The Problem of Legal Validity and Efficacy of International Law in Alf Ross’s Legal Thinking

Abstract

The question of the essence and nature — that is, about validity and efficacy (effectiveness) — of international law is at the same time quite old and still relevant. In the 20th century it acquired special significance, and, of course, was considered by leading researchers. One of the main ideas was considering this question from the standpoint of the problem of the validity and effectiveness of law. Danish legal philosopher Alf Ross, professor of international law and judge of the European Court of Human Rights was one of these researchers and participants in the discussion, and he questioned the legal nature of international law. The reconstruction of Ross’s views on international law in the context of his famous concept of the validity and effectiveness of law, based on some Kelsen ideas and methodology of psychological legal realism, made it possible to reveal the contradictions in Ross’s approach: if one of the main foundations of legal validity is organized force, which has monopoly on coercion, then international law can’t be considered as law, despite its institutional character. However, Ross draw an original conclusion about the psychologically derivative (from national law) nature of the validity and effectiveness of international law. A significant part of Ross’s legal thinking is his concept of sources of law. Ross states that in the minds of law enforcement officials (judges, mainly) there is a special ideology of sources of law, which determines the way of searching and formulating norms decisive for the question at issue. Accordingly, sources of law are understood as factors of psychological influence on this process. Sources of international law are considered in the same vein — as general factors and motivational components that determine the specific content of international law through the international law enforcement decisions. A special normative ideology in the minds and psyche of the judges in national legal system can be identified through studying their actions. In an analogical manner a special international legal attitude that can be identified by studying the actions of international bodies, leading political actors, as well as internal actions of states affecting internationally significant issues. It is the international legal attitude that has a decisive influence on the validity and effectiveness of international law, since internal convictions play a major role in the legal order based on autonomy, not power.