Be careful reader, we are about to go down a rabbit hole and there is no telling if we will ever make it out. Is international law really law, or is it something else, something less. Last week I had my last international law class and it was a discussion focused on just this topic. A whole semester, and I still am not entirely able to answer this basic question.
Oliver Wendell Holmes, ex-Supreme Court judge and pragmatist extraordinaire, had something called a bad man theory. In Holmes theory, a bad man doesn’t care about the ethics or morality of the law, but he does care about the consequences of breaking the law. By this test, international law fails miserably. States disobey international law so casually and repeatedly as if it was just a polite suggestion rather than, well, law. North Korea isn’t going to let international law stop it from counterfeiting American $100 dollar bills, and the United States is going to use force regardless of what the Security Council says, or even what article 2(4) of the UN Charter says.
There is another school of thought, however, that points out that law doesn’t require the threat of sanction to be law. We have laws for things like marriage or making contracts that aren’t to punish anyone or prevent any misbehaviour, but just to standardize societal practice. International law about trade, finance, mail, etc. is regularly obeyed.
Thirdly, there is a difference between domestic and international law. States make the laws, but of course individuals don’t. There are no police in the international system, America doesn’t count, so it makes no sense to use the same guidelines for domestic law as international law.
Lastly, international law says its law, a good deal of lawyers and even some law professors and judges make a living off of it being called law, and it is probably not fair to take food out of their mouths to argue otherwise.
Is it law, is it not law, hopefully this won’t be a question on my international law final, not sure how good of an answer “maybe” would be.