The idea of law. In spite of everything, seems still

To be stronger than any ideology of power.

H. Kelsen

THE CONCEPTION OF INTERNATIONAL LAW AS A LEGAL SYSTEM [9]

[…] The systematic approach - “the emphatically academic and scientific spirit of legal scholarship with its struggle for rationality, systematic coherence, logical consistency, building on first principles, obsession with taxonomy, abstractness, precision and clarity of concepts that characterizes German legal culture” - has been particularly helpful in constructing a global world view of law that delimits national sovereignty and governs inter-state relations. “[T]he traditional approach of English law with its virtual absence of clear divisions of the law and a ‘tradition of working disorder’ where lawyers categorized and compartmentalized only at a relatively low level of abstraction” could not compete in this endeavor. The systemic vision organizes the diverse types of communications between states - actions, agreements, declarations, even silence - as legal obligations arranged within a certain hierarchy and internal coherence. That today most contemporary students, scholars and practitioners envision international law as a legal system is arguably the outcome of German public law scholarship.

The systemic vision of international law, developed during the nineteenth century by German (or German-speaking) scholars such as Georg Friedrich von Martens, August Wilhelm Heffter and Johann Caspar Bluntschli, contributed to the evolving legal order, because it provided room for both continuity and change: continuity of the basic principles of a legal system, with its rules of recognition, coupled with the appreciation of the role of judges in developing the law through interpretation, and change through the ample opportunities state actors have to adjust specific norms by their practice. The accommodation, by this vision, of both continuity and change pays its respects both to the notion of state sovereignty and to the fundamental goals of the community of states, as they evolve over the years.

The vision of international law as a legal system is not the only possible vision. A recent trend in international law scholarship, particularly in the United States, challenges this view, offering a vision of international law as nothing more than a mix of solitary treaties hovering over the abyss of international anarchy in no particular hierarchy. Even the Vienna Convention on the Law of Treaties, according to this view, is a document designed to clarify treaty obligations, rather than an instrument identifying key rules of recognition of the legal system. Under this vision, state sovereignty reigns supreme, and the international obligations of states - which are not necessarily legal obligations - fluctuate with the ebb and flow of world events.

Fortunately for the proponents of the vision of international law as a legal system, the German approach has been influential also beyond Germany. It was introduced to the Anglo-American world through the writings of German and German-speaking?migr?s such as Francis Lieber, Lassa Oppenheim, Sir Hersch Lauterpacht, Georg Schwarzenberger, Hans Kelsen, and many others. In the works of all of these scholars, there is a pronounced endeavor to create a coherent system of laws, one that resolves potentially contradictory outcomes and allows lawyers and courts to bridge across the archipelago of treaties and disparate state practice to fill legal voids. The recent International Law Commission report on fragmentation, with its suggestion that no international undertaking is beyond the reach of the Vienna Convention on the Law of Treaties, and the increasing resort by international tribunals and domestic courts to the concepts of erga onmes and jus cogens obligations are evidence of the durability of this approach.