Formalism and the Sources of International Law
A Theory of the Ascertainment of Legal Rules
Series: Oxford Monographs in International Law;
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Product details:
- Publisher OUP Oxford
- Date of Publication 23 May 2013
- ISBN 9780199682263
- Binding Paperback
- No. of pages348 pages
- Size 234x172x19 mm
- Weight 534 g
- Language English 0
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Short description:
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
MoreLong description:
This book revisits the theory of the sources of international law from the perspective of formalism. It critically analyses the virtues of formalism, construed as a theory of law ascertainment, as a means of distinguishing between law and non-law. The theory of formalism is re-evaluated against the backdrop of the growing acceptance by international legal theorists of the blurring of the lines between law and non-law. At the same time, the book acknowledges that much international normative activity nowadays takes place outside the ambit of traditional international law and that only a limited part of the exercise of public authority at the international level results in the creation of international legal rules.
The theory of ascertainment that the book puts forward attempts to dispel some of the illusions of formalism that accompany the traditional sources of international law. It also sheds light on the tendency of scholars, theorists, and advocates to deformalize the identification of international legal rules with a view to expanding international law. The book seeks to revitalize and refresh the formal identification of rules by engaging with some tenets of the postmodern critique of formalism. As a result, the book not only grapples with the practice of law-making at the international level, but it also offers broad theoretical insights on international law, dealing with the main schools of thought in legal theory (positivism, naturalism, legal realism, policy-oriented jurisprudence, and postmodernism).
This paperback edition features the author's discussion of this book on the EJIL Talk blog.
The author's attempt to rejuvenate formalism in order to distinguish between law and non-law is certainly laudable and long-awaited among international lawyers.
Table of Contents:
Introduction
The concept and the rationale of formalism in international law
The emergence of formal law-ascertainment in the theory of the sources of international law
The critiques of formal law-ascertainment in the theory of the sources of international law
Deformalization of law-ascertainment in contemporary theory of the sources of international law
Lessons from the discontent with formalism
The configuration of formal ascertainment of international law: the source thesis
The foundations of formal ascertainment of international law: the social thesis
Concluding remarks: Ascertaining international legal rules in the future
