Some Misunderstandings about Legislation and Law

Abstract

What is legislation? What is law? A great deal of ink has been spilled on these questions. In this essay I wish to investigate the answers that have been provided in international law. Two theses are advanced. First, there is a misunderstanding in international law about what legislation is. It is mistakenly thought that legislation is general. This misunderstanding can, for instance, be discerned in the popular claim that the United Nations Security Council has begun to “legislate” on the international plane. The second thesis attempts to specify how this misunderstanding has come about. In international law writing one commonly finds a more basic mistake about what law is—namely, the mistaken view that law is general. If these two theses are true, the literature on international law-making stands in need of revision.