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Delighted to be speaking from Oxford. I live in Canada.

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I teach at the University of Toronto, had a visiting fellowship here from January,

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but it was unclear until well into February whether I would be able to come to Oxford.

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And I'm going to start off, if I may just use the session for a personal remark.

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I'm feeling guilty now because I see my friend Pablos left their yachties there and

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I had neglected to tell him that I'm actually in Oxford hyperbolise our remedy.

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This if you're a skier as well as the Tasha coquis listed a lot of things about me.

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But the one thing that wasn't on that list and can't be on that list,

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which I want to emphasise at the beginning of my talk, is that I'm not an international lawyer.

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She made no claim about my international law credentials. And Tash,

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she could not make any claim because there are none other than the fact that I

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took international law as an adult b student many years ago in South Africa.

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And it was, in fact my favourite law.

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Of course, it was taught by my main mentor at that time, an international lawyer called John to God.

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He also taught jurisprudence and I decided to continue on the jurisprudence track rather than the international law track.

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Natasha mentioned that I've just published puppyish stuff just to put into the production process for publication a book,

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The Long Arc of Legality, and one chapter of that book does deal extensively with the debate.

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I'm going to be talking to you about today, and this comes about because of Iran.

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Six years ago, I was invited to give a series of seminars in Mexico City and the focus was supposed to be international law.

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And what I did was I crammed together about my work in progress and I pretended that it was about international law.

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And I've tried to make this less of a pretence over the past few years that how much of a pretence it is, you'll soon find out.

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So what I'm going to do today is to set out some of the basic themes which I've been

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grappling with as I try to make sense for my own project of public international law.

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And as you listen to me, this requires that you follow me on a tour of what James Crawford,

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of whom you all have heard, calls the glacial uplands of juristic abstraction.

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And Crawford doesn't mean this glacial uplands of juristic abstraction as a compliment.

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He's talking about the monism journalism debate in international law and hearts and hands Karlsson's take on that debate.

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And this is the debate that I engage in when I try to deal with international law.

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If you want theoretical talk, that's by a real international lawyer.

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You'll have to wait until the next week when my colleague Euterpe Rene will be talking to you at quite an early hour in Toronto.

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Now, it's sometimes said, I think, that philosophers of law tend to worry when they look at public international law about what Ronald,

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talking in his posthumous published piece on international law called The Existential Question.

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And that, of course, is whether international law. Israeli law.

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Whereas philosophers of law might worry about that. It's also said that international lawyers don't bother with this existential question,

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whether they get on with their job of trying to work out whatever part of international law really interests them.

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But I do think that it's difficult to make this existential question go away,

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because I think it is incumbent on all international lawyers to try to understand the juridical quality of public international law.

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And sometimes issues about that radical quality does crop up in quite important practical debates.

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So I just want to refer briefly at this point in my presentation to debate that took place in this country just a few

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months ago when the question arose whether the UK government would be breaking international law when it wanted,

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enacted or purported to want a bill enacted which would have given authority to ministers to issue regulations,

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which would contravene the agreement signed between the UK and the other states in the European community.

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And the debate about this issue, whether the UK would be breaking international law if it went ahead with this legislation.

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This debate did have an Oxford manifestation. Sir Richard Eakins at this university argued with an international lawyer that the UK

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would not be breaking international law if it went ahead with this piece of legislation.

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And he cited in the piece where he made this argument, a claim made by a very eminent philosopher of law in Oxford,

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John Finace, that international law is, quote, defective law.

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And this was part of the argument about why it wouldn't be any violation of the rule of law if the government went ahead with the legislation.

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There was, in my view, a very effective answer to Eakins piece by another Oxford lawyer that is a professor,

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Dapper Candy, where it can be argued together with someone else that there would be a violation of the rule of law.

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If this legislation went to head. Now, in this debate,

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I do think that it's a case that HLA heart would have sided with Eakins and

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finace not because he would have been in political agreement with them back,

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because he would have found their position that you radically correct what?

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And that is in hights view and also a little bit more about this later.

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International law is law, but it is somewhat effective.

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Moreover, there is no legal obligation on municipal or domestic institutions to respect unincorporated public.

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International law norms, in other words, are hot, was a dualist.

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And so from his perspective, a validly made municipal norm is unproblematic from the rule of law perspective,

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even if it is in conflict with public international law.

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So I think that Hart's position does support the kinds of arguments that Eakins and his co-author were making.

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And in contrast, I think that Carlson's legal theory supports the arguments made by Candy.

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And this is because I think that the best understanding of Carlson's position

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is and this is a term I'll explain just a little bit later in my presentation.

