International Law is the vanishing point of jurisprudence-illustrate & explain
Jurisprudence:
Jurisprudence is the science or philosophy of law. Jurisprudence is mainly divided into three branches: analytical, sociological, and theoretical. The analytical branch formulates axioms, defines terms, and prescribes the methods that enable the legal order to be implemented as a consistent logical system. The sociological branch examines the actual effects of the law within society and the influence of social cultures and rules on different branches and aspects of law. The theoretical branch evaluates and criticizes law in terms of the morals or goals that were set to be achieved.
Jurisprudence provides a forum for scholarly writing on the philosophy of law. At the same time, it demands the proper intellectual honesty, clarity and strictness. The editorial policy of jurisprudence is very open-minded in relation to philosophical approach. A main purpose of the journal is to encourage scholarship which explores and transcends the categories and assumptions on which contemporary jurisprudential debates are conducted, and to stimulate reflection upon traditional questions concerning the nature of law, politics and society. The journal’s unique reviews section will provide in-depth discussion and analysis of major developments in the field.
Aims of Jurisprudence:
Jurisprudence tries to encourage research exploring the relation between questions in the philosophy of law and debates in related branches of philosophy. Jurisprudence includes political philosophy, moral philosophy, the philosophy of religion and the philosophy of mind to analyze the legal theories.
Jurisprudence aims at supporting the study of the intellectual history of the philosophy of law, It tries to enlighten people on contemporary jurisprudential questions and increase the knowledge of legal philosophy.
Jurisprudence focuses on encouraging careful research on the relations between jurisprudential questions and theoretical debates in anthropology, sociology, cultural and literary studies. It tries to clarify the misunderstandings and articulate a combined outlook of legal philosophy.
01. See Thomas E. Holland, Elements of Jurisprudence (1924) (13 editions of Elements of Jurisprudence between 1880 and 1924); A.V. Dicey, A Digest of the Laws of England with Reference to the Conflict of Laws 14 (1896); Neil Duxbury, Frederick Pollock and the English Juristic Tradition 101 (2004); W.L. Morison, John Austin 160-170 (1982).
The word jurisprudence is derived from the Latin term juris prudentia, which means “the study, knowledge, or science of law.” In the United States jurisprudence commonly means the philosophy of law. Legal philosophy has many aspects, but four of them are the most common.
The first and the most widespread form of jurisprudence seek to analyze, explain, classify, and criticize entire factors of law. Law school textbooks and legal encyclopedias represent this type of scholarship.
The second type of jurisprudence compares and contrasts law with other fields of knowledge such as literature, economics, religion, humanitarian studies and social sciences.
The third type of jurisprudence focuses on the analysis of the historical, moral, and cultural basis of a particular legal concept and theory.
The fourth body of jurisprudence focuses on finding the answer to such abstract questions on the definitions and implementations of law, decision making of the judges, right of the legal authorities etc.
01. See Jurisprudence. Retrieved from http://www.merriam-webster.com/dictionary/jurisprudence
02. See Jurisprudence Retrieved from http://www.law.cornell.edu/wex/jurisprudence
03. See John Austin, Lecture I, in The Province of Jurisprudence Determined 18 (W.E. Rumble ed., 1995).
International law:
International law defines the legal responsibilities of States in their conduct with each other, and their treatment of individuals within State boundaries. Traditionally, international law consisted of rules and principles governing the relations and dealings of nations with each other, though recently, the scope of international law has been redefined to include relations between states and individuals, and relations between international organizations.
Public international law, concerns itself only with questions of rights between several nations or nations and the citizens or subjects of other nations. In contrast, Private international law deals with controversies between private persons, natural or juridical, arising out of situations having significant relationship to more than one nation. In recent years the line between public and private international law have became increasingly uncertain. Issues of private international law may also implicate issues of public international law, and many matters of private international law have substantial significance for the international community of nations.
DOMAINS OF INTERNATIONAL LAW:
International Law includes the basic, classic concepts of law in national legal systems — status, property and obligation. It also includes substantive law, procedure, process and remedies. International Law is rooted in acceptance by the nation states which constitute the system. The following are major substantive fields of international law:
International environmental law,
International humanitarian law or law of war
International human rights law
01. International law. Retrieved from http://www.law.cornell.edu/wex/international_law
02. I Brownlie, Principles of Public International Law (OUP 2008)
More than 500 multilateral treaties have been deposited with the Secretary-General of the United Nations. Many other treaties are deposited with governments or other entities.
The General Assembly is the main deliberative body of the United Nations. Many multilateral treaties are adopted by it and subsequently opened for signature and ratification by member States of the United Nation.
There are three main legal principles recognized in much of international law, which are not required, but are based chiefly on courtesy and respect:
Principle of Comity – in the instance where two nations share common public policy ideas, one of them submits to the laws and judicial decrees of the other.
