Legal Theory as a Source: Institutional Facts and the Identification of International Law

From Samantha Besson and Jean d'Aspremont (eds), 'The Oxford handbook on the sources of international law' (Oxford UP, 2018, Forthcoming)

25 Pages Posted: 6 Apr 2017

See all articles by Iain Scobbie

Iain Scobbie

School of Law, University of Manchester; University of London - School of Law

Date Written: April 5, 2017

Abstract

Legal theory provides conceptions of the sources of international law that differ according to time and place. Section 1 employs MacCormick’s explanation of institutional order to frame the ensuing discussion by arguing that conceptual understandings of law, including international law, are socially constructed. Section 2 starts from Austin’s denial that international law possesses the quality of law because international society lacks an ultimate sovereign that is superior to States. It considers the function that sovereignty has played in some explanations of international law and its sources, which raises the significance of State consent. This is explored further in section 3 which focuses on the paradigm shift that Grotius introduced into natural law, and consequently into international law, by substituting consent for theology as its underpinning explanation. Sections 4 and 5 consider 20th century transatlantic variants of natural law. Section 4 examines three influential British theorists — Brierly, Fitzmaurice, and Lauterpacht — each of whom relied on natural law to overcome perceived inadequacies of consent-based positivist theories. Section 5 examines the more instrumentalist naturalism of the New Haven School which endeavoured to ensure the promulgation of American democratic values by emphasizing policy and choice in decision-making. Section 6 draws some, inevitably imperfect, conclusions.

Keywords: consent, custom, general principles, institutional facts, natural law, positivism, sovereignty, treaties

Suggested Citation

Scobbie, Iain, Legal Theory as a Source: Institutional Facts and the Identification of International Law (April 5, 2017). From Samantha Besson and Jean d'Aspremont (eds), 'The Oxford handbook on the sources of international law' (Oxford UP, 2018, Forthcoming). Available at SSRN: https://ssrn.com/abstract=2947078

Iain Scobbie (Contact Author)

School of Law, University of Manchester ( email )

Oxford Road
Manchester M13 9PL, M139PL
United Kingdom

HOME PAGE: http://www.manchester.ac.uk/research/iain.scobbie/

University of London - School of Law

Thornhaugh Street, Russell Square
London, WC1H 0XG
United Kingdom

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