Delighted to be speaking from Oxford. I live in Canada.
I teach at the University of Toronto, had a visiting fellowship here from January,
but it was unclear until well into February whether I would be able to come to Oxford.
And I'm going to start off, if I may just use the session for a personal remark.
I'm feeling guilty now because I see my friend Pablos left their yachties there and
I had neglected to tell him that I'm actually in Oxford hyperbolise our remedy.
This if you're a skier as well as the Tasha coquis listed a lot of things about me.
But the one thing that wasn't on that list and can't be on that list,
which I want to emphasise at the beginning of my talk, is that I'm not an international lawyer.
She made no claim about my international law credentials. And Tash,
she could not make any claim because there are none other than the fact that I
took international law as an adult b student many years ago in South Africa.
And it was, in fact my favourite law.
Of course, it was taught by my main mentor at that time, an international lawyer called John to God.
He also taught jurisprudence and I decided to continue on the jurisprudence track rather than the international law track.
Natasha mentioned that I've just published puppyish stuff just to put into the production process for publication a book,
The Long Arc of Legality, and one chapter of that book does deal extensively with the debate.
I'm going to be talking to you about today, and this comes about because of Iran.
Six years ago, I was invited to give a series of seminars in Mexico City and the focus was supposed to be international law.
And what I did was I crammed together about my work in progress and I pretended that it was about international law.
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.
So what I'm going to do today is to set out some of the basic themes which I've been
grappling with as I try to make sense for my own project of public international law.
And as you listen to me, this requires that you follow me on a tour of what James Crawford,
of whom you all have heard, calls the glacial uplands of juristic abstraction.
And Crawford doesn't mean this glacial uplands of juristic abstraction as a compliment.
He's talking about the monism journalism debate in international law and hearts and hands Karlsson's take on that debate.
And this is the debate that I engage in when I try to deal with international law.
If you want theoretical talk, that's by a real international lawyer.
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.
Now, it's sometimes said, I think, that philosophers of law tend to worry when they look at public international law about what Ronald,
talking in his posthumous published piece on international law called The Existential Question.
And that, of course, is whether international law. Israeli law.
Whereas philosophers of law might worry about that. It's also said that international lawyers don't bother with this existential question,
whether they get on with their job of trying to work out whatever part of international law really interests them.
But I do think that it's difficult to make this existential question go away,
because I think it is incumbent on all international lawyers to try to understand the juridical quality of public international law.
And sometimes issues about that radical quality does crop up in quite important practical debates.
So I just want to refer briefly at this point in my presentation to debate that took place in this country just a few
months ago when the question arose whether the UK government would be breaking international law when it wanted,
enacted or purported to want a bill enacted which would have given authority to ministers to issue regulations,
which would contravene the agreement signed between the UK and the other states in the European community.
And the debate about this issue, whether the UK would be breaking international law if it went ahead with this legislation.
This debate did have an Oxford manifestation. Sir Richard Eakins at this university argued with an international lawyer that the UK
would not be breaking international law if it went ahead with this piece of legislation.
And he cited in the piece where he made this argument, a claim made by a very eminent philosopher of law in Oxford,
John Finace, that international law is, quote, defective law.
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.
There was, in my view, a very effective answer to Eakins piece by another Oxford lawyer that is a professor,
Dapper Candy, where it can be argued together with someone else that there would be a violation of the rule of law.
If this legislation went to head. Now, in this debate,
I do think that it's a case that HLA heart would have sided with Eakins and
finace not because he would have been in political agreement with them back,
because he would have found their position that you radically correct what?
And that is in hights view and also a little bit more about this later.
International law is law, but it is somewhat effective.
Moreover, there is no legal obligation on municipal or domestic institutions to respect unincorporated public.
International law norms, in other words, are hot, was a dualist.
And so from his perspective, a validly made municipal norm is unproblematic from the rule of law perspective,
even if it is in conflict with public international law.
So I think that Hart's position does support the kinds of arguments that Eakins and his co-author were making.
And in contrast, I think that Carlson's legal theory supports the arguments made by Candy.
And this is because I think that the best understanding of Carlson's position
is and this is a term I'll explain just a little bit later in my presentation.
The best understanding is that Kelson is what I call an international law modernist.
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.
When it comes to Coulson's understanding of international law and the relationship of international law with the law of national legal orders,
I follow Keelson in all respects. Safe, too. But even there,
I think that there is a basis in Coulson's work for making the claims that I
want to make when it comes to the two respects in which I don't follow him.
