The Politics of Deformalization in International Law

Goettingen Journal of International Law, Vol. 3, No. 2, pp. 503-550, 2011

Amsterdam Law School Research Paper No. 2011-41

Amsterdam Center for International Law No. 2011-13

50 Pages Posted: 13 Oct 2011 Last revised: 8 Dec 2011

See all articles by Jean d'Aspremont

Jean d'Aspremont

Sciences Po Law School; University of Manchester - School of Law

Date Written: October 12, 2011

Abstract

Confronted with the pluralization of the exercise of public authority at the international level and the retreat of international law as a regulatory instrument, international legal scholars have engaged in two survival strategies. On the one hand, there are international legal scholars who have tried to constitutionalize traditional international law with a view to enhancing its appeal and promoting its use by global actors. On the other hand, there are scholars who, considering any charm offensive to induce global actors to cast their norms under the aegis of classical international a lost battle, have embarked on a deformalization of international law that has led them to loosen the meshed fabric through which they make sense of reality. This deformalization of international law has sometimes materialized in a radical abandonment of theories of sources. The constitutionalist strategy has already been extensively discussed in the literature. The second approach has thrived almost unnoticed. It is this second scholarly strategy to the pluralization of the exercise of public authority that this article seeks to critically evaluate. After describing the most prominent manifestations of deformalization in the theory of international law and examining its agenda, the paper considers some of the hazards of deformalization. This paper simultaneously demonstrates that formalism has not entirely vanished, as it has continued to enjoy some support, albeit in different forms. These variations between deformalization and the persistence of formalism, this paper concludes, are the result of political choices which international legal scholars are not always fully aware of.

Keywords: public international law, legal theory, sources of international law, formalism, deformalization, customary international law, treaty, legal positivism, natural law, critical legal studies, deconstructivism, culture of formalism, Koskenniemi, indeterminacy, normativity

JEL Classification: K33

Suggested Citation

d'Aspremont, Jean, The Politics of Deformalization in International Law (October 12, 2011). Goettingen Journal of International Law, Vol. 3, No. 2, pp. 503-550, 2011; Amsterdam Law School Research Paper No. 2011-41; Amsterdam Center for International Law No. 2011-13. Available at SSRN: https://ssrn.com/abstract=1942775

Jean D'Aspremont (Contact Author)

Sciences Po Law School ( email )

13 rue de l'université
Paris, 75007
France

HOME PAGE: http://www.sciencespo.fr/ecole-de-droit/en/profile/daspremont-jean

University of Manchester - School of Law ( email )

Oxford Road
Manchester M13 9PL, M139PL
United Kingdom

HOME PAGE: http://www.manchester.ac.uk/research/Jean.daspremont/

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