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H.L.A Hart’s ideas regarding law as a system of primary and secondary rules

international law , jurisprudence


Introduction:

Different jurists had different opinions and different views of law. One particular view was to analyze law in terms of legal rules. It should be noted that legal rules are imperative or prescriptive, rather than indicative or descriptive. In. other words, legal rules are not concerned with what happens, but with what should be done. The legal rules again differ from commands, because commands order the doing of one particular act, while legal rules deal with general and repeated activity. In this sense, legal rules resemble technical rules or directives for achieving certain results. Thus, for instance, certain rules may provide the mode of preparing a good dish. Legal Rules are more like the rules of a recipe than commands. But the fundamental difference between rules of recipe and legal rules is that the legal rules are not merely an instrument for producing certain kinds of society, but the legal rules and their observations are themselves part of such society.

It has also been pointed out that observing a rule is different from merely acting out of habit. What is done out of mere habit is done without any sense of obligation to do it, while observance of a legal rule is merely external. Internally, it is coupled with an attitude that such external behaviour is obligatory. Therefore, a legal right can be defined as one, which prescribes a code of conduct, which is done with the feeling that such conduct is obligatory. This feeling is not a psychological illusion peculiar to the person observing the rule. A person who has to act according to a rule will also expect others to act according to the rule. This sense of obligation

arises neither out of mistake nor out of illusion.           .

The above is, in short, Professor Hart's theory of law, as set out in his treatise, The Concept of Law.

Hart's definition of law can be stated as follows: “Law consists of rules which are of broad application and non-optional character, but which are at the same time amenable to formalization, legislation and adjudication.”
Hart calls these rules of law primary rules, which would simply impose duties. But the unity among these rules is brought about by secondary rules, which are power-conferring rules. For example, the Indian Penal Code consists of primary rules, while the Constitution of India consists of secondary rules, as it consists of a number of power-conferring rules.

Legal rules, as defined above, must be distinguished from rules of games, clubs, and societies, and moral rules, which are also observed with a sense of obligation. The first difference between moral rules and other rules (including legal rules) is that the latter can be amended and can be subject to adjudication, while morality can be amended by an authoritative body; nor is it susceptible to the process of adjudication.

Secondly, legal rules and moral rules can be distinguished from rules of games, etc. Obedience to legal and moral rules is general in application, while the rules of games are applicable only to a limited number of persons who are playing the game. Again, one could withdraw from the game, the club or the society, while in the case of legal and moral rules, such withdrawal from a State or society is practically impossible.

Comparison of Hart’s Analysis and Austin’s Theory

Hart's analysis of legal rules is different from the Austinian concept of legal rules. According to Austin, the command of the State is imposed and one is obliged or compelled to obey it. According to Hart, a legal rule is observed because one has a sense of obligation to observe it. Law prescribes, not a command, but a standard of conduct. This standard is adhered to, not only because there is a sense of obligation to adhere to it, but also because there is, an expectation that others have some obligation to adhere to it. Therefore, even a person who cannot be compelled to obey the law is still reckoned as having an obligation to obey. According to this view, law is concerned with obligation rather than coercion.

Conclusion: According to Hart, the basic rules of a legal system do not consist of something which one has to assume or postulate. Rather, it is itself a rule accepted and observed in a particular society.



H.L.A. Hart’s The Concept of Law in details

Herbert Lionel Adolphus Hart (1907-92) was a British philosopher who was professor of jurisprudence at the University of Oxford. His most important writings included Causation in the Law (1959, with A.M. Honoré), The Concept of Law (1961), Law, Liberty and Morality (1963), Of Laws in General (1970), and Essays on Bentham (1982).

The Concept of Law (1961) is an analysis of the relation between law, coercion, and morality, and it is an attempt to clarify the question of whether all laws may be properly conceptualized as coercive orders or as moral commands.

Hart says that there is no logically necessary connection between law and coercion or between law and morality. He explains that to classify all laws as coercive orders or as moral commands is to oversimplify the relation between law, coercion, and morality. He also explains that to conceptualize all laws as coercive orders or as moral commands is to impose a misleading appearance of uniformity on different kinds of laws and on different kinds of social functions which laws may perform.

He argues that to describe all laws as coercive orders is to mischaracterize the purpose and function of some laws and is to misunderstand their content, mode of origin, and range of application.

