- John Austin -> defined law as, Sovereign issuing a command backed by sanction or punishment.
- And since international law did not fit the aforementioned definition, it was relegated to the category of mere “positive morality”. But this categorization has been criticized.
- I don’t agree with the view and reckon international law as a “rule of law” rather than purely a “rule of morality”. This view can be substantiated by understanding 3 core issues:->
- a.) What is the heart of all discussions about the nature of international law? (answer- The comparison between municipal law and international law is the heart of all the discussions about the nature of international law and as the latter lacks a legislature, executive and judiciary, therefore international law is a mere “positive morality”.)
- b.) What is rule of morality? (answer- According to Professor Oppenheim, its a rule which applies via the common consent of the community to conscience only.) (Note-> Its also subjective and dynamic in nature.)
- c.) What is rule of law? (answer- According to Professor Oppenheim, its a rule, which applies via the common consent of community, and is eventually enforced by an external force.)( Note-> It provides certainty.)
Contemporary View
Now there is a general consensus that international law has a binding nature whereas a rule of morality is not binding.
According to Frederick Pollock, he stated that if international law were only a kind of morality; then the foreign policy of all modern states’ would have thrown all their weight on moral arguments only.
But as a matter of fact, foreign policies appeal only to precedents, to treaties and to opinion of specialists.
According to H.L.A. Hart, he also conforms that public international law deals with precedents, treaties and juristic writings and there is no primary focus on moral concepts such as good or bad.
It is also important to keep in mind that it does not mean that international law wholly ignore the role of morality, rules of morality has also given focus if the same has been covered by rule of law. (ICJ, Case- North Sea Continental Shelf Cases 1969)1
Conclusion
Therefore, it can be concluded that international law is not merely a positive morality.
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