Formalism and the sources of international law : a theory of the ascertainment of legal rules / Jean d'Aspremont.

Format:

Book

Author/Creator:

D'Aspremont, Jean.

Series:

Oxford Monographs in International Law Ser.

Oxford monographs in international law

Language:

English

Subjects (All):

International law--Philosophy.

International law.

International law--Interpretation and construction.

Legal positivism.

Physical Description:

1 online resource (285 pages)

Edition:

1st ed.

Place of Publication:

Oxford ; New York : Oxford University Press, 2011.

Summary:

As a result of the growing prominence of international organizations and non-binding instruments there is increasing controversy as to how to delineate the boundaries of international law. This book advocates a return to a more formal way of determining what is and isn't international law, and suggests ways in which this formalism can be modernized.

Contents:

Cover

Contents

List of Abbreviations

1. Introduction

1.1 Setting the Stage: The Retreat from Formal Law-Ascertainment

1.2 The Argument: Rejuvenating Formalism in the Theory of the Sources of International Law

1.3 Preliminary Caveats About the Argument Made in this Book

2. The Concept and the Rationale of Formalism in International Law

2.1 Formalism and its Multiple Meanings

2.1.1 The concept of formalism espoused in this book: formalism as a theory of law-ascertainment based on social practice

2.1.2 Other conceptions of formalism

2.2 Rationale of Formalism in the Theory of the Sources of International Law

3. The Emergence of Formal Law-Ascertainment in the Theory of the Sources of International Law

3.1 The Emergence of Formal Law-Ascertainment in General Legal Theory: A Sketch

3.1.1 Introduction

3.1.2 Formal law-ascertainment and the restrictive source thesis: Hobbes, Bentham, and Austin

3.1.3 The emergence of the social thesis: from Kelsen to Hart

3.1.4 Formal law-ascertainment after Hart

3.2 Formal Law-Ascertainment in the Theory of the Sources of International Law

3.2.1 Modern and classical theories of sources of international law

3.2.2 International law in the 20th and 21st centuries

3.2.3 Formal law-ascertainment in constitutionalist theory of international law

4. The Critiques of Formal Law-Ascertainment in the Theory of the Sources of International Law

4.1 The Critiques of Formal Law-Ascertainment in General Legal Theory: A Sketch

4.1.1 Modern natural law objections

4.1.2 Legal realism

4.1.3 Dworkin's famous attacks on the source and social theses

4.1.4 Postmodern objections to the source and social theses

4.2 The Contestations of Formal Law-Ascertainment in the Theory of the Sources of International Law

4.2.1 Remnants of substantive validity theory.

4.2.2 International realism: the turn to pragmatism

4.2.3 The New Haven School: the turn to instrumentalism

4.2.4 Critical legal studies and deconstructivism in international law: international law as a language

5. Deformalization of Law-Ascertainment in Contemporary Theory of the Sources of International Law

5.1 The Various Manifestations of Deformalization of Law-Ascertainment in Contemporary International Legal Scholarship

5.2 The Softness of International Law

5.3 The Diverging Agendas Behind the Deformalization of Law-Ascertainment

6. Lessons from the Discontent with Formalism

6.1 Assuming Indeterminacy of Law-Ascertainment Criteria

6.2 The Politics of Formal Law-Ascertainment

6.3 Normativity and Empirical Methodology

7. The Configuration of Formal Ascertainment of International Law: The Source Thesis

7.1 Dispelling the Illusion of Formalism Accompanying Formal Evidentiary, Law-Making, and Content-Determining Processes

7.2 Ascertainment of International Legal Rules in Traditional Source Doctrines and Case-Law

7.2.1 Rules ascertained short of any written instrument: custom, general principles of law, oral treaties, and oral promises

7.2.2 Rules ascertained by virtue of a written instrument: written treaties and other international legal acts

7.2.3 Deficiencies of formal law-identification in traditional source doctrines: the lingering law-ascertaining role of intent

7.2.4 A limited abatement: the translation of intent in the use of material or procedural indicators

7.3 Devising Formal Law-Ascertainment of International Legal Rules Beyond Intent

7.3.1 The use of written linguistic indicators to ensure formal law-ascertainment of international legal rules

7.3.2 The use of written linguistic indicators in contemporary practice.

7.3.3 Written linguistic indicators as law-ascertainment criteria and the move away from intent

7.4 Concluding Remarks: From the Source Thesis to the Social Thesis

8. The Foundations of Formal Ascertainment of International Law: The Social Thesis

8.1 The Foundations and Meaning of Law-Ascertainment Criteria: Communitarian Semantics

8.2 The Concept of Law-Applying Authority in International Law: Judges, Non-State Actors, and Legal Scholars

8.3 The Deficient Social Consciousness of Law-Applying Authorities in the International Legal Order

8.4 The Vainness of the Question of the Validity of International Law

8.5 The Conciliatory Virtues of the Social Thesis for the International Legal Scholarship

9. Concluding Remarks: Ascertaining International Legal Rules in the Future

Bibliography

Index

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

W.

Notes:

Includes bibliographical references (pages [225]-258) and index.

Description based on print version record.

Description based on publisher supplied metadata and other sources.

ISBN:

0191504823

9780191504822

OCLC:

862612619