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A Landscape of Contemporary Theories of International Law

A Landscape of Contemporary Theories of International Law

Author: Emmanuel Roucounas
Publisher: Brill Nijhoff
ISBN: 9789004385351
Published In: September 2019
Format: Hardback
Jurisdiction: Netherlands ? Disclaimer:
Countri(es) stated herein are used as reference only

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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.

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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