Appendix 2: International Law as a Technical Discipline: Critical Perspectives on the Narrative Structure of a Theory
Appendix 2 in J. d'Aspremont, Formalism and the Sources of International Law (Oxford: OUP, 2013), pp. 236-261
27 Pages Posted: 30 May 2013 Last revised: 28 Nov 2014
Date Written: April 4, 2013
This is an extended review (26 pages) of Jean d'Aspremont's monograph - Formalism and the Sources of International Law (2011). This paper has two purposes: (1) to examine the virtues and failings of a Hartian approach to international law; and (2) to analyse the narrative necessities and structure of theories (here, formalism) with a view to commenting on the politics of theory within the academy.
In regards (1), I examine the intellectual conditions in which the turn to formalism (and in d'Aspremont's context, a narrow positivism) has emerged within Europe. In this context I look at how and why the turn has been necessitated by the Law & Economics movement within US variants of international law. I then consider the fragilities of a Hartian approach given: (a) its pathological desire for relative determinacy and methodological empiricism; (b) its belief that law's normativity is intimately intertwined with determinacy; (c) that its social scientific empiricism is based on a circular logic which excludes the functioning of theory; and (d) its reductive approach to how meaning is produced. None of these detract from the intellectual necessity of d'Aspremont's book and his theoretical call. I also consider the book's approach - in terms of rupture and consistency - alongside d'Aspremont's broader project on international legal positivism and his subsequent forays into theory.
In regards (2), I structure the paper to imitate the narrative structure of the book and look at the rhetorical and intellectual manoeuvres used by theorists so that they may appear to posit coherent visions of the world. In this sense it is a paper that briefly examines the politics of theory within the academy - where theory is considered as merely an aesthetic. The manoeuvres examined include: (a) intellectual specialisation; (b) the claim to bring order, coherence and reason to an area of thought riddled with incoherence and disorder; (c) the insulation of theoretical positions against critique using Kuhn's 'paradigm' approach to theory; and (d) the elevation of coherence in thought, over different pieces of work, above ruptures in theoretical thought.
This version appears in the 2013 paperback edition of the book. An amended and extended paper is forthcoming in a leading UK journal.
The paper "Formalism and the Sources of International Law: Introduction" to which this Appendix refers to is available at the following URL: http://ssrn.com/abstract=1969795
Keywords: Formalism, Politics of Theory, International Law, Determinacy, Deformalization, Law & Economics, Hart, Sources theory, Kuhn, Wittgenstein, Symbolic Conflict
JEL Classification: K33, K40, K10
Suggested Citation: Suggested Citation