Pregledni rad
Legal Theoretical Models of International Law by Kelsen, Lauterpacht and Ross
Mario Krešić
; Pravni fakultet Sveučilišta u Zagrebu, Zagreb, Hrvatska
Sažetak
One of the approaches of the general theory of law consists in considering law as a system of norms. This normative-systemic point of view, which stems from the general systems theory, seeks to investigate the internal logic of a legal system which differentiates it from other normative systems. The internal logic of a system can be scientifically presented by using theoretical models applicable to actual normative systems. In legal theory, the debate on the model of international law that would best reflect its internal logic is still ongoing. All theoretical models can be classified into subordinate and coordinate models, appearing in exclusive and permissive versions. The debate on models of international law was actively pursued by Kelsen, Lauterpacht and Ross, whose considerations of law share some common characteristics. Nevertheless, these three authors have shortlisted different models for the selection of the most suitable models of international law. Their discussion on the models of international law can be summarized as follows: first the choice between the models is narrowed down to two possible models by emphasizing one or more logical criteria; subsequently, the selected models are declared incommensurable or a logical argument is adduced in favour of one of them. Kelsen considered the following models as incommensurable: the monistic model with primacy of state law (exclusive coordinate model) and the monistic model with the primacy of international law (subordinate model). Ross considered the dualistic model (permissive coordinate model with international courts) and the monistic model with primacy of international law (subordinate model) as incommensurable models. When deciding between a permissive coordinate model and a subordinate model, Lauterpacht introduced a logical argument in favour of the second one. The analysis presented in this article demonstrated that all proposed models contain the norm of adjudication as their common feature and they vary according to whether the models are based on national or international adjudication. This conclusion casts a different light on the thesis of incommensurability of theoretical models observed from the systemic-normative aspect and directs research toward the following question: could the model of international law be exclusively founded on the operation of national courts or does the internal logic of law still demand international adjudication to which national agencies are subordinated?
Ključne riječi
general theory of law; normative-systemic approach to law; legal system; incommensurability; theoretical models
Hrčak ID:
121524
URI
Datum izdavanja:
28.2.2014.
Posjeta: 1.897 *