A Landscape of Contemporary Theories of International Law

International Law

A Landscape of Contemporary Theories of International Law

By Emmanuel Roucounas
Brill Nijhoff September 2019

Specifications

ISBN-13
9789004385351
Publisher
Brill Nijhoff
Publication
September 2019
Format
Hardback
Jurisdiction
Netherlands ? Countri(es) for reference only

Details

This rich and remarkable volume offers an overview of the most important schools, movements and trends which make up the theoretical landsacpe of contemporary international law, as well as the works of over 500 authors. It moves beyond generalization and scrutinizeas how the relevant literature deals with the basic issues of the international legal system, such as international obligations, legitimacy, compliance, unity and universality, the rule of law, human rights, use of force and economics. It offers insights into the addressees (the state, international organizations, individuals and other private persons), and the construction of international law, including law-making, the relationship between norms, and interpretation. Moreover, it widens the discourse by addressing old, yet enduring, as well as new concerns about the functioning of the international legal system, and presents views of non-international lawyers and political scientists regarding that system. It is a valuable analysis for researchers, students, and practitioners.

Table of Contents

Preface: The Choir Group
Part 1 - Essential Elements:
1. Introduction
 1.1 Theories about Theory
 1.2 Theories of or about International Law
2. Thoughts on the Impact of Theory on International Law
3. Important Elements in the Making of Theory
 3.1 Ideology
 3.2 Polysemy of Terms and Concepts: The Role of Language
 3.3 Limits and Limitations of Theory
 3.4 History and Histories of International Law
 3.5 Methodology and Methods
 3.6 International and Domestic Law: Incorporation, Transformation, Coordination, Order of Execution, Adaptation, Approximation, Fusion, Direct Effect, and Resistance
  3.6.1 Subsidiarity
  3.6.2 Inter-judicial Dialogue
  3.6.3 Legal Pluralism from the Viewpoint of the Relationship between International and Domestic Law
 3.7 International Legal Theory and Technical and Scientific Expertise
4. Adumbrations of the Theoretical Adventure
 4.1 Some Characteristics
 4.2 Difficulties in the Assortment of Theorists in Schools and Movements
5. Traceability of Antecedents to Current Scholarship
 5.1 Introduction
 5.2 The Swing between the Two Mainstream Theories
 5.3 Natural Law
 5.4 Positivism(s)
 5.5 Responses to Traditional Voluntarist Positivism
 5.6 Normativism (a System Governed by Legal Norms)
 5.7 Aspects of the Sociological Underpinnings of International Law
  5.7.1 European Scholarship with “Sociological” Inspiration
  5.7.2 American “Exceptionalism”
  5.7.3 Singularities of the Soviet Doctrine (1922–1989)
6. Regional and National Traditions: Prolegomena to the Present (from the End of the Second World War to the 1970s)
 6.1 Introduction
 6.2 Overview of Theories after the Second World War
  6.2.1 Europe
  6.2.2 United States. Traditional, but also “What Seems Almost Evident [Is] the Difference between You and Me”
  6.2.3 Latin America
  6.2.4 Africa
  6.2.5 Asia
7. Self-referential International Law and the Compelling Need to Also Listen to Others’ Voices
8. Concluding Remarks
Part 2 - Enduring and New Schools, Movements and Trends:
9. Introduction
10. Basic Orientations
 10.1 The Liberal Agendas
 10.2 The Positivist Stronghold
 10.3 Renovated, Expressly Stated, Hidden or Inherited Naturalism
 10.4 Realism
 10.5 Idealism
 10.6 Rationalism and Rationality
 10.7 Pragmatism
 10.8 Empiricism
 10.9 Formalism
11. Other Approaches
 11.1 Modernity, Modernism and Post-modernism
 11.2 Policy-Oriented Theory, Perspective or Jurisprudence
 11.3 Structuralism and Post-structuralism
 11.4 Constructivism
 11.5 Deconstruction
 11.6 Critical International Legal Studies
 11.7 Third World Approaches to International Law ( twail )
 11.8 The Feminist Presence
 11.9 Functionalism and Institutionalism
  11.9.1 Functionalism
  11.9.2 Institutionalism in Its Double Sense
 11.10 Instrumentalism
 11.11 International Regime Theories
