The Idea of 'Rules' in the Sources of International Law

84 British Yearbook of International Law (2014) 103-130

Amsterdam Law School Research Paper No. 2014-51

Amsterdam Center for International Law No. 2014-28

33 Pages Posted: 25 Sep 2014 Last revised: 11 Jan 2015

See all articles by Jean d'Aspremont

Jean d'Aspremont

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

Date Written: September 25, 2014

Abstract

This article argues that the mainstream view according to which the sources of international law constitute a set of rules for the identification of other legal rules is a comforting parable that has eroded international lawyers’ critical attitude, contributing to the general disrepute of the sources of international law. Instead, the sources of international law are better understood as a set of communitarian constraints irreducible to rules. This article concludes that shedding the comforting idea of rules in the sources of international law allows international lawyers to avoid what will be described in the following paragraphs as the pitfalls of infinite regress and circularity inherent in ruleness while simultaneously facilitating the possibility of communication that is required for legal argumentation to take place among professional international lawyers.

Keywords: Sources of International Law, Article 38, Treaty, Customary International Law, Legal Theory, Ruleness, Social Practice, Interpretive Community

JEL Classification: K33

Suggested Citation

d'Aspremont, Jean, The Idea of 'Rules' in the Sources of International Law (September 25, 2014). 84 British Yearbook of International Law (2014) 103-130; Amsterdam Law School Research Paper No. 2014-51; Amsterdam Center for International Law No. 2014-28. Available at SSRN: https://ssrn.com/abstract=2501252

Jean D'Aspremont (Contact Author)

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/

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

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