The Interaction of Doctrine and Theory in (International) Legal Scholarship

Abstract

In this chapter, I propose to make the case for the interconnectedness of legal theory and legal doctrine and will show how this dynamic works in the realm of international legal scholarship. I proceed from the assumption that meta-theoretically, the relationship of theory to doctrine in international legal scholarship is exactly that of theory to the scholarship of domestic law. Section 2 discusses the role of legal theory as a communications interface: it looks to philosophy but also to legal doctrine, manages the interface between and thus interlinks different realms of knowledge. It serves two functions: (1) it is a theory of legal scholarship (Rechtswissenschaftstheorie) and (2) also a theory of norms and law, a study of the concept, kinds and interaction of legal rules. Section 3 turns to the German notion of Rechtsdogmatik. While it is culturally specific, we may nonetheless learn from the debates in Germany for international legal scholarship. The orthodox concept of doctrine both in Germany and in international law is instrumentalist, normative and oriented towards the solution of problems. The task of doctrinal scholarship is primarily to guide the decisions of legal organs in a specific direction before they decide and to justify them after they have done so. Section 4 briefly summarises what the Pure Theory of Law would see as the proper role of scholarship: the analysis of the structure of legal orders and interpretation as the determination of the frame of possible meanings. Section 5 applies this to the idea that we need to primarily talk about the identification of customary law, rather than its creation, prompted by the 2018 ILC Report on customary international law, and critiques it.

Keywords: international legal scholarship, Rechtsdogmatik, Hans Kelsen, Pure Theory of Law, Wissenschaftstheorie, philosophy of science, legal theory, theory of norms, theory of legal scholarship, legal doctrine, customary international law, international law, International Law Commission