A Meta-Theory of the Sources of International Law: Exploring the Hermeneutics, Authority and Publicness of International Law
Chapter for Jean d’Aspremont and Samantha Besson (eds.), Oxford Handbook on the Sources of Law (OUP 2017)
31 Pages Posted: 12 Nov 2016
Date Written: November 7, 2016
The purpose of this chapter is to identify common assumptions characterizing the sources doctrine in international law. Those are the autonomy of international law from politics, morality, economics, etc.; the focus on binding, enforceable rules; and state consent as the source of legitimacy of international law. Today, each of these assumptions is challenged. To address these challenges, the chapter proposes to further develop the sources theory and elaborate the concept of principles of international law (as they ensure international law’s autonomy), a concept of authority (as non-binding acts may have similar effects as binding law), and to distinguish international legal rules (or authoritative acts) which require democratic legitimacy from those which do not.
Keywords: Hermeneutics, principles of international law, enforcement, soft law, authority, functionalism, legitimacy, consent
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