12. Universal, Plural, Relative
 12.1 Legal Cosmopolitanism
 12.2 Constitutionalism and the “Constitutionalization” of International Law
 12.3 Legal Pluralism
 12.4 Legal Relativism and Relativity
 12.5 Role Splitting
13. Further Explorations
 13.1 Law and Economics or Rational Choice Approaches to International Law
 13.2 General Systems Theory ( gst ) or Systemic Theory (ST)
 13.3 A Place for Chaos Theory
 13.4 Current Marxist, Neo-Marxist and Leninist Approaches
 13.5 Moving in a “Middle Road”
14. Sociological Aspects of International Law Theories
15. Concluding Remarks
Part 3 - Connecting More Writings to Theory:
SECTION I - The International Legal System: Important Issues
16. Where is the International Community or Society?
 16.1 Evolving Views
17. Ontological and Post-ontological Discourses
 17.1 “International Law as Law”
 17.2 Mature or Primitive Law
 17.3 Discontent
 17.4 Law and Crisis
18. General (or Grand) Theories of International Law and General International Law
 18.1 In Search of a Current Specimen of General Theory
 18.2 General International Law: The Parameters
19. Legal Basis of International Obligations
20. Legitimacy
21. Compliance
22. Unity and Universality
 22.1 Unity
 22.2 Universality
23. Fragmentation
 23.1 Siblings of Fragmentation: Self-contained or Special Regimes
 23.2 Cohesion of Special Regimes or Subsystems
24. The Issue of Jurisdiction and Competence
25. Fictions
26. Hegemonic Power and Unilateralism
27. The International Dimension of the Rule of Law
28. Normativity Forming an Integral Part of International Law
 28.1 The Safe Port of Human Rights
 28.2 Non-use and Use of Force
 28.3 International Humanitarian Law ( ihl )
 28.4 The Economy: No More a Passing Silhouette
29. Concluding Remarks
SECTION II - Flashes about the Addressees, the Fabrication and Operation of International Law
A. The Addressees of International Law
30. The “Users” of International Law: Moving beyond Doctrinal Controversies on “Subjects”, “Non-state Actors” and “Participants”
31. The State
 31.1 The Concept
 31.2 Creation and Recognition
 31.3 Sovereignty
 31.4 International Legal Personality
 31.5 Equality
 31.6 Territory
 31.7 State Immunity/Immunities
 31.8 Responsibility
 31.9 Liability
 31.10 Self-determination
 31.11 Secession
 31.12 Succession
 31.13 Statehood and “One Size Fits All” Approaches
32. International Organizations
 32.1 Role and Legal Status
 32.2 Responsibility and Accountability of International Organizations. A Story of Loopholes
33. “Individuals” and Other Private Persons
 33.1 An Unfinished Symphony
 33.2 Non-governmental Organizations ( ngo ?s) and the International Civil Society
B. Aspects of the Fabrication and Operation of International Law
34. Law-Making
 34.1 Producers
 34.2 Main Products and Modes of Fabrication
  34.2.1 Customary International Law
  34.2.2 Treaties
  34.2.3 General Principles of Law
35. Expanding the Products and Modes of Fabrication
 35.1 Soft Law
 35.2 Standards
 35.3 A Converging Category: Transnational Law
36. Relationship between Norms
 36.1 Hierarchy of Norms
 36.2 The Intertwined Duo of Jus Cogens and Obligations Erga Omnes
  36.2.1 Jus Cogens
  36.2.2 Obligations Erga Omnes
 36.3 Successive, Parallel and Contradictory Commitments. The Issue of Transtextuality
37. Interpretation
38. Concluding Remarks
SECTION III - Widening the Discourse
39. Interrogations and Expectations
 39.1 Progress and “Progressive Development”
 39.2 Democracy
 39.3 The Eternal Quest for Ethics and Morality
 39.4 Fluctuations on Justice Stemming from International Law
 39.5 Globalization
 39.6 Governance and Global Administrative Law
 39.7 International Law and Politics
 39.8 International Environmental Law
40. A Skeleton Meeting of Minds
 40.1 Attempts for a Dialogue between International Law and International Relations (IR) Theories
 40.2 General Theories of Law and Political Science Touching on International Law
  40.2.1 General Theories of Law
  40.2.2 Other Doctrines Addressing Questions Related to International Law
41. Concluding Remarks
42. Final Conclusions: The Choristers’ Performances
Index of Authors
Index of Subjects
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