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The best understanding is that Kelson is what I call an international law modernist.

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So at this point in my presentation, I just want to say something about Kelson and his position, and then I'm going to move to port.

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When it comes to Coulson's understanding of international law and the relationship of international law with the law of national legal orders,

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I follow Keelson in all respects. Safe, too. But even there,

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I think that there is a basis in Coulson's work for making the claims that I

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want to make when it comes to the two respects in which I don't follow him.

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So what I'm going to do now is just to throw a list to you of the Coulson's main claims that I think bear on this modernism journalism debate claim.

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Number one is that journalism is not a coherent account of the juridical relationship between public international law and national law.

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And the only coherent account is an account which is monastic.

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So that's claim number one. Claim number two is that there cannot be conflicts between two norms of valid legal order or two norms of two

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valid legal orders or a plurality of such orders so that we can think of this as a kind of no conflicts thesis.

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So on on this argument,

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there cannot be a conflict between a norm of the international legal order and the norm of the national of a national legal order.

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So that's claim number two, claim number three is that there's a dynamic relationship between the norms of a legal order, not a static one.

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That is that when the relationship between a norm of legal order and a hard order, Norm, is not one of derivation.

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That is, one doesn't derive a lower or the norms from higher or the norms.

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I'd rather lower all the norms are produced. There are produced in a process which is law governed.

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But nevertheless, this isn't a matter of logically producing the content of the norm from a higher order.

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Norm is something creative about it. But that's claim number three.

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Only two to go. It is rather a lot. I know.

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As Joel. I think.

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Kelson suppose that at the base of every legal order is what he called the great norm and which usually gets translated in English as the basic norm.

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And Coulson's view was that the basic norm has to be hypothesised in order to make sense of a legal order as a meaningful unity.

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But he also claimed that this, the basic norm, is a product of what he called juristic interpretation.

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So there's this curious feature of Coulson's work that the basic norm is by

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something that has to be presupposed in order to make sense of legal order.

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But it is also something that's produced through agents in the legal order interpreting that the norms of the legal order.

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And I think the best way to understand this idea of the basic norm as both the basis of the product of interpretation,

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is to understand it as what it gets called in philosophical literature,

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a regulative assumption,

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an assumption that one makes about something better in one's activity when it seeks to ensure that that thing lives up to the assumption.

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So this ties into the dynamic idea that I mentioned in the claim number for the very last claim.

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That I'm going to have on my list is that hypothesis or postulate of unity.

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That is that the norms of an order can be understood as a meaningful whole, is also a postulate of peace, as Kelson puts it.

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And tribe, it gets this idea in his many works on international law.

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So that those five times, I think, are all claims that are uncontroversially part of Coulson's legal theory,

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where I depart from him is in two respects. The first aspect is that in much of his work, Kelson.

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I said that there two kinds of mannerisms. I recall that Kelson supposes that one has to be a modernist if one's going to understand

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the juridical relationship between public international law and national law.

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But he says that also that there are two kinds of modernism. There's a kind of modernism which I gestured at at the beginning of my presentation.

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That's international law, modernism, which in international law, modernism,

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says that the basic norm of all legal orders is the basic norm of international law.

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And then there's national law monism, which is different from international law, modernism,

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because national law monism says that international law is law, as is the law of all other legal orders.

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But it's the basic norm of this particular national legal order that is the basis of validity of the norms of all other legal orders,

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including the norms of international law.

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So that's the difference between international law, monas them on the one hand and national law monism on the other.

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And Keelson always indicated his preference for international law, modernism.

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But he said that he had that preference for political reasons. As someone who is inclined towards cosmopolitanism.

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He was a client politically to accepting international law, modernism, whereas those of a more nationalistic intonation would,

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he suggested, have preferred national modernism that he emphasised throughout much of his work.

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That's a legal theory itself could not decide between international law, modernism and national law, modernism.

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This was a matter of political inclination. Now, I think that Kelson was wrong to make this claim because it seems to me that Kelson.

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They say that only international law, modernism is coherent position, there's something incoherent about to national law, modernism.

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And I also want to make the claim that Kelson should not have said, as he said throughout his work, that law can have any content,

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because I think that's the case that for Kelson and I think one can see this more clearly in his work on international law than anywhere else,

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that he does not think that law can have any content. Rather, when it comes to international law,

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at least the content of international law norms will be a content which does not contradict the postulate of peace.

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That is, one would expect that in international law, law norms,

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the kinds of substantive norms that one will find will be norms that are conducive to

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upholding peaceful interaction between the states that are subject to international law.

