DOCSLIB.ORG

“The Rule of Law As a Practical Concept” Reports

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
“The Rule of Law As a Practical Concept” Reports EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) in co-operation with the Foreign and Commonwealth Office of the United Kingdom and the Bingham Centre for the Rule of Law under the auspices of the United Kingdom Chairmanship of the Committee of Ministers of the Council of Europe CONFERENCE ON “THE RULE OF LAW AS A PRACTICAL CONCEPT” Lancaster House, London Friday 2 March 2012 (9h00 to 17h30) REPORTS 3 TABLE OF CONTENTS KEYNOTE SPEECH ...................................................................................................................... 5 Mr Ronald DWORKIN ................................................................................................................... 5 THE COMMON CORE OF THE RULE OF LAW AND THE RECHTSSTAAT .................... 13 Mr Kaarlo TUORI ......................................................................................................................... 13 THE RULE OF LAW IN ACTION .............................................................................................. 17 Mr Serhiy HOLOVATY ............................................................................................................... 17 LAW-MAKING PRINCIPLES UNDER THE RULE OF LAW ................................................ 57 Mr Sergio BARTOLE ................................................................................................................... 57 INTERACTION BETWEEN GOVERNMENT AND PARLIAMENT IN THE LEGISLATIVE PROCESS ...................................................................................................................................... 65 Mr Jean-Claude COLLIARD ........................................................................................................ 65 THE CONTROL OF EXECUTIVE DISCRETION IN IMPLEMENTING LAWS IN ORDER TO PREVENT ARBITRARINESS - CROATIAN MODEL OF JUDICIAL REVIEW OVER SUBORDINATE LEGISLATION ............................................................................................... 71 Ms Slavica BANIĆ ........................................................................................................................ 71 RULE OF LAW – EXECUTIVE DISCRETION IN THE FIELD OF FREEDOM OF ASSEMBLY .................................................................................................................................. 79 Ms Finola FLANAGAN ............................................................................................................... 79 CONCLUDING REMARKS FOLLOWING THE GENERAL DISCUSSION ........................ 87 Mr Jan E. HELGESEN .................................................................................................................. 87 PROGRAMME ............................................................................................................................. 91 The opinions expressed in these reports are the responsibility of the authors and do not necessarily reflect the official policy of the Council of Europe. These reports have not been revised linguistically. These reports were presented at the Conference on “The Rule of Law as a practical concept” organised at Lancaster House, London (U.K.), on 2 March 2012 by the European Commission for Democracy through Law (Venice Commission) in co-operation with the Foreign and Commonwealth Office of the United Kingdom and the Bingham Centre for the Rule of Law under the auspices of the United Kingdom Chairmanship of the Committee of Ministers of the Council of Europe. 5 KEYNOTE SPEECH Mr Ronald DWORKIN Frank Henry Sommer Professor of Law at New York University, Professor Emeritus of Jurisprudence at University College London The Rule of Law There is a paradox at the heart of the rule of law. That ideal demands certainty and condemns ambiguity in the law. But that is great uncertainty and alleged ambiguity in the ideal itself. Firm adherents are locked in great disagreement about what the rule of law really is. These disagreements are well summarized in the working paper of the Venice Commission that is before us. They are also well articulated in Lord Bingham’s book. The natural reaction to the paradox might be just to junk the very idea of the rule of law as unclear and unhelpful. If we want to say that secret laws or trials are wrong or that prisoners should not be tortured or that parliaments should be subject to written constitutions, we should say just that and give up worrying about what the rule of law exactly means. Indeed, whenever people seriously disagree about a political value – when they disagree about what, exactly, democracy or liberty or equality means – we find that kind of reaction: abandon the concept. But this is almost always a mistake. Political values are political commitments. Governments and peoples agree that there is an important value named by democracy or liberty or the rule of law, though they disagree, perhaps profoundly, about exactly how that value should be identified. It is important properly to locate that disagreement and to confront it. Otherwise we lose the opportunity to argue that secret trials and parliamentary supremacy are wrong because they violate the rule of law, and then to argue that the best explanation of why they do violate it shows that parliamentary supremacy is also wrong. I will argue, this morning, that disagreements about the character of the rule of law reflect even deeper disagreements about a fundamental moral concept – the concept of personal dignity – and therefore about political legitimacy as well. I’ll start with some comments about some of the important disagreements. But first I should emphasize two points about what seems uncontroversial. The first is that there is a great deal uncontroversial about what the rule of law means. Lon Fuller, in his influential book called The Internal Morality of Law, provided a list of what the rule of law clearly forbids: not just secret laws and secret trials but also laws that cannot be obeyed and fake trials, for example. The second is that rule of law is not an all-or-nothing affair; so that nations that fail to obey its mandates in one respect are to be treated as tyrannies. The Rule of Law is aspirational and is therefore a matter of degree. My country, the U.S. fails to respect the Rule of Law when it holds detainees in Guantanamo without charge or trial for years and also, in my view, when it failed to ratify the Treaty of Rome accepting the jurisdiction of the International Criminal Court. But in other respects, including the rules of criminal procedure, the United States hews closer to what the rule of law ideally demands that many European nations 6 do. We must ask not whether a nation accepts or denies the rule of law but when and how far it falls short of the rule of law. Now to the controversies. 