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32 results

Page 1 of 2

  • 5 - International Law as an Institutionalized and (Coercively) Guaranteed Order

  • Miodrag A. Jovanović
  • Book:
    The Nature of International Law
    Published online:
    15 April 2019
    Print publication:
    25 April 2019, pp 156-190

  • Summary

    In providing a genealogy of institutionalization of the international order, which largely rests on horizontality of international law and the balance of power, this chapter reveals specificities regarding international law-making and law-applying institutions. In the legal order in which states are key subjects of law-making, it is questionable to what extent various non-state institutional actors are assuming this role as well. Having in mind the relevance of the United Nations, the chapter addresses law-making capacities of the Security Council and General Assembly. Since institutionalization of a normative order implies institutionalization of judgment, the chapter, then, deals with the process of judicialization of the international legal order. The final part is dedicated to the role of coercion in guaranteeing the order with the lack of centralized enforcement agencies. It is argued, alongside Hathaway and Shapiro, that the primary model of international coercive guaranteeing is “external outcasting”. It is “outcasting”, because it “involves denying the disobedient the benefits of social cooperation and membership”. It is “external”, because it is “frequently carried out by those outside the regime.”

  • 1 - International Law as a Subject Matter of Legal Philosophy – A Brief Historical Overview

  • Miodrag A. Jovanović
  • Book:
    The Nature of International Law
    Published online:
    15 April 2019
    Print publication:
    25 April 2019, pp 8-31

  • Summary

    This chapter offers a cursory excursion into philosophizing about international law. This historical journey reveals how the interest in law beyond the state (polis) was born with the natural law doctrine and its idea that certain legal rules are of universal validity. This philosophical doctrine has been playing throughout the centuries a dominant role in formulating theoretical background for the study of international law. However, this philosophical landscape has slowly started to change with the rise of the 19th century legal positivism. While it became the dominant force in the German international legal discourse (Staatswillenspositivismus), the British school of analytical jurisprudence “found no room for a law beyond sovereignty.” The subsequent influence of the analytical school of thought was reflected in the fact that most of jurisprudential dealings with international law, including Hart’s, did not go far beyond the ‘ontological’ question of whether international law is ‘true’ law, thereby reinforcing skepticism of the pioneers, Bentham and Austin.

  • 7 - Fragmentation – A Special Feature of International Law?

  • Miodrag A. Jovanović
  • Book:
    The Nature of International Law
    Published online:
    15 April 2019
    Print publication:
    25 April 2019, pp 208-227

  • Summary

    The closing chapter discusses “fragmentation” as a possible distinctive feature of the international law. It, first, discharges Hart’s well-known argument that, due to its institutional deficiencies and the lack of a unifying “rule of recognition”, international legal rules “resemble that simple form of social structure” which can be “contrast[ed] with a developed legal system.” In the next step, it is shown that what at first seemed as the International Law Commission’s incredibly negative portrayal of the international law in terms of its “fragmentation”, turned eventually into a more positive picture of a legal order which has at its disposal a wealth of interpretative devices for the solution of normative conflicts between mushrooming specialized international legal regimes. However, since these techniques are not self-applicable, it is of crucial importance that the adjudicative bodies of different specialized regimes use them in such a way ‘as if’ the international law is a coherent and unified system of rules. it is argued that there is a plenty of indicators that various international adjudicative bodies adopt the adequate ‘as if’ lens and depict themselves as officials of a unified international legal order.

  • 6 - Justice-Aptness of International Law

  • Miodrag A. Jovanović
  • Book:
    The Nature of International Law
    Published online:
    15 April 2019
    Print publication:
    25 April 2019, pp 191-207

  • Summary

    This chapter deals with law’s justice-aptness. Both law-making and law-application are in the function of coordinating behavior of norm-subjects and settling their disputes. These functions are conducted through the allocation of certain benefits and burdens in the form of rights and obligations, as well as through remedying harms stemming from the wrongful behavior of norm-subjects. Therefore, “[i]n view of the function of law in creating and enforcing obligations, it necessarily makes sense to ask whether law is just”. Justice-aptness “applies as much to the substance of law as it does to its administration and procedures.” Proceeding from Aristotle’s classical distinction between distributive and corrective justice, this chapter inspects to what extent international law can be appraised in these terms.

