Introduction to Public International Law from a Human Rights Perspective (HUMR 4100) Putting Law into Perspective 21 August 2006 Richard Hustad, Assistant Lecturer Norwegian Centre for Human Rights University of Oslo, Faculty of Law
What are Human Rights? Nature? Source? Origin? Basis? Purpose? What is meant by human and rights?
Human Rights Law is Designed to Protect Human Rights Human rights norms are the legal expression of the essential rights that every person is entitled to as a human being. HRC, GC 24 (4)
What is Law?
What is Law? Idea of law Creation Interpretation Re-interpretation (etc.) Implementation
Legal Schools of Thought: Legal Dogmatics De lega lata ( what the law is ) Traditional method (see VC & ICJ Statute) discovery of the state of the law through research of primary legal sources. There are correct answers to every legal question. Two branches Legal Positivism what the law is at the moment it emerges from the institutional process (how made and intentions of legislators irrelevant) Legal Formalism what the law is, considering how the legal system operates after a law is made Judicial activism undermines the rule of law Criticism indifferent indifferent to substantive justice
Legal Schools of Thought: Legal Formalism & Justice Scalia If you are a textualist, you don t care about the intent,, and don t care if the framers of the constitution had some secret meaning in mind when they adopted its words. Long live formalism!! It is what makes us a government of laws and not of men. --Amy Guttmed (ed.). A Matter ofinterpretation (1997), p. 25.
Legal Schools of Thought: Dogmatics Legal Positivism Law is made by human beings No inherent or necessary connection between law and ethics law is not about morality. Law is selected and validated by the judicial decision alone nothing nothing else is required. This is not arbitrary because positive laws require reasons and justifications. Law effects ethics, but ethics is not a factor in law every legal rule is ethically relevant because it effects freedom, which is of obvious ethical significance (Robert Alexy).
Legal Schools of Thought: Dogmatics Legal Positivism Oliver Wendell Holmes law law is a science of observing and giving counsel as to what governments/courts might do. This could include well-stated arguments based on cases and reasoning. Jeremy Bentham the the philosophy of law is to explain the real law of the expositors. (Expositors explain law in practice. Censors criticize the law in practice, what ought to be.)
Riggs v. Palmer, 115 N.Y. 506 (1889) A wealthy businessman wrote a testament (will( will) giving small amounts of money to two of his daughters and the vast amount of the estate to his grandson (the son of a third daughter). Fearing his grandfather would change his will, the grandson killed him by poisoning. Probate law was clear that the will was valid and there was no provision to invalidate it due to the murder. Criminal law provided for punishment of the grandson for the murder
Riggs v. Palmer: : Holding Majority Opinion Universal law and maximums would be violated by allowing one to profit from their crimes. Legislature cannot be expected to address all concerns in crafting laws. When we make use of rational interpretation, sometimes we restrain the meaning of the writer so as to take in less, and sometimes we extend or enlarge his meaning so as to take in more than his words express. Dissenting Opinion Punishment was levied in criminal law and adjusting the will would be an additional punishment not provided in the statute. Courts cannot create or imagine statutes so as to obtain a morally pleasing result.
Legal Schools of Thought: Natural Law There is law that exists independently of positive law The essential connection between law and justice Examples Magna Carta U.S. Decl. of Ind. ( inalienable( rights ) Scotland civil civil, criminal,, and natural law Ancient Greece nature (physis)) vs. law or custom (nomos). Law varied from place to place while what was by nature was the same everywhere.
Legal Schools of Thought: Natural Law Methodology Natural law is found or discovered, but not made. St. Thomas Aquinas common law must be viewed through a natural law lense which is used to both interpret what the common law says and pass judgment on its moral worth Thomas Hobbes natural law is determined by reason
Legal Schools of Thought: Legal Realism (1920s-40s) The law is more than formal sources Indeterminacy Jerome Frank: a judicial decision might be determined by what a judge had for breakfast Importance of interdisciplinary approaches Legal instrumentalism (legal politics) law law is a tool to achieve social purposes and balance competing societal interests (to this end, creativity in interpreting legal texts is justified) De lege ferenda (what the law should be) De sententia ferenda (how to reinterpret presently-existing existing law) Methodology: examine the interests, ideologies, politics, etc. of both the institutions that create law and those that interpret law
Legal Schools of Thought: Critical Legal Studies Law is politics (continuation of legal realism) same same arguments made in legislature and judiciary. Indeterminacy any any holding can by squared by a judge using legitimate legal arguments. (What then is the rule of law?) Stated purpose of the law is usually not fulfilled law law tends to serve the interests of the wealthy and powerful. Primary legal sources are inherently contradictory. Methodology: deconstruction
Legal Schools of Thought: Beyond Positivism
Legal Methodology: Comparative Method Compare different legal systems/ jurisdictions Isolate differences and similarities in order to understand the reasons for them The issue is why differences exist, not just a survey of differences
Formulating Legal Analysis: : IRAC Issue = clearly state the issue Rule of Law = what is the law to be applied Analysis = apply the law to the specific facts of the case Conclusion = what should be the outcome
What about International Law? Differences between international and domestic law. Law making process Hard law and soft law Law interpretation process Law enforcement
Is International Law Effective? Louis Henkin: It is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time. How Nations Behave (2nd ed. 1979), p. 47. Ian Brownlie: Empirically, the argument can be made that international law is more real than domestic law. Transgressions of domestic law occur continuously, but do not mean that domestic law does not exist. Common sense must prevail in assessing the performance of law. The Reality and Efficacy ofil (1981), pp.. 2-3. 2
Is International Law Effective? James: Internationally,, as elsewhere, law is a commitment to ordered relations. Ubi societas, ibi ius. Law and Order in Int l Society (1973), pp.. 83-84. 84. U.S. Restatement: International law is law like other law, promoting order, guiding, restraining, regulating behavior. States treat is as law, consider themselves bound by it, attend to it with a sense of legal obligation and with concern for the consequences of violation.
Ancient Concepts of Int l Law 14th c. B.C. Plague prayers of King Mursili in the realm of the Hittites (eastern( Asia Minor). Cause of a plague believed to be the breach of an inter-state treaty. 374 B.C. Rules among Greek city-states states, but not between Greeks and barbarians who were by nature in a state of war with each other. Plato, The Republic,, Book 5, Section 3.
Modern Legal Roots Treaty of Westphalia (24 Oct.. 1648) international relations organized around sovereign states All parties were obliged to protect provisions of the treaty from protagonists in counsel and force to repel the injury. 1644 Formation of the Ch ing dynasty in China (lasted until 1911). 1650 Hindu assertion of independence with organized resistance of Moghul emporers.
Textbook: Cassese, International Law,, p. 6 States have power without duty to other states all all are acting within their own self interest. Is this true? Consider the war on terrorism. Consider the present mid-east hostilities.
Is Sovereignty Good or Bad?