Act of State Doctrine – respects that a nation is sovereign in its own territory and its official domestic actions may not be questioned by the judicial bodies of another country. It dissuades courts from deciding cases that would interfere with a country’s foreign policy.
Doctrine of Sovereign Immunity – deals with actions brought in the court of one nation against another foreign nation and prevents the sovereign state from being tried in court without its consent.
Limitations of International law:
There is a continuing debate amongst jurists and legal theorists about whether the international law is a law or not. The analytical school of jurists led by John Austin and his followers says that international law is not a law due to the following limitations:
1. International Law is not the command of a Determinate Human Superior to an Inferior:
Every law is a command of a superior to inferior. The superior should be a sovereign authority. There is no such superior authority to command international law.
01. International law. Retrieved from http://www.law.cornell.edu/wex/international_law
02. I Brownlie, Principles of Public International Law (OUP 2008)
2. International Law does not enjoy the sanction of any coercive authority:
Every law has a punishment attached to it. The violators of the law should be punished according the law. State law is backed by its coercive authority. The international law on the other hand has no such authority to sanction it and so does not involve any legal punishment. So the following the rules of the international law depends on the will of the nations.
3. There are no competent courts to interpret International Law:
The state law is interpreted by and enforced by courts. But there is no such court in international field. There are many analysis of international law and there is no clearance of what particular issue is being pointed by the international law.
4. International Law comes in conflict with the sovereignty of State:
International law completely contradicts the sovereignty of the State. Every state is internally sovereign with absolute and unlimited authority. A sovereign state does not really need to obey international law as it does not comply with any superiority in international arena.
Austin and his followers point out that recognition of international law as law would involve a limitation on the external sovereignty of the state and question the sovereignty of a state. It is a contradiction to the theory of the state because sovereignty of the state is recognized to be a must for any state to be considered as a state.
There is yet another modern school of thought known as the historical school of jurists who contend that international law is law in the real sense of the word. International law is law in the same sense in which municipal law is law.
01. International law (n.d.)Retrieved from http://www.boxiz.com/blogs/607/IMPORTANT-QUESTIONS-AND-ANSWERS-OF-INTERNATIONAL-LAW
02. Walt, Steven D., Why Jurisprudence Doesn’t Matter for Customary International Law (June 9, 2012). Virginia Public Law and Legal Theory Research Paper No. 2012-36. Available at SSRN: http://ssrn.com/abstract=2080476 or http://dx.doi.org/10.2139/ssrn.2080476\\
Topic Analysis:
According to Holland International law is the vanishing point of jurisprudence. Holland used the words “vanishing point” in relation to international law and jurisprudence, to clarify that international law and jurisprudence are parallel to each other. Jurisprudence and international law are completely different and separated from each other, but they may seem same at the vanishing point.
Now, we need to know what a vanishing point is. Vanishing point is the meeting point or the point of intersection of two parallel lines. The parallel lines should be on the same plain. Law theorists say that international law cannot be kept in the category of law mainly because it is not enforced by a sovereign authority. No sanction exists for this kind of law. So the rules of international law can be violated easily without any punishment or legal actions. So, on the basis of these controversies, as an analytical jurist, Holland remarks that international law is the vanishing point of jurisprudence. He has clarified his Premark with suitable reasons.
Holland strongly believes that international law can indeed be described as law only by courtesy. It can not be described on legal terms as the rights can be easily violated and the concerns of international law is not always taken into account and also can not be implemented worldwide. It is also said that Holland’s view on international law may be was correct in the past but at present the same is subjected to severe criticism as character of International law has changed a great deal in recent times due to the obligation of nations to oblige many social, environmental and humanitarian characteristics of international law.
So we can conclude that such rules as are voluntarily, though habitually, observed by every state in its dealings with the rest can be called law only by courtesy. International Law generally differs from ordinary law as it is not enforced by a State and differs from ordinary morality as it is a rule for States and not for individuals. According to him the law of nations is but private law
01. Nathan Feinberg, Unilateral Withdrawal From an International Organization, 39 Brit. Y.B. Int’l Law 189, 216 (1963)
02. John Austin, Lecture I, in The Province of Jurisprudence Determined 18 (W.E. Rumble ed., 1995).
03. Holland, T.E. (2006) The elements of jurisprudence. New Jersie:The law book exchange
04. International law is the vanishing point of Jurisprudence (2012). Retrieved from http://www.lawyersnjurists.com/articles-reports-journals/law-and-ethics
‘writ large’. We can say that international Law as the vanishing point of jurisprudence, since it lacks any arbiter of disputed questions nor it saves any public opinion. It goes beyond the disputant parties and in such proportion that it often becomes assimilated to true law by the aggregation of States in a large society, it ceases to be itself, and is transformed into the public law of a Federal government.
