THEORIES AS TO THE BASIS OF INTERNATIONAL LAW
Much theoretical controversy has been waged over the nature and basis of international law. In the coming sections the various aspects of the theories trying to give satisfactory structure of the concerned law.
Does International posses law quality ?
One theory which has enjoyed wide acceptance is that international law is not true law, but a code of rules of conduct of moral force only. The English writer on jurisprudence, John Austin (1790-1859), must be regarded as foremost among the protagonists of this theory. Others who have questioned the true legal character of international law has been Hobbes, Pufendorf, and Bentham.
Austin’s attitude towards international law was coloured by his theory
…show more content…
To take one illustration, the Charter creating the United Nations Organisation, drawn up at San Francisco in 1945, is both explicitly and impliedly based on the true legality of international law. This is also clearly expressed in the terms of the International Court of Justice, annexed to the Charter, where the court’s function is stated as being ‘to decide in accordance with international law such disputes as are submitted to it.’ One of the latest such multipartite manifestations supportive of the legality of international law was the Helsinki Declaration, 1975, whereby over 30 European states, the Holy See, the United States and Canada subscribed to the following …show more content…
On the basic conception, theorists erected various structures, some writers adopting the view that international law derived its binding force from the fact that it was a mere application to a particular circumstances of the ‘law of nature’. In other words, states submitted to international law because their regulations were guided by the higher law- the ‘law of nature’, of which international law but a part. The concept of the ‘law of nature’ underwent further specialisation in the eighteenth century. The later refinements can be seen in the following passage from Vattel’s, Droit des Gens (1758)
It is true that the history of law offers us an understanding how the law evolves and change with time and place. Both the source of narcotics legislation and the Kathryn Burn’s article (Notaries, Truth, and the Consequences) somehow help us flesh out our understanding of sources of legal philosophy. Moreover, both examples somehow go beyond the traditional sources (Statutes, case law, custom, books of authority) of law. As Canadians, we require recognizing that these traditional roots of law stem from various European system by explorers and settlers.
The way of knowing about the Law leaves out important aspects of the society, “legal language flattens and confines in absolutes the complexity of meaning inherent in any given problem […] a paradigm of larger social perceptions that divide public from private, black from white, dispossessed from legitimate” (Williams, 1991, pp. 6-7). The quote explains the way in law many aspects of the social life, of reality, as left out. This division in Law leaves out important aspects that should be taken into consideration. Legal language can disguise important cultural, social, historical aspects that may affect the interpretation and the consequences of a legal decision or a law, by its way of “flattening” important topics. Therefore, the Law is not written in stone and aspects of reality should be taken into consideration.
The UN Charter also begins by affirming “faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small.” (………). The first major accomplishment of the UN in the case of human rights was the implementation by the General Assembly of the Universal Declaration of Human Rights in 1948. The Universal Declaration was a milestone achievement in the history of the world. It was the first time that the rights and freedoms of every human being were set out in such detail (……).
In his book, “The Law”, Frederic Bastiat aims to counter the trend in legislation which he identified in France during his life. A legislator himself, Bastiat worried that the scope of the law had expanded far past what was just and thus performed the very acts of greed and plunder which it should aim to prevent. Bastiat based his argument on the idea that the essence of man is found in his personality, liberty, and property. The role of law is to protect these faculties of man, and anything beyond is abuse of power and legal plunder. Bastiat views these elements which comprise man as innate.
International laws govern how countries and states should interact with each other international law has an impact on domestic laws through human rights treaties, importing and exporting of goods and global communications and connections. The Mabo case reflects this because the domestic law at the time didn’t match the international
After all, the law which is inseparable from the justice is understandable as civilized communication and background for nonviolent conflict solving process. On the other hand, the war is also the way to solve conflicts, but in a different way, using the suffering and the price of life. Apparently, because everyone understands that war is extreme and unacceptable social situation, States and international society are trying to find its reasoning or justification. “The just war tradition, and the international law which follows it, is thus a middle-ground moral tradition trying to regulate armed force in a way which is fair, reasonable, and mindful of consequences.”
Natural law as it pertains to the Enlightenment, according to the Stanford Encyclopedia of Philosophy, was that “we can know through the use of our unaided reason that we all – all human beings, universally – stand in particular moral relations to each other” (Bristow, “Enlightenment”). Using nature to advance society was not a part of the Romantic movement. Just as the Romantics idealized sensitivity as it pertains to feelings, they also idealized sensitivity to nature, according to Brians’ article on Romanticism ( Brians, “Romanticism”). This is important because this ideal set the stage for the natural world to become
Introduction Human rights are rights that are entitled to every individual regardless of nationality and citizenship as it is inherent, inalienable, and universal. The presence of basic human rights are vital in upholding a civilized society. The idea of having individual rights and freedom is not a new concept in Britain, in fact it has very deep roots. History shows landmark advancements such as Magna Carta 1215, Habeas Corpus Act 1679, and Bill of Rights and Claim of Rights 1689 all had important roles in protecting citizen’s rights.
On the legal grounds, the act of humanitarian intervention is still debatable, On the one hand, there was a responsibility to limit the use of force to self-defense according to the UN Charter. On the other hand, there was strong international pressure to abide by commitments to human rights and the right to life. This has constitute tensions in an international law system, Humanitarian intervention as the justifiable act to intervene while it is contrary to the principle of sovereignty and nonintervention in the UN system and international law. An evolving international norms related to human rights and the use of force.
An issue in theoretical basis on what should prevail or which is supreme between International Law or Municipal Law (national law) is usually presented as a competition between monism and dualist. But in modern approach there is now the theory of coordination or is also called Harmonization theory that rejects the presumption of the other two theoretical concept, monism and dualism. The monist view asserts the international law’s supremacy over the municipal law even in matters within the internal or domestic jurisdiction of a state. While it is true that the international law defines the legal existence of states as well of the validity of its national legal order, the dualist asserts the international law is an existing system that is completely separated from municipal or national law. That dictates the
The law is an intriguing concept, evolving from society’s originalities and moral perspectives. By participating in the legal system, we may endeavour to formulate a link between our own unique beliefs and the world in which we live. Evidently, a just sense of legality is a potent prerequisite for change, enabling society to continue its quest for universal equality and justice. Aristotle once stated that "even when laws have been written down, they ought not to remain unaltered".
International laws are, by definition “A body of rules established by custom or treaty and recognized by nations as binding in their relations with one another” (www.oxforddictionaries.com). International law is a very significant topic because it affects everyone globally. In this research report, I would like to explore the advantages and disadvantages of international laws and consider if they should be enforced in all countries. The modern system we use today was developed in the 17th century in Europe and is still used worldwide (Stratton, 2009). After the Second World War, international unity became very popular (Neff).
Natural law theory states that there are laws that are immanent in nature and the man made laws should correspond as closely as possible. Man can’t produce natural laws but he can find and discover through his reasoning. If a law is contrary to a natural law then it is not a law. Laws should be related to morality. It is a concept of a body of moral principal that is same for all the man
‘The Rule of Law’ came into popularity under the hands of A.V. Dicey in the 19th Century. Aristotle, another renowned philosopher once said more than two thousand years ago, "The rule of law is better than that of any individual. " [1] The Rule of Law is ultimately, the foundation of democracy that every country should acquire for the better of their own legal systems, regardless of whether it is criminal law, civil law or public law. It is a major source of legitimation for governments in the modern world. A government that abides by the rule of law is seen as good and worthy of respect.
International law is not law in the true sense of the term- Hobbes and Austin