Laws are rules that may forbid individuals to perform various kinds of actions or that may impose various obligations on individuals. Laws may require individuals to undergo punishment for injuring other individuals. They may also specify how contracts are to be arranged and how official documents are to be created. They may also specify how legislatures are to be assembled and how courts are to function. They may specify how new laws are to be enacted and how old laws are to be changed. They may exert coercive power over individuals by imposing penalties on those individuals who do not comply with various kinds of duties or obligations. However, not all laws may be regarded as coercive orders, because some laws may confer powers or privileges on individuals without imposing duties or obligations on them.

Hart criticizes the concept of law that is formulated by John Austin in The Province of

Jurisprudence Determined (1832) and that proposes that all laws are commands of a legally unlimited sovereign. Austin claims that all laws are coercive orders that impose duties or obligations on individuals. Hart says, however, that laws may differ from the commands of a sovereign, because they may apply to those individuals who enact them and not merely to other individuals. Laws may also differ from coercive orders in that they may not necessarily impose duties or obligations but may instead confer powers or privileges.


Laws that impose duties or obligations on individuals are described by Hart as "primary

rules of obligation." In order for a system of primary rules to function effectively, "secondary

rules" may also be necessary in order to provide an authoritative statement of all the

primary rules.

Secondary rules may be necessary in order to allow legislators to make changes in the primary rules if the primary rules are found to be defective or inadequate. Secondary rules may also be necessary in order to enable courts to resolve disputes over the interpretation and application of the primary rules. The secondary rules of a legal system may thus include 1) rules of recognition, 2) rules of change, and 3) rules of adjudication.

In order for the primary rules of a legal system to function effectively, the rules must be sufficiently clear and intelligible to be understood by those individuals to whom they apply.

If the primary rules are not sufficiently clear or intelligible, then there may be uncertainty about the obligations which have been imposed on individuals.

Vagueness or ambiguity in the secondary rules of a legal system may also cause uncertainty as to whether powers have been conferred on individuals in accordance with statutory requirements or may cause uncertainty as to whether legislators have the authority to change laws. Vagueness or ambiguity in the secondary rules of a legal system may also cause uncertainty as to whether courts have jurisdiction over disputes concerning the interpretation and application of laws.

Primary rules of obligation are not in themselves sufficient to establish a system of laws

that can be formally recognized, changed, or adjudicated, says Hart. Primary rules must be

combined with secondary rules in order to advance from the pre-legal to the legal stage of

determination. A legal system may thus be established by a union of primary and secondary rules (although Hart does not claim that this union is the only valid criterion of a legal system or that a legal system must be described in these terms in order to be properly defined).

Hart distinguishes between the "external" and "internal" points of view with respect to how the rules of a legal system may be described or evaluated. The external point of view is that of an observer who does not necessarily have to accept the rules of the legal system. The external observer may be able to evaluate the extent to which the rules of the legal system produce a regular pattern of conduct on the part of individuals to whom the rules apply. The internal point of view, on the other hand, is that of individuals who are governed by the rules of the legal system and who accept these rules as standards of conduct.

The "external" aspect of rules may be evident in the regular pattern of conduct which may occur among a group of individuals. The "internal" aspect of rules distinguishes rules from habits, in that habits may be viewed as regular patterns of conduct but are not usually viewed as standards of conduct. The external aspect of rules may in some cases enable us to predict the conduct of individuals, but we may have to consider the 'internal' aspect of rules in order to interpret or explain the conduct of individuals.

Hart argues that the foundations of a legal system do not consist, as Austin claims, of habits of obedience to a legally unlimited sovereign, but instead consist of adherence to, or acceptance of, an ultimate rule of recognition by which the validity of any primary or secondary rule may be evaluated. If a primary or secondary rule satisfies the criteria which are provided by the ultimate rule of recognition, then that rule is legally valid.

There are two minimum requirements which must be satisfied in order for a legal system to exist: 1) private citizens must generally obey the primary rules of obligation, and 2) public officials must accept the secondary rules of recognition, change, and adjudication as standards of official conduct. If both of these requirements are not satisfied, then primary rules may only be sufficient to establish a pre-legal form of government.

Moral and legal rules may overlap, because moral and legal obligation may be similar in some situations. However, moral and legal obligation may also differ in some situations. Moral and legal rules may apply to similar aspects of conduct, such as the obligation to be honest and truthful or the obligation to respect the rights of other individuals. However, moral rules cannot always be changed in the same way that legal rules can be changed.

According to Hart, there is no necessary logical connection between the content of law and morality, and that the existence of legal rights and duties may be devoid of any moral justification. Thus, his interpretation of the relation between law and morality differs from that of Ronald Dworkin, who in Law’s Empire suggests that every legal action has a moral dimension. Dworkin rejects the concept of law as acceptance of conventional patterns of recognition, and describes law not merely as a descriptive concept but as an interpretive concept which combines jurisprudence and adjudication.

