Augmenting the Authority of International Legal Order - Law Versus Power Recapitulated

Abstract

International law has, for a long time, been plagued by the accusations of both political scientists and legal scholars. Traditional legal thinkers hold that international law has no basis for the authority that it claims, or that it cannot be called “law” proper, because there is a lack of authoritative central institutions to make and interpret international law. On the other hand, many political scientists reject that international law can prevail in a domain of power politics – international law is only relevant when it coincides with state interest. My thesis will answer the question: What is the underlying authority of international law? We cannot afford to ignore this question if we seek to justify the rule of law in international relations. This inquiry is significant because on it depends our understanding of international relations as proceeding according to an ethic of law or an ethic of power. If international law is shown to have but a weak or ambiguous basis for the authority that it claims, then there is nothing to assure us that international law is sincerely held, and not a mere mask for power. Using the example of slavery, I argue that Nardin’s customary account of international law fails to provide us with a satisfactory answer. I then examine the underlying theological layer of the legal concept of “authority”. I posit that the western-European theological understanding of law’s authority as deriving from the authority of the Judeo-Christian God best augments the authority of international legal order in a way that can distinguish law from the assertions of power.