive their legitimacy, which is either a specific procedure or the more general process of custom.
Quoting Benkei
On the other hand, if a judge or chamber sets a precedent by a specific ruling, that ruling will acquire the force of law only after it is established. And I think it's not convincing to argue that judgements only apply or "discover" laws. Every judgement also generates new law, even in civil law traditions. Law is in this sense better understood as a living matter, consisting of a constant feedback loop between custom, codification and application.
We can take these elements together to arrive at a plausible description of a law: a law is an abstract and general rule governing behaviour that derives it's authority from a specific process of formation and is (at least intented to be) applied to individual cases by a formal process of interpretation.
This of course only focuses on some aspects, not others. Whether or not this is a "correct" description doesn't not depend solely on my knowledge on comparative law, but also significantly on what the point of making the description is in the first place.
Does anything change because we discussed it here? I'm discussing it because I think it's interesting and I'm in a good mood which means I'm more open to different viewpoints.
Quoting Echarmion
If the procedure isn't law, what binding force does it have? None whatsoever. So it's entirely unsatisfying to consider it a requirement for a law. It's not the process that matters, it's the performative act of one or more persons, their intent on the outward effects of those performative acts and the social understanding and acceptance of a community of that intent and effect. Such performative acts can certainly be a process, for instance where codification is concerned, but can be as "formless" as one person making a promise to another.
Quoting Echarmion
Yes, precedents create law too. But when a judge applies a customary rule, the rule existed prior to the judge declaring it law. It was law before the judgment or the judge wouldn't have included it in his judgment. The content of law is living, sure. I never suggested otherwise. I'm also not alluding to objective sources of law - I specifically disavowed that early on.
Hart remained sweetly superficial, describing and classifying law without explaining what law is. That was his point of course. I happen to think he's missing something even if there's a lot in Hart that I agree with. There's some overlap with what I'm trying to get at here and Hart's distinction between habit and social rule and how and why those differ. For me personally though, Hart's main worth was in identifying some aspects that are necessary for a law to be a good law (such as, for instance, universality).
In the main I fully agree with this. Especially in the implementation of the law.
But the masses also want a legal system for protection,so the rulers and masses feed off each other,with the lions share going to the rulers and the very wealthy.
My inclination is to consider the law as something which derives from our interaction with each other and the rest of the world of which we're a part, and from the view of a practicing lawyer. As a result, I have sympathy for American Legal Realism and, in certain respects, Legal Positivism. I'm leery of the idea of a "Basic Norm" as I'm generally leery of efforts to find a single source of or basis for law, just as I am with efforts to establish a single source of or basis for many other vast, complex systems or things.
That's a bit of an "open door" as we say in Dutch. Dancing could be a source of law based on such a description. I was hoping to go a bit deeper than that!
Dancing HAS BEEN a source of law, in fact. Ordinances, case law that I know of. A form of expression granted First Amendment protection here in God's Favorite Country.
My reference to Legal Realism and positivism was intended to go a bit deeper in describing my views, but the primary point of my post was to explain my thought that we shouldn't seek a "Basic Norm."
That's not quite what I mean. I don't want to make the boring "arguing about it on the internet won't change anything" argument.
I want to ask what additional information the claim "the principle of non intervention is international law" transports above and beyond, say: "the principle of non intervention is a commonly accepted rule for state behaviour".
Quoting Benkei
What is "binding force" in this context? If I have a gun and dictate a procedure, that procedure is certainly backed up by force. But you seem to refer to something more metaphysical.
Quoting Benkei
I agree with this in general, but it describes essentially any form of social construction whatsoever. Since we're talking about what law is it seems there is something special about law compared to other social constructions.
Quoting Benkei
I'm not really convinced that the bilateral promise or contract makes for a good base model of law. One of the common aspects of law is that it comes into effect precisely when bilateral relations break down.
Quoting Benkei
How does a custom turn into a customary law though? I'm not familiar with that field, but isn't cutomary law usually called that because it has been applied by courts or other systems of dispute resolution in the past?
I do not really understand the discussion and there is a lot to go through, but why would international law somehow not be law just because there is a violator of international law powerful enough to get away with it? Enforcement mechanisms sometimes do exist in international law, but most often they do not because the treaties that govern a certain field do not allow them. Even if they do allow them, such as the Rome statute in international criminal law, than it is still for all kinds of reasons very difficult to enforce the Rome statute in practice. However, practical problems erode the efficacy of the law, not its status as law itself. Even for the US international law has force of law because it will first try to get its actioned sanctioned before flouting it.
As for the emergence of law, even HLA Hart offers in the end a sociological account if I am not mistaken. The rule of recognition in his scheme (I believe it to be influenced by Kelsen's grundnorm, but I might be wrong) is that law that is seen as such by legal professionals. The US constitution is law because of the consensus among legal practitioners and lay people alike that it is. In debates about the nature of law is about the status of legal principles and what sort of beast they are. Hart does not acknowledge them and argues for judicial discretion in hard cases. I find that unconvincing because the judge also decides what case is hard and what is not. Therefore that notion spirals into judicial discretion pure and simple and the notion that the law is what the judge had for breakfast, indeed the (caricaturised) position of the legal realists.
I do not think that is what judges do or what they should do. In continental scholarship there is a notion that is problematic.. but also telling, there is something like ' the legal order'. Our interaction with each other has, since time immemorial as lawyers like to put it, shaped our expectations vis a vis each other an created iterations and reiterations of rules that became part of our legal mental furniture. Pacta sunt servanda is one of them, as is the notion that ' time heals all wounds' and that is why we have the statute of limitation for instance. There are many more such rules, for instance that you cannot profit from your own wrong doing, or that if you paid for something without having to pay it need to be reimbursed. Whether it be international law, such as just war theory, or the pettiest breach of contract such principles play a role and became fundamental to the law.
That does not make matters easier, because principles might clash and still a weighing is in order which principle has preference in which case and how that is decided etc. However I think (with Dworkin) that such principles do bind legal professionals and they should take recourse to them when cases are judged. all this law is clay works like clay or mud on the feet and legs or judges when they arrive at a decision. Sometimes they want x, by personal preference but they cannot get there because they weght of case law, statutory law, customary law and principles are stacked against the decision.
Therefore the sources of law would be: treates, statutes, case law, customary law and legal principles. Whether or not someone here views international law as non-law is rather meaningless. It is accepted as such by legal practitioners, also those of the Us and so satisfies the condition of being law. It is also logical that they are accepted because indeed the legal order demands that promises are kept. That sometimes promises are not kept does not violate this legal principle one bit.
That is to me simply a product of the historical circumstances of both Kelsen and Hart. Kelsen's view is simply more etatist coming from the continental tradition with its various states and constitution. The grundnrm is nothing innocent, it is the norm by which the state proclaims itself law giver and establishes its order as the legal one for now. Where it becomes a lot thornier is when a grundnorm is established that runs against the grain of legal tradition as in the case of nazi Germany. I would hold the position that, but it is a tough bullet to bite, nazi law was not law when it ran contrary to deeply established legal principles, such as legal equality, legal certainty, some due process rights. That brings me to a position similar to that of the old Radbruch, but not based on some sort of natural law, but on ' cultural law', the set of legal principles deemed the legal order and which have been elaborated on for generations in canonic as well as secular jurisprudence.