Hart defines legal positivism as the theory that there is no logically necessary connection between law and morality. However, he describes his own viewpoint as a "soft positivism," because he admits that rules of recognition may consider the compatibility or incompatibility of a rule with moral values as a criterion of the rule’s legal validity.

Legal positivism may disagree with theories of natural law, which assert that civil laws must be based on moral laws in order for society to be properly governed. Theories of natural law may also assert that there are moral laws which are universal and which are discoverable by reason. Thus, they may fail to recognize the difference between descriptive and prescriptive laws. Laws that describe physical or social phenomena may differ in form and content from laws which prescribe proper moral conduct.

Hart criticizes both formalism and rule-scepticism as methods of evaluating the importance of rules as structural elements of a legal system. Formalism may rely on a rigid adherence to general rules of conduct in order to decide which action should be performed in a particular situation. On the other hand, rule-scepticism may not rely on any general rule of conduct in order to decide which action should be performed in a particular situation. Formalism may produce such inflexibility in the rules of a legal system that the rules are not adaptable to particular cases. Rule-scepticism may produce such uncertainty in the application of the rules of a legal system that every case has to be adjudicated.

International law is described by Hart as problematic, because it may not have all of the elements of a fully-developed legal system. International law may in some cases lack secondary rules of recognition, change, and adjudication. International legislatures may not always have the power to enforce sanctions against nations who disobey international law. International courts may not always have jurisdiction over legal disputes between nations. International law may be disregarded by some nations who may not face any significant pressure to comply. Nations who comply with international law must still be able to exercise their sovereignty.

In any legal system, there may be cases in which existing laws are vague or indeterminate and that judicial discretion may be necessary in order to clarify existing laws in these cases. Hart also argues that by clarifying vague or indeterminate laws, judges may actually make new laws. He explains that this argument is rejected by Ronald Dworkin, who contends that judicial discretion is not an exercise in making new laws but is a means of determining which legal principles are most consistent with existing laws and which legal principles provide the best justification for existing laws.5

Dworkin says in Law’s Empire that legal theory may advance from the "preinterpretive stage" (in which rules of conduct are identified) to the "interpretive stage" (in which the justification for these rules is decided upon) to the "postinterpretive stage" (in which the rules of conduct are reevaluated based on what has been found to justify them).6 A complete legal theory does not merely identify the rules of a legal system, but also interprets and evaluates them. A complete legal theory must consider not only the relation between law and coercion (i.e. the "force" of law), but the relation between law and rightfulness or justifiability (i.e. the "grounds" of law). Thus, Dworkin argues that a complete legal theory must address not only the question of whether the rules of a legal system are justified but the question of whether there are sufficient grounds for coercing individuals to comply with the rules of the system.

CRITICISM ON HART’S CONCEPT OF LAW

1.    Lord Llyod – Hart’s description of a developed legal system in terms of a union of primary and secondary rules is undoubtedly of value as a tool of analysis and he wonders whether too much is not being claimed for the new view of some of the old problems. (Hart is aware – suggest that there other element is LS, i.e. “open texture”. Lord Llyod asks the question whether it is possible to reduce all rules of the legal system to rules, which impose duties, and rules, which confer powers.


2. RONALD DWORKIN (born in 1931) took chain from HART has criticized HART for representing law as a system of rules and for suggesting that, at certain points, the judges use their discretion and play a legislative role.


THE view of Dworkin is that a conception of law as a system of rules fails to take account of what he calls “principles”. He also maintains that judges do not have discretion as even in hard cases, there is only one “right answer”

The contention of Dworkin is that principles are not distinguished from rules in a number of ways

1. Principles such as the standard that no man may profit by his own wrong, differ from rules “in character of direction they give.”

2.While rules are applicable in all or nothing, principles state “a reason that argues in one direction but do not excessitate a particular decision.

To quote him:

“All that is meant when we say that a particular principle is a principle of our law, is that the principle is one which officials must take into account, if it is relevant as a consideration inclining in one direction or another.”

3. Principles have a dimension of weight or importance which rules do not have.

Dworkin asserts that whilst a system of rules must be inherently consistent and coherent, devoid of inner contradictions; to the contrary principles and policies do tolerate contradictions without necessarily breeding terminal chaos to a legal system.

1.Dworkin’s “Rights Thesis of Law” which views the legal system of rules but one encompassing social policies and principles.

