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Prototype theory of international law formulated by Miodrag A. Jovanović includes the following theses: (a) justice-delivery as a function of law; (b) institutionalization of adjudication as a fundamental feature of law; (c) coerciveness of law as guaranteeing enforcement; (d) outcasting as the predominant and sufficient means of enforcing international law. The paper analyses these elements, challenges theses (a), (c) and (d), and advances the thesis about (b) adjudication being not just a fundamental but also a necessary feature of law.
This essay offers some critical remarks on Miodrag Jovanović’s ambitious attempt to deploy arguments developed within analytic legal philosophy to make sense of core features of the international legal order. First, I argue that Jovanović endorses a common but mistaken reading of H.L.A. Hart’s analysis of international law. Properly understood, Hart’s take on international law is one Jovanović shares. Second, I raise several objections to Jovanović’s depiction of (international) law’s normativity, including both his account of what makes law legitimate and his description of the role legitimate law plays in its subjects’ practical reasoning.
Miodrag Jovanović has written an important account of why international law must be considered law. In this short review, I argue that his account succeeds at the cost of weakening a central feature of law, namely, its distinct normative force. By contrast, I suggest that we have the conceptual and descriptive tools needed to defend a more robust understanding of international law as providing its subjects with weighty reasons for action.
In his book The Philosophy of International Law, Jovanović advances the view that an inquiry into the reasons regarding why states would consider international norms as binding norms would be part of a sociology of law, and we can infer that, for him, it is a part of an inquiry into an empirical order. I advance two criticisms of one aspect of Jovanović’s conclusion on empiricism: a) the idea that there is a plurality of reasons for actions that constitute a wide spectrum, from self-interested reasons to moral reasons and, b) that we can understand the plurality of reasons for actions of either states or citizens through empirical research. I argue that these positions reflect a particular and, in my view, problematic view of agency.
In contrast to theories that seek to find necessary and sufficient conditions which individuate law as a system of rules, Miodrag A. Jovanović provides a fruitful rethinking of the nature of law. Building on Frederick Schauer’s work, Jovanović identifies prototypical features of law that teach us about law’s characteristics, but dispense with the notion that they must be jointly present in all instances we categorize as law. This new approach opens up prolific new ways of thinking about the nature of international law. Jovanović proposes four such features:1) its function to provide rules of behavior and dispute settlement, 2) institutionality, 3) coercive guaranteeing, and 4) justice-aptness. He argues that international law displays them to a sufficient degree for us to recognize its law-like character. I discuss some of the features of this account and propose three avenues of further developing the idea that international law is justice-apt.
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