Samantha Besson, ‘‘Theorizing the Sources of International Law’ in Samantha Besson and John Tasioulas (eds.), The Philosophy of International Law (Oxford and New York: Oxford University Press, 2010) pp. 164-185.
Besson – Theorizing the Sources of International Law
Background
The study of international law has recently emerged as a popular field of philosophical inquiry among contemporary philosophers and international lawyers. The volume The Philosophy of International Law published in 2010 by Oxford University Press contains a collection of contributions from leading contemporary authors dealing with philosophical questions of international law. International law is a particularly fruitful area for philosophical inquiry. Untethered by the constraints of dogmatic national legal systems, it purports to strive towards universalism – as many have emphasized, including Paul Guggenheim in his examination of positive international law. The exponential growth of international law since the end of the Second World War has presented an opportunity for a more practical philosophical examination, not only of its sources and nature but also of specific legal issues arising therefrom.
Through this work linking law and philosophy, Samantha Besson emerged as a leading authority in Switzerland, contributing to fundamental issues of international law including the philosophical underpinnings of the sources of international law as codified in Article 38 of the Statute of the International Court of Justice, entailing treaty law, customary international law, general principles of law, precedents and the writings of eminent scholars. This text was written at the outset of the 21st Century, when hopes of increasing democratization were high and unimpaired. The notion of the democratic nature of law-making in international relations remains to be further fleshed out given that many States in fact lack internal democratic legitimacy. It cannot be readily transposed from Western concepts to the international realm, and may revert to concepts of representation. Note that the chapter does not address the role of general principles of law and the role of the judiciary and precedents, particularly in assessing customary international law and in recognizing general principles of law.
Summary
The seminal chapter by Samantha Besson entitled ‘Theorizing the Sources of International Law’ is dense and complex, seeking to explore the philosophical underpinnings of the sources of international law as expressions of how international law comes about. It builds upon the legal theory of Hart, but criticizes the position that international law, particularly customary international law, constitutes a primitive legal order rather than a legal system. Besson develops a normative positivist argument about the nature of contemporary international law, its authority and normativity. She discusses the limitations of consent and explores conditions of legality of international law, depending upon compliance with the international rule of law. The legality of a norm is not sufficient; it also has to be legitimate, which in turn depends upon a democratic (coordination-based) account respecting the principle of sovereign equality of States. Against this background, she discusses the existence and contours of secondary rules in international law and of an inherent rule of recognition in a way that illuminates the differences and the relations between domestic, regional and international law. While rejecting both monism and dualism, she proposes a case-by-case approach, taking into account the authority and normativity of domestic and international law rules involved (internal and external legal pluralism).