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

Jean d'Aspremont

University of Manchester - School of Law; University of Amsterdam

Date Written: December 8, 2011

Abstract

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

Suggested Citation

d'Aspremont, Jean, Formalism and the Sources of International Law: Introduction (December 8, 2011). EXCERPT FROM FORMALISM AND INTERNATIONAL LAW - A THEORY OF THE ASCERTAINMENT OF LEGAL RULES, Oxford University Press, 2011. Available at SSRN: https://ssrn.com/abstract=1969795

Jean D'Aspremont (Contact Author)

University of Manchester - School of Law ( email )

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Manchester M13 9PL, M139PL
United Kingdom

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

University of Amsterdam ( email )

Amsterdam Centre for International Law
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Amsterdam, 1000 BA
Netherlands

HOME PAGE: http://home.medewerker.uva.nl/j.daspremont/

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