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I also want to make the claim in the next while that to heart.

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Turns out not to be jihadist, but what I called a moment ago, a national law monist, and that dualism is not a theoretical position.

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Rather, it is at most a practical arrangement that some states have for managing their relationship with pot of public international law.

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So there is no such thing as theoretical dualism. There's only practical arrangements which are dualistic and to some extent.

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So there we have the two aspects in which are one part from Kelson.

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I want to say that only international law, modernism is a coherent theory and also that there is something to the claim that that the law,

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especially when it comes to international law, has to have a particular content.

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It can't have any content whatsoever.

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I just want to mention briefly that there is, as I suggested, some basis in Keelson himself for these two departures from hysterias.

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So if one looks to Carlson's first major work on international law, his 1920 book on sovereignty there,

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he seems adamant that only what I've called international law modernism is a coherent

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juridical explanation of the relationship of public international law to national law.

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And that's also quite clear from this book that Keelson had a rather surprisingly natural law understanding of international law.

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And I'm just going to read you a rather long paragraph from this book.

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I could have put it popped up on a PowerPoint, but I have difficulty handling PowerPoint in Zoome at the same time.

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I'm afraid you're just going to have to deal with my reading of this paragraph from Kelson.

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Kelson says in his 1920 book, there is a generally accepted understanding of the nature and concept of

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international law that it constitutes a community of states with equal rights.

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The proposition of the coexistence of a multiplicity of communities which, despite their actual difference in size,

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population and effective means of exercising power, are from the perspective of legality of equal value.

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And when it comes to the mutually delimited spheres of power found in a higher community is an eminently ethical idea,

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and one of the few really valuable and uncontested components of contemporary cultural consciousness.

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But this proposition is only possible with the help of a juristic hypothesis that above the community is understood.

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States stands a legal order which mutually to limited the spheres of validity of the individual states,

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in that it hinders incursions by one into the sphere of the other, or at least subjects them all to equal conditions for such incursions.

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And he then goes on to say that when the primacy of international law fulfils this function, that is the mutual delimitation of spheres.

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The concept of law is simultaneously perfected in a formal and substantive sense.

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The law attains the organisation of humanity and thereby a unity with the highest ethical idea.

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So if you can take at least large chunks of that in and have this image of Kelson as this austere legal theorist who put forward a pure theory of law,

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that is a theory of law, that in at least in one respect, was purified of all ethical content in this long quotation I've read to you.

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It is somewhat at odds with that orthodox view of Kelson.

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The very last point I want to make about Kelson and I hope you can see this from the variety of times that I attributed to him,

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is that when it came to constructing his legal theory, Kelson thought one was proceeding in the wrong way.

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If what one did first was to construct a theory of state law or of municipal law,

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and then to ask how that theory applied to public international law, because for Keelson,

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one could not understand the legal order of what we can think of as a modern legal state unless

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one understood that legal order as it is situated within the international legal order.

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So one could not understand why it could not. On Karlsson's view, as I understand,

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Kelson construct a theory of law which did not include an account of the juridical relationship between public international law and national law.

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And for those of you who were familiar with HLA Heart, you will know that tort proceeded in exactly the opposite direction.

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Heart starts of his famous book, The Concept of Law, by saying that international law is not an important part of jurisprudence.

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And to follow through on this by relegating his discussion of international law to the very last chapter of the concept of law,

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where it seems a bit of an afterthought to everything that had gone before.

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Because what comes before is Hart's development of a theory of that of a municipal legal order.

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That is, of the internal legal order of a modern legal state.

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And he then Orsa only then asks the question, well, how does everything I've said before in chapters one,

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two, seven of the concept of law apply to public international law?

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The subject of Chapter 10. And what's more.

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When he gets to Chapter 10. Hot fines, as I suggested at the beginning of my presentation.

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International law somewhat effective. He doesn't.

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As his predecessor in the 19th century, Jane Austen, in his combined theory of law, disqualify public international law as law.

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As I'm sure you'll all know. Austen regarded public international law as no more than a set of positive moral conventions, just as you regard it,

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might be important to note domestic constitutional law that was also no more than positive morality, according to Austen.

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And Hart wants to move away from these views and try to find because he takes us to be a fact of the matter that that international law is law.

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But it isn't law in the terms that he had developed earlier in the concept of law for understanding the distinctive structure of municipal law,

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because there, as you well know, he thinks that the most fundamental idea in understanding the law of a modern legal state is the rule of recognition.

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That is the secondary rule that certifies whether all other rules of the legal order, including the other secondary rules, are valid rules.

