The Language of Law and the Laws of Language
| DOI | 10.1177/0305829815619779 |
| Author | Jens Bartelson |
| Published date | 01 January 2016 |
| Date | 01 January 2016 |
| Subject Matter | Forum: The Status of Law in World Society |
Millennium: Journal of
International Studies
2016, Vol. 44(2) 250 –257
© The Author(s) 2016
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DOI: 10.1177/0305829815619779
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The Language of Law and the
Laws of Language
Jens Bartelson
Lund University, Sweden
Abstract
The Status of Law in World Society by Friedrich Kratochwil is a sophisticated attempt to reassert
the importance of international law in a globalised world by grounding it in the actual practices
of legal reasoning. Yet this attempt to ground normativity in practice strikes me as problematic.
As I shall argue, what law is cannot be determined with reference to legal practices only, but will
depend on the fulfillment of certain background requirements which themselves stand in need of
further justification. Thus the recourse to linguistic practice is beset by an ambivalence that stems
from the fact that language and law always already are intertwined, an ambivalence that cannot
therefore be overcome with recourse to either. If it is the case that law has a language of its own,
we must also be prepared to admit that language has its own laws. What then is gained by the
recourse to linguistic practice is not so much a resolution but rather a temporary displacement
of indeterminacy from the realm of law to that of language.
Keywords
international law, linguistic turn, practice, foundationalism
Introduction
Since it has been widely assumed that international norms must be justified with refer-
ence to philosophical principles in order to be considered law proper, the quest for such
foundations has long haunted the discipline of international law. To early modern schol-
ars like Gentili and Grotius, the ultimate justification of international norms was to be
found in the principles of natural law, themselves grounded in notions of human sociabil-
ity and reason. To Enlightenment authors like Vattel and Martens, international legal
norms were justified with reference to a precarious blend of naturalist principles and
custom as embodied in treatises. During the late nineteenth century, notions of legal
Corresponding author:
Jens Bartelson, Lund University, Box 52, 221 00 Lund, Sweden.
Email: jens.bartelson@svet.lu.se
619779MIL0010.1177/0305829815619779Millennium 44.2Bartelson
research-article2015
Forum: The Status of Law in World Society
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