1. Is the rule of law a formal or substantive? One view has been held by Professor Joseph Raz: “A non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities, and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies … It will be an immeasurably worse legal system, but it will excel in one respect: in its conformity to the rule of law … The law may … institute slavery without violating the rule of law.” Lord Bingham sharply disagreed. “I would roundly reject [Raz’s view] in favour of a ‘thick’ definition, embracing the protection of human rights within its scope. A state which savagely represses or persecutes sections of its people cannot in my view be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of female children on the mountainside is the subject of detailed laws duly enacted and scrupulously observed.” Bingham, Tom (2011-07-07). Now of course both Raz and Bingham condemn the tyranny that Raz describes. But if Raz’s position makes sense he must think that in some respect or to some degree his tyranny is better than it would be if it did not legislate openly and execute its laws faithfully. An analysis of the rule of law is not an exercise in reporting ordinary language. It would make no sense if it were, because ordinary speakers would give different definitions. We must accept, even though we disagree about its content, that the rule of law is a value. We must therefore define it in such a way as to reveal what it is that is good about it. That is why Raz and Bingham disagree: Raz thinks there is something better, even though not much, about a tyranny that follows its rules, and Bingham thinks there is nothing better just in carefully following duly enacted rules. 2. Is parliamentary supremacy consistent with the rule of law? Or does legality require limits on what a democratically elected parliament can adopt? Does it require that some judges have the power to overrule at least extreme parliamentary decisions? Now I do not mean to ask whether parliament really does have the legal authority to do anything it wants in a nation that does not impose explicit limits on its power. There is an important debate among legal theorists in the UK whether the British parliament really is supreme in that way. Bingham thought that it is, but his former colleague Lord Steyn and Jeffrey Jowell, among many others, disagree. They think that parliament does not have the legal power to curtail the court’s jurisdiction to protect suspected terrorists, for instance.
Load more

Recommended publications
  • The Idea of Public Law 1
    3 THE IDEA OF PUBLIC LAW 1 CHAPTER OVERVIEW Introduction The predominance of states Sovereignty and the origin of law’s authority The nature of law Empowerment and constraint The social contract Constitutionalism Constitutional change The scope of public law Public law and private law The rule of law The values underpinning public law Freedom Equality Community Conclusion Oxford University Press Sample Chapter 01_APP_APL3E_10899_TXT_SI.indd 3 3/8/18 9:22 am 4 PART I: Introducing Australian Public Law OXFORD UNIVERSITY PRESS Introduction We are alone in the world, making our own way; and we are part of a community, with a collective understanding of the conditions for a good and meaningful life. Our lives are a complex combination of the individual and the collective. In the 4th century BCE, the Greek philosopher Aristotle (384– 22 BCE) described the organisation of humans by reference to a progression from the individual to the collective.1 e collective nature of our existence operates at a number of levels— at the level of the family or household, the neighbourhood, and the social or political organisation; at the level of the nation- state; and, increasingly, at the global level, both regionally and across all nation- states. At each of these levels there are rules for how we interact with each other and with those who hold power. e larger and more complex the organisational unit, the more elaborate and complicated the rules for functioning within it. For Aristotle, the level of the state was the highest form
    [Show full text]
  • Private Law and Public Law
    Private Law and Public Law F.J.M. Feldbrugge Emeritus Professor of East European Law University of Leiden, Faculty of Law We talk about private law and public law as if everybody knew what was meant when these words are being used about law. This probably holds true for lawyers and even law students, but not for the general population. Most people will have some sort of idea about labor law, or bankruptcy law, but the distinction between private law and public law, considered as most fundamental by most lawyers, means next to nothing to the man or woman in the street. Is the problem perhaps avoidable, do we actually need the public/ private law distinction? If we do not, the matter could be left to those inclined to such intellectual pastimes. Unfortunately, the distinction between public and private law entails practical consequences, at least in continental legal systems, so it can- not be referred to the convenient and already very large file of problems that do not need a solution. To start at the simplest and most practical level: our law happens to be divided into two boxes; some of it has been put into the box marked “public law”, and the rest into the box marked “private law”, and the contents of these two boxes are treated somewhat differently. For the law student and the humble practitioner this may be enough to know. But the more discerning lawyer would of course like to know why some law goes into one box and some into the other. Two thousand years of jurisprudence—because the distinction goes back at least as far as the Romans—have produced a vast body of literature containing answers to this question.