2.Dworkin is convinced that the judicial function is to find the “right answer” by assessing rules, principles and polices. Thus the role of the Judge is wider and grander beyond the “false” dichotomy of law vis-à-vis morals which, it is claimed, tends to restrict the judicial function.




jurisprudence
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What is Legal System? features and its type

law , legalsystem


Legal System presupposes the existence of laws, including the constitution, regulations, the instruments of their enforcement and the instruments for deciding whether or not in any given case the laws or regulations have been violated[1]. Briefly, one would argue that Legal System presupposes the existence of Law making body (the Legislature in any form be it Parliament, Congress or House of Representatives), the Executive and the Law Interpreter (the Judiciary)

Types of Legal Systems   
 The World does not posses a uniform type of legal system. Legal Systems differ from one country to the other, some countries follow religious form of a legal system like Islamic Law System to most of Arab Countries, African countries, before colonialism, based mainly on Customary Law System and these are still in application, with various amendments, todate in some countries like Tanzania. In most cases these laws do not stand as legal systems but rather as personal laws to settle mainly inheritance, succession and family disputes.  There are many different legal systems of human civilization. But the most dominant legal traditions and systems in the modern world are Western. This is because over the last couple of centuries, West European countries invaded and dominated much of the world and continue to do so today through their economic and military superiority…Therefore there are variations, and between legal traditions. None of them is monolithic[2]. However, the most popular and applicable legal systems in the world are two i.e. Civil Law System and Common Law System, but the scholars have added another type called Socialist Legal System, which came at the triumph of socialism in several countries like the former USSR. Other legal systems, though not popular, include Islamic Law, Customary Law, and Hindu Law etc.

Civil Law System
This legal system is a result of joint efforts of Scholars from Universities of Latin and Germany between 12th and 13th Cs in Western Europe. Some Scholars, such as David and Brierly prefer to refer to this system as Romano-Germanic[3]. Thus, Civil Law System originated from continental Europe, and is principally centered there today even though because of European’s expansion through colonialism, many non-European countries have adopted it or borrowed certain elements. The Civil Law System was formed by the efforts of the European Universities which, from 12th C and on the basis of the compilations of Emperor Justinian (A.D. 483-565), evolved and developed a juridical science common to continental Europe. The compilations were known as the DIGEST. Prior to this time there existed various laws however they were not that much developed to acquire the status of a legal system, thus Justinian made extra ordinary efforts to give the existed laws the status of legal system, however, this was just a first phase.

The second phase came after the fall of Justinian Empire where by the DIGEST ceased to apply and primitive legal systems came to the replacement. These primitive legal systems based on either tribal or clan foundations.
The second phase in the growth of civil law system began with the renaissance of Roman law studies in the universities of Latin and Germanic countries during 12th C. For about five Centuries the system was dominated by the writings of jurists under whose influence legal practice itself in continental Europe evolved. The second way finally paved way to the third phase that came to be known as the Modern Phase in which the legal system, apart, from the dominance of the jurists writings is now dominated by legislation- written law.

Features of Civil Law System
  • Initially, the task to determine and formulate the law was vested with the jurists/Legal scholars.
  • It evolved as an essentially, private law. (Tailored to regulate private relationships between individual citizens)
  • Court proceedings are based on Inquisitorial procedure. I.e. The judge has a much more central role in the process of not only judging but in inquiring, and setting the terms of inquiry, into the   dispute. 
Common Law System
The Common Law System operates in England and Wales. This is a legal system that bases on the doctrine of precedent where by law develops through the judges who seek principles and rules from previous decisions to decide the matters at hand. Therefore, the Common Law System does recognizes the laws made by the Judges while deciding cases through the principles and rules from previous decisions and this fact makes Common Law to be both the laws made by the law making body (Parliament) and the law interpreter. Thus, the question that “ Do Judges make laws?” receive the positive answer “YES” under the Common Law System, while to some other legal systems like civil law system the interpreter in this context the Judiciary is not allowed to make law. So, the most important thing to note here is that under common law system court decisions, though not all of them, are laws after the long time practice. It is to be understood that court decisions become laws when judges announce their decisions and give the reasons to their decisions, when cases of similar facts arise then judges would just decide to be guided by previous decisions. (formally this was taken to be persuasive in nature but after time, judges found themselves bound to decide cases of similar facts through the principle of analogy from previous decisions, this developed through the doctrine of binding precedent, stare decisis. This had one objective to make develop uniformity in cases of similar facts though judges do enjoy the right to decide cases by basing on their facts; each case has to be decided on its own merits), This is called in law decision-making by analogy, and this is what is called judicial precedent. Therefore, court decisions become law only when developed through judicial precedent.

