Dancing HAS BEEN a source of law, in fact. Ordinances, case law that I know of. A form of expression granted First Amendment protection here in God's Favorite Country.

My reference to Legal Realism and positivism was intended to go a bit deeper in describing my views, but the primary point of my post was to explain my thought that we shouldn't seek a "Basic Norm."

Then at least with regard to the Grundnorm we're in agreement. I hated it already in my first year of law school. Hart always made the most sense, for a legal positivist that is.

Law is only what’s popular at a certain time.

Does anything change because we discussed it here? I'm discussing it because I think it's interesting and I'm in a good mood which means I'm more open to different viewpoints. — Benkei

That's not quite what I mean. I don't want to make the boring "arguing about it on the internet won't change anything" argument.

I want to ask what additional information the claim "the principle of non intervention is international law" transports above and beyond, say: "the principle of non intervention is a commonly accepted rule for state behaviour".

If the procedure isn't law, what binding force does it have? None whatsoever. — Benkei

What is "binding force" in this context? If I have a gun and dictate a procedure, that procedure is certainly backed up by force. But you seem to refer to something more metaphysical.

It's not the process that matters, it's the performative act of one or more persons, their intent on the outward effects of those performative acts and the social understanding and acceptance of a community of that intent and effect. — Benkei

I agree with this in general, but it describes essentially any form of social construction whatsoever. Since we're talking about what law is it seems there is something special about law compared to other social constructions.

Such performative acts can certainly be a process, for instance where codification is concerned, but can be as "formless" as one person making a promise to another. — Benkei

I'm not really convinced that the bilateral promise or contract makes for a good base model of law. One of the common aspects of law is that it comes into effect precisely when bilateral relations break down.

Yes, precedents create law too. But when a judge applies a customary rule, the rule existed prior to the judge declaring it law. It was law before the judgment or the judge wouldn't have included it in his judgment. — Benkei

How does a custom turn into a customary law though? I'm not familiar with that field, but isn't cutomary law usually called that because it has been applied by courts or other systems of dispute resolution in the past?

As to you question above, I would say that if there is a law with no means of enforcement, I'm comfortable saying it's not a positive law. If there is a means of enforcement, but it's rarely enforced, it's still a law. It's just not used often. An interesting example are the marijuana laws in the US and to some degree the immigration laws. The Code is abundantly clear that pot is illegal and immigration without proper documentation is illegal, but public policy is such that these laws are formally unenforced. I think it is a reasonable question to ask what the state of the law is regarding pot, for example, in Oregon where the federal law clearly declares it illegal but it is formally declared not to be enforced. — Hanover

I do not really understand the discussion and there is a lot to go through, but why would international law somehow not be law just because there is a violator of international law powerful enough to get away with it? Enforcement mechanisms sometimes do exist in international law, but most often they do not because the treaties that govern a certain field do not allow them. Even if they do allow them, such as the Rome statute in international criminal law, than it is still for all kinds of reasons very difficult to enforce the Rome statute in practice. However, practical problems erode the efficacy of the law, not its status as law itself. Even for the US international law has force of law because it will first try to get its actioned sanctioned before flouting it.

As for the emergence of law, even HLA Hart offers in the end a sociological account if I am not mistaken. The rule of recognition in his scheme (I believe it to be influenced by Kelsen's grundnorm, but I might be wrong) is that law that is seen as such by legal professionals. The US constitution is law because of the consensus among legal practitioners and lay people alike that it is. In debates about the nature of law is about the status of legal principles and what sort of beast they are. Hart does not acknowledge them and argues for judicial discretion in hard cases. I find that unconvincing because the judge also decides what case is hard and what is not. Therefore that notion spirals into judicial discretion pure and simple and the notion that the law is what the judge had for breakfast, indeed the (caricaturised) position of the legal realists.

I do not think that is what judges do or what they should do. In continental scholarship there is a notion that is problematic.. but also telling, there is something like ' the legal order'. Our interaction with each other has, since time immemorial as lawyers like to put it, shaped our expectations vis a vis each other an created iterations and reiterations of rules that became part of our legal mental furniture. Pacta sunt servanda is one of them, as is the notion that ' time heals all wounds' and that is why we have the statute of limitation for instance. There are many more such rules, for instance that you cannot profit from your own wrong doing, or that if you paid for something without having to pay it need to be reimbursed. Whether it be international law, such as just war theory, or the pettiest breach of contract such principles play a role and became fundamental to the law.

That does not make matters easier, because principles might clash and still a weighing is in order which principle has preference in which case and how that is decided etc. However I think (with Dworkin) that such principles do bind legal professionals and they should take recourse to them when cases are judged. all this law is clay works like clay or mud on the feet and legs or judges when they arrive at a decision. Sometimes they want x, by personal preference but they cannot get there because they weght of case law, statutory law, customary law and principles are stacked against the decision.

Therefore the sources of law would be: treates, statutes, case law, customary law and legal principles. Whether or not someone here views international law as non-law is rather meaningless. It is accepted as such by legal practitioners, also those of the Us and so satisfies the condition of being law. It is also logical that they are accepted because indeed the legal order demands that promises are kept. That sometimes promises are not kept does not violate this legal principle one bit.

↪Ciceronianus the White Then at least with regard to the Grundnorm we're in agreement. I hated it already in my first year of law school. Hart always made the most sense, for a legal positivist that is. — Benkei

That is to me simply a product of the historical circumstances of both Kelsen and Hart. Kelsen's view is simply more etatist coming from the continental tradition with its various states and constitution. The grundnrm is nothing innocent, it is the norm by which the state proclaims itself law giver and establishes its order as the legal one for now. Where it becomes a lot thornier is when a grundnorm is established that runs against the grain of legal tradition as in the case of nazi Germany. I would hold the position that, but it is a tough bullet to bite, nazi law was not law when it ran contrary to deeply established legal principles, such as legal equality, legal certainty, some due process rights. That brings me to a position similar to that of the old Radbruch, but not based on some sort of natural law, but on ' cultural law', the set of legal principles deemed the legal order and which have been elaborated on for generations in canonic as well as secular jurisprudence.