  • 3 - Typical Features of (International) Law

  • Miodrag A. Jovanović
  • Book:
    The Nature of International Law
    Published online:
    15 April 2019
    Print publication:
    25 April 2019, pp 65-77

  • Summary

    This chapter offers a preliminary formulation of the concept of law, understood as a representation of a group of features clustered around some prototype case. In proceeding from the idea that our pre-analytical samples of law have to account for various social contexts, including the one beyond the state, in which the concept-word is used to denote this complex human practice, the undertaken jurisprudential inquiry leads to the preliminary finding: a social practice is typically judged as falling within the category of ‘law’ if it consists of rules purporting to coordinate behavior of actors and to settle their disputes (normativity); if it at least possesses institutions in charge of judging whether those rules were violated (institutionality); if the rules in question are guaranteed, normally through some form of coercive mechanisms([coercive] guaranteeing); and if the rules are, overall, apt for inspection and appraisal in light of justice (justice-aptness). These typical features vary depending on contexts (e.g. municipal v. international level; simple v. modern society).

  • 4 - International Law as a Normative Order

  • Miodrag A. Jovanović
  • Book:
    The Nature of International Law
    Published online:
    15 April 2019
    Print publication:
    25 April 2019, pp 78-155

  • Summary

    This chapter distinguishes between the two how questions of normativity. The first (epistemological perspective) is concerned with finding out how to ascertain a legal norm. It relies on Kelsen’s understanding of ‘validity’ as a specific norm’s ‘existence’, which is determinable due to the doctrine of formal sources of law. The chapter discusses the following problems: how to differentiate a valid international legal norm from a mere act of will; how to ascertain a valid customary legal rule, a jus cogens rule, an erga omnes obligation, and how to ascertain rule’s invalidity based on its inefficacy. The second question (perspective of practical rationality) tries to elucidate how legal norms provide us with reasons for action. It is traditionally held that legal norms are ‘non-optional’ – that they preempt and exclude all the conflicting reasons that norm-subjects might have for the contrary behavior. This view is challenged and it is argued there is nothing special about the normativity of law, insofar as it competes with the normative force of other normative orders. This view opens the room for gradation of legal normativity, which is of particular importance for the discussion about relative normativity of international law and soft law.

  • In Lieu of a Conclusion – A Note on (Un)Certainty

  • Miodrag A. Jovanović
  • Book:
    The Nature of International Law
    Published online:
    15 April 2019
    Print publication:
    25 April 2019, pp 228-233

  • Summary

    International law is often perceived as suffering from a chronic lack of certainty, which is a highly ranked legal value. While admitting that international law in a number of aspects can be said to generate uncertainty, the concluding note argues that absolute legal certainty is unattainable, and, hence, that it is always a matter of degree. More importantly, “international law is not categorically more uncertain than any other legal system.” That is, the uncertainty problems at the international level are not of different conceptual kind than those at the municipal level. This becomes particularly obvious when the traditional distinction between domestic and international law is replaced with “a more important and generative conceptual divide between public law and ordinary domestic law”, whereby “public law” stands for “constitutional and international law — legal regimes that both constitute and govern the behavior of states and state actors.” Accordingly, ‘uncertainty’ is neither confined to international law, nor is it resolvable in most of the cases.

  • 2 - In Search of the Nature of (International) Law – Methodological Postulates

  • Miodrag A. Jovanović
  • Book:
    The Nature of International Law
    Published online:
    15 April 2019
    Print publication:
    25 April 2019, pp 32-64

  • Summary

    The chapter takes on the dominant methodology of the metaphysically driven conceptual analysis. Socio-legal scholars rightly argue that this method is unable to strike the right balance between pre-analytical, empirical and analytical work. Conceptual analysts regularly employ the terminology of ‘borderline cases’ (e.g. international law), despite the fact that it is incompatible with one of the central premises of this method, namely, that all the instances satisfying necessary conditions are equally good examples of the category membership. Finally, insofar as the conceptual analysis has to rely on intuitive categorization judgments, it is limited by our ordinary representation of concepts. But, this method seems to be premised on psychological assumptions which are contrary to recent experimental findings in the field of cognitive psychology, according to which we take category (concept) to be “a representation of an array of features clustered around some sort of prototype.” Hence, the analytical work in this book is undertaken within the prototype theory of concepts.

