Narrative and Theory: Formalism's Recurrent Return
(2014) 84 British Yearbook of International Law 304-343
41 Pages Posted: 14 Dec 2014 Last revised: 11 Feb 2015
Date Written: December 12, 2014
This article critically examines the re-entrenchment of formalism in European international legal thought. It does so by looking at how such a theory (and ideas more generally) may come to seem natural and persuasive within the discipline. Narrative analysis may be used as a critical method to look at how theories persuade, how they are 'sold' and how they produce certain mentalities. Formalism generally (and specifically, source formalism) is broken down as part method, part aesthetics, and part ideology (Section I). The theory is also critiqued for its concern with coherence and determinacy, its own imminent intellectual necessity, and with disciplinary progress. These narrative tactics are exposed as geared towards establishing theoretical dominance within the discipline (and in relation to other theories) (Section II). Specific variants of formalism also tend to eschew any analysis of the multitude of historical conditions and struggles from and for which it emerged. The contemporary European stance emerges against a background of anxiety over disciplinary autonomy and theories that have become dominant in US legal thought. It is a theory of resistance that often slips into essentializing the discipline (Section III). Finally, a specific thesis for formalism in the sources of international law is critiqued as one that cannot work on its own intellectual and theoretical terms. Source formalism (as argued through a Hartian positivist thesis and Wittgenstein) cannot fulfill the relative determinacy it seeks, nor (and more importantly) is such a determinacy required for the legitimacy and normativity of international law. This theory of formalism, whilst operating through ideas that are easily accepted in legal circles, is one that can only sustain itself through intellectual vagueness and contradictions. Five such 'intellectual arrests' are worked through (Section IV). Despite its popularity, there is no necessity for such a theory in contemporary legal thought. Whilst this article is a critique of a specific variant of formalism, it is also a demonstration of how certain dominant theories can constrain and shape our imagination in a multitude of ways. The ploys of marketing an idea remain, after all, predominantly liberal.
Keywords: International Legal Theory; Narrative; Formalism; Hartian Positivism; Indeterminacy; Coherence; Progress; Deformalization; Disciplinary Resistance; Sources; International Law and Economic Thought
JEL Classification: K33, K10, K40
Suggested Citation: Suggested Citation