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And he does not find rule of recognition in international law.

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That leaves him with the problem of understanding why international law is law property so cold.

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And as I'm sure you are all familiar with, his claim is that international law is much like the law of what he calls.

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Maybe one needs inverted commas for Zoom, but the law of a primitive society, that is a society in which the only law is customary law.

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If it's right that international law is it is customary law in the way that the law of a primitive society is customary law.

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Then we have to ask and it's not a question that heart really answers.

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And what what makes it law? A kind of law like the law that we find in a primitive society.

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And I think the answer has to be for heart, which you might think is obvious, which.

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And that's why he doesn't make this science very explicit.

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It's a rule of recognition of a particular society that says that the customary law that we find in international law is law, properly so-called.

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Just as a rule of recognition might say that customary law within the national legal order is to be considered as law properly so-called.

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But if that's right. If international law is law because there's some set of norms which the rule of recognition of one's legal order,

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as says, should count as a valid legal norms.

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Then it's the case that the recognition of international law by a particular legal order is entirely contingent.

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Just as a national legal order does not have to recognise customary law as law.

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And there will of recognition of a legal order does not have to recognise international law as law.

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If Hart had said that. I think he would have provided as a rather strange but still coherent account of international law.

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But he did not say that. And he did not say that because I think there's an implicit assumption in Hart's theory of international law.

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That, at least in all and heart did use this language.

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All civilised states, it will be the case that a rule of recognition of that state will recognise international law as law.

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But if that's right, if it's the rule of recognition of every civilised to use this term, the state recognises international law as law,

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then we have a rather stranger situation because it would then be the case that the law of every other legal order other than one's own legal order,

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including the international law, is law only because one's rule of recognition says that it's a.

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And then hot would turn out to be what Kelson calls using my term at a national law monist,

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he assumes that the ultimate rule of one's own legal order is the ultimate rule of every other legal order.

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And this is a rather strange view, because we can find that from the internal point of view of jurists in every other legal order.

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They have exactly the same account of the validity of law, of all other legal orders.

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And what one would have is a. It is a view which has the same content as international law monism,

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but because it back rooted in a very strange set of ideas about how legal orders interact with each other.

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I want to add to this claim about the strangeness of Hart's theory of public international law, something about of dualism.

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So it's thought so far is that heart does not really turn out to be a journalist, but a national law modernist,

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but he did officially espouse journalism and he espouses it in a rather interesting way.

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So Hart's explicit commitment to journalism crops up in a lengthy footnote in the concept of law.

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And it's in a chapter which is called The Foundations of a Legal System,

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which follows a chapter in which he sets out his famous account of the rule of recognition.

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And his commitment to journalism is set out in a discussion about the continuity of legal orders.

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It's a very influential discussion and it deals with the important phenomenon that had taken place in in the former British Empire,

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where countries like New Zealand, Australia, Canada, South Africa had achieved independence from the legal order of the UK.

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It was a bit of a mystery about how they managed to achieve independence,

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why they were still not subject to the rule of recognition of the United Kingdom.

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And Hart says in this footnote.

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Coulson's account of the possible relationships between municipal law and international law assumes that the statement

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that a legal system exists must be a statement of law made from the point of view of one legal system about another.

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Accepting the other system is valid and as forming a single system with itself.

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The common sense used in court is not talking about his own view that municipal

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law and international law constitute separate systems involving involves cheating.

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The statement that its legal system, national or international law, exists as a statement of facts.

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This is for Kelson, unacceptable pluralism.

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So for heart, the common sense view, the correct view is that municipal law and international law constitute separate legal systems.

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So there we have a dualism. But it turns out not to be dualism that what we can think of on my argument as rule of law.

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Rule of recognition and national law, modernism are all the clumsy expression.

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But there it is. So what should we make of hearts journalism?

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I think that hurts journalism. And his rule of recognition are rarely the products of his own understanding of the UK legal order.

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That is, if the rule of recognition, analysis of legal order is going to have any traction.

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The place where it has traction best is in an order with this parliamentary supremacy.

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And the idea of dualism that her heart is committed to is best suited to a system of parliamentary supremacy.

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But even in a system of parliamentary supremacy,

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Hart's understanding of the relationship between public international law and national law is rather flawed because it assumes that

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top the norms of public international law do not have any domestic effect until they have been expressly incorporated by Parliament.

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But as I understand, journalism in this country recall that I'm a complete amateur when it comes to public international law,

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journalism applies only to the norms of treaties that have been ratified, but not yet incorporated.

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It doesn't apply to customary international law. It doesn't apply to use Cogan's and it doesn't apply to the norms that are valid.