There are violations of principles of International Law often by stronger nations of the world. The international legislative machinery is not so efficient as a State legislative machinery. In the strict sense, International Law has no legislature and no executive. Its judiciary as represented by the International Court of compelling jurisdiction; its decisions are not conclusive so as to finally settle legal disputes between States. International Law is not the product of an international legislature, it being the collection of usages which the civilized states have agreed to observe in their dealings with one another.
According to Paton, International Law is very weak on the institutional side there is no legislature, and, while a Court exists, it can act only with the consent of the parties and has no real power to enforce its decisions. It is true that the international law of peace is seldom broken, but once grave issues arise we see flagrant disregard of accepted rules. The public opinion of the world may be a factor not lightly to be ignored, but it is harder to deal with a nation that is a law-breaker than to expel a primitive man from his community hence while primitive and International Law both lack institutional machinery, the sanctions of the former are really more effective since they are brought to bear on the individual and not on the nation”
05. International law is the vanishing point of Jurisprudence (n.d.). Retrieved from http://wiki.answers.com/Q/International_law_is_the_vanishing_point_of_Jurisprudence
06. Holland, T.E. (2006) The elements of jurisprudence. New Jersie:The law book exchange
07. International law is the vanishing point of Jurisprudence (2012). Retrieved from http://www.lawyersnjurists.com/articles-reports-journals/law-and-ethics
08. Jurisprudence and ethics (2011) Retrieved from http://www.scribd.com/doc/34969561/Essays-in-Jurisprudence-and-Ethics
Research Findings:
Jurisprudence assists with a definite theory of the implementation of international law. One can not implement the international law against a person of any country even though his country has agreed into any international law agreement. The person can only be trialed under the laws of his or her own state. He or she is only subject to the territorial jurisdiction of the country, not by any international law as the international law is not enforced by a sovereign authority.
International law can indeed be described as law only by courtesy. It can not be described on legal terms as the rights can be easily violated and the concerns of international law is not always taken into account and also can not be implemented worldwide. It is also said that Holland’s view on international law may be was correct in the past but at present the same is subjected to severe criticism as character of International law has changed a great deal in recent times due to the obligation of nations to oblige many social, environmental and humanitarian characteristics of international law.
Although, previously it was believed that international law is the vanishing point of jurisdiction, these days this thinking has changed a lot. These days international law is more advanced. International law is followed correctly in many countries all over the world. This law is enforced during the export and import of goods, foreign exchange and global businesses. There is international court to ensure these rules are not violated. So, these days, jurisprudence and international law is not that parallel.
Conclusion:
International law is regarded as the vanishing point of jurisprudence. It is believed that international law should not be regarded as law as it is easily violated and there is no sovereign authority to enforce it. We can also conclude that international law is mostly a courtesy and is followed depending on the will of the countries. But things are changing these days as international laws are strictly followed all over the world due to rapid globalization and other radical changes.
Reference:
09. International law is the vanishing point of Jurisprudence (n.d.). Retrieved from http://wiki.answers.com/Q/International_law_is_the_vanishing_point_of_Jurisprudence
10. Holland, T.E. (2006) The elements of jurisprudence. New Jersie:The law book exchange
11. International law is the vanishing point of Jurisprudence (2012). Retrieved from http://www.lawyersnjurists.com/articles-reports-journals/law-and-ethics
12. Jurisprudence and ethics (2011) Retrieved from http://www.scribd.com/doc/34969561/Essays-in-Jurisprudence-and-Ethics
13. International law (n.d.)Retrieved from http://www.boxiz.com/blogs/607/IMPORTANT-QUESTIONS-AND-ANSWERS-OF-INTERNATIONAL-LAW
14. Walt, Steven D., Why Jurisprudence Doesn’t Matter for Customary International Law (June 9, 2012). Virginia Public Law and Legal Theory Research Paper No. 2012-36. Available at SSRN: http://ssrn.com/abstract=2080476 or http://dx.doi.org/10.2139/ssrn.2080476
15. Nathan Feinberg, Unilateral Withdrawal From an International Organization, 39 Brit. Y.B. Int’l Law 189, 216 (1963)
16. John Austin, Lecture I, in The Province of Jurisprudence Determined 18 (W.E. Rumble ed., 1995).
17. Thomas E. Holland, Elements of Jurisprudence (1924) (13 editions of Elements of Jurisprudence between 1880 and 1924); A.V. Dicey, A Digest of the Laws of England with Reference to the Conflict of Laws 14 (1896); Neil Duxbury, Frederick Pollock and the English Juristic Tradition 101 (2004); W.L. Morison, John Austin 160-170 (1982).
18. Jurisprudence. Retrieved from http://www.merriam-webster.com/dictionary/jurisprudence
19. Jurisprudence Retrieved from http://www.law.cornell.edu/wex/jurisprudence
20. H. L. A. Hart, The Concept of Law (1961) Oxford University Press,
21. International law. Retrieved from http://www.law.cornell.edu/wex/international_law
22. I Brownlie, Principles of Public International Law (OUP 2008)