This chapter examines the relationship between social theory and legal studies, paying close attention to the theoretical implications of specific legal technicalities by borrowing methodologies originating from non-legal disciplines. Social theorists who want to engage with and contribute to socio-legal scholarship can draw on actual legal quandaries and real-world governance dilemmas to help generate theoretical insights that may perhaps borrow their underlying epistemology from non-legal theorists, but that also draw substantially on close studies of legal processes, particularly the often-ignored theoretical significance of law’s own procedures and knowledge moves. The chapter then reveals how the substantial benefits may be derived from this genuine exercise in interdisciplinarity by harnessing considerations of scale, temporality, materiality, and narrative affect, as far as the jurisdiction is concerned.
Mónica García-Salmones Rovira
This chapter focuses on Lassa Oppenheim’s (1858–1919) groundbreaking work on the legal theory of international law, which was written at the beginning of the twentieth century. Oppenheim’s recognition of the economic interdependence of nations was one important factor in his success in establishing the international economic system as the supporting framework of his Family of Nations, and as the underlying theory of his international law. Afterwards, the chapter maps the complex legal theoretical transition embedded in the change of philosophical position as regards the understanding of universalism. This involves a move from the transcendent realist philosophy of an earlier era to the immanent philosophy of the Austrian positivists at the beginning of the century.
This chapter describes encounters between feminism and international law in four parts. It begins by outlining the diversity of feminist visions for (and against) international law to highlight the dynamism of the field, the contestation between its various political and legal commitments, and the different ways that the feminist subject of law is conceived. Secondly, the chapter examines the range of critical analyses that feminists have developed in the wake of a particular 1991 American Journal of International Law (AJIL) article. The chapter then explores the trajectories of feminist reform projects in international law. Lastly, this chapter highlights the paradoxes of feminist engagement with international law, arguing that the practices of critique and reform, and their productive tensions, are essential to resisting the law’s colonization of feminist politics and keeping feminist imaginaries of a better world alive.
This chapter reconsiders the arc of Hannah Arendt’s (1906–1975) writings about international law. Her scattered remarks present a careful pattern of demands upon international law, announced at the discipline’s key formative turns, for the resolution of the Jewish Question or rather, the series of issues problematizing Jewish-ness as uncertainty about citizenship, nation, and race from the eighteenth century onward. But international law was an important site for her attention even where law was adjuvant or ancillary to the broader sweep of her analytical project. Arendt repeatedly returned to international law expecting answers as a political thinker: for the working out of tensions within the idea of nation for the sake of humankind and the plural life of politics.
Jochen von Bersnstorff
This chapter illustrates the deep structure of the Kelsenian approach to international law from an intellectual history perspective. Hans Kelsen (1881–1973) was a Viennese law professor in between the two world wars, who is seen by many as one of the most outstanding, if not the most outstanding, jurist of the twentieth century. Therefore studying the Kelsenian approach includes the political, doctrinal, and philosophical context in which Kelsen developed his fundamental critique of the then-prevailing German international law theory. Furthermore, the chapter reveals the subversive and revolutionary force of Kelsen’s critical methodology with a couple of examples, concluding with a few words on how German international legal scholarship dealt with Kelsen’s legacy after the Second World War.
This chapter discusses Immanuel Kant’s notion of jurisdiction. Kant’s work contains several thoughts and ideas on the scope of regulatory state activities that may well be read as pertaining to the exercise of imperium in the sense of jurisdiction how it is commonly used today. In his philosophical sketch on Perpetual Peace, Kant proceeded from a traditional understanding of jurisdiction as coexistence between states as a cornerstone of international law. In this traditional view, jurisdiction is nothing more than a reasonable mutual delimitation of jurisdictional spheres based on territoriality or personality. Yet, at the same time, he also developed a visionary idea of cosmopolitan law which would significantly affect the traditional rules of jurisdiction, especially the personality principle through the emergence of individual rights. Kant’s approach thus foreshadowed a development towards an anthropocentric international legal order epitomized by the concepts of human rights and universal jurisdiction.
This chapter explores the role of positivism in international law, noting that the term ‘positivism’ itself has many connotations, most of which muddy an already neglected—yet strikingly pervasive—approach to international law. On that note, the chapter explores the differences (and overlaps) between positivism and formalism; then, it shows how radically different modern, philosophically- and jurisprudentially-informed forms of international legal positivism are, how little they are touched by the constant attack on the positivist–voluntarist straw man, and how unfair it is to lump them together with unthinking ‘positivists’:. Following these arguments is a reconstruction of the Neo-Hartian Socio-Psychologico-Linguistic school of positivism.
