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SUBMITTED BY
DIPTIMAAN KUMAR
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LAW AT VANISHING POINT: A PHILOSOPHICAL ANALYSIS OF INTENATIONAL LAW
ACKNOWLEDGEMENT
I would like to sincerely thank the International Law faculty, Mohammad Atif Khan for giving me this
project on the “Law at the Vanishing Point: A Philosophical Analysis of International Law.” which has
widened my knowledge on the conception of International Law and its importance. Your guidance and
support has been instrumental in the completion of this project. Thank you Sir for your consistent
support.
I’d also like to thank all the authors, writers and columnists whose ideas and works have been made
use of in the completion of this project.
My sincere gratitude also goes out to the staff and administration (HNLU) for the infrastructure in the
form of our library and IT lab that was a source of great help in the completion of this project. I would
also like to thank my friends who have lent me constant support through guidance and inputs which has
led to the completion of this project.
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LAW AT VANISHING POINT: A PHILOSOPHICAL ANALYSIS OF INTENATIONAL LAW
TABLE OF CONTENT
ACKNOWLEDGEMENT…………………………………………………………2
RESEARCH METHODOLOGY………………………………………………….4
INTRODUCTION…………………………………………………………………6
WHAT IS INTERNATIONAL LAW ? A RESPONSE TO CONCEPTUAL
SCEPTICISM ABOUT INTERNATIONAL LAW……………………………….7
DOES MORALITY EXTEND TO PUBLIC INTERNATIONAL LAW ?
A RESPONSE TO NORMATIVE SCEPTICISM ABOUT A MORALITY OF
INTERNATIONAL LAW… …………………………………………...................8
IMMANUEL KANT ON INTERNATIONAL LAW……………………………10
KANT ON THE ROLE OF INTERNATIONAL LAW IN SECURING
FREEDOM………………………………………………………………………..12
RAWLS’S REWRITING: A ‘REALISTIC UTOPIA’……………………………13
HABERMAS’S REWRITING: DEMOCRATIC WORLD
GOVERNMENT…………………………………………………………………..14
CONCLUSION……………………………………………………………………15
BIBLIOGRAPHY…………………………………………………………………16
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LAW AT VANISHING POINT: A PHILOSOPHICAL ANALYSIS OF INTENATIONAL LAW
RESEARCH METHODOLOGY
II. HYPOTHESIS.
The fact that international law itself has developed through the ideas and
noble thoughts of some great philosophers is indeed a very well accepted
notion. But it indeed is a task of a researcher to verify it through his research
work and knowledge as to its factual validity. As to my prior knowledge and
understanding it is to be assumed that just like any other law subject,
international law too has evolved with the help of various philosophical ideas
of various thinkers and philosophers at its nurturing state. Hence, this would
be the very hypothesis of my research work and the results of which would be
stated after due study in my concluding statement.
III. METHODOLOGY.
The methodology of the entire research work is doctrinal in nature, ie, the
research work is totally based on the various documents and books. The
research was conducted after throughout study of various books, articles,
journals and documents. The major portion of this research work was done
with the help of various online resource materials such as jstor.org and
heinonlice.ac.in.
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LAW AT VANISHING POINT: A PHILOSOPHICAL ANALYSIS OF INTENATIONAL LAW
V. CHAPTERIZATION.
The scope of study for this research work is only limited to the philosophical
idea of International Law. This study nowhere revolves around the factual
portion of the International Law, ie, to say the treaties, customs or agreements
between the states.
This research work further revolves only around the philosophical analysis of
International Law as given by three eminent personalities namely, Immanuel
Kant, John Rawls and Jurgen Habermas. Any other ideas or works of any
author or philosopher if included is only for the purpose of reference and
understanding of the topic.
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CHAPTER 1
I.INTRODUCTION
Since the publication in 1961 of H. L. A. Hart’s The Concept of Law, powerfully augmented a
decade later with the appearance of John Rawls’s A Theory of Justice, the philosophy of law in
the English-speaking world has enjoyed a renaissance. Legal philosophers during this half-
century have engaged extensively with what might loosely be called conceptual questions about
the nature of law, legal reasoning, and notions integral to an understanding of law, such as
authority, obligation, and coercion. They have also addressed normative questions about the
values that the institution of law ought to serve and in light of which it should be assessed and
reformed—values such as justice, liberty, equality, toleration, and integrity. And, of course, they
have reflected on the enterprises of conceptual and normative philosophical inquiry into law,
sometimes calling into question the coherence or utility of any such distinction. The result has
been an outpouring of theories about the nature and value of law, many of them developed in
considerable detail and with remarkable ingenuity, often as a result of sustained dialectical
exchange among their various proponents. These developments have taken place both in General
Jurisprudence, which addresses conceptual and normative questions about law in general1, and in
Special Jurisprudence, with important contributions being made to the philosophical
investigation of discrete provinces of law such as criminal law, contract law, and the law of torts,
or specific types of law, such as municipal state law, judge-made law, and customary law.
