PUBLIC INTERNATIONAL LAW PROJECT ON

“INTERNATIONAL LAW IS VANISHING POINT OF

JURISPRUDENCE : CRITICALANALYSIS”

SUBMITTED TO :

Mrs. Anukriti Mishra

SUBMITTED BY

Bholeshwar Dhruw

ROLL NO. ​48​​SEM ​IV-C

SUBMITTED ON: ​15 th FEBRUARY 2017

HIDAYATULLAH NATIONAL LAW UNIVERSITY

NEW RAIPUR (C.G.) 492002

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 Name - Bholeshwar Dhruw

ACKNOWLEDGEMENT

I would like to sincerely thank the International Law faculty, Mrs Anukriti Mishra for giving me
this project on the “International Law is the Vanishing Point ofJurisprudence Critical Analysis”
which has widened my knowledge on the conception of International Law and its importance.
Your guidance and support has been instrumental in the completion of this project. Thank you
Sir for your consistent support.

I’d also like to thank all the authors, writers and columnists whose ideas and works have been
made use of in the completion of this project.

My sincere gratitude also goes out to the staff and administration (HNLU) for the infrastructure
in the form of our library and IT lab that was a source of great help in the completion of this
project. I would also like to thank my friends who have lent me constant support through
guidance and inputs which has led to the completion of this project.

Semester - IV

Section - C

Roll No. - 48

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TABLE OF CONTENT

● Acknowledgement ……..…………………………………………………………2
● Table of content …………….………………………………………………….3
● Objective …………………………………………………………………4
● Research Methods………………………………………………………………….4
Chapter 1…………………… …………………………………………..................5
● Chapter 2…………………………………………….…………………………..…7
● CONCLUSION……………………………………………………………………13
● BIBLIOGRAPHY…………………………………………………………………14

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I. Objectives
● To GetAnIdeaOfInternational Law
● To Understand The Various NotionsAndMeaningOf Internationallaw
● To Learn TheCriticismsOf International LawIs VanishingPointOf
Jurisprudence.

II. Research Method

The Research Method of the entire research work is doctrinal in nature, ie, the
research work is totally based on the various documents and books. The
research was conducted after throughout study of various books, articles,
journals and documents. The major portion of this research work was done
with the help of various online resource materials such as jstor.org and
heinonlice.ac.in.

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 CHAPTER - 1

1.1 INTRODUCTION
Since the publication in 1961 of H. L. A. Hart’s The Concept of Law, powerfully augmented a
decade later with the appearance of John Rawls’s A Theory of Justice, the philosophy of law in
the English-speaking world has enjoyed a renaissance. Legal philosophers during this
half-century have engaged extensively with what might loosely be called conceptual questions
about the nature of law, legal reasoning, and notions integral to an understanding of law, such as
authority, obligation, and coercion. They have also addressed normative questions about the
values that the institution of law ought to serve and in light of which it should be assessed and
reformed—values such as justice, liberty, equality, toleration, and integrity. And, of course, they
have reected on the enterprises of conceptual and normative philosophical inquiry into law,
sometimes calling into question the coherence or utility of any such distinction. The result has
been an outpouring of theories about the nature and value of law, many of them developed in
considerable detail and with remarkable ingenuity, often as a result of sustained dialectical
exchange among their various proponents. These developments have taken place both in General
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Jurisprudence, which addresses conceptual and normative questions about law in general , and in
Special Jurisprudence, with important contributions being made to the philosophical
investigation of discreteprovinces of law such as criminal law, contract law, and the law of torts,
or specic types of law, such as municipal state law, judge-made law, and customary law.

