International Lawyers and Legal Forms: Transatlantic Denials
Forthcoming in Chiara Giorgetti & Guglielmo Verdirame (eds), Concepts on International Law in Europe and the United States (Cambridge University Press, 2018)
25 Pages Posted: 20 Sep 2017
Date Written: September 14, 2017
Whilst in a constant quest for the sophistication of their craft, international lawyers relish simplistic repetitive narratives. They continuously represent the world that they inhabit as undergoing cataclysmic changes calling for the intervention of international law, itself portrayed as being in a state of crisis and in need of renewal. It is noteworthy that international lawyers’ simplistic narratives are not limited to the image they want to project about the world and international law. Their simplistic historical narratives also pertain to the way in which they represent themselves as a group of professionals and the configuration thereof. Indeed, when it comes to representing themselves, international lawyers generally indulge in some Manichaeism of sort as they portray their discipline as fractured along very binary lines: the centre versus the periphery, orthodoxy versus self-reflectivity, reform versus rehabilitation, the critical versus the non-critical, the scholars versus the practitioners, the idealists versus the realists, the autonomists versus the pluralists, the unitarians versus the fragmenters, etc.
This chapter grapples with one of these mundane self-representations, namely the narrative that pits formalists against non-formalists and that locates the dividing line between them somewhere in the Atlantic Ocean. It particularly seeks to challenge the common assumption among international lawyers according to which Europeans are more wedded to formalism than their American counterparts who, as the story goes, have successfully emancipated themselves from the straightjackets of legal forms. The following sections thus take issue with this common self-representation whereby the Europeans are the (naive) believers in formalism and the Americans the (realistic) deniers of formalism. Such a narrative, it is argued here, does not do justice to the subtle and complex role ascribed to legal forms on each side of the Atlantic. This chapter accordingly sheds light on the two deceptive dimensions of this common narrative about formalism with the aim of showing that both Europeans and Americans continue to demonstrate attachment to legal forms, the only significant differences between them lying in the way in which they seek to re-invent formalism and the role of legal forms. This chapter ultimately makes the point that both American and European international lawyers live in denial of their continuous engagement with legal forms.
Keywords: International Law, International Legal Theory, Jurisprudence, Legal Form, Formalism, Realism, Critique, New Haven, Positivism
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