International criminal tribunals: a jurisprudential thought.

• Author: Borchers, Patrick J.
• Position: Conceptualizing Violence: Present and Future Developments in International Law

After hearing the insightful presentations of the panel participants, I am struck by how humbling a subject this is for lawyers. In a very real sense, it tests the limits of what we as lawyers think of as "law." Are proceedings international criminal tribunals "legal" proceedings in any meaningful sense of that word? If they are not legal proceedings, what are they? If they are legal proceedings, what theory allows one to unite such proceedings with an undeniably "legal"--but humdrum--proceeding such as a state court negligence trial? I do not purport to have the answers to these questions, and our panelists' presentations suggest some diversity of opinion on several of these points.

The issues raised by the panelists remind me of the famous debate between Lon Fuller and H.L.A. Hart.(1) Fuller and Hart are, of course, two of the modern, giant figures of Anglo-American jurisprudence. Hart was responsible for the revival and reformulation of positivism. Under Hart's theory, law obtains its character as such through promulgation by an identifiable sovereign, through some generally accepted procedural mechanism that allows one to conclusively identify it as law.(2) Hart called this "master" rule the "rule of recognition,"(3) and suggested that for the United States, our Constitution might be thought of, in large part, as our rule of recognition.(4) Hart's theory sharply separates legal and moral norms. Even a "morally outrageous"(5) rule can still be "legal" under Hart's theory if promulgated in conformity with the rule of recognition, and even the most powerful moral norms lack legal force if not so promulgated.(6)

Fuller offered a more complicated and less clear account of law that depended upon a much deeper unity between morality and law. Fuller insisted, for instance, that law must have some minimum moral content to qualify as such,(7) and he was clearly willing to allow for the possibility of moral norms so powerful that they should qualify as legal regardless of whether one could trace them to any identifiable sovereign promulgation.(8) While it is probably wrong to label Fuller as a natural law theorist--certainly he is not in the sense of Aquinas--there is certainly a naturalist streak in his theory.

Of special interest to us is Hart's and Fuller's debate over a post-World War II German case. Here is Hart's succinct summary of the case:

In 1944 a woman, wishing to be rid of her husband, denounced him

to the authorities for insulting...