    [Show full text]
  • Public Law As the Law of the Res Publica
    Maurer School of Law: Indiana University Digital Repository @ Maurer Law Articles by Maurer Faculty Faculty Scholarship 2008 Public Law as the Law of the Res Publica Elisabeth Zoller Follow this and additional works at: https://www.repository.law.indiana.edu/facpub Part of the Comparative and Foreign Law Commons, European Law Commons, and the Public Law and Legal Theory Commons Recommended Citation Zoller, Elisabeth, "Public Law as the Law of the Res Publica" (2008). Articles by Maurer Faculty. 146. https://www.repository.law.indiana.edu/facpub/146 This Conference Proceeding is brought to you for free and open access by the Faculty Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Articles by Maurer Faculty by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. PUBLIC LAW AS THE LAW OF THE RES PUBLICA Elisabeth Zoller* A LECTURE GIVEN AS PART OF SUFFOLK TRANSNATIONAL LAW REVIEW'S 2008 DISTINGUISHED SPEAKER COLLOQUIUM SERIES In 1989, on the occasion of the Bicentennial of the French Revolution, I gave a talk at Suffolk University Law School on The Distinction Between Man and the Citizen in the Declaration of the Rights of Man and the Citizen of 1789.1 In retrospect, I am afraid that this may not have been one of my best talks. The truth of the matter is that I failed to give the rationale for this crucial distinction and its meaning in the Declaration of 1789. I said that the distinction was almost invisible in this country and much less important than in the French legal system, but I did not explain why.
    [Show full text]
  • THE LAWYER's ROLE in PUBLIC ADMINISTRATION FRITZ MORSTEIN Marxt
    THE LAWYER'S ROLE IN PUBLIC ADMINISTRATION FRITZ MORSTEIN MARXt I THE role played by the lawyer in public administration is not ade- quately described in a simple statement. His special skill is utilized in a great variety of ways. Moreover, lawyers occupy quite different posi- tions on various levels of the administrative hierarchy. And their actual influence goes in many instances beyond the range of their specific duties. Neither statutory prohibitions nor stipulations of political etiquette bar the lawyer from the highest posts of administrative leadership. It may even be said that legislative assemblies-with their heavy representation of legal talent-tend to show a certain fondness for government executives experienced in the practice of law.' More than a few lawyers have acquitted themselves creditably at the helm of gov- ernment agencies. This, however, does not suggest the possibility of a correlation between success or acclaim in the legal profession and those qualifications which should be expected of government executives. 2 On the contrary, prevailing opinion is accurately summarized in the ob- servation that "the lawyer is a good administrator by coincidence only; he is not specially trained for administration, and, indeed, the narrow and specialized legal education he has received may be considered to be particularly unsuited for the types of problems to be faced." I What is more relevant for our purposes, as administrator of an operating agency the lawyer is called upon to demonstrate his talent for executive direction and management rather than his legal knowledge and experi- ence. Much the same is true of those lawyers whose elevated positions t Associate Professor of Political Science, Queens College (on leave); Staff Assistant, Office of the Director, Bureau of the Budget, Executive Office of the President.
