scholarly journals Normativity of international law

Pravni zapisi ◽  
2021 ◽  
Vol 12 (2) ◽  
pp. 488-522
Author(s):  
Goran Dajović
Keyword(s):  
Conceptual Framework ◽  
International Law ◽  
Practical Rationality ◽  
Point Of View ◽  
Reasons For Action ◽  
Internal Point ◽  
Legal Norms ◽  
The One ◽  
Concept Of Law

In The Nature of International Law, Miodrag Jovanović, generally speaking, tries to explain the concept of international law. He analyzes few typical characteristics of the prototype concept of law (institutionality, normativity, coercion and justice-aptness), and then he looks at contemporary international law through "the lenses" of these characteristics. The article pays special attention to his analysis of the normativity of (international) law. The main intention is not to criticize Jovanović's theses about the normativity of law, as such, but to point out that they are not the best possible framework for explaining the normativity of international law. Therefore, a different and more appropriate conceptual framework is presented than the one he offered in the key of Raz's idea of legal norms as exclusionary reasons for action and practical rationality. This framework is grounded on Hart's well-known idea of an internal point of view. The presented argumentation shows that within such a framework, the normativity of international law could be better explained and understood, and also it seems that certain ingrained intuitions about international law fit well into it.

Tort’s Indifference: Conformity, Compliance, and Civil Recourse

2020 ◽  
Vol 13 (1) ◽  
pp. 1-30
Author(s):  
Ahson Azmat
Keyword(s):  
Practical Reasoning ◽  
Tort Law ◽  
Point Of View ◽  
Reasons For Action ◽  
Internal Point ◽  
Loss Allocation ◽  
Fine Grained ◽  
Normative Force ◽  
Extensional Structure ◽  
Do So

AbstractLeading accounts of tort law split cleanly into two seams. Some trace its foundations to a deontic form of morality; others to an instrumental, policy-oriented system of efficient loss allocation. An increasingly prominent alternative to both seams, Civil Recourse Theory (CRT) resists this binary by arguing that tort comprises a basic legal category, and that its directives constitute reasons for action with robust normative force. Using the familiar question whether tort’s directives are guidance rules or liability rules as a lens, or prism, this essay shows how considerations of practical reasoning undermine one of CRT’s core commitments. If tort directives exert robust normative force, we must account for its grounds—for where it comes from, and why it obtains. CRT tries to do so by co-opting H.L.A. Hart’s notion of the internal point of view, but this leveraging strategy cannot succeed: while the internal point of view sees legal directives as guides to action, tort law merely demands conformity. To be guided by a directive is to comply with it, not conform to it, so tort’s structure blocks the shortcut to normativity CRT attempts to navigate. Given the fine-grained distinctions the theory makes, and with the connection between its claims and tort’s requirements thus severed, CRT faces a dilemma: it’s either unresponsive to tort’s normative grounds, or it’s inattentive to tort’s extensional structure.

scholarly journals Comparative International Law

2018 ◽  
Keyword(s):  
International Law ◽  
International Norms ◽  
Domestic Institutions ◽  
Legal Norms ◽  
Legal Rules ◽  
Diverse Backgrounds ◽  
Geographic Differences ◽  
Similarities And Differences ◽  
Cross Country ◽  
The One

By definition, international law, once agreed upon and consented to, applies to all parties equally. It is perhaps the one area of law where cross-country comparison seems inappropriate, because all parties are governed by the same rules. However, as this book explains, states sometimes adhere to similar, and other times adopt different, interpretations of the same international norms and standards. International legal rules are not a monolithic whole, but are the basis for ongoing contestation, in which states set forth competing interpretations. International norms are interpreted and redefined by national executives, legislatures, and judiciaries. These varying and evolving interpretations can, in turn, change and impact the international rules themselves. These similarities and differences make for an important, but thus far largely unexamined, object of comparison. This is the premise for this book, and for what the editors call “comparative international law.” This book achieves three goals. The first is to show that international law is not a monolith. The second is to map the cross-country similarities and differences in international legal norms in different fields of international law, as well as their application and interpretation with regards to geographic differences. The third is to make a first and preliminary attempt to explain these differences. The book’s contributors include leading international law and comparative law scholars with diverse backgrounds, experience, and perspectives. It is organized into three broad thematic sections, exploring: conceptual matters, domestic institutions and comparative international law, and comparing approaches across issue-areas.

