Law-Making by Scholars
Catherine Brölmann, Yannick Radi (eds), Research Handbook on the Theory and Practice of International Law‐Making (Cheltenham: Edward Elgar 2013), Forthcoming
17 Pages Posted: 30 Nov 2012 Last revised: 6 Feb 2013
Date Written: November 30, 2012
Scholars cannot make law, just as little as lepidopterologists can ‘make’ butterflies. If they do so, they cease to be scholars and become legislators. This, however, is neither universally accepted nor can it stand as an unqualified statement. Even legal positivists realise that scholars appear to have a uniquely influential position in the ‘process’ of (international) law-making.There are two categorically different ways in which we can study the influence of scholars on international law-making: on the one hand, the factual or empirical influence of scholarship, palpable both in municipal and international contexts; on the other hand, there is the question of the specifically normativist view-point: how and where, if applicable, are legal scholars empowered by the law to contribute to the making of new law. Neither is better than the other and neither is more ‘worthy’, but neither should be admixed with the other.
This chapter first deals with the standard entry-point of legal scholarship to questions of international law-making: Article 38(1)(d) of the ICJ Statute. Section 2 will elucidate the role that scholars play ‘as subsidiary means for the determination of rules of law’. It will, however, primarily show the various restrictions of that subparagraph, in terms of the restricted usefulness of a lex arbitri for elucidating the wider theoretical question beyond the Court’s remit. Section 3 will discuss the sources (hierarchy) of law as the conceptual basis for the distinction between law-making and non-law making factors on a normativist account. It will also warn against the danger and show the problems that manifest themselves when different methods are admixed. Section 4 will turn to give a brief account of the sociological view on what factors influence international law-making, whether scholar-ship is part of that and what the restrictions are on such a view.
Keywords: International Court of Justice, Article 38(1)(d) ICJ Statute, empirical studies, International legal scholarship, sources of law, lex arbitri, role of scholars, law-making
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