1
What follows is a highly selectivelist:Hart,H.L.A.,TheConceptofLaw(1961;rev.edn.,Oxford:Clarendon, 1994); Fuller,
L. L., The Morality of Law (New Haven: Yale University Press, 1964); Raz, J., The Concept of a Legal System (Oxford:
Clarendon, 1970); Dworkin, R. M., Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1978);
MacCormick, N., Legal Reasoning and Legal Theory (Oxford: Clarendon, 1978); Raz, J., The Authority of Law
(Oxford, Clarendon, 1979); Finnis, J. M., Natural Law and Natural Rights (Oxford: Clarendon, 1980); Dworkin, R. M.,
Law’s Empire (Cambridge, Mass.: Harvard University Press, 1986); Raz, J. Ethics in the Public Domain (Oxford:
Clarendon, 1994); and Coleman, J., The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory
(Oxford: Clarendon, 2001).
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system, if one exists, and the legal systems of individual states, among many others. The
normative questions include those of whether state consent, democracy, or some other standard
is the touchstone of international law’s legitimacy; whether human rights and distributive justice,
in addition to peace and co-operation, figure among the values international law should realize;
what conditions must be satisfied to justify the creation of international criminal law and the
infliction of punishment on those who violate it; whether international environmental law should
be ultimatelyresponsiveonlytotheinterestsof(existing)humanbeings,amongmany others.
CHAPTER 2
Conceptual questions of this kind were addressed in the middle of the last century by general
theorists of law such as Kelsen and Hart. According to Hart,the legality of international law is
problematic because it ‘resembles, [. . .] in form though not at all in content, a simple regime of
primary or customary law’.16 International law is clearly more than a set of social or moral
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norms, but at the same time it does not fit (entirely) the concept of law developed for domestic
law. The emergence of more normative discussions since the 1970s has tended to sideline the
question of the legality of international law. Whether or not those norms and institutions are
legal, their impact on individual’s justifies subjecting them to moral scrutiny. But conceptual and
normative questions about an institution, such as law, that purports to impose binding standards
of conduct on its subjects, cannot be entirely separated from each other. A complete
understanding of the normative questions raised by international law requires a clear
understanding of the legality of international law—and vice versa. The reasons for the meagre
interest in those conceptual issues, despite the persistence and even strengthening of skepticism
about the legality of international law, are multiple. Partly this is a result of the more general lack
of interest in the philosophy of international law until recent times, as discussed in the previous
section. This is especially true when those conceptual questions are contrasted with more
concrete substantive discussions of contemporary questions arising daily in international affairs.
More generally, legal philosophers have tended since the 1970s to shift the interests towards
Special Jurisprudence, and, as a result, away from the core legal theoretical endeavors of the
1950s.
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that must suffice for our purposes is that moral standards are concerned with what human beings,
as individuals or groups, owe to other human beings, and perhaps also other beings (such as
flaura and fauna), in light of the status and interests of the latter, where the breach of the relevant
standards typically validates certain characteristic responses: blame, guilt, resentment,
punishment, and so on. More concretely, we can refer to a rich and diverse repertoire of concepts
through which the notion of moral concern has historically been elaborated: obligation, justice,
rights, equality, among many others. Morality, therefore, consists in a set of standards which,
among other things, place restrictions on our—often self-interested—conduct in order to pay
proper tribute to the standing and interests of others.
Given its nature, it might be reasonably supposed that there are potentially two kinds of moral
standards that have special relevance for international law.40 On the one hand, transnational
moral principles, which apply within all political communities. On the other hand, international
moral principles, which govern relations among agents that are not members of the same
political community (or, perhaps, that are not members of any political community or that do not
stand in the relationship of governed to government within a politicalcommunity). Some moral
standards, of course, might be of both sorts. For example, human rights norms are typically
conceived as applying within all political communities, but their (threatened) breach is also often
taken to justify (at least pro tanto) some form of preventive or remedial response by outside
political communities or international agents. The task of a normative theory of international law
is to elaborate the content and draw out the practical implications of such moral principles for
international law.
This enterprise, however, has provoked considerable skepticism. Sometimes this takes the form
of denying the very possibility of a normative theory of international law: doubt is cast on the
existence of justifiable transnational and international moral standards that might appropriately
be reflected in international law. More often, however, it is skepticism about their scope and
content: even if it is conceded that some moral standards obtain in the case of international law,
they are thought to be severely limited in their coverage and very minimal in their demands. Let
us call these two brands of skepticism, respectively, radical and moderate.
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CHAPTER 3
it would be essential that all the private interests concerned, taken together, should not be
stronger than the general interest, and that every one should believe himself to see in the good of
all the highest good to which he can aspire for himself. But this requires a concurrence of
wisdom in so many heads, a fortuitous concourse of so many interests, such as chance can hardly
be expected ever to bring about. But, in default of such spontaneous agreement, the one thing left
is force; and then the question is no longer to persuade but to compel, not to write books but to
raise armies. Faced with the barbarities of warfare, optimistic writings of philosophers came to
seem themselves obscene in their detachment from reality: ‘Barbarous philosopher! Come and
read us your book on the field of battle.