scholarly journals Customary International Rules in Contemporary International Law // Međunarodna običajna pravila u savremenom međunarodnom pravu

2019 ◽  
Vol 9 (9) ◽  
pp. 136
Author(s):  
Duško Glodić
Keyword(s):  
International Relations ◽  
International Law ◽  
Legal Framework ◽  
International Community ◽  
Point Of View ◽  
Customary International Law ◽  
Practical Point ◽  
Legal Norms ◽  
State Practice ◽  
The Creation

This article explores the role and importance accorded to customary international law in contemporary international law. First of all, the author has explored a number of issues related to this topic. Particluarly, the manner in which norms of customary international law are being established through the relevant State practice and the formation of opinio juris, as well as how the changes in contemporary international relations generated some chages in custromary international law were examined from both theretical and practical point of view. Than, the article elaborated, in a more concrete manner, different ways of impact of changes in international relations and subjects of international law to the formation of customary international rules. It has also paid attention to the evolution in international law and its reflection to the creation of international legal norms, including customary rules. The article concluded that, despite an ever increasing number of treaties, customary rules are still present in international law and are important for regulation of international relations, thus ensuring that dynamics and developments within the international community are followed by the development of legal framework.

scholarly journals Wording in International Law

2012 ◽  
Vol 25 (3) ◽  
pp. 575-602 ◽  
Author(s):  
JEAN D'ASPREMONT
Keyword(s):  
Social Identity ◽  
International Law ◽  
Mining Activity ◽  
Point Of View ◽  
Internal Point ◽  
Legal Scholarship ◽  
Current Structure ◽  
Fierce Competition ◽  
Straw Men

AbstractSince the demise of philosophical foundationalism and that of the Aristotelian idea of an inner meaning of words, scholarship about international law is no longer perceived as a mining activity geared towards the extraction of pre-existing meaning. Rather, international legal scholarship is in a state of fierce competition for persuasiveness and semantic authority. This does not elevate persuasiveness into the determinant of legality, nor does it lead to a total rejection of the internal point of view. The configuration of that competition for naming is informed by the current structure (and the membership) of the interpretative community of international law. In this competition for naming, words constitute semantic weaponry. Mention is made here of uses of words in international law to create textual economy, generate semantic instability, rough out and hone scholarly ideas, enhance textual aesthetics, yield empiricism, create straw men and preserve the argumentative character of scholarly idea, gratify oneself, boost fame and careers, and intimidate peers. It is also argued that there is nothing to rein in in the use of such semantic tactics in the interpretative community of international law, for paradigmatic revolution is meant to be permanent. It is only if international legal scholars were to lose their social identity that the competition for naming and the interpretative community of international law would vanish altogether.

Shiner on ‘Detached Legal Statements’: A Defense of Raz

1995 ◽  
Vol 8 (2) ◽  
pp. 347-355
Author(s):  
Keith C. Culver
Keyword(s):  
Legal Theory ◽  
Point Of View ◽  
Legal Norm ◽  
Legal Systems ◽  
Internal Point ◽  
Normative Commitment ◽  
Adequate Account ◽  
Moral Commitment ◽  
Legal Norms ◽  
Joseph Raz

In his recently published book Norm and Nature, Roger Shiner contends that legal positivists cannot account adequately for the internal point of view which characterizes legal agents’ attitude of commitment to legal norms. Shiner expects that an adequate legal theory will “reproduce the way in which law functions in the lives of those who have the internal point of view to law” (NN, 137). He calls this the “reproduction demand.” In his analysis of Joseph Raz he claims that such “sophisticated positivists” cannot maintain a theory of legal statements which are “detached” from moral commitment to the legal norms they refer to. The failure of the theory of detached legal statements leaves positivists without an adequate account of the necessarily personal aspect of the internal point of view in legal systems—a point of view which according to Shiner requires normative commitment to the justification of the legal norm.