The Nature of International Law
  • Miodrag A. Jovanović
  • Published online:
    15 April 2019
    Print publication:
    25 April 2019
  • Jurisprudence has up until recently largely neglected international law as a subject of philosophizing. The Nature of International Law tries to offset against this deficiency by providing a comprehensive explanatory account of international law. It does so within an analytical tradition, albeit within the one which departs from the nowadays dominant method of the metaphysically-driven conceptual analysis. Instead, it adopts the prototype theory of concepts, which is directed towards determining typical features constitutive of the nature of international law. The book's central finding is that those features are: normativity, institutionalization, coercive guaranteeing, and justice-aptness. Since typical features are context sensitive, their specificities at the international level are further elucidated. The book, finally, challenges the often raised claim that fragmentation is international law's unique feature by demonstrating that international institutional actors, particularly adjudicative ones, largely perceive themselves as officials of a unified legal order.

  • A preliminary validation study of PuO2 incorporation into zirconolite glass-ceramics

  • Stephanie M. Thornber, Martin C. Stennett, Eric R. Vance, Dorji T. Chavara, Ian Watson, Miodrag Jovanovic, Joel Davis, Daniel Gregg, Neil C. Hyatt
  • Journal:
    MRS Advances / Volume 3 / Issue 20 / 2018
    Published online by Cambridge University Press:
    30 January 2018, pp. 1065-1071
    Print publication:
    2018

  • Zirconolite glass-ceramics are being developed as potential wasteforms for the disposition of Pu wastes in the UK. Previous studies utilised a variety of surrogates whilst this work uses both cold-press and sinter and hot isostatic press methods to validate the wasteform with PuO2. A cold press and sinter sample was fabricated as part of a validation study for plutonium incorporation in hot isostatically pressed (HIPed) wasteforms. The results confirmed the cold-press and sinter, achieved successful waste incorporation and a microstructure and phase assemblage that was in agreement with those expected of a HIPed equivalent. A HIP sample was fabricated of the same composition and characterised by SEM and XRD. Results were in agreement with the sintered sample and achieved complete waste incorporation into the glass-ceramic wasteform. These samples have demonstrated successful incorporation of PuO2 into glass-ceramic HIPed wasteforms proposed for processing Pu-based waste-streams in the UK.

  • Dworkin on International Law: Not Much of a Legacy?

  • Miodrag A. Jovanović
  • Journal:
    Canadian Journal of Law & Jurisprudence / Volume 28 / Issue 2 / July 2015
    Published online by Cambridge University Press:
    01 July 2015, pp. 443-460
    Print publication:
    July 2015

  • Dworkin’s proposal for a new philosophy of international law shares all the important features of his latest stage of philosophizing about domestic law. As a derivative theory, however, it faces not only the same problems as the original position, but some new ones as well. This paper focuses on three problems. First, already Dworkin’s exposition of the international legal regime of human rights, which is briefly analyzed in the paper, suffers from the ill-treatment of sovereignty, insofar as it is equated with the outdated Westphalian conception. Furthermore, Dworkin’s attempt to ground human rights in value monism opens a number of intricate philosophical and practical issues. At the general plane of international law, this theoretical proposal becomes even more vulnerable. Second, Dworkin’s moral reading of international law makes a revolutionary discontinuity with the developed institutional practices and standards of the international community, which is within his own theory considered as one of the key features of legality. Finally, Dworkin’s proposal is profoundly futuristic and utopian. It is no more about the claim that ‘law as it is’ needs to be assessed in light of ‘law as it ought to be’, according to some inherent standards of political morality of a given political community, but in light of some law that might develop in the distant future. The paper concludes by noticing that if Dworkin’s ‘interpretivist’ theory is to be employed in the area of international law, it would have to be along some different lines than the ones proposed by Dworkin himself.

Collective Rights
  • A Legal Theory
  • Miodrag A. Jovanović
  • Published online:
    05 February 2012
    Print publication:
    12 January 2012
  • In a departure from the mainstream methodology of a positivist-oriented jurisprudence, Collective Rights provides the first legal-theoretical treatment of this area. It advances a normative-moral standpoint of 'value collectivism' which goes against the traditional political philosophy of liberalism and the dominant ideas of liberal multiculturalism. Moreover, it places a theoretical account of collective rights within the larger debate between proponents of different rights theories. By exploring why 'collective rights' should be differentiated from similar legal concepts, the relationship between collective and individual rights and why groups should be recognised as the third distinctive type of right-holders, it presents the topic as connected to the larger philosophical debate about international law of human rights, most notably to the problem of universality of rights.

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