The Concept of International Law in the Jurisprudence of H.L.A. Hart

European Journal of International Law, Vol. 21, No. 4, 2010

29 Pages Posted: 15 Sep 2011 Last revised: 20 Mar 2012

Date Written: September 15, 2011

Abstract

This article analyses H.L.A. Hart's concept of international law from the perspective of analytical jurisprudence and in light of the state of contemporary international law. The article challenges Hart's view that international law is ‘law’ but not a ‘legal system’. Hart arrives at this conclusion on the basis of a comparison of the international legal order with the municipal legal system. This comparison is distorted by Hart's general focus on private law and criminal law and becomes less convincing when constitutional law is added to the equation. As a consequence, Hart's methodological approach is inconsistent and should be modified. Rather than asking whether international law resembles municipal law in form, it should be asked whether international law encompasses legislative, executive, and judicative structures which are able to perform the same functions as the legal order of a nation state, and which thereby overcome the defects of a primitive social order. Against the background of this modified analytical framework, Hart's analysis is revisited in light of recent developments and changes in the structure of international law at the beginning of the 21st century.

Keywords: H.L.A. Hart, international law, legal theory, analytical jurisprudence

Suggested Citation

Payandeh, Mehrdad, The Concept of International Law in the Jurisprudence of H.L.A. Hart (September 15, 2011). European Journal of International Law, Vol. 21, No. 4, 2010, Available at SSRN: https://ssrn.com/abstract=1927819

Mehrdad Payandeh (Contact Author)

Bucerius Law School ( email )

Jungiusstr. 6
Hamburg, 20355
Germany

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