Origin and growth of common law
The common law has its origin in Anglo-Saxon customary rules by judges after the Norman Conquest in 1066. Before the coming of William the Conqueror in 1066 there already existed a primitive legal system consisted mainly of customary rules and written laws which were codes of law compiled by Anglo-Saxon Kings. Geographically the whole country was divided into shires and each shire had its own court known as communal court. The courts used to administer the customary rules and the written laws that were compiled by the Anglo-Saxon kings. The shire court met periodically in the county town and was presided over by an official known as the sherrif, who was a representative of the king.
In 1066, King William of Normandy conquered England establishing feudalism and a strong government and legal system. At first, William and his co-Norman kings ruled the country by using the existing local courts and other institutions. But beginning the year 1096 William began sending administrative officers and royal officials throughout the country to discharge administrative and judicial functions. This system enabled William to control the country better because the royal officials sent or hear cases offered better methods of trial compared to the communal courts. In the long run the communal courts died a natural death.
Therefore it can be concluded with certainty that common law was formulated from the indigenous customs by royal itinerant judges who were sent out as representatives of the king, to administer justice throughout the realm which was then divided into circuits. In the course of discharging their functions the judges ascertained and applied the customs applicable in the locality. They discovered the customs with the help of a jury and then applied them. On completing their circuits the judges returned to the royal courts at Westminster. Here the judges would discuss the merits of various customs discovered, agreeing on certain customs and rejecting others. In this way local customs gained the force of general law since local customs formed the basis on which judges developed the common law. By about 1250 of those customs were sifted and unified into one system of law common to all people hence the term “common law”[4]. 

Features of the Common Law System
  • Itinerant judges formed it.
  • It bases on the doctrine of precedent.
  • It is adversial in nature in which parties make their side of the case and the judge play an impartial role.
  • It is mainly Public law since private matters were not much of concern to common law courts.

EQUITY
The English legal system is made up by common law and the well-known doctrine called the principle of Equity. This is a body of laws in contrast to the common law that developed in the 15th C. by the court of Chancery to remedy the inadequacies of the common law. Equity became a supplement to common law. It happened several times in England that people were not satisfied with the decisions announced by judges by basing on common law. People thought that in some instances common law was not doing them justice, people sought a mechanism of seeing the King by themselves and present their grievances for fair and just solutions. The King’s wisdom became another legal means in handling peoples’ disputes. Thus, since then Equity stands for natural justice and fairness. One should go to equity with clean hands.

Socialist Legal System
Socialist laws constitute the third category of world legal regimes. The system originated in the USSR. With the triumph of the Socialist Revolution USSR began to build new type of society. The society to be created is a communist one under the aegis of fraternity (brotherhood) where there will be no more state and no more law. In a communist society state will be made superfluous by a new feeling of social solidarity developed through the disappearance of the capitalist world’s antagonisms. In this communist society even the instruments of coercion will disappear and that social relations will be ruled primarily by communist morality. It can simply be argued that the Socialist Legal System targeted on building communism where by state and law would not find their way to survive in the societies, however, with the fall of USSR, it is doubtful if the remaining countries like Romania for example will be able to stand their goal of transforming their societies into communism.
Features of Socialist Legal System
  • Revolutionary in nature.
  • Disappearance of State and law.
  • Private law narrows down at the expense of public law.

Conclusion
With the above lecture it is highly expected that students are now well equipped with what it means by the term Legal system. It is also certain that students are at this juncture able to explain different types of legal regimes that operate or were once upon a time in operation in the World. Finally, students should be well aware on how these legal systems were introduced in Africa particularly in Tanzania.


CITATIONS

[1] C. K. Mtaki, Constitutions and Legal Systems of East Africa:  part one, @ p.3
[2] I. G. Shivji et al. Constitutional and Legal System of Tanzania: A Civics Sourcebook, @ p.21
[3] C. K. Mtaki, supra, @ p 4
[4] C.K Mtaki, Supra, at pp. 8-10




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UNDERSTANDING ON SOURCES OF PUBLIC INTERNATIONAL LAW

international law , law

Introduction

The term “sources of Public International Law” is used to mean two things:  first, the actual materials determining the rules applicable to a given international situation (the material sources), and second, the legal methods creating rules of general application (the formal sources).  However, because it is difficult to maintain this distinction, the two meanings are used interchangeably.

