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A Landscape of Contemporary Theories of International Law

Emmanuel Roucounas

ISBN13: 9789004385351

Published: September 2019

Publisher: Brill Nijhoff

Country of Publication: The Netherlands

Format: Hardback

Price: £382.00

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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.

Subjects:: Public International Law

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