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Edgar Omni's.

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And so Hot Hearts account of the relationship between national law and international law is not faithful to the law of his own legal order.

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And so what one finds is that hot. Provides a picture of legal order, which is not only in some respects quite parochial,

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in that he generalises from his own legal order to legal order in general, but it turns out to be faulty when it comes even to his own legal order.

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So what are we to make of that? Well, if we go back to the example with which I started my presentation,

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so the debate in this country about whether the UK would be breaking international law if it went ahead with legislation,

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which I delegated to ministers the authority to override a treaty which the UK had entered into with other states,

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the argument that the UK would not be violating the rule of law if it went ahead with

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this legislation and administers followed through by putting in place such regulations.

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That argument turns out, I think, to be fatally flawed.

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And fatally flawed from the perspective of lawyers within the United Kingdom.

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Given the facts about their own legal order.

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And so I do think it's a case that if we want to understand why, say, Eakins and finesses argument in this debate was wrong.

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We probably have to excavate the kind of legal theory with which they were operating,

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which I think turns out to be pretty well, the hot heart's legal positivism.

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In contrast, if one wants to understand why Professor Kennedy's argument was right,

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then I think the best place to start, if one's looking for a theory of why he was right, is with Kelson.

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Let me close because I think I'm now at minute 40 of my presentation and I

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don't get posta forty five minutes back by saying a little bit about perhaps.

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The most controversial part of Carlson's legal theory, where if one thinks back to the claims that tie mentioned,

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can, I think, be uncontroversially associated with Kelson. You'll recall that one of the claims is that they can't be any conflicts between norms

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of birth within one valid legal order or between the norms of two valid legal orders.

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And if one looks at torts, essays on Keelson Heart thought this was just a crazy view.

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Why? Because there are obviously conflicts.

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So if the UK had gone ahead with this legislation and ministers had issued regulations which overrode the UK's treaty obligations, they would.

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It seems obviously have been a conflict between norms at the higher level that is at the international level and at home,

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a norm at the domestic level. So how could one possibly think that one could support the claim that they can't be any conflicts between norms?

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And I think that in order to understand this perhaps counterintuitive view of Coulson's, one has to rely on some of the other claims that are listed,

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his claim about the dynamic nature of legal order and the claim that the unity of norms of legal order is produced by juristic interpretation.

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So where are clauses just with they are relying on a quick analogy with a

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statute that I think will be familiar with to everyone in the United Kingdom,

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to these to all lawyers, and that is the UK Human Rights Act of 1998.

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So you lose? No, I think you know better than I know that this act contains or contains many sections.

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But the two sections that I want to focus on are Section three and Section four.

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So putting things colloquially. What Section three says that if it's that if judges are interpreting a provision

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in a statute which seems to violate one of rights commitments in the statute,

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the judges should try as hard as they can to come to an interpretation of that provision that shows that it is consistent with the rights commitment.

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So even though in the face of it, it seemed inconsistent that judges should try to come up with an interpretation that shows that it is consistent.

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So what we get there is, as I understand Coulson's claim, judges trying to show that through a creative act of interpretation,

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that there is unity between the norms of their legal order so that that provision in

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the statute can be shown to be consistent with the norm in the Human Rights Act.

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That is the right's commitment.

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But let's say that the judges are unable to find any interpretation of the provision that shows consistency with the rights commitment.

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Then, as you'll note, Section four of the Human Rights Act tells the judges that they must issue a declaration of incompatibility.

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Once that declaration of incompatibility has been issued,

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then it's really up to the government and parliament to consider whether they should try to cure that incompatibility.

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If they don't, then the parliament gets kicked up a level to the European Court of Human Rights.

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And if that court finds against the UK government,

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that doesn't require that in terms of there being a kind of enforceable legal obligation on the UK to do something about it.

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But if the UK neglects to do something about it,

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that becomes a matter for the UK to sort out with the other states that are parties to the convention.

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So that means that the legal story, as it were, is not come to an end. And this is why I think it is not implausible to claim, as Coulson claimed,

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that there can be no conflicts between the norms of a valid legal order because even if there is a provisional conflict.

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What will happen in the in in the legal universe, as it were,

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is that the conflict will be moved up a level and the conflict should be resolved at that level.

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And if one puts together this picture of the interaction of international legal order with national legal orders,

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I think one gets not only a very attractive view of how legal order works in general,

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but also a view which and here I go out very far on a limb, probably makes sense.

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And I'll find out in a moment. Two most international lawyers when they are thinking about how international law works.

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And I think I'll stop at that point. Thank you.