The Precarious Rationality of International Law: Critiquing the International Rule of Recognition

Abstract

Some scholars assume that the content and validity of international legal norms turns upon the existence of convergent attitudes and behaviours of state representatives and other ‘international legal officials’. By converging upon the criteria for what counts as a ‘formal source’ of international law and what does not, such officials provide a ‘rule of recognition’ in relation to which the normative content of the international legal system is determined. In this paper I present two theoretical problems with this view, arguing that, depending on exactly what role this rule is intended to fulfil within international legal theory, it is either metaphysically insupportable or fundamentally at odds with the disagreements that persist in relation to the formal sources of international law. Both problems risk undermining the rationality of international legal argumentation and any reliance upon the existence of an international rule of recognition should be eschewed as a result.

Keywords: Public International Law, Legal Philosophy, Legal Reasoning, H.L.A. Hart, Legal Positivism