Article 38 of the Statute of the International Court of Justice (ICJ) states the following:

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a- international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b- international custom, as evidence of a general practice accepted as law;
c- the general principles of law recognized by civilized nations;
d- subject to the provisions of Article 59, judicial decisions and teaching of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
      
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

This Article lists the traditional sources of Public International Law, the actual legal materials that the ICJ has to apply to international disputes.  According to this Article, these sources are of two types:  the primary sources that are represented by the international conventions, international custom and general principles of law; and the subsidiary sources that are represented by the decisions of courts and the opinions of legal scholars. Moreover, this Article lists “ex aequo et bono” (equity) as an alternative source of Public International Law applied by the Court if the parties agree thereto.  However, in addition to these traditional sources, there are contemporary sources, such as the acts of the international organizations.

Thus, the sources of the contemporary Public International Law can be classified into seven:
1-  International customs;
2-  Treaties;
3-  General principles of law;
4-  Judicial decisions;
5-  Opinions of legal scholars;
6-  Ex aequo et bono  (Equity);
7-  Acts of international organizations.

In the following sections, these sources are discussed.

International Customs

Article 38 of the Statute of the ICJ refers to an international custom as evidence of a general practice accepted as law.  This definition comprises of two elements: a general practice and its acceptance as law.  These two elements are necessary for the formation of customary international law.  The first element, the behavioural or objective element, requires a recurring consistent action or lack of action by States, which is indicated by such activities as official statements or conducts, legislative or administrative action, court decisions and diplomatic behaviours or correspondence.  The second element (the psychological or subjective element) entails the conviction that in similar case such a practice is required or permitted by international law.  In this sense, international customs may be defined as practices or usages which have been observed by a large number of States over a lengthy period of time and considered by them to be legally obligatory, i.e., being a law. 

 Notably, the terms “custom” and “usage” are often used interchangeably.  Strictly speaking, there is a clear technical distinction between the two.  Usage is an international habit of action that has not received full attestation and does not reflect a legal obligation; an example of a usage is the salute at sea.  Usages may be conflicting; custom must be unified and consistent.  A usage to become a customary rule of law, it must fulfill two conditions: acceptance or recognition by a large number of States and repetition over a lengthy period of time.  A custom has a definite obligation attached to it.  Failure to follow custom results in State responsibility, and consequently entails the possibility of punishment (sanction) or of retaliation against that State.

International custom, as Article 38 indicates, is one of the primary sources of International Law which the ICJ shall apply.  In fact, international customs constituted the bulk of the rules of International Law.  Historically, custom had played a great role in the formation of the rules of International Law.  However, since the beginning of the Twentieth Century, this role has been decreased in favor of the law-making treaties.

Treaties

The term “treaty” is used as a generic term embracing all kinds of international agreements which are known by a variety of different names such as, conventions, pacts, general acts, charters, statutes, declarations, covenants, protocol, as well as, the name agreements itself.  A treaty may be defined as an international agreement concluded between States in written form and governed by International Law.

Article 38 of the Statute of ICJ indicates that international conventions (treaties), whether general or particular, establishing rules expressly recognized by the contesting states should be applied by the Court to the disputes submitted to it.  Although this Article divided treaties into two kinds, general treaties and particular treaties; it is only the first kind, the general treaties or the so called the law-making treaties, which intended to have a universal and general application, constitute a primary source of International Law.

The particular treaties or the so called treaty-contracts are not directly a source of International Law since their application is limited only to the contracting parties which are two or small number of States, and they deal with limited affairs . This kind of treaties does not create new rules of Public International Law, but at best, only new rules of particular or regional application. However, as a substantial number of States accept and recognize such new rules formulated in this kind of treaties as obligatory, these rules will become part of the Public International Law.  Examples of such treaties are bilateral treaties on commercial, and friendship relations.

The law-making treaties constitute a primary source of International Law. Since the middle of the Nineteenth Century, there has been an astonishing development of law-making treaties.  The rapid expansion of this kind of treaties has been due to the inadequacy of customs in meeting the urgent demands arose from the changes which have been transforming the whole structure of international life.  Law-making treaties have been concluded to regulate almost every aspect concerning the international community. Examples of important treaties are:  the Charter of the United Nations, the four Geneva Conventions of 1949, the Vienna Convention on Diplomatic Relations of 1961, the International Covenant on Civil and Political Rights of 1966 and the Convention on the Law of the Sea of 1982.

In contrast with the process of creating law through custom, treaties are a more modern, more deliberate and speedy method.  They are of growing importance in International Law.  Their role in the formation of new rules of International Law increases day after day.   Today, the law-making treaties are considered the most important primary source of Public International Law.

General Principles of Law

Article 38 of the Statute of the ICJ refers to “the general principles of law recognized by civilized nations” (all nations are now considered as civilized) as a primary source of International Law.  This source is listed the third after international conventions and international customs.  The Court shall apply the general principles of law in cases where treaties and customs provide no rules to be applied.