Re-Defining International Law from the Point of View of Decolonisation and Development and African Regionalism

1982 ◽  
Vol 26 (1) ◽  
pp. 49-67 ◽  
Author(s):  
Konrad Ginther
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Max Weber ◽  
Point Of View ◽  
University Education ◽  
Pure Logic ◽  
The Everyday ◽  
Systematic Pattern ◽  
The One ◽  
Scarcity Of Resources

The scarcity of resources and time limit the scope of ideas and the framework of deliberations in all human activities. Thus time and resources equally place limits upon any attempt to theorise and conceptualise, whether in science or in teaching. This limitation bears equally upon the choices of method and substance. Thus in the study of international law today the question is posed, what are the priorities with regard to basic questions and to their systematic presentation on the one hand, and then how to proceed (of necessity selectively) for the purposes of teaching on the other?Contemporary legal education consists in what has been called “modern, rational, legal university education”. As a result of the rational-systematic transfer of legal ideas and techniques, the legal mind so formed can release itself from the concern with everyday needs of those who are the “consumers” of law, which Max Weber has described as follows:“The rational-systematic pattern of legal thought may induce the legal mind to dissociate itself largely from the everyday needs of those who are most affected by the law, and so does a lack of its concrete substantiation. The power of the unleashed dictates of pure logic in legal theory and a legal practice dominated by it can to a large extent eliminate considerations of practical needs as the driving force for the formation of law.”

scholarly journals The Issues of Secession in the Process of the Rise and Fall of States in the Light of International Law

2019 ◽  
Vol 8 ◽  
Author(s):  
Boubacar Sidi Diallo
Keyword(s):  
International Law ◽  
International System ◽  
Point Of View ◽  
Global Perspective ◽  
Self Determination ◽  
Simple Fact ◽  
The One ◽  
The Right ◽  
Constituent Elements ◽  
Secessionist Movement

The aims of this contribution is to check the validity of the old theory, which goes back to Jellinek but is still dominant, which states that secession as well as the process of forming a new state, fall under the scope of a “simple fact” and thereby escape through definition to any law of way. According to this theory, secession is not a question of “Law” but a question of pure fact, failure or success: if a secessionist movement succeeds in establishing a new effectiveness, that is to say, puts in place the “Constituent elements” of a state, a new state is born. It is interesting to observe that with the phenomenon of the rise or the collapse of States, from the global perspective of international order and especially from the point of view of international law, the States concerned are, in practice, not simply left to their fate. On the contrary, the rise or the collapse of a State anywhere in the world is seen as a matter of concern for the international community, since the international system as a whole is felt to be affected. In such cases, international reactions have not been manifested primarily through the States as such, either indi-vidually or together. Basically, these reactions had to cope with the dilemma of choos-ing between two fundamental principles of legitimacy in international law: on the one hand, the sovereignty and equality of States and, on the other, the right of peoples to self-determination.

scholarly journals Legal Aspects of Corporate Management in the Context of International Law Rules

2020 ◽  
Vol 11 (4) ◽  
pp. 1416
Author(s):  
Yurii S. SHEMSHUCHENKO ◽  
Anatoliy V. KOSTRUBA
Keyword(s):  
Corporate Governance ◽  
International Law ◽  
Legal Aspects ◽  
Point Of View ◽  
Corporate Management ◽  
Legal Norms ◽  
Legal Standards ◽  
Common Criteria ◽  
Corporate Activity ◽  
Foreign Countries

