IS INTERNATIONAL LAW THE LAW

BY Jesse Temba

Intro.
The discussion on whether International Law is real law is a vey serious jurisprudential question. This is an old dispute going back to early writing of Hobbes and Pufendorf, reinforced in the 19th Century by Austins influential legal theory the issue whether International law may be properly called law. Hobbes, Bentham and Pufendorf are of the view that International Law is not legal binging on state. Czuk, P,M.(1997). Modern Introduction to International Law (7th ed.).London: Routledge Taylor & Francis Group. Pg 5

intro
In 19th Century a number of prominent jurists took a similar view among them was Jurist Austin according to him laws is the command of the sovereign attended by sanction in case of violation of the command in other words law should be limited to rules of conduct enacted by a determinate legislature authority and enforced by physical sanction Austin states that commands are orders backed by threat. In other words existence of sovereign and sanction according to Austin is a fact to regard international law as proper or improper law

Disc.
Improper law according to him comprises law by analogy meaning rules of conduct imposed by the general opinion of an indeterminate body, such as the law of fashion and honour and law of metaphor to mean for example such scientific uniformities as tehe law of gravity also the law of game and the law of art. It was is view that International Law cannot be called law proper in the true sense because it has neither sovereign legislative authority to enact law nor there is an adequate sanction behind it

Cont.
There is nor enforcement agency which can enforce it as a body of rule. He therefore propposed to call International Law as positive morality and it lack a common and determinate sovereign issues orders backed by threat. He regards international law as rule of morality which is analogous to the rules binging a club or society.

cont
Austin is vehemently criticized as only viewed law as enacted by sovereign legislature authorities and ignores the customary or unwritten laws. Savigny and Sir Henry Maine have stated that before enacted law communities were rule by customs and usages which enjoyed the force of law as rule of conduct. Everywhere existed customery law besides the written law. Still it is not correct to say that law are observed because of the fear of sanctions behind them as many communities law are observed because of inner morality such without any formal legislative authorities not because of fear of punishments but because of habit of mind and practices of the communities.

cont
Law relying on force cannot be viable over a prolonged period of time. Legal systems of most states survive primary because of the substantial degree of voluntary obedience of their laws. Austin has failed to explain why states themselves regard international law as binging even when there is no sovereign. With all these critics Austin inference that international law is not law but merely a positive morality does not appear to be correct.

Concl.
International Law therefore regulates the conduct of the international community and its members recognize and affirm to international law to regulate their conduct. No state that claim to be above to the rules of international law. Even the states that violates a particular rule of law will not agree that international law as the whole does not exist . Had the rules of international law not been generally observed by the state, there would have been total chaos in the world community.