Show Notes
Professor David Dyzenhaus, University of Toronto, currently a Guggenheim Fellow and a Visiting Fellow at All Souls, gives a talk for the Public International Law seminar series. In the recent resurgence of jurisprudential interest in international law, HLA Hart’s theory of law occupies centre stage and doctrinal public international lawyers usually adopt his theoretical vocabulary, in particular his account of the rule of recognition, when they feel the need for some theoretical tools. This is a puzzle because Hart saw philosophy of public international law as peripheral to the main task of jurisprudence—to analyze the ‘distinctive structure of a municipal legal system’—and deemed its study ‘only a relatively small and unimportant part of the most famous and controversial theories of law’. In addition, his own analysis of public international law is widely considered problematic. But while Hart is thought not to have been quite on his game when it came to public international law, it may seem that his is the only game in town when it comes to the place of such law in a general theory of law. I argue that it high time that jurisprudence returned to Kelsen, unhindered by Hart’s distortion of Kelsen’s central ideas, not least because Kelsenian legal theory shows us the benefits of reversing the order of argument about public international law. Instead of, first, constructing a theory of the law of a national legal order and, second, asking whether public international law is law in its light, we should see that understanding the legality of international law illuminates how philosophy of law might productively address some of its central problems. I examine these issues through the lens of the debate about whether the relationship between public international law and national law should be understood as ‘monists’ or as ‘dualists’ urge.
David Dyzenhaus is a University Professor of Law and Philosophy at the University of Toronto, currently a Guggenheim Fellow and a visiting fellow at All Souls. He has just completed The Long Arc of Legality: Hobbes, Kelsen, Hart (Cambridge, forthcoming).
More from Public International Law Part III
Oona Hathaway, Professor of International Law at Yale Law School, discusses her ongoing project supported by the Guggenheim Foundation, entitled ‘War Unbound.’
Informal courts created in PoW camps and Jewish ghettos during World War II illustrate the disruption of law in war and the ways in which legal pluralism can help to structure thinking about the concept of law in such a context.
Eitan Diamond and Ellen Nohle explore the application of the prohibition of forcible displacement in armed conflict and the extent to which the non-consensual relocation of civilians may be prohibited under the IHL rules on the conduct of hostilities.
Tom Dannenbaum, Associate Professor of International Law at the Fletcher School of Law & Diplomacy, Tufts University, examines approaches to addressing the crime of aggression within a normatively coherent framework of immunities and international crimes. He particularly focuses on the legal and normative considerations on the establishment of a Special Tribunal for the Crime of Aggression against Ukraine.
Dr. Alessandra Spadaro of Utrecht University outlines several challenges to the applicability of the doctrine of superior responsibility in the context of the use of autonomous weapons systems.