Sanctions from the Point of View of (General) Legal Theory

In general legal theory, sanctions have traditionally been associated with the concept of law, specifically with the character of law as a system of binding and enforceable rules of conduct and reasons for action. In the nineteenth and early twentieth centuries, positivists emphasised the coercive nature of law (e.g., Austin’s definition of law as the command of the sovereign backed by the threat of sanctions, or Kelsen’s characterisation of the coercive nature of law). In the course of the twentieth century, the normative basis of law has been linked on the one hand to arguments of social efficacy (Hart) and institutional character (neo-institutionalism), some authors have supplemented this view with non-positivist arguments (Robert Alexy speaks of an ideal dimension of law based on the law’s claim to correctness, which includes the claim to justice). The above-mentioned dimensions of law can be used to examine the concept of sanctions in general legal theory. In addition to the legality of sanctions (based on their normative grounding and authoritative issuance) and their social efficacy, it is possible to examine the legitimacy of sanctions, which is related to the ideal dimension of law and its claim to correctness. The chapter aims to emphasise that sanctions (i.e., intentionally imposed negative consequences following non-compliance with the law) are an essential element of any functioning legal system, although there may be forms of regulation that can motivate human behaviour through positive measures. At the same time, however, the legitimacy of sanctions in modern law is subject to inherent limits and requirements, including those relating to human rights and principles of sanctioning, such as the proportionality of sanctions. The chapter will conclude by outlining the extent to which the above characteristics of sanctions are present in contemporary international law.