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Whatfollowsisahighlyselectivelist:Hart,H.L.A.,TheConceptofLaw(1961;rev.edn.,Oxford:Clarendon, 1994); Fuller, L.
L., The Morality of Law (New Haven: Yale University Press, 1964); Raz, J., The Concept of a Legal System (Oxford:
Clarendon, 1970); Dworkin, R. M., Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1978);
MacCormick, N., Legal Reasoning and Legal Theory (Oxford: Clarendon, 1978); Raz, J., The Authority of Law
(Oxford, Clarendon, 1979); Finnis, J. M., Natural Law and Natural Rights (Oxford: Clarendon, 1980); Dworkin, R. M.,
Law’s Empire (Cambridge, Mass.: Harvard University Press, 1986); Raz, J. Ethics in the Public Domain (Oxford:
Clarendon, 1994); and Coleman, J., The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory
(Oxford: Clarendon, 2001).
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The philosophy of international law can be readily envisaged as a branch of Special
Jurisprudence, one that encompasses both conceptual and normative questions about
international law. The conceptual questions include those of whether international law is
genuinely law (as distinct from a form of social morality or convention); how the existence and
content of its norms is to be ascertained; what relationship obtains between the international legal
system, if one exists, and the legal systems of individual states, among many others. The
normative questions include those of whether state consent, democracy, or some other standard
is the touchstone of international law’s legitimacy; whether human rights and distributive justice,
in addition to peace and co-operation, gure among the values international law should realize;
what conditions must be satised to justify the creation of international criminal law and the
iniction of punishment on those who violate it; whether international environmental law should
be ultimatelyresponsiveonlytotheinterestsof(existing)humanbeings,amongmany others.

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Chapter - 2

2.1 Whether International law is Vanishing Point of Jurisprudence?

Given the vast and growing literature on international law,

it is remarkable how few systematic attempts have been made to uncover the fundamental nature
of such law as a social phenomenon. This poverty of theory has not gone unnoticed. vanishing
point of jurisprudence, for example, is how T.E. Holland described international law. Richard
Falk has commented that most international lawyers, whether inside or outside of universities,
profess to be anti-theoretical, often contending that is a waste of time in legal studies.

In B.S.Chimni’s formulation, ‘the eld of international legal still gives the appearance of a
wasteland’. There are encouraging signs of a growing consciousness of theoretical issues in the
eld. The tradition of blindness, even antipathy, to theory, however, still weighs heavy in
international law.

As Koskenniemi points out, though discussion on theory about international law has become a
marginalized occupation, this has not always been so. is no coincidence that the historic decline
of the jurisprudential of international law is coterminous with the spread of internationallaw as a
global system.

Early modern writers were theorising and expressing a developing system, in which new social
forces were coming to the fore. International law was a function of a changing world, and it was
not possible to disentangle policy from social explanation.

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Writers such as Vitoria, Suarez or Grotius engaged in an argument aboutinternational law in
which the concrete and the abstract, description and prescription were not distinguished from
each other.This fact gives early writing its distinct avour, its sense of being ‘other’ than the
more methodological, or ‘professional’ styles of later scholarship.

When this new world-system became rmly entrenched, its contradictions became – and remain
– obscured. In the post-Enlightenment legal culture which separates ‘theory’ and ‘doctrine’,
those contradictions, reected in and legal theories, have for many lawyers been seen as a
problem not of the world, but of ‘theory’ itself. This has made theory itself seem suspect.

The endless and seemingly inconsequential character of theoretical discourse has forced modern
lawyers to make a virtue out of a necessity and turn towards an unreective pragmatism, with the
implicit assumption that the problems of theory and, we can add, history are non-problems.The
modern international lawyer has assumed that frustration about theory can be overcome by
becoming doctrinal, or technical The turn to doctrine was a function of the embedding of
law-ness into the international social fabric in the nineteenth century.

Even though in this period – and indeed throughout the century – the science of international law
lost relatively in historical signicance, state practice in matters of international law expanded,
intensied, and accelerated to such an extent that the period clearly marks the beginning of a new
era. The formulation that the theory and history of international law waned even though the law
itself waxed is misleading. The very historical triumph of international law lay behind the
diminution of international legal science.

Despite perhaps because of the absence of international legal theory or analysis that can address
the fundamental question of international laws nature, there is no lack of denitions of the
subject matter. These denitions purport to answer the question ‘What is international law?’, but
are generally so thin or self-recursive that they tell the reader very little.

Thus for example, international law ‘is the system of law which governs relations between
states’ – and it is usually dened to include some non-state actors as well. This ‘rule-approach’

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denes a discrete and bounded arena of international law as a body of rules, thus insisting on ‘a
clear-cut distinction between law and non-law’.

This kind of classic, textbook denition represents ‘a widely perception’ and the ‘classical
view’, and it tells us almost nothing of the underlying nature of international law. Occasionally,
hints of a more systematic theory are implicit in these denitions. Shearer, for example, denes
international law as ‘rules of conduct which states feel themselves bound to observe, and
therefore, do commonly observe’.

Here the law is dened as deriving from states’ practice, implying a positivist theory of the
non-absolute nature of law: if a state suddenly decided it no longer felt bound to observe a
particular law, then according to Shearer’s denition it would cease to be law.