    [Show full text]
  • Introduction to Law and Legal Reasoning Law Is
    CHAPTER 1: INTRODUCTION TO LAW AND LEGAL REASONING LAW IS "MAN MADE" IT CHANGES OVER TIME TO ACCOMMODATE SOCIETY'S NEEDS LAW IS MADE BY LEGISLATURE LAW IS INTERPRETED BY COURTS TO DETERMINE 1)WHETHER IT IS "CONSTITUTIONAL" 2)WHO IS RIGHT OR WRONG THERE IS A PROCESS WHICH MUST BE FOLLOWED (CALLED "PROCEDURAL LAW") I. Thomas Jefferson: "The study of the law qualifies a man to be useful to himself, to his neighbors, and to the public." II. Ask Several Students to give their definition of "Law." A. Even after years and thousands of dollars, "LAW" still is not easy to define B. What does law Consist of ? Law consists of enforceable rule governing relationships among individuals and between individuals and their society. 1. Students Need to Understand. a. The law is a set of general ideas b. When these general ideas are applied, a judge cannot fit a case to suit a rule; he must fit (or find) a rule to suit the unique case at hand. c. The judge must also supply legitimate reasons for his decisions. C. So, How was the Law Created. The law considered in this text are "man made" law. This law can (and will) change over time in response to the changes and needs of society. D. Example. Grandma, who is 87 years old, walks into a pawn shop. She wants to sell her ring that has been in the family for 200 years. Grandma asks the dealer, "how much will you give me for this ring." The dealer, in good faith, tells Grandma he doesn't know what kind of metal is in the ring, but he will give her $150.
    [Show full text]
  • Criminal Procedure Code of the Republic of Armenia
    (not official copy) CRIMINAL PROCEDURE CODE OF THE REPUBLIC OF ARMENIA GENERAL PART Section One : GENERAL PROVISIONS CHAPTER 1. LEGISLATION ON CRIMINAL PROCEDURE Article 1. Legislation Governing Criminal Proceedings Article 2. Objectives of the Criminal-Procedure Legislation Article 3. Territory of Effect of the Criminal-procedure Law Article 4. Effect of the Criminal-Procedure Law in the Course of Time Article 5. Peculiarities in the Effect of the Criminal-Procedure Law Article 6. Definitions of the Basic Notions Used in the Criminal-procedure Code CHAPTER 2. PRINCIPLES OF CRIMINAL PROCEEDINGS Article 7. Legitimacy Article 8. Equality of All Before the Law Article 9. Respect for the Rights, Freedoms and Dignity of an Individual Article 10. Ensuring the Right to Legal Assistance Article 11. Immunity of Person Article 12. Immunity of Residence Article 13. Security of Property Article 14. Confidentiality of Correspondence, Telephone Conversations, Mail, Telegraph and Other Communications Article 15. Language of Criminal Proceedings Article 16. Public Trial Article 17. Fair Trial Article 18. Presumption of Innocence Article 19. The Right to Defense of the Suspect and the Accused and Guarantees for this Right Article 20. Privilege Against Self-Incrimination (not official copy) Article 21. Inadmissibility of Repeated Conviction and Criminal Prosecution for the Same Crime Article 22. Rehabilitation of the Rights of the Persons who suffered from Judicial Mistakes Article 23. Adversarial System of Criminal Proceedings Article 24. Administration of Justice Exclusively by the Court Article 25. Independent Assessment of Evidence CHAPTER 3. CONDUCT OF CRIMINAL CASE Article 26. Conduct of Criminal Case Article 27. The Obligation to institute a criminal case and resolution of the crime Article 28.
    [Show full text]
  • Legal Persons of Public Law” in Foreign Legal Instruments
    Middle-East Journal of Scientific Research 20 (11): 1541-1545, 2014 ISSN 1990-9233 © IDOSI Publications, 2014 DOI: 10.5829/idosi.mejsr.2014.20.11.21082 The Use of the Category of “Legal Persons of Public Law” in Foreign Legal Instruments Oleg Jastrebov Head of the Department of Administrative and Financial Law, Peoples’ Friendship University of Russia, Miklukho-Maklaja ul., 6, Moscow, 117198, Russia Abstract: Recent years have witnessed a new upsurge in the development of the European legislation on new organizational and legal forms of legal persons in Europe. The article deals with issues of the legal mode of their operation. Attention is given to the specifics of legal status of legal persons of public law in legislation of individual countries, France in the first place as a citadel of effective and carefully thought out administration. Subjected to analysis is the history of emergence of the theory a legal person in France. Specified is the system of outlooks on a legal person in the comparative legal aspect. Discussed are nuances of using the term “legal person of public law” in a number of current constitutions. Studied are the issues of spreading the legal construction of legal person of public law over the post-Soviet space. Argumentation is given for need to use the construction of public legal person. Based on analysis of legal experience of foreign countries a conclusion is made that in terms of legislative regulation the formation procedure, the legal status and the legal operating mode of legal persons of public law must be determined by public law legislation whilst some general provisions pertaining to realization of their legal capacity must be governed by civil law conventions.
