The Path not Taken: On Legal Change and its Context

Forthcoming in Nico Krisch & Ezgi Yildiz (eds), Paths of International Law (OUP 2022)

Amsterdam Law School Research Paper No. 2021-41

Amsterdam Center for International Law No. 2021-15

23 Pages Posted: 20 Dec 2021

See all articles by Ingo Venzke

Ingo Venzke

University of Amsterdam - Amsterdam Center for International Law

Date Written: December 17, 2021

Abstract

Legal change must be understood in relation to its context. But how? A reduction of law to its context, as approaches in political and legal realism tend to suggest, is unrealistic in its denial of law’s relative autonomy. The law offers reasons for its change that are no less real than those that emanate from context, be it political or otherwise. The present contribution builds on work that has studied law’s contingency—the possibility of alternative legal developments under unchanged contexts. What was the path not taken? This question pushes for law’s utter contextualization while keeping a critical distance. It does not stop asking why something happened until it is adequately explained, nor does it deny the alternative possibilities. The chapter first situates contingency in thinking about legal developments, drawing special emphasis to the travails of Third World Approaches to International Law (TWAIL). It then, second, expands on claims about law’s relative autonomy and, third, on claims about what would a difference also in the long run. What could possibly be path-breaking? The conclusions circle back to questions of what counts as context. Why politics?

Keywords: Legal History, Contingency, Realism, Idealism,Third World Approaches to International Law (TWAIL), Legal Autonomy, Contextualization

JEL Classification: K33

Suggested Citation

Venzke, Ingo, The Path not Taken: On Legal Change and its Context (December 17, 2021). Forthcoming in Nico Krisch & Ezgi Yildiz (eds), Paths of International Law (OUP 2022), Amsterdam Law School Research Paper No. 2021-41, Amsterdam Center for International Law No. 2021-15, Available at SSRN: https://ssrn.com/abstract=3988199

Ingo Venzke (Contact Author)

University of Amsterdam - Amsterdam Center for International Law ( email )

REC A - Nieuwe Achtergracht 166
Amsterdam, 1018WV
Netherlands

HOME PAGE: http://www.uva.nl/profiel/v/e/i.venzke/i.venzke.html

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