Malanczuk is one textbook writer who seems aware that apparently innocent denitions imply
philosophical positions. He points out, for example, that the classic (pre-World War I) denition
of international law as ‘the law that governs the relations between states amongst each other’
implies the positivist doctrine ‘that only states could be subjects of international which did not
reect reality even at the time.

Without apparent censure or approval, he points out that some textbooks avoid these issues in
that they ‘refrain from any attempt to dene international law and enter directly into the
discussion of its “sources”’ – indeed, Malanczuk himself avoids dening subject matter, limiting
himself to observations about its scope. Malanczuk’s hesitancy about providing a denition
comes in his updated version of Akehurst’s classic textbook, which in contrast opened with a
denition.

It is interesting that the reader learns nothing more, less or different from Malanczuk’s
description of the subjects and scope of international law, than from Akehurst’s denition of
international law itself. These denitions, in other words, generally answer the question ‘What
are the subjects of international law?’ rather than ‘What is international law?’

Of course, within the very textbooks that print these wan denitions are often discussions of the
classic arguments in international law, between the monists and the dualists, the deniers and the

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utopians, the positivists and the naturalists, and so on. These are debates that do pertain to the
nature of international law, and will be addressed below.

But to a large extent, they the fundamental question unanswered. Thus we might agree with one
writer or another on these various debates example, picking positions at random from the classic
debates, that international law is a fundamentally different phenomenon from municipal law, that
it is law properly so-called, that it derives its obligatory nature from the practice of states and yet
still have no idea why international law takes the shape it does.

Claims that international law is, say, composed of the principles and rules of conduct of states,
are essentially claims about what international law does (regulates interaction), not what it is, as
law. There is no theory of why it is law that does the job of regulation. In this approach, as
Hedley Bull puts it,

it is not the case that international law is a necessary or essential condition of international order.
The functions which international law fullls are essential to international order, but these
functions might in principle be carried out in other ways.... [T]he basic rules of coexistence
might be stated, and a means provided for facilitating compliance with agreements, by a body of
rules which has the status of moral rules or supernatural rules.

Thus, the standard denitions of international law encountered in the textbooks leave the
fundamental ‘law-ness’ of international law completely unexamined. International law is dened
by its alleged regulatory effect, which could be wrought by some other – non-legal – body of
rules. Nor should readers be misled by the mere mention of ‘law’ in the various denitions of
international law: Schwarzenberger, for example, says that international law is‘the body of legal
rules which apply between sovereign states’.

But without an analysis of law itself, mentioning the ‘legal’ nature of the ‘rules’ of international
law is merely tautologous. The substantive element of the denition is its description of
international law as rules of behaviour inhering between states. Bull is perspicacious on this
point: ‘International law may be regarded as a body of rules which binds states and other agents
in world politics in their relations with one another and is considered to have the status of law.’

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Here, what makes international law something to be analysed at all – a phenomenon with social
effects – is its status as a body of rules: what makes it law is merely the fact that it is so
considered. This implies a radical contingency in the legal nature of international law. ‘That
modern international society includes international law as one of its institutions is a consequence
of ...historical accident’.

The ‘law-ness’ of international law is thus historically absolutely arbitrary. In as much as

international law is ‘the vanishing point of jurisprudence’, In as much as its nature as law
remains opaque while its role as a regulatory mechanism is retained, this historical contingency
is inevitable. International society regulates itself in various ways, it is claimed, and in the
modern age we happen to call that regulation ‘law’.

It is to Bull’s credit that unlike so many writers, he sees this implication clearly and does not
shrink from it. Most mainstream writers simply do not see the radically undermining effect of
their own positions vis-à-vis the legal nature of international law. Even in the course of
defending international law as law, for example, Malanczuk claims that what distinguishes the
rules and principles of international law from ‘mere morality’ is that they are accepted in practice
as legally binding by states in their intercourse because they are useful to reduce complexity and
uncertainty in international relations.

The ‘rules’ of international behaviour are taken as given, trans historical. In as much as they are
law, this is simply because they are ‘accepted . . as legally binding’ – they are law only because
we say they are law, rather than because of their form or essence. Rules, here, are deemed
central: their ‘lawness’ is epiphenomenal.