    [Show full text]
  • The Bederman Lecture on Law and Jurisprudence: Public Law & Custom
    Emory Law Journal Volume 61 Issue 0 In Memoriam: David J. Bederman 2012 The Bederman Lecture on Law and Jurisprudence: Public Law & Custom David J. Bederman Follow this and additional works at: https://scholarlycommons.law.emory.edu/elj Recommended Citation David J. Bederman, The Bederman Lecture on Law and Jurisprudence: Public Law & Custom, 61 Emory L. J. 949 (2012). Available at: https://scholarlycommons.law.emory.edu/elj/vol61/iss0/2 This Lecture is brought to you for free and open access by the Journals at Emory Law Scholarly Commons. It has been accepted for inclusion in Emory Law Journal by an authorized editor of Emory Law Scholarly Commons. For more information, please contact [email protected]. BEDERMAN GALLEYS4 7/31/2012 11:07 AM THE BEDERMAN LECTURE ON LAW AND JURISPRUDENCE PUBLIC LAW AND CUSTOM David J. Bederman* Law professors love puzzles. Give us a legal doctrine that does not make sense, or appears counterintuitive, or does not appear to comport with some methodological assumption, and we can spend months (if not years) plumbing its depths and producing reams of paper in exploring its contours. The good news today is that my exegesis shall be limited to the length of this lecture. Let me first set out the character of the puzzle and see if I cannot solve it in the time allotted. I. THE PUZZLE Today’s puzzle can be simply stated: can public law rules be made or modified by custom? At the outset, let us define some terms. By “custom,” I mean legal rules which are “unofficial” and “unenacted” inasmuch as they do not receive their sanction from a statute adopted by a duly constituted legislature or from a decision handed down by a judge of a court of competent jurisdiction.
    [Show full text]
  • Judging As Judgment: Tying Judicial Education to Adjudication Theory
    Journal of Dispute Resolution Volume 2015 Issue 1 Article 8 2015 Judging as Judgment: Tying Judicial Education to Adjudication Theory Robert G. Bone Follow this and additional works at: https://scholarship.law.missouri.edu/jdr Part of the Dispute Resolution and Arbitration Commons, and the Judges Commons Recommended Citation Robert G. Bone, Judging as Judgment: Tying Judicial Education to Adjudication Theory, 2015 J. Disp. Resol. (2015) Available at: https://scholarship.law.missouri.edu/jdr/vol2015/iss1/8 This Conference is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Journal of Dispute Resolution by an authorized editor of University of Missouri School of Law Scholarship Repository. For more information, please contact [email protected]. Bone: Judging as Judgment: Tying Judicial Education to Adjudication The Judging as Judgment: Tying Judicial Education to Adjudication Theory ROBERT G. BONE* INTRODUCTION The thesis of this Article, simply stated, is that judicial education makes sense only against the backdrop of general ideas and beliefs about law, courts, and adju- dication. These ideas and beliefs motivate a focus on educating judges and help guide more specific pedagogical choices. I explore this broad thesis from both a historical and a normative perspective.1 Historically, I argue that interest in judi- cial education caught fire in the 1960s in large part because of prevailing beliefs about law and the proper function of courts. Normatively, I argue that the connec- tion between judicial education and normative views of courts and adjudication continues to be important today, although in a different way.
