The purpose of legal theory seems to be a perpetually debated issue among legal scholars. Koskenniemi argues that the history of international legal theory is conditioned by a dialectical movement between a position justifying any given positive law based on the power of states, and a position arguing for a theory of the state where laws are justified only in accordance with certain substantial conditions. According to Lauterpacht there is very little support in Spinoza's political philosophy for a “separate (...) and independent theory of international law”. The chapter aims to contextualize the passages pointed to by Lauterpacht in order to investigate whether such an endeavor may produce an understanding of Spinoza's political philosophy that makes it apt to function as a basis for a practical theory of international law. Lauterpacht's critique of Spinoza's statements on international law hinges on the argument that they deviate from his general explanation of the mechanisms of law‐making. (shrink)

There are frequent claims that the regulation of international law is uncertain, vague, ambiguous, or indeterminate, which does not support the desired stability, transparency, or predictability of international legal relations. This monograph examines the framework of interpretation in international law based on the premise of the effectiveness and determinacy of international legal regulation, which is a necessary pre-requisite for international law to be viewed as law. This study examines this problem for the first time since these questions were introduced and (...) identified as the basic premises of the international legal analysis, in the works of JL Brierly and Sir Hersch Lauterpacht. Addressing different aspects of the effectiveness of legal regulation, this monograph examines the structural limits on, and threshold of, legal regulation, and the relationship between established legal regulation and non-law. Once the limits of legal regulation are ascertained, the analysis proceeds to examine the legal framework of interpretation that serves to maintain and preserve the object and aims of existing legal regulation. The final stage of analysis is the interpretation of those treaty provisions that embody the indeterminate conditions of non-law. Given that the generalist element of international legal doctrine has been virtually silent on the problem and implications of the effectiveness and determinacy of international legal regulation, this study examines the material accumulated in doctrine and practice for the past several decades, including the relevant jurisprudence of all major international tribunals. (shrink)

Often, a more or less universal quality is attributed to certain legal concepts. For refugee scholars working between 1933 and 1945, the universal quality of these concepts was challenged on two fronts: first, the breaking down of the Weimar Constitution and the German Rechtsstaat under Nazi rule demonstrated the fragility of a constitutional and legal order. Moreover, the breakdown of the German Rechtsstaat was felt on a deeper conceptual level. ‘Immutable’ legal concepts turned out to be easily mutated to conform (...) to Nazi ideology. The second major challenge to the universality of concepts thus pertains to the universal characteristics of the ‘concept of a concept’ itself. In brief, what German refugee legal scholars attempted to create in the course of the 1930s and 1940s was a ‘universal’ Rechtsstaat centred around concepts and legal scholarship that would avoid the breakdown by placing it into a feasible and balanced system of legal enforcement on an international level. Thus, in their new academic context, rather than dismissing the Rechtsstaatliche function of legal concepts and the role of legal scholars, refugee scholarship ventured to enhance it. This contribution argues that the development of Hersch Lauterpacht’s concept of human rights constitutes such an enhancement. (shrink)

International law evolved to end and prevent armed conflict as much as for any other reason. Yet, the law against war appears weaker today than ever in its long history, evidenced by raging armed conflicts in which people are killed, injured, and forcibly displaced. The environment is devastated, and the planet impoverished. These consequences can be traced to the dominant ideology of realism. In 1946, Hersch Lauterpacht challenged that ideology by contrasting it with the idea of international law, composed (...) of natural law, positive law, and process theory. The Art of Law in the International Community revives his vision, rebuilding the understanding of why international law binds, what its norms require, and how courts are the ideal substitutes for war. The secret to the renewal of international law lies in revitalizing the moral foundation of natural law through drawing on aesthetic philosophy and the arts. (shrink)

Taking as its starting point the commonly held claim about the obscurity of the concept of sovereignty, the article first identifies a fundamental paradox between the classical Westphalian notion of state sovereignty and human rights. In the rhetoric of international politics, attempts to establish the responsibility of states to respect human rights and fundamental freedoms within their jurisdictions are often countered with claims referring to the “sovereign equality” of all states and the subsequent principle of non-intervention. The article suggests that (...) in a more contemporary understanding of sovereignty the responsibility of a state to respect human rights and fundamental freedoms is seen as a constituent ingredient of the state itself. The chapter continues to elaborate how this change has come about. The classical notion of sovereignty is illustrated through a reading of Bodin’s Six Books of the Commonwealth (1576). In Bodin’s world, sovereignty is a constitutive element of the state, and the possibility of a multitude of sovereign entities in a global world logically denying the possibility of any “supra-national” normative framework is still a minor consideration. This possibility is only worked out with the emergence of international law. In both classics such as Emmerich de Vattel’s The Law of Nations (1758) and more contemporary treatises such as Lassa Oppenheim’s International Law (1905), state sovereignty has become conditional to recognition by other sovereign states and a subsequent membership in the “family of nations.” The conditional membership in the “family of nations” involves a contradiction: a sovereign state must act in a “dignified” manner, it must use its sovereignty with “restraint” by respecting the human rights and fundamental freedoms of its citizens, i.e., it must employ its sovereignty in a non-sovereign way. This restriction of sovereignty, addressed as “ethical sovereignty,” becomes a constitutive element in a post-Westphalian state and a central ingredient in the contemporary doctrine of humanitarian intervention. The article further criticizes the various uses (and abuses) of “ethical sovereignty” in the regulation of “failing” and “rogue” states and concludes by identifying its general political dangers. Finally, with reference to Jacques Derrida’s Rogues (2003), the article suggests a more radical reappraisal of the concept of sovereignty.It is a fact that sovereignty is a term used without any well-recognised meaning except that of supreme authority. Under these circumstances those who do not want to interfere in a mere scholastic controversy must cling to the facts of life and the practical, though abnormal and illogical, condition of affairs.1—Lassa OppenheimBut to invoke the concept of national sovereignty as in itself a decisional factor is to fall back on a word which has an emotive quality lacking meaningful specific content. It is to substitute pride for reason.2—Eli Lauterpacht. (shrink)