Herbert Hart and the Enforcement of International Law: Substituting Social Disability to the Austinian Imperatival Handicap of the International Legal System
13 Pages Posted: 31 Jan 2012
Date Written: January 29, 2012
The Austinian handicap of international law is well-know and has been widely discussed in the literature. It constitutes a common charge made by International Relations theorists against the international legal scholarship as a whole which is derided for deifying its object of study. From an Austinian perspective, international law cannot be considered a set of commands for it can only be enforced by moral sanctions. The ambition of this paper is certainly not to refute the Austinian handicap or to rebuild legality beyond enforcement. The modest point this contribution seeks to make is rather that Hart provides only a temporary respite from the Austinian handicap which he reintroduces in another form. In making that argument, this paper aims to provide some elements to critically re-evaluate the place of enforcement in our studies of international law.
Keywords: international law, enforcement, international legal theory, Austinian handicap, social disability, Herbert Hart, John Austin, International Courts and Tribunal, Law as language, social thesis, social practice, concept of law-applying authority, communitarian semantics
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