DescriptionAuthority: International Law and Its Normative Strength
International law, like any other normative order, claims authority over its subjects. This primarily entails that norms of international law mediate between states (and other subjects of international law) and reasons for actions (Joseph Raz). Norms represent and manifest a certain balance of reasons and therefore function as “shortcuts”. By balancing reasons and providing ready-to-use formulas of practical reasoning, norms of international law claim to pre-empt and exclude reasons for action. This results in the existence of the first-order reasons that apply to subjects directly (international peace, security, prosperity, human dignity, etc.) and second-order reasons—norms—that account for the first-order reasons and pre-empt them, as well as exclude first-order reasons for non-compliance.
The pre-emption and exclusion of the first-order reasons, however, comes in degrees, which manifest themselves in norms of international law having stronger or weaker authority. Some norms merely roughcast the body of reasons they are to pre-empt and exclude; some other norms are much thicker and pre-empt/exclude reasons more intensively. For example, norms relating to climate change, though claiming to exclude certain reasons (e.g. reasons for deforestation, or for using technologies contributing to greenhouse gas emissions), provide for wide and soft margins for such an exclusion to affect states’ practical reasoning. On the contrary, when the norm prohibiting the use or threat of force claims to exclude any first-order reason for non-conformity (except for individual or collective self-defence), this exclusion is by and large accepted as affecting practical reasoning in a much thicker and more robust fashion.
The pre-emptive and exclusionary character of legal norms is often linked to the conception of norms as content-independent reasons. According to this conception, an action prescribed by a norm ought to be performed not because it is reasonable or desirable, but because it is a norm that requires it. Hence, it is not content but formal validity that makes a legal norm; and it is validity which provides for the pre-emptive and exclusionary function of legal norms, i.e. for their authority. The drawback of this approach is that it assumes the existence of a criterion of validity, which is lacking in the case of international law, especially when it comes to customary international law. Consequently, though norms of customary international law are (or claim to be) pre-emptive and exclusionary, they are never content-independent. Quite the opposite, it is a fundamental feature of customary norms that their authority depends on their content-dependence. This paper will argue that it is the way in which norms of customary international law are built into the system of practices and the reasons of actors that makes them authoritative, not their match with a certain criterion of validity.
This reconstruction of authority opens a way to a reconsideration of many controversial and therefore contested international legal phenomena, such as relative normativity, jus cogens, soft law, and so forth. Authority being understood as a relative normative strength of norms allows accounting for international law as a horizontal legal order in a coherent and consistent manner.
|Event title||29th IVR World Congress : Dignity, Democracy, Diversity|
|Degree of Recognition||International|
- international law
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Fictions, Fallacies, and Failures in the Interpretative Process: An Experimental Approach to International Legal Theory
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