This study sets the task of studying the legal aspects of corporate governance in the context of existing international law. Consideration of issues related to the legal aspects of corporate governance is of great importance for the development of common criteria for evaluating their activities from the point of view of existing legal norms. The development of ever new forms of public organizations and the need to develop legislative norms to regulate their activities only emphasizes the importance of the issue under study. The relevance of this problem is of particular importance in light of the fact that to date, the laws of most countries have not yet developed clear criteria governing the corporate activity. This fact leads to difficulties in studying this issue and the high probability of misunderstanding in matters of corporate activity and corporate governance features, not to mention giving this activity a proper assessment from the standpoint of the norms of current legislation. This study sets the task of studying the fundamental legal rules regulating the corporate governance of Ukraine and foreign countries with the identification of the similarities and differences of existing legal standards. The method of comparative analysis of works of domestic and foreign researchers in the framework of the subject under consideration was selected. The applied value of this material is to identify the main criteria for the compliance of the current aspects of corporate governance with international law with a view to the subsequent application of the results in practice. The research prospects in this direction from a legal point of view consist in comparing the current legislative acts regulating international law with regard to corporate governance issues, which opens up great opportunities for analysis of all the provisions of corporate governance and bringing them into line with the norms of existing international law.  

The Chinese Recognition Problem

1955 ◽  
Vol 49 (3) ◽  
pp. 320-338 ◽  
Author(s):  
Quincy Wright
Keyword(s):  
International Law ◽  
Mainland China ◽  
National Interest ◽  
Point Of View ◽  
The Other ◽  
Recognition Problem ◽  
Press Conference ◽  
The Law ◽  
The One

In a press conference of January 19, 1955, President Eisenhower envisaged the possibility of settling the problem of China by recognizing the existence of “two Chinas”—mainland China, on the one hand, and Formosa and the Pescadores, on the other—and promoting a non-aggression agreement between them. From the point of view of international law this suggestion involves consideration of (1) the de facto situation, (2) the law of recognition, and the application of that law (3) to mainland China, (4) to Formosa and the Pescadores, and (5) in American traditions. Apart from considerations of fact and law, considerations of present national interest and opinion are important.

Peter Winch and H.L.A. Hart: Two Concepts of the Internal Point of View

2007 ◽  
Vol 20 (2) ◽  
pp. 453-473 ◽  
Author(s):  
Veronica Rodriguez-Blanco
Keyword(s):  
Legal Theory ◽  
Point Of View ◽  
The Other ◽  
Reasons For Action ◽  
Internal Point ◽  
Practical Point ◽  
Other Hand ◽  
External Point ◽  
Third Person ◽  
The Concept Of Law

In his book The Concept of Law, Hart advances an arresting idea: the internal point of view. The idea immediately captured the imagination of legal theorists and was envisaged as a step forward in understanding both the nature of law and its practices. There is, however, lack of clarity and ambiguity on understanding Hart’s important notion and its role in different key jurisprudential problems such as the normativity of law and the methodology of legal theory. This article reconstructs the intellectual roots of the internal point of view and argues that although the seeds of Hart’s idea can be found in Winch’s seminal book The Idea of a Social Science, there are striking differences between Hart’s and Winch’s notions of the internal point of view. Winch endeavors to explain the participant’s viewpoint in terms of what the participants are doing. On the other hand, Hart aims to provide an explanation of how the law enables judges and law-abiding citizens to determine what they ought to do. This difference has been often overlooked by legal scholars; however, it provides the key to understanding Hart’s connection between the internal viewpoint and the normativity of law, i.e., the idea that legal rules provide reasons for action and, in some circumstances, create and impose duties and obligations. The distinction also illuminates the demarcation in the methodology of legal theory between an explanation from a detached perspective, namely the second or third-person standpoint of the practical point of view and, on the other hand, either a theoretical or hermeneutical explanation of the participant’s point of view. I argue that the non-recognition of the practical/participant distinction has been pervasive in two ways. First, there has been an overemphasis on the distinction between the internal and the external point of view. Second, a more fundamental distinction between an ‘engaged’ and ‘detached’ viewpoint which is a predominant feature of the practical point of view has been under-researched.

Sign in / Sign up

Export Citation Format

Share Document