Formalism and the Sources of International Law: Introduction
EXCERPT FROM FORMALISM AND INTERNATIONAL LAW - A THEORY OF THE ASCERTAINMENT OF LEGAL RULES, Oxford University Press, 2011
13 Pages Posted: 8 Dec 2011 Last revised: 15 Jan 2012
Date Written: December 8, 2011
This paper constitutes the introduction of the monograph 'Formalism and the Sources of International Law - A Theory of the Ascertainment of Legal Rules' (OUP, 2011). It sketchs out the argument made in the book according to which, if sufficiently rejuvenated, formalism can still be a useful tool to ascertain international legal rules and distinguish law from non-law. To do so, formalism must be grounded in the (ever-evolving) social practice of international law-applying authorities to the extent that the latter can produce sufficient communitarian semantics for the sake of law-identification. The possibility of formal law-identification criteria however presupposes a move away from the mainstream theory of sources of international law as well as a broad conception of what constitutes 'a law-applying authority'. If so refreshed, a formal theory of sources can remain helpful in capturing the new forms of exercise of public authority at the international level.
Keywords: international law, sources, formalism, international legal theory, ascertainment, law-identification, deformalization, custom, treaty, legal act, legal fact, soft law, softness, Herbert Hart, Wittgenstein, non-law, pluralization of international law-making, critical legal studies, Article 38
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