Kostiantyn Gorobets (Groningen) on legality beyond institutional pedigree

Reseach colloquium organised by the Paul Scholten Centre and the Amsterdam Centre of International Law

Datum en tijd:
19 januari 2021 12:00 - 13:00 uur

Legality beyond institutional pedigree: international law as a case of unmediated authority Discussant: Ingo Venzke (ACIL)

The conventional jurisprudential picture of legality assumes that criteria of legal validity necessarily include a connection to formal institutions. This idea is best known as the institutional pedigree, and it assumes that for something to qualify as law, it must either originate from, or be applied by, authorities. Legal authorities, according to the common account, mediate between law and its subjects, and only when such mediation takes place can we speak of the existence of law. At the same time, international law existed without such mediation by institutions and officials for the most part of its history. Even today, international law, though having grown more institutionalised, maintains mostly customary nature. And it is generally believed that rules of customary international law have the status of law not because they are applied by an international court, but because of the specific ways in which they guide conduct of states.

In this paper, I advance the idea that international law’s authority is unmediated in a sense that its legality does not depend on institutional pedigree in the same way domestic law does. That authority of international law is unmediated means that often legality of its rules cannot be determined by reference to formal institutions, such as courts. I argue that instead of approaching international legality through the lenses of institutional pedigree, we should look at it functionally. Many legal positivist (Joseph Raz and Scott Shapiro being most prominent examples) advanced the idea that the law guides conduct by making it inappropriate to act for, or invoke, the considerations which ground it. That is, legal rules are pre-emptive practical reasons. In the article, I invite to reconsider the idea of pre-emptive nature of legal rules from a functional perspective. In particular, I suggest that in the conditions of unmediated authority, such as that of international law, the rule with the highest pre-emptive force is likely to qualify as legal. That is, a rule that succeeds in replacing background considerations in the most efficient way would likely acquire the legal status by functioning as a focal point in states’ practical deliberations.

Additional information: https://www.uva.nl/en/shared-content/subsites/paul-scholten-centre/en/events/colloquia/2021/01/gorobets.html?origin=NArgmNu3QEWEzrrBSvX7BQ for more information please contact Roland Pierik (R.Pierik@uva.nl)