John Austin

Alishba ali F2017117068
John Austin says international law is not real law but a positive
morality , Do you agree with him ? give arguments in support your
answer .
According to him International law is not true law but a code of rules and conduct
of moral force only . He holds that international law is not true law , it does not
emanate from law giving authority and has no sanction behind it , so he described
it as a positive international morality consisting of opinions or sentiments current
among nations generally . John Austin regarded International law as positive
morality in the 19 century. When international law lacked legislation, a court ,
sanctions powers and enforcement machinery so if he conduct international law
is not true , perhaps he was not wrong . If rules are violated by the state , sanction
may be applied against it not only by the aggrieved state itself but collectively by
the United nations Organizations (UNO )as well. So I agree with the john Austin.
My argument is that without a proper system of enforceable sanctions
international law does not exist and therefore cannot be termed ‘true law’. I will
begin by assuming that international law does not in fact own a credible system of
sanctions. That assumption made, I will analyses whether this constitutes
sufficient grounds on which to negate International Law as ‘true law’ So according
to Austin and his followers considered that it ought to be called "positive
international morality" instead. The important issue when enforcing positive law
is who has the power to define an offence, establish whether it has occurred and
issue the relevant punishment. It thus stands that a credible system of sanctions
starts with an over-riding authority able to issue the sanctions. In our national
legal system the creation and modification of law generally lies with Parliament.
Courts determine whether the law has been breached and police officers enforce
the law. This, for international law, provides a problem. Unlike municipal law
which has a vertical structure of authority and power, the international
community is comprised of a horizontal structure. No state or group of states hold
overwhelming authority, rather power is fragmented and dispersed. Under the
process of globalization, the importance of non-state entities has augmented and
it is increasingly difficult to locate a central point of authority or power. This
decentralized horizontal structure essentially means that there is no clear
authoritative body in international law that can effectively create law, determine
breeches and sanction accordingly. The absence of centrally organized sanctions
from the international system as a cause for doubt regarding the general legal
status of international law is an issue that H.L.A. Hart has given deliberation to.
Hart argues that to view international law as not binding because of its lack of
organized sanctions is tacitly to accept Austin's theory of law and obligation This
theory derives obligation from the notion that to do otherwise would be met with
punishment. For Hart, however, this theory does injustice to all legal thought, not
only that of international law. He argues that the concepts of obligation and duty
are distorted. For Hart there exists an external predictive notion of obligation
which indeed does prescribe punishment for failure to obey, but this must be
distinguished from the 'internal normative statement 'I have an obligation to act
thus' which assesses a particular person's situation from the point of view of rules
accepted as guiding standards of behavior. For Hart, this distinction is key, as it
calls into question the necessity of limiting the normative idea of obligation to
rules supported by organized sanctions. Thus he establishes the existence of
alternative sources of obligation to obey law other than threatened sanctions.
Again making a comparison between domestic law and international law, one can
find another source for the belief that the lack of a sanction system leads to a
weaker legal status. This relates to primary rules of obligation. A good example of
such is the prohibition of violence in our municipal system. The necessity of such
rules in a domestic legal system derives from the need to protect those who have
voluntarily submitted themselves to the law from those 'too wicked, too stupid,
or too weak to obey the law.' It seems logical that this would also be needed by
the international legal system. However, due to the characteristics of a society of
individuals it is far more likely that a system of sanctions may successfully be
implemented with relatively small risk and high expectation of success in
domestic law. The same cannot be said of the international arena. Although it
may be desirable to implement a system of sanctions, the characteristics of the
international order do not provide the same assurance of low risk and high
efficacy if sanctions were to be used. Firstly, there is no guarantee that violence
between states in the international order will remain solely between the
aggressor and the victim, as would be the case with a murder in domestic law, for
example. Secondly, due to the inequality amongst states, there can be no
assurance that those in favour of order will have the strength to defeat those
professing aggression. 'Hence, the organisation and use of sanctions may involve
fearful risks and the threat of them add little to the natural deterrents. There are
several ways to think about this law , In domestic legal system , we think it as a
rules that a government issues to control the lives of its citiozens . Those rules are
generally created by legislature, interpreted by judiciary and enforced by
executive using the police. branch So basically in simple words I would like to
state that there is no sovereign and law giving authority and there is absence of
legislative machinery, lack of executive power, little sanctions, there are vague
and uncertain rules , there no potent judiciary , and there is a limited scope that’s
why John Austin stated that it is not a true law because it has so many lackness in
there .
Reference
https://www.slideshare.net/arnabbd/is-international-law-a-true-law
http://www.legalservicesindia.com/article/1249/International-Law:-
Bird.html#:~:text=According%20to%20him%2C%20International%20Law,conduct
%20of%20moral%20force%20only.&text=Austin%20described%20International
%20Law%20as,sentiments%20current%20among%20nations%20generally.

John Austin

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Alishba ali F2017117068

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