International Legal Theory in Russia: A Civilizational Perspective, orCan Individuals be Subjects of International Law?
This chapter argues that the concept of ‘civilization’ may be a useful analytical lens to look through for making sense of international legal theory outside the West. Specifically, it focuses on international legal theory in Russia and in the Russian language, broadly sketching an international legal theory in the country from the mid-nineteenth century onwards. Throughout the last few centuries, other non-Western civilizations have struggled with the predominance of the West, and have related and referred to it one way or another. Therefore, this dialogue — and often contest — of civilizations and the ways they have been constructed by political leaders and intellectuals has left its marks on international legal theory as well. For one reason or another, but perhaps also for reasons of cultures, histories, and civilizations differing from each other, scholars outside the West such as in Russia tend to put different emphases in terms of how they construct international law.
Intervention, Armed Intervention, Armed Attack, Threat to Peace, Act of Aggression, and Threat or Use of Force: What’s the Difference?
This chapter examines the international law on the use of force and related terms such as intervention, armed intervention, armed attack, threat to peace, act of aggression, and threat of force. It considers the different ways in which the use of force can be classified and explains why this occurs. The discussion begins by analysing the variety of terms used in the UN Charter and other security arrangements. It then looks at the relevant practice of states when concluding agreements on the use of force, as well as the practice of the UN Security Council and the International Court of Justice when dealing with interstate conflicts. The chapter concludes by evaluating the relationship between language and law with respect to the use of force.
Anne Orford and Florian Hoffmann
This introductory chapter briefly explores the practice of theorizing international law. Theorizing is an inherent part of the practice of international law. Theories of international law have attempted to demonstrate that laws governing the conduct of sovereigns exist at all, and have been concerned with the attempt to connect emerging forms of international legal practice to a philosophical or historical tradition from which international law is said to originate, or to develop a method for interpreting or systematizing international law. The relation of international law to the modern state has been the focus of much theoretical work, both by those seeking to challenge the state’s role as the privileged subject of international law or by those seeking to argue that recognition of its importance and status have been lost.
Andre de Hoogh
This chapter examines the concept of jus cogens in relation to the use of armed force. It first considers whether the prohibition of the use of armed force possesses the status of a peremptory norm before looking into the jus cogens restrictions associated with the peremptory prohibition of the use of armed force or aggression, together with its relationship to accepted or claimed exceptions. The chapter then focuses on the circumstances precluding wrongfulness countermeasures, consent and necessity, as they relate to the peremptory prohibition. Finally, it discusses jus cogens demands for forcible action arising from peremptory norms, such as armed intervention to stop genocide.
Wouter Werner and Geoff Gordon
This chapter explores the way in which Kantian ideas have been adopted and transformed in contemporary international law and international theory, with the twofold aim of introducing some core topics on Kantian philosophy, cosmopolitanism, and international law, as well as demonstrating the importance of acknowledging different forms of cosmopolitanism at work in international law, thereby shedding new light on the ‘forgotten’ tradition of innate cosmopolitanism. The work of Kant not only occupies an important place in the history of ideas in international legal theory; his work also constitutes an enduring source of inspiration for widely diverging contemporary approaches to international law. On that note, the chapter references four core Kantian ideas incorporated in contemporary cosmopolitan thinking: the categorical imperative, the roughly contractual notion of a federation of free republics, the conception of a cosmopolitan right of hospitality, and the idea of an innate cosmopolitanism.
Legal Theory As a Source of International Law: Institutional Facts and the Identification of International Law
This chapter argues that legal theory provides conceptions of the sources of international law that differ according to time and place. It employs Neil MacCormick’s explanation of institutional order to argue that conceptual understandings of law, including international law, are socially constructed. The chapter starts from John Austin’s denial that international law possesses the quality of law and then considers the function that sovereignty has played in some explanations of international law and its sources. Afterwards, the analysis focuses on the paradigm shift that Hugo Grotius introduced into natural law, and consequently into international law, by substituting consent for theology as its underpinning explanation. The chapter also considers twentieth-century transatlantic variants of natural law and examines three influential British theorists—James Brierly, Gerald Fitzmaurice, and Hersch Lauterpacht. Finally, before drawing some conclusions, the chapter examines the more instrumentalist naturalism of the New Haven School.
