Is There a Need for a New Sources Theory in International Law? A Proposal for an Inclusive Positivist Model

Article excerpt

Although a positivist, I take more of an inclusive approach than my fellow panelists, and I apply Jules Coleman's theory of incorporationism in order to propose and explain a conceptual model for the sources of international law. Here, I will explain why inclusive legal positivism provides the most appropriate theory for conceptualizing the sources of international law in a contemporary world and outline some features of the structural model I set forth in my paper.

I attend to two levels simultaneously: arguing in a favor of a wider notion of sources in international law induced from the criteria set out in the secondary rules, which may be regime-specific (secondary rules lex specialis); and suggesting a model in which the secondary rules (as well as primary rules)--both lex specialis and lex generalis--are unified by a meta rule, the rule of recognition, which has normative foundations.

INTRODUCTION

The basis of the model lies on the notion of secondary rules of international law that define the criteria for the sources of law. I acknowledge that there may be different sets of secondary rules, rather than one set that applies across the board to all the sub-disciplines and regimes in international law. There are, however, some general secondary rules, most notably--but not exclusively--those arising from Article 38(1) of the Statute of the International Court of Justice.

The formulation of secondary rules as lex generalis and lex specialis sets out a pluralist approach to the processes of law formation, and the rule of recognition brings a normative unity in the international legal system. I use the term "secondary rules" as referring to the rules that set out the criteria of sources. Taking, for example, the definition of customary international law: practice supported by opinio juris sets out how custom is formed, and hence forms the secondary rules lex generalis for the source of custom. In addition to these general secondary rules, novel or unorthodox interpretations of an existing source, or new criteria for either an existing or new source of international law--often as regime-specific--can then contribute to creating secondary rules lex specialis.

In addition to the issue of conceptualizing the sources of international law in an accurate and analytical manner, the argument here relies on inclusive positivism in the sense that moral (or other extra-legal considerations) may determine the formal legality of the rules. In other words, the rule of recognition may--but does not need to--incorporate the principle of morality: hence, applying the basic notion of inclusive positivism of "no necessary connection" between law and morality. This is apparent in international law and is, I argue, the most practically and conceptually accurate description of social facts in the international legal system. It is possible to locate the rule of recognition, notwithstanding past refusals to accept that such a rule would exist in international law. (1) It is beyond the focus here to discuss in depth the very nature of the rule of recognition, and I rely on Coleman's notion that the rule of recognition is both a social rule and a normative rule. (2)

INCLUSIVE POSITIVISM AND SOME PARAMETERS OF A MODEL FOR A SOURCES THEORY

Jules Coleman rejects Wil Waluchow's view that inclusive positivism best provides for the descriptive accuracy of law, (3) referring to rules that incorporate some moral conditions (e.g., "due process"; "cruel and unusual"). (4) Rules and principles containing similar moral language appear in abundance in international law. It is not for the reason of providing descriptive accuracy, but interpretive accuracy that inclusive positivism trumps competing theories, because it "provides the best comprehensive understanding of legal practice." (5) By this Coleman means that inclusive positivism best explains the interpretation of moral language in law application--again, something quite inescapable in international law. …