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Russia and the `Legality' of Strasbourg Law
II.
H.L.A. Hart has portrayed the ordinary misgiving that many have in viewing any form of international as really `law', stating that `though it is consistent with the usage of the last 150 years to use the expression "law" here, the absence of an international legislature, courts with compulsory jurisdiction, and centrally organized sanctions have inspired misgivings, at any rate in the breasts of legal theorists'.11 Hart responded to this misgiving by pointing out that whether or not any rule system, including municipal law, is legally binding does not so much depend on whether the system has organized sanctions, such as `orders backed by threats',12 as upon two other `minimum conditions':
On the one hand, those rules of behaviour which are valid according to the system's ultimate criteria of validity must be generally obeyed, and, on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials.13
In other words, the success or even the existence of any `real' legal system can rightly be judged, first, by whether or not there is actual obedience to the system's rules, and, second, by whether or not there develops what Hart has called an `internal point of view'. This latter requires that there be:
... officials, lawyers, or private persons who use [the system's rules], in one situation after another, as guides to the conduct of social life, as the basis for claims, demands, admissions, criticism or punishment, viz., in all the familiar transactions of life according to rules. For them the violation of a rule is not merely a basis for the prediction that a hostile reaction will follow but a reason for hostility.14
For his part, Hart concluded that, although `no other social rules are so close to municipal law as those of international law' and no matter how much the primary rules of international law might in fact be followed in practice, the international legal system needed more in the way of secondary systemic rules and formal legal institutions if `the sceptic's last doubts about the legal "quality" of international law' were to `be laid to rest'.15
11 . H.L.A. Hart, The Concept of Law (2nd ed., 1994)
214.
© 1990-2004 European Journal of International Law
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