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26 Harv. Int'l. L. J. 385 (1985)
Do Rules Say What They Do - from Ordinary Language to International Law

handle is hein.journals/hilj26 and id is 395 raw text is: VOLUME 26,'NUMBER 2, SPRING, 1985 Do Rules Say What They -Do? From Ordinary Language to International Law Nicholas Onuf* Most of us inhabit a positivist world. More particularly, we are likely to make use of a legal positivist world-view in the spirit of the great utilitarians Bentham, Mill, and Austin. The utilitarian tradition takes positive law to have a consistent and immediately identifiable lin- guistic form, that of a command or imperative statement.' For utili- tarian positivism, rules always say what they do: they require behavior indicated in the content of an imperative statement. Such rules trans- parently convey the wishes of those who issue them. However, not all imperative statements are rules of law, or even rules of any sort. Bring me a glass of milk is an imperative statement, perhaps honored as a rule, but certainly only on a case by case basis. Austin identified several species of command and restricted his atten- tion to those having general applicability.2 Only these raise the im- portant question of whether there exists a standing obligation to honor them independent of utilitarian calculations in each instance. The general position of utilitarian positivists is that there is such an obligation for at least some rules and, to the extent that obligation is positive and real, those rules are legal. In international law, few rules meet the positivist threshold of legality. Yet despite this, there is a sense that the international order is legal. What is needed is a better philosophical ground to justify this view. After discussing some of the problems associated with past efforts to provide such a foundation, I will argue that the legality of the international order can be anchored in contemporary philosophy of language. Specifically, I will use modern speech act theory to * Professor, Scltl ot Internartnal Service, The American University, Washington. This article was drafted while I was visiting the Institute of International Public Law and International Relations, Thessaloniki. Greece. I am grateful for the hospitality of the staff of the Instirute and for its director, D.S. Constantopoulos, as well as to T.A. Couloumbis and the staff of the School of Law, Aristotelian University, Thessaloniki, Greece. I am indebted to Sandra I. Keowen for her critical assistance. 1. SeJ. BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS ANi) LEGISLATION 330-36 (London 1823). 2. But he improperly concluded that all such commands issue from a determinate law-giver or sovereign. See J. AUSTIN. Li-ci'RES ON JURISPRUDENCE 88-89 (5th ed. 1885); J. AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED 133 (H.L.A. Hart ed. 1954). See also Hart's reconstruction of Austin's position in H.L.A. HART, THE CONCEPT OF LAW 18-76 (1961). 385

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