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
Date Written: April 5, 2017
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
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