Taking legal positivism beyond the State: finding secondary rules?

HLA Hart famously denied that the international legal order could be considered as a legal system, arguing that it lacked a necessary distinction between primary and secondary rules, the latter being sustained in place through the practices of a distinct class of legal official. Despite this conclusion, international lawyers have tended to try to disprove Hart’s conclusion to this effect, rather than challenging his theory on its own terms. This is problematic, I will claim, as the factual response to Hart ends up proving his underlying point, insofar as international law will inevitably appear deficient or otherwise problematic by reference to a paradigm of legality that is fundamentally wedded to explaining the social ordering function of state law. Indeed, the ‘practice theory of rules’ that Hart championed and the kind of analytical method he advocated, which still form the bedrock of the most influential legal positivist approaches today, undeniably (and, it seems, quite self-consciously) privilege the domestic law-state as the paradigm explanator for conceptual enquiry. In this chapter, then, my aim is to demonstrate how and why the factual response to Hart fails, and thereafter set out certain methodological shortcomings of the kind of descriptive-explanatory method that Hart championed and which has, despite subsequent challenge and refinement, subsisted still as the dominant approach to legal-conceptual enquiry. Instead, I will advocate a more normative approach to conceptual analysis—essentially, what has been called a ‘normative positivist’ account—which I believe allows legal theorists to justify a more abstract systematicity for law as a beneficial model of legality in whatever its form—national, global, trans- or inter-national—but which avoids the kind of essentialist overreach that strays too far into the conceptual realm of state theory more broadly.