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.
Number one is that journalism is not a coherent account of the juridical relationship between public international law and national law.
And the only coherent account is an account which is monastic.
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
valid legal orders or a plurality of such orders so that we can think of this as a kind of no conflicts thesis.
So on on this argument,
there cannot be a conflict between a norm of the international legal order and the norm of the national of a national legal order.
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.
That is that when the relationship between a norm of legal order and a hard order, Norm, is not one of derivation.
That is, one doesn't derive a lower or the norms from higher or the norms.
I'd rather lower all the norms are produced. There are produced in a process which is law governed.
But nevertheless, this isn't a matter of logically producing the content of the norm from a higher order.
Norm is something creative about it. But that's claim number three.
Only two to go. It is rather a lot. I know.
As Joel. I think.
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.
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.
But he also claimed that this, the basic norm, is a product of what he called juristic interpretation.
So there's this curious feature of Coulson's work that the basic norm is by
something that has to be presupposed in order to make sense of legal order.
But it is also something that's produced through agents in the legal order interpreting that the norms of the legal order.
And I think the best way to understand this idea of the basic norm as both the basis of the product of interpretation,
is to understand it as what it gets called in philosophical literature,
a regulative assumption,
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.
So this ties into the dynamic idea that I mentioned in the claim number for the very last claim.
That I'm going to have on my list is that hypothesis or postulate of unity.
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.
And tribe, it gets this idea in his many works on international law.
So that those five times, I think, are all claims that are uncontroversially part of Coulson's legal theory,
where I depart from him is in two respects. The first aspect is that in much of his work, Kelson.
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
the juridical relationship between public international law and national law.
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.
That's international law, modernism, which in international law, modernism,
says that the basic norm of all legal orders is the basic norm of international law.
And then there's national law monism, which is different from international law, modernism,
because national law monism says that international law is law, as is the law of all other legal orders.
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,
including the norms of international law.
So that's the difference between international law, monas them on the one hand and national law monism on the other.
And Keelson always indicated his preference for international law, modernism.
But he said that he had that preference for political reasons. As someone who is inclined towards cosmopolitanism.
He was a client politically to accepting international law, modernism, whereas those of a more nationalistic intonation would,
he suggested, have preferred national modernism that he emphasised throughout much of his work.
That's a legal theory itself could not decide between international law, modernism and national law, modernism.
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.
They say that only international law, modernism is coherent position, there's something incoherent about to national law, modernism.
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,
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,
that he does not think that law can have any content. Rather, when it comes to international law,
at least the content of international law norms will be a content which does not contradict the postulate of peace.
That is, one would expect that in international law, law norms,
the kinds of substantive norms that one will find will be norms that are conducive to
upholding peaceful interaction between the states that are subject to international law.
I also want to make the claim in the next while that to heart.
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.
Rather, it is at most a practical arrangement that some states have for managing their relationship with pot of public international law.
So there is no such thing as theoretical dualism. There's only practical arrangements which are dualistic and to some extent.
So there we have the two aspects in which are one part from Kelson.
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,
especially when it comes to international law, has to have a particular content.
It can't have any content whatsoever.
I just want to mention briefly that there is, as I suggested, some basis in Keelson himself for these two departures from hysterias.
So if one looks to Carlson's first major work on international law, his 1920 book on sovereignty there,
he seems adamant that only what I've called international law modernism is a coherent
juridical explanation of the relationship of public international law to national law.
And that's also quite clear from this book that Keelson had a rather surprisingly natural law understanding of international law.
And I'm just going to read you a rather long paragraph from this book.
I could have put it popped up on a PowerPoint, but I have difficulty handling PowerPoint in Zoome at the same time.
I'm afraid you're just going to have to deal with my reading of this paragraph from Kelson.
Kelson says in his 1920 book, there is a generally accepted understanding of the nature and concept of
international law that it constitutes a community of states with equal rights.
The proposition of the coexistence of a multiplicity of communities which, despite their actual difference in size,
population and effective means of exercising power, are from the perspective of legality of equal value.
And when it comes to the mutually delimited spheres of power found in a higher community is an eminently ethical idea,
and one of the few really valuable and uncontested components of contemporary cultural consciousness.
But this proposition is only possible with the help of a juristic hypothesis that above the community is understood.
