Mónica García-Salmones Rovira
This chapter traces the legal and political principles of two important schools of the twentieth century—the New Haven School and the School of Carl Schmitt—and situates them in their geographical and historical contexts. It analyses commonalities and especially differences in their political and legal projects. The chapter further argues that reaction against a naïve positivism reigning during the past century in international law essentially determined developments in both schools’ understanding of the concept of sources of law. In the discussion of Schmitt, the chapter focuses on sources of domestic law and seeks to understand the relationship between the sources of domestic and international law as Schmitt saw it through the notion of ‘concrete order thinking’. Finally, this chapter also addresses a trait shared by New Haven and Schmitt when connecting sources of law with politics, international organizations, and institutions.
This chapter explores the dialectics of international customary law. It argues that custom is at once a sheet anchor of public international law and its rope of sand as well. The chapter discusses aspects of chapter 9, the Third World Approaches to International Law (TWAIL) contexts of ‘custom’ as the source of international law norms and standards, the jusnaturalist invocation of custom, and the idea of a ‘future’ custom. In addition, the chapter argues that much of the TWAIL thought about resistance and renewal stands to be redirected to the varieties of imperial legal positivisms. It also asks whether the UN Charter principle-and-purposes-centric perspective is a perspective more relevant to our reconceptualization of the role of custom as a source for a future international law.
Sources in the Meta-History of International Law: From Liberal Nihilism and the Anti-Metaphysics of Modernity to an Aristotelian Ethical Order
Anthony Carty and Anna Irene Baka
This chapter criticizes the aversion to metaphysics, which essentially governs the whole history of the sources of international law. Ludwig Wittgenstein’s logical positivism and anti-metaphysics had paved the way to legal positivism, which took a new pathological turn with Hans Kelsen’s and Carl Schmitt’s fixation on ideological purity. Moreover, international legal positivism means acquiescence in coercive international relations. And the history of international law is one of continuing coercion, rooted in the racial shadow of liberalism. The chapter thus offers a critical discussion of the theory of legal obligation in Emer de Vattel, the place of imperialism in the history of international law, and the continuing mainstream discussion of unequal treaties. It then revisits the history of international law through the prism of phenomenology, thereby re-introducing the Aristotelian metaphysics of justice to the theory of international law.
Sources in the Meta-History of International Law: A Little Meta-Theory—Paradigms, Article 38, and the Sources of International Law
Mark Weston Janis
This chapter introduces a ‘meta-theory’ of international law. It employs the insights of Thomas Kuhn, who argued that once a paradigm has been accepted by a scientific community, most scientists accept it without much question. When the paradigm is overwhelmed, a ‘scientific revolution’—a new paradigm—emerges. The paradigm for the sources of international law is Article 38 of the International Court of Justice (ICJ) Statute, which emerged during and after World War I when international lawyers, faced with the horrors of that awful conflict, lost faith in their old discipline, thereby initiating Kuhn’s scientific revolution. Nowadays, Article 38 remains an attractive paradigm: first because the ICJ and its Statute are almost universally accepted; secondly, because it is neatly formulated; thirdly, because the paradigm has been confirmed in case law and commentary; and fourthly, because it is widely taught.