Law-Making by Scholarship? The Dark Side of 21st Century International Legal 'Methodology'
SELECT PROCEEDINGS OF THE EUROPEAN SOCIETY OF INTERNATIONAL LAW, Vol. 3, pp. 115-126, James Crawford et al. ed., 2010 (2012)
11 Pages Posted: 28 Jun 2010 Last revised: 26 Sep 2011
Date Written: June 28, 2010
The post-Cold War developments in legal scholarship have brought about a weakening of more strictly legal(ist) readings of law and a strengthening of substantialist, political readings. The proponents of these methodologies subconsciously actualise a radical claim: legal scholarship is seen as making international law. It will be argued in this paper that at the basis of this claim to law-making by scholarship lies a fundamental, deep-seated and fatal methodological confusion.
In such new research areas as ‘international constitutionalism’ - but not only there - we find established a mix of international relations, legal and moralist methodologies. It is to be doubted whether such approaches can lead to greater knowledge about the law. The ‘brave new world’ of the post-Cold war years and the new-found confidence of international lawyers in the power of their words have a dark side.
This paper will develop its argument in three steps. First, recent approaches will be introduced as a ‘phenomenology of methodological confusion’. Second, we will use the doctrine of ‘systemic integration’ as a case study. Systemic integration is law-making by those not empowered by the law to make the law. This modus operandi will be contrasted with an ethos of scholarship as trying to find our object of cognition and to present an alternative vision of what international legal scholarship can validly be about.
Keywords: methodology, scholarshipl, systemic integration, law-making, international investment law
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