Notably, there is no agreement on what the term “general principles of law” means.  Some say it means general principles of international law; others say it means general principles of national law.  Actually, there is no reason why it should not mean both; the greater expansion in the meaning of this term, the greater chance of finding rules to fill the gaps in treaty law and customary law.  Indeed, international tribunals had applied general principles of law in both senses for many years before the Permanent Court of International Justice was established in 1920.

Nevertheless, there are various opinions as to the origin of the general principles of law.  Some regard them as being originated from the Natural Law which underlies the system of International Law and constitutes the criteria for testing the validity of the positive rules.  Others regard them as stemmed from the national legal systems (Positive Law) and have been transplanted to the international level by recognition.
      
Whatever the meaning of the term “general principles of law” and the origin of these principles, these principles are considered to be at the foundation of any legal system, including International Law.   Actually, there is an agreement that the general principles of law do constitute a separate source of International Law.  Examples of general principles of law are the principles of consent, equality, administration of justice, good faith, reciprocity, forbidding abuse of right andres judicata. 
   
Judicial Decisions 

Article 38 of the Statute of the ICJ directs the Court to apply judicial decisions as subsidiary means for the determination of rules of law.  This direction is made subject to the provisions of Article 59, which states that “the decision of the Court has no binding force except between the parties and in respect of that particular case.”  The provision of Article 59 of the Statute of the ICJ is understood to mean that the Court is not obliged to follow previous decisions.  So while, as Article 59 ascertained, the doctrine of precedent as it is known in the Common Law, whereby the decisions of certain courts must be followed by other courts, does not exist in International Law, it is still that the decisions of the international courts (PCIJ and ICJ) are quoted as authoritative decisions, and international courts have always strived to follow their previous decisions to insert certainty and uniformity within their judicial process, or at least, they have had to take previous decisions into account.

The judge of the ICJ sometimes does a little more than merely determine a law; he may establish a law.  This has occurred in many instances: the Anglo-Norwegian Fisheries case of 1951, which stated the criteria for the recognition of baseline from which to measure the territorial sea; and the Reparations case of 1949, which established the legal personality of international organizations.
  
The PCIJ, during its existence, gave a large number of decisions and advisory opinions on matters of international concern, thereby developing International Law.  The ICJ, the successor of the PCIJ, has been doing the same.

As the term “judicial decisions” referred to by Article 38 also encompasses decisions (awards) of international arbitral courts (tribunals) and the decisions of national courts, these decisions have been playing a role in the development of International Law.

There have been many international arbitral tribunals, such as the Permanent Court of Arbitration and the various mixed-claimed tribunals, including the British-American Mixed Claims Tribunal and the Iran-US claims Tribunal.  Although these tribunals differ from the international courts in some ways, many of their decisions have been extremely significant in the development of International Law.

The decisions of national courts of various nations have played a role the development of International Law, particularly the international customary law.  These Decisions help to form international customs.  They show what the national courts have accepted as international law and how the International Law, in the given case, is understood in that country.  Examples of such rules of law developed by, or derived from the uniform decisions of national courts are certain rules of extradition law, the rules related to State recognition, and the rules of diplomatic immunity.

One may finally say that judicial decisions, whether international or national, have played an important part in the development of International Law.  The international customary law has largely developed from case to case, and a large number of cases have been submitted to international as well as national courts of various nations.

Writings of legal scholars

Article 38 of the Statute of the ICJ includes as a subsidiary means for the determination of rules of law, “the teachings of the most qualified publicists of the various nations”. The term “teachings of publicists” means “writings”, “opinions” or “works” of legal scholars, jurists or writers.

This Article emphasizes the evidentiary value of writings of the legal scholars.  The primary function of these writings is to provide reliable evidence of the law.  Writers on International Law cannot make the law; their works are to elucidate and ascertain the principles and rules of International Law.   To be binding, the rules and principles must have received the consent, whether express or implied of States, who are to be bound by it.

Historically, the writers on International Law such as Gentili, Grotius, Pufendorf and Vattel were a primary factor in the evolution of the modern International Law; they were the supreme legal authorities of the Sixteenth to Eighteenth Centuries. They determined the scope, form and content of International Law.   However, the importance of legal writings began to decline as a result of the emphasis on the state sovereignty; treaties and customs assumed the dominant position in the exposition and development of International Law.

Nevertheless, like judicial decisions, the opinions of legal scholars can provide evidence of the existence of customary law and can help in developing new rules of law. 
      
