Formalism and the Sources of International Law : a Theory of the Ascertainment of Legal Rules.
This book revisits the theory of the sources of international law from the perspective of formalism. It critically analyzes 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...
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| Format: | eBook |
| Language: | English |
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Oxford :
OUP Oxford,
2011.
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| Series: | Oxford monographs in international law.
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Table of 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 Law3. 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 law3.2.2 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 Law4.2.1 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 Law5.3 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.