Immanuel Kant’s ‘Toward Perpetual Peace’, structured like Saint-Pierre’s essay as if itself a
peace treaty, aims to show how writing books really could challenge a prince’s confidence in his
own wisdom, and as such help to transform a perpetual state of war in to one of perpetual peace.
Following both Rousseau and Saint-Pierre, Kant treats international insecurity and competition
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as the self-perpetuating results of bad counsel, the advice of ‘political moralists’ or ‘moralising
politicians’ who pretend that ‘human nature is not capable of good’ and whose advice can lead
ultimately only to annihilation, the peace of the graveyard. For Kant, the understanding of human
nature that any good counselor (‘moral politician’) requires must be based on an understanding
of what human beings can become; this in turn requires knowledge of what humans ought to
do—a ‘metaphysics of morals’. Students of human nature (whom Kant calls moral
anthropologists) require universal, a priori moral principles to serve as ‘guides to judgment’ and
‘for the discipline of the mind in its obedience to duty, whose precept must absolutely be given
only a priori by pure reason’ .In denying to reason a guiding role prior to observation of the
bleak side of human nature, realists make improvement impossible and perpetuate, as far as they
can, violations of right’.8 Worse still, they risk engendering the truth of their own position:
Apernicious theory of this kind may perhaps even bring about the evil that it prophesies. For, in
accordance with such reasoning, man is thrown into a class with all other living machines which
only require the consciousness that they are not free creatures to make them in their own
judgment the most miserable of all beings.9 Kant argues that a correct understanding of human
nature requires a metaphysics of morals, a reflective, reasoned understanding of moral judgment
and the moral principles on which such judgment is based. And at the core of this metaphysics of
morals lies a recognition of human freedom: freedom must be presupposed or ‘postulated’ by
practical reason.10 Kant’s argument raises two fundamental sets of questions. The first set of
questions, the focus of this essay, concerns Kant’s claims for the practical relevance of his
metaphysics of morals. Section II of this essay outlines the role Kant defends for international
law and his treatment of concrete rules of international law; Section III second half suggests that
at the core of Kant’s philosophy of international law lies a notion of an ever-expanding ethical
community. John Rawls and Jurgen Habermas, celebrated contemporary Kantians, substitute
political institutions for this ethical community. When investigating this substitution, and more
generally the relation between what Kant calls outer or juridical freedom and inner, moral
freedom (autonomy), a student of Kant’s philosophy of international law will ultimately confront
a second, metaphysical set of questions concerning the nature of Kant’s account of human
freedom.
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CHAPTER 4
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Rawls offers limited explanation let alone justification for why or how at the domestic level the
juridical institutionalisation of ‘public reasons’ will be morally transformative.
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without reference to the rational moral principles it is hoped such public debate will articulate, let
alone to the moral faith that this hope requires.
VIII. CONCLUSION.
Some conclude that Kant’s own hopes for publicity and the class of philosophers were
misplaced: publicity has shown itself to be ‘a very important weapon to gain support for
concealed private interests’, while ‘large numbers of well educated intellectuals have engaged in
the gravest betrayals of reason and supported policies that could by no means meet Kant’s idea
of morality’. But Kant’s hope is founded not on an account of the empirical actions of others but
on a moral faith in future possibilities: he does not rely on an illusory wisdom that imagines it
‘can see further and more clearly with its dim moles’ eyes fixed on experience than with the eyes
belonging to a being that was made to stand erect and look at the heavens. Kant is revisionary: he
thinks that we can transform the ‘is’ of human nature in the light of the ‘right’, an ambitious
enterprise that can only be achieved with the help of moral faith. This moral faith requires a
‘rebirth’, a vow to make ‘truthfulness his supreme maxim, in the heart of his confessions to
himself as well as in his behavior toward everyone else’. The highest good of a just world, the
realization of an ‘ethical community’, cannot be achieved solely through the cooperation of
individuals of righteous will allied to the principle that injustice is inherently ‘a threat to
everyone’. It also requires the cooperation of nature or fortune. In one powerful contemporary
account, O’Neill argues that to adopt Kant’s position we need only assume ‘that there is no
evidence that progress is impossible’: by adopting and acting on an assumption that rational,
enlightened progress towards the growth of an enlightened ethical community is possible, we
create that very possibility. But such austere, non-metaphysical reconstructions require an
unreasoned faith in the possibility of personal and cultural progress—with the faint
encouragement of a few inspiring, empirical ‘signs’. One of Kant’s worries is that people will
lack motivation to act unless they have assurance that their efforts will have an effect in the
world: they want assurance, that, unlike Sisyphus, they will not witness the boulder they pushed
uphill rolling straight back down. A righteous man must be persuaded to accept a limited
metaphysics, including the practical postulates of God and immortality: a righteous atheist like
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Spinoza who sees nothing but futility and‘ aimless chaos around him, will be unable to maintain
the right ‘moral sentiment’.
IX. BIBLIOGRAPHY.
BOOKS
ARTICLES
JOURNALS
JOURNAL OF INTERNATIONAL ECONOMIC LAW.
JOURNAL OF PHILOSOPHY OF INTERNATIONAL LAW.
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