Alain Papaux and Eric Wyler
This chapter observes that with treaties, customs, general principles, decisions, doctrines, and soft law, we are dealing first and foremost with signs. The very structure of signs is inference. This reveals the necessity of interpreting all sources of law. Because doctrine’s first task is interpretation, its role in understanding law is essential. Law, therefore, should not be conceived as a science; it is concerned with what is just, not what is true. From that follows the importance of auctoritas and dogmatics: law establishes values to orient practice. Centred on this practice, doctrine, which lies at the foundation of modern international law, reveals itself to be savante rather than scientific or theoretical.
This chapter attempts to chart a course through the complex terrain of Marxist theory as applied to international law, especially given that Marxist international legal theory can only be understood in relation to a number of other debates. Particularly important are Marxist debates about the relationship between the ‘base’ and ‘superstructure’, about the nature and function of the state, and theories of ideology and hegemony. To that end, the chapter explores Marxist theories of imperialism and their understanding of international law, such as the associations between international law and the dynamics of international capitalism, conducted under the rubric of ‘imperialism’. Finally, the chapter takes a specific look at Marxist international legal theory, in exploring the commodity-form theory, the ideology critique, and the positioning of the ‘Third World’ within international law.
This chapter offers a critical discussion of the origins, aims, and main contributions of moral philosophies of international law. Then, in moving beyond mere exposition, the chapter turns to a meta-theoretical discussion of international law, and in particular to how international legal theory should best be conceived and conducted. The chapter argues for the development of normative legal philosophies of international law that take the normativity of law and hence its legality more seriously than international legal theorists have so far, but also than moral philosophers of international law have themselves, thus breaking away from the sterile oppositions between ‘realist’ and so-called ‘moralist’ approaches to international law.
This chapter presents an overview of three active periods of natural law scholarship bearing on international legal theory, via two stories that illustrate these to effect. The first story relates in brief the renewed attention to natural law doctrine as part of historiographical and epistemological inquiries in international law and legal theory. The second presents still another means of understanding natural law and its ongoing role in international law, namely as a dialectic by which new conceptions and vocabularies of political organization have arisen under varying historical circumstances. The chapter then traces the role of natural law doctrine as part of a linear consolidation of liberal hegemony internationally from the early modern period forward, and offers the dialectical presentation covering the same time frame. The chapter concludes by returning to how natural law continues to contribute both to the possibility of new normative programs internationally, as well as the hegemonic.
Allen Buchanan and David Golove
This article emphasizes the task of framing some of the central issues of the philosophy of international law. It addresses the normative dimension of international law—the moral theory of international legal doctrine and institutions—not what Hart would call the analytic dimension, and not the epistemology of international law. It develops a concept of the relationship between normative theorizing about international law and the realities of the current state-centred international system. It articulates most of the issues a normative theory of international law must address, indicating the key choices, which a theorist faces, and thereby suggests an agenda for further research. It also discusses human rights, humanitarian intervention, and the conditions for the legitimacy of governments which will have direct and fairly obvious implications.
This chapter examines the use of private military companies (PMCs) to deal with international armed conflicts and the prohibition of the use of force in relation to such entities. It considers the jus ad bellum implications of private military contracting in international law and international relations. The chapter explains what PMCs are and what they do, drawing a distinction between mercenaries and various terms used to refer to private companies hired by states in lieu of armed forces. It presents case studies where PMCs have engaged in prohibited or lawful use of force at the behest of a state, or where they may be used by a state in situations that run counter to jus ad bellum. Three real-world examples are highlighted. The chapter concludes by assessing the implications of using PMCs in armed conflicts for state responsibility with respect to the prohibition on the use of force.
This chapter outlines some of the linkages between a genuinely legal realist approach to (international) law and jurisprudence, and the claims of political realists about the role and status of law in the international sphere. It explores realism as an argumentative strategy, in considering what an argumentative structure would look like in international legal thought. The second part of the chapter then examines the intellectual heritage of what has explicitly been labelled ‘legal realism’, in both its American and Scandinavian versions, in order to find a place for a legal realist position within the canon of legal theory. Finally, the chapter seeks to relate the views of political realism about international law to the ways in which international lawyers themselves have sought to include an external position about the reality of international law into their own theories and doctrines.