The opinions of legal scholars are used widely.  Arbitral tribunals and national courts make extensive use of the writings of jurists.  However, the International Court of Justice makes little use of jurisprudence, and judgments contain few references; this is, primarily, because of the willingness of the Court to avoid a somewhat undesirable selection of citations.  However, many references to writers are found in the pleadings before the Court.

Ex aequo et bono (Equity)

Article 38 of the Statute of the ICJ lists ex aequo et bono as an alternative basis for a decision by the Court in place of the normally employed legal rules.  The Court can decide a case submitted to it ex aequo et bono (in justice and fairness)only if the parties agree thereto.   Ex aequo et bono is somewhat analogous to but not exactly the same as the Common Law concept of equity.  It is broader than equity and gives the Court greater power than the latter.  It allows the Court to decide a case on considerations other than legal rules, or even in contrary to these rules, if it sensed that justice can be served thereby. Thus the term  “ex aequo et bono”means “justice and fairness” or “equity”.

Neither the International Court of Justice nor its predecessor, the Permanent Court of International Justice, has been called upon to decide a case  ex aequo et bono, although principles of equity have been applied by these courts in some cases. The ICJ in the North Sea Continental cases (1969) directed the delimination between the parties (West Germany, Holland and Denmark) “in accordance with equitable principles”.  The PCIJ in the Diversion of Water from the MeuseRiver case (1937) applied  principles of equity after considering them as part of the International Law which it should apply.  Moreover, international arbitral tribunals have resorted to the principles of equity in several cases.

Despite the application of the principle of equity by international courts, the existence of  “equity” as a separate and distinct source of law is highly controversial.  Some regard equity as a source of International Law, and   apply it as distinguished from law; however, they often appeal to natural law in order to strengthen their arguments. Thus to them the three terms “equity”, “justice” and “natural law” tend to merge into one another.  During the Sixteenth and Seventeenth Centuries natural law was a major source of International Law.  In the Nineteenth and Twentieth Centuries arbitrators have often been authorized to apply justice and equity as well as International Law; such authorization were more common before 1920 than they are today.

Other scholars do not recognize equity as a separate and distinct source of law; they regard the principles of equity as part of the general principles of law that are common to all national legal systems.

Whatever the position may be, it is doubtful whether equity form a source of international law.  It cannot be assumed that a judge uses equity as a source of law every time he describes a rule as equitable or just.  Strictly, “equity” cannot be a source of law; yet it may play an important role in supplementing the law or may appear as a part of judicial reasoning. A judge or arbitrator can always use equity to interpret or fill gaps in the law, even when he has not been expressly authorized to do so.  But he may not give a decision ex aequo et bono unless he has been expressly authorized to do so.

Acts of International Organizations    

The growth of international organizations since the First World War has been accompanied by suggestions that the acts of these organizations should be recognized as a source of International Law. The question involved hereto is whether the decisions of the organs of these organizations can be regarded as a separate source of International Law.

Decisions of the organs of international organizations may be binding or non-binding.  An organ may be authorized to take decisions which are binding on member states; only these binding decisions are regarded as a source of the International Law.  The only clear example of binding decisions is the resolutions which the Security Council of the United Nations are authorized to take under Chapter Seven (VII) of the Charter of the United Nations dealing with actions related to threats to the peace, breaches of the peace, and acts of aggression.

However, there is a controversy concerns the non-binding decisions of the organs of the international organizations. Since almost all the organs of the international organizations are composed of representatives of member states and their acts are merely the acts of the states represented in these organs, they would probably constitute an evidence of customary law because they reflect the views of the state voting for them. The obvious examples of such type of acts are the resolutions and declarations of the General Assembly of the United Nations.  When the vast majority of States, in the General Assembly, consistently vote for resolutions and declarations on a certain topic, a State practice will be established and a binding rule of customary International Law will emerge. Thus, these resolutions and declarations will constitute an evidence of the existence of customary International Law.  Examples of such resolutions and declarations regarded as examples of State Practice which have led to binding rules of customary International Law are: “the Resolution on Prohibition of the Use of Nuclear Weapons for War Purposes”, “the Declaration on Granting of Independence to Colonial Countries and Peoples”, “the Declaration on Permanent Sovereignty over Natural Resources” and “the Declaration of Legal Principles Governing Activities of States in the Exploration and Use of Outer Space”. 
      
Resolutions and declarations of the General Assembly may also provide a basis for the progressive development of the International Law and the speedy adaptation of customary law to the conditions of modern life. Moreover, in some instances, a resolution or declaration may have direct legal effects as an authoritative interpretation and application of the principles stated in the Charter of the United Nations.

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