An Interactional Theory of International Legal Obligation
Jutta Brunnée and Stephen J. Toope, LEGITIMACY AND PERSUASION IN INTERNATIONAL LAW, Cambridge University Press, Forthcoming
37 Pages Posted: 19 Jul 2008 Last revised: 10 Nov 2008
Date Written: July 12, 2008
This chapter forms part of a forthcoming book in which we provide a theoretical framework for international law and then apply it in concrete settings, ranging from the law on the use of force to international environmental law. In this first chapter, we set out an interactional theory of international legal obligation. Our theory draws on Lon Fuller's theory of law combined with insights of constructivist international relations theory, in particular Emanuel Adler's work on communities of practice. The theory that we articulate is rooted in three central arguments. First, legal norms can only arise in the context of social norms based on shared understandings. Second, internal features of law, which we call criteria of legality, are crucial to law's ability to promote adherence, or to inspire "fidelity." Third, legal norms are built, maintained, and sometimes destroyed through a continuing practice of legality.
Keywords: International Law, Legal Theory, International Relations Theory, Constructivism
JEL Classification: K33
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