EJIL : Debate!

Law Beyond the State: Some Philosophical Questions


Legal philosophers have rightly been criticized for neglecting international law since H.L.A. Hart’s chapter in . At the same time, international legal theorists have not shown terribly much interest in reaching out to legal philosophers for enlightenment. Part of the reason may be that Hart’s chapter, full of insight though it was, made some quite perplexing observations about the nature of international law that have to a certain extent stood in the way of productive discussion. With the hope of encouraging more of a more productive dialogue, this article addresses a number of important philosophical questions about the nature of law beyond the state. The aim is as much to clarify what is at stake as to offer answers of my own, although I do provide those as well. At the same time, I will take some first steps towards linking those philosophical issues to what strike me as some of the most important recent questions and projects within international legal theory. Issues addressed include: How should we understand ‘positivism’ and ‘natural law’ in the case of non-domestic law?; Is international law a system?; Is it law?; International Responsibility; and Do subjects of non-domestic law have a duty to obey it?