States stands a legal order which mutually to limited the spheres of validity of the individual states,
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.
And he then goes on to say that when the primacy of international law fulfils this function, that is the mutual delimitation of spheres.
The concept of law is simultaneously perfected in a formal and substantive sense.
The law attains the organisation of humanity and thereby a unity with the highest ethical idea.
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,
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.
It is somewhat at odds with that orthodox view of Kelson.
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,
is that when it came to constructing his legal theory, Kelson thought one was proceeding in the wrong way.
If what one did first was to construct a theory of state law or of municipal law,
and then to ask how that theory applied to public international law, because for Keelson,
one could not understand the legal order of what we can think of as a modern legal state unless
one understood that legal order as it is situated within the international legal order.
So one could not understand why it could not. On Karlsson's view, as I understand,
Kelson construct a theory of law which did not include an account of the juridical relationship between public international law and national law.
And for those of you who were familiar with HLA Heart, you will know that tort proceeded in exactly the opposite direction.
Heart starts of his famous book, The Concept of Law, by saying that international law is not an important part of jurisprudence.
And to follow through on this by relegating his discussion of international law to the very last chapter of the concept of law,
where it seems a bit of an afterthought to everything that had gone before.
Because what comes before is Hart's development of a theory of that of a municipal legal order.
That is, of the internal legal order of a modern legal state.
And he then Orsa only then asks the question, well, how does everything I've said before in chapters one,
two, seven of the concept of law apply to public international law?
The subject of Chapter 10. And what's more.
When he gets to Chapter 10. Hot fines, as I suggested at the beginning of my presentation.
International law somewhat effective. He doesn't.
As his predecessor in the 19th century, Jane Austen, in his combined theory of law, disqualify public international law as law.
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,
might be important to note domestic constitutional law that was also no more than positive morality, according to Austen.
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.
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,
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.
That is the secondary rule that certifies whether all other rules of the legal order, including the other secondary rules, are valid rules.
And he does not find rule of recognition in international law.
That leaves him with the problem of understanding why international law is law property so cold.
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.
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.
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.
Then we have to ask and it's not a question that heart really answers.
And what what makes it law? A kind of law like the law that we find in a primitive society.
And I think the answer has to be for heart, which you might think is obvious, which.
And that's why he doesn't make this science very explicit.
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.
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.
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,
as says, should count as a valid legal norms.
Then it's the case that the recognition of international law by a particular legal order is entirely contingent.
Just as a national legal order does not have to recognise customary law as law.
And there will of recognition of a legal order does not have to recognise international law as law.
If Hart had said that. I think he would have provided as a rather strange but still coherent account of international law.
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.
That, at least in all and heart did use this language.
All civilised states, it will be the case that a rule of recognition of that state will recognise international law as law.
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,
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,
including the international law, is law only because one's rule of recognition says that it's a.
And then hot would turn out to be what Kelson calls using my term at a national law monist,
he assumes that the ultimate rule of one's own legal order is the ultimate rule of every other legal order.
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.
They have exactly the same account of the validity of law, of all other legal orders.
And what one would have is a. It is a view which has the same content as international law monism,
but because it back rooted in a very strange set of ideas about how legal orders interact with each other.
I want to add to this claim about the strangeness of Hart's theory of public international law, something about of dualism.
So it's thought so far is that heart does not really turn out to be a journalist, but a national law modernist,
but he did officially espouse journalism and he espouses it in a rather interesting way.
So Hart's explicit commitment to journalism crops up in a lengthy footnote in the concept of law.
And it's in a chapter which is called The Foundations of a Legal System,
which follows a chapter in which he sets out his famous account of the rule of recognition.
And his commitment to journalism is set out in a discussion about the continuity of legal orders.
It's a very influential discussion and it deals with the important phenomenon that had taken place in in the former British Empire,
where countries like New Zealand, Australia, Canada, South Africa had achieved independence from the legal order of the UK.
It was a bit of a mystery about how they managed to achieve independence,
why they were still not subject to the rule of recognition of the United Kingdom.
And Hart says in this footnote.
Coulson's account of the possible relationships between municipal law and international law assumes that the statement
that a legal system exists must be a statement of law made from the point of view of one legal system about another.
Accepting the other system is valid and as forming a single system with itself.
The common sense used in court is not talking about his own view that municipal
law and international law constitute separate systems involving involves cheating.
The statement that its legal system, national or international law, exists as a statement of facts.
