Abstract

Systems theorists have been criticized for failing to provide an adequate account of the features of the international legal system. This criticism of systems theory parallels a similar critique of international law advanced by positivists working in the Anglo-Saxon legal tradition. Systems theory’s critics have attempted to use Hart’s argument against international as an argument against systems theoretic account of international law. The factors which influence Hart’s critique of international law are well-known: it is open-textured, structurally decentralized, and lacks a single clear rule of recognition. In this paper, I attempt to answer some of these criticisms. I argue that the positivist critique of systems theory mischaracterizes the nature and structure of international law. To make this argument I first develop a broadly Luhmannian account of international law and the international rule of law and argue for an autopoietic account of international law-making. Second, I suggest that systems theory does a better job of answering positivist criticisms of international law than similar versions. I conclude by arguing that systems theory does a better job of identifying and explaining the unique features of international law and the international the rule of law.