    [Show full text]
  • Public Law 114–122 114Th Congress an Act to Improve the Enforcement of Sanctions Against the Government of North Korea, Feb
    PUBLIC LAW 114–122—FEB. 18, 2016 130 STAT. 93 Public Law 114–122 114th Congress An Act To improve the enforcement of sanctions against the Government of North Korea, Feb. 18, 2016 and for other purposes. [H.R. 757] Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, North Korea Sanctions and SECTION 1. SHORT TITLE; TABLE OF CONTENTS. Policy Enhancement (a) SHORT TITLE.—This Act may be cited as the ‘‘North Korea Act of 2016. Sanctions and Policy Enhancement Act of 2016’’. Human rights. (b) TABLE OF CONTENTS.—The table of contents for this Act 22 USC 9201 is as follows: note. Sec. 1. Short title; table of contents. Sec. 2. Findings; purposes. Sec. 3. Definitions. TITLE I—INVESTIGATIONS, PROHIBITED CONDUCT, AND PENALTIES Sec. 101. Statement of policy. Sec. 102. Investigations. Sec. 103. Reporting requirements. Sec. 104. Designation of persons. Sec. 105. Forfeiture of property. TITLE II—SANCTIONS AGAINST NORTH KOREAN PROLIFERATION, HUMAN RIGHTS ABUSES, AND ILLICIT ACTIVITIES Sec. 201. Determinations with respect to North Korea as a jurisdiction of primary money laundering concern. Sec. 202. Ensuring the consistent enforcement of United Nations Security Council resolutions and financial restrictions on North Korea. Sec. 203. Proliferation prevention sanctions. Sec. 204. Procurement sanctions. Sec. 205. Enhanced inspection authorities. Sec. 206. Travel sanctions. Sec. 207. Travel recommendations for United States citizens to North Korea. Sec. 208. Exemptions, waivers, and removals of designation. Sec. 209. Report on and imposition of sanctions to address persons responsible for knowingly engaging in significant activities undermining cybersecurity.
    [Show full text]
  • Due Process of Law and Natural Justice
    Due Process of Law and Natural Justice Chhavi Agarwal* "The principles of natural justice are easy to proclaim but their precise extent is far less easy to define" Evershed M R Introduction to Natural School : Natural School of Law deals with norms which are higher and which is involved in search of absolute justice. It is the touchstone of all activities and the ruled as well as the ruler is bound by it. It can be divided into two parts : - Natural law is higher law, which renders inconsistent laws invalid. If the law is contrary to natural law, it becomes ultra vires. Law in ancient and medieval period was prevalent in this sense. - Natural law is an ideal and without affecting the constitutionality the law has to conform to its principles. In absence of such principles peace and happiness cannot be established in the society. Natural law is the dictate of the reason. It contains transcendental and immutable principles to which the system has to confirm. Cicero pointed this out that law is just and reasonable. It contains in itself 3 things - The human inclination towards goal and every element, which protects itself and therefore it, includes all elements necessary for protection of human life and it discards all rules, which are against the same. - Like other animals, men have certain desires and object in life. Natural law includes rules pertaining to instincts. - Due to its rationale nature it has inclination towards what is good and bad. According to Diaz, Natural law has been used in 5 ways : - as an ideal which directs the development of law - It contains rules of morality, which does not allow permanent separation between law as it and law as it ought to be.
    [Show full text]
  • Natural Law and Customary Law
    Natural Law and Customary Law Alexander Orakhelashvili* I. Introduction The principal focus of this contribution is the process whereby the threshold of law-making is crossed through the formation of customary law. This problem has multiple dimensions. Given that the doctrinal discourse on this subject occasion- ally appeals to categories not subsumable within the consensual positivism, it is necessary to examine the normative and conceptual setting in which such catego- ries can be perceived, and this above all covers natural law. It is not intended to provide a comprehensive analysis of natural law theories, but to focus on natural law in clarifying where the dividing line between positivist and extra-positivist (in- cluding naturalist) argument lies, in a way responsive to the need of the above- mentioned mainline argument of this contribution. The clarification of the natural- ist/positivist dichotomy at the start precedes the delimitation of the field of con- sensual customary rules from that of inherent rules of general international law. At the same time, this analysis will focus only on such theoretical or practical aspects of natural and customary law which directly relate to and consider the structural characteristics of international law as the inter-State legal system. The relevance of natural and customary law in general jurisprudence and legal theory is besides the point of the present analysis. The problem of customary law has received widespread doctrinal attention. The aim of this contribution is not to provide yet another comprehensive discussion of the elements of customary law but to address the issues that have not so far re- ceived the adequate attention, are left open or are subject of disagreement, and this attempt making a further doctrinal step.
    [Show full text]