This is for Kelson, unacceptable pluralism.
So for heart, the common sense view, the correct view is that municipal law and international law constitute separate legal systems.
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.
Rule of recognition and national law, modernism are all the clumsy expression.
But there it is. So what should we make of hearts journalism?
I think that hurts journalism. And his rule of recognition are rarely the products of his own understanding of the UK legal order.
That is, if the rule of recognition, analysis of legal order is going to have any traction.
The place where it has traction best is in an order with this parliamentary supremacy.
And the idea of dualism that her heart is committed to is best suited to a system of parliamentary supremacy.
But even in a system of parliamentary supremacy,
Hart's understanding of the relationship between public international law and national law is rather flawed because it assumes that
top the norms of public international law do not have any domestic effect until they have been expressly incorporated by Parliament.
But as I understand, journalism in this country recall that I'm a complete amateur when it comes to public international law,
journalism applies only to the norms of treaties that have been ratified, but not yet incorporated.
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.
Edgar Omni's.
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.
And so what one finds is that hot. Provides a picture of legal order, which is not only in some respects quite parochial,
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.
So what are we to make of that? Well, if we go back to the example with which I started my presentation,
so the debate in this country about whether the UK would be breaking international law if it went ahead with legislation,
which I delegated to ministers the authority to override a treaty which the UK had entered into with other states,
the argument that the UK would not be violating the rule of law if it went ahead with
this legislation and administers followed through by putting in place such regulations.
That argument turns out, I think, to be fatally flawed.
And fatally flawed from the perspective of lawyers within the United Kingdom.
Given the facts about their own legal order.
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.
We probably have to excavate the kind of legal theory with which they were operating,
which I think turns out to be pretty well, the hot heart's legal positivism.
In contrast, if one wants to understand why Professor Kennedy's argument was right,
then I think the best place to start, if one's looking for a theory of why he was right, is with Kelson.
Let me close because I think I'm now at minute 40 of my presentation and I
don't get posta forty five minutes back by saying a little bit about perhaps.
The most controversial part of Carlson's legal theory, where if one thinks back to the claims that tie mentioned,
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
of birth within one valid legal order or between the norms of two valid legal orders.
And if one looks at torts, essays on Keelson Heart thought this was just a crazy view.
Why? Because there are obviously conflicts.
So if the UK had gone ahead with this legislation and ministers had issued regulations which overrode the UK's treaty obligations, they would.
It seems obviously have been a conflict between norms at the higher level that is at the international level and at home,
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?
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,
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.
So where are clauses just with they are relying on a quick analogy with a
statute that I think will be familiar with to everyone in the United Kingdom,
to these to all lawyers, and that is the UK Human Rights Act of 1998.
So you lose? No, I think you know better than I know that this act contains or contains many sections.
But the two sections that I want to focus on are Section three and Section four.
So putting things colloquially. What Section three says that if it's that if judges are interpreting a provision
in a statute which seems to violate one of rights commitments in the statute,
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.
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.
So what we get there is, as I understand Coulson's claim, judges trying to show that through a creative act of interpretation,
that there is unity between the norms of their legal order so that that provision in
the statute can be shown to be consistent with the norm in the Human Rights Act.
That is the right's commitment.
But let's say that the judges are unable to find any interpretation of the provision that shows consistency with the rights commitment.
Then, as you'll note, Section four of the Human Rights Act tells the judges that they must issue a declaration of incompatibility.
Once that declaration of incompatibility has been issued,
then it's really up to the government and parliament to consider whether they should try to cure that incompatibility.
If they don't, then the parliament gets kicked up a level to the European Court of Human Rights.
And if that court finds against the UK government,
that doesn't require that in terms of there being a kind of enforceable legal obligation on the UK to do something about it.
But if the UK neglects to do something about it,
that becomes a matter for the UK to sort out with the other states that are parties to the convention.
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,
that there can be no conflicts between the norms of a valid legal order because even if there is a provisional conflict.
What will happen in the in in the legal universe, as it were,
is that the conflict will be moved up a level and the conflict should be resolved at that level.
And if one puts together this picture of the interaction of international legal order with national legal orders,
I think one gets not only a very attractive view of how legal order works in general,
but also a view which and here I go out very far on a limb, probably makes sense.
And I'll find out in a moment. Two most international lawyers when they are thinking about how international law works.
And I think I'll stop at that point. Thank you.