Interpretive Entrepreneurs

64 Pages Posted: 9 Feb 2021 Last revised: 10 May 2021

See all articles by Melissa (MJ) Durkee

Melissa (MJ) Durkee

University of Georgia School of Law; University of Georgia - Dean Rusk International Law Center

Date Written: February 9, 2021

Abstract

Private actors interpret legal norms, a phenomenon I call “interpretive entrepreneurship.” The phenomenon is particularly significant in the international context, where many disputes are not subject to judicial resolution, and there is no official system of precedent. Interpretation can affect the meaning of laws over time. For this reason, it can be a form of “post hoc” international lawmaking, worth studying alongside other forms of international lobbying and norm entrepreneurship by private actors. The Article identifies and describes the phenomenon through a series of case studies that show how, why, and by whom it unfolds. The examples focus on entrepreneurial activity by business actors and cast a wide net, examining aircraft finance, space mining, modern slavery, and investment law. As a matter of theory, this process-based account suggests that international legal interpretation involves contests for meaning among diverse groups of actors, giving credence to critical and constructivist views of international legal interpretation. As a practical matter, the case studies show that interpretive entrepreneurship is an influence tool and a driver of legal change.

Keywords: international law, interpretation, treaties, customary international law, corporations, trade associations, non-state actors, sources of law, international legal theory, lobbying

JEL Classification: F23, F50, F53, K33, L21, L31, L32, L38, M14

Suggested Citation

Durkee, Melissa (MJ), Interpretive Entrepreneurs (February 9, 2021). Virginia Law Review, Vol. 107, 2021, University of Georgia School of Law Legal Studies Research Paper No. 2021-03, Available at SSRN: https://ssrn.com/abstract=3782643

Melissa (MJ) Durkee (Contact Author)

University of Georgia School of Law ( email )

225 Herty Drive
Athens, GA 30602
United States
(706) 542-7140 (Phone)
(706) 542-5556 (Fax)

University of Georgia - Dean Rusk International Law Center ( email )

100 Herty Drive
Athens, GA 30602-6018
United States

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