In defense of international law?

Abstract

Questions about methods hardly featured at PhD defenses in international law at a specific university some twenty years ago. Doctrinal scholarship was the default, and its method was supposed to be so obvious that it did not require elaboration: this was simply the legal method. Some (usually external) examiners caused a stir ––much to the frustration of the candidate's supervisors, giants in the field of international law–– when they insisted on corrections on the ground that the dissertation did not have a methods section. The candidate then had to justify ––indeed, think–– about the method after all the substantive research had been done. Where to start for writing this add-on? Prompted by the words method and international law, Google and legal databases took the almost-Doctor to an issue of the American Journal of International Law (AJIL) that had come out in the late 1990s: Symposium on Method in International Law, edited by Steven Ratner and Anne-Marie Slaughter. To the relief of the candidate confronted with the demanding examiner, the list of methods presented in the Symposium legal positivism, the New Haven School, international legal process, critical legal studies, international law and international relations, feminist jurisprudence, and law and economics contained one that most resembled what they had been doing: legal positivism. So with reference to the Symposium, they then wrote the requested additional section by describing legal positivism, which, according to Symposium contributors Bruno Simma and Andreas Paulus, sees law as a unified system of rules. If Anne Orford had been the examiner, she would probably not let candidates get away with treating method as an afterthought either, so we assume on the basis of her forcefully argued most recent book, International Law and the Politics of History. For we take the book's most important message to be: fellow international lawyers, don't think that you can pick up an 'objective', politically neutral method, whether in the shopping mall of 'legal methods' or of methods associated with other fields.

Keywords: International law, methodology, historiography, politics of history, formalism, epistemology, empirical research