It should be pointed out that this thin conception of law is not conned to writers of textbooks,
who are mostly concerned with the technical-regulatory rules, nor to writers such as Bull, writing
from outside international law. Even Writer such as Hans Kelsen and H.L.A. Hart, precisely
concerned with the jurisprudence of international law, agree on the basic formulation.

Thus for Hart, as for the textbook writers, international law is law – despite its lack of centrally
organised sanctions or ‘secondary’ rules that specify procedure for adjudication – as a set of

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rules of conduct that are ‘generally observed and regarded as valuable’ states. Although it differs
greatly from municipal law, what Hart sees as crucially shared is ‘the idea of “ought”... the idea
of law as a form of social regulation’. The ‘rule-ness’ of international law is clear – he calls
international laws ‘social rules’: the ‘law-ness’, however, is unexamined.

Similarly, Kelsen defends the ‘law-ness’ of international law in as much as it is a coercive

order,...a set of norms regulating human behavior by attaching certain coercive acts (sanctions)
as consequences to certain facts, as delicts, determined by this order as conditions, and if,
therefore, it can be described by sentences which... may be called “rules of law”.

Again, the substance of the denition here revolves around international law’s regulatory
behaviour. Its law-ness, however, is deemed distinct from this, and derives from the fact that it is
called law. As one critic says, ‘Kelsen provides no methodology for analysis of the difference
between a moral or a legal social order’.

In all of these denitions, what is evident is a failure to systematically analyse – or even take
seriously – the specicity of the legal form. Hart makes this explicit in his claim that the analogy
between international and municipal law ‘is one of content not of form’ – the content here being
the shared normative obligation contained in both sets of ‘social rules’. If the legal form is not
shared between international and municipal law, then they have no legal essence in common, and
the only thing that makes them both ‘law’ is that they are both called law.

A belief in the historical contingency of the ‘law-ness’ of international regulation is the result of
ahistoricism. For Bull, there is a transhistorical necessity to have ‘a body of rules’ ‘essential to
international order’: international law is merely one of its forms.

It is my contention that this ahistoricism is wrong. There is something inescapably ‘legal’ about
international law, and its historical emergence is part of a process of historical transformation. I
will argue that the development of international law is inextricably tied to the political economy
of the post-feudal world, and that such law’s units of analysis are legal units.

The framework for interaction between polities in the modern international legal system, its
modus operandi, is fundamentally different from previous orders’. avoid the ahistorical

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contingency of Bull and others, jurisprudence must examine the fundamental nature of
international law as law, to open up the black box at the centre of international law.

As against Hart and others, I will try to show that for any systematic theory of international law,
the fundamental unit of analysis must be the legal form itself.

CONCLUSION​​.

According to Holland International law is the vanishing point of jurisprudence. By using the
words "vanishing point" in relation to international law and jurisprudence, he meant that
international law and jurisprudence are parallel to each other, and they there fore are distinct and
separate though it might be appearing that they are one and the same at vanishing point.

Vanishing point is a point at which parallel lines in the same plane appears to meet. Thus
international law cannot be kept in the category of law mainly because there is neither any
sovereign authority nor exists sanctions if its rules are violated. In the light of above discussions
the analytical jurist, Holland ,remarks that international law is the vanishing point of
jurisprudence. He has given reasons for the above view.

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He has stated therefore that international law can indeed be described as law only by courtsey,
since the right with which it is concerned cannot properly be described as legal.

It is submitted that while his view was perhaps correct at his time but at present the same is
subjected to severe criticism and therefore, it is not tenable in the changed character of
International law, due to treaties the obligation of states and other social enviornmental and
humanitarian characterstics of international law.

BIBLIOGRAPHY​​.

BOOKS

● China mievelle,Between Equal Rights,Brill Leiden,Boston,2005

● H.O.Aggarwal,International Law and Human Rights,Chanchal law
publications,Allahbad,2004
● Law AT The Vanishing Point: A Philosophical Analysiss OF International Law, Aaron
Fichtelberg.
● The Spirit OF International Law, David J. Bederman.

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 ● International Law And International Relations, J. CRraigBarker.

ARTICLES

● Ronald Dworkin, A New PhilosophyOf International Law.

● Ernst-ulrich Petersmann,Need For A New PhilosophyOf International Economic Law
And Adjudication.

JOURNALS
● JournalOf International Economic Law.
● JournalOf PhilosophyOf InternationalLaw.

WEBSITES

● www.google.in
● www.wikipedia.in
● www.scribd.co.in

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