Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules

Paperback | June 23, 2013

byJean dAspremont

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This book revisits the theory of the sources of international law from the perspective of formalism. It critically analyses the virtues of formalism, construed as a theory of law ascertainment, as a means of distinguishing between law and non-law. The theory of formalism is re-evaluatedagainst the backdrop of the growing acceptance by international legal theorists of the blurring of the lines between law and non-law. At the same time, the book acknowledges that much international normative activity nowadays takes place outside the ambit of traditional international law and thatonly a limited part of the exercise of public authority at the international level results in the creation of international legal rules. The theory of ascertainment that the book puts forward attempts to dispel some of the illusions of formalism that accompany the traditional sources of international law. It also sheds light on the tendency of scholars, theorists, and advocates to deformalize the identification of international legalrules with a view to expanding international law. The book seeks to revitalize and refresh the formal identification of rules by engaging with some tenets of the postmodern critique of formalism. As a result, the book not only grapples with the practice of law-making at the international level, butit also offers broad theoretical insights on international law, dealing with the main schools of thought in legal theory (positivism, naturalism, legal realism, policy-oriented jurisprudence, and postmodernism). This paperback edition features the author's discussion of this book on the EJIL Talk blog.

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This book revisits the theory of the sources of international law from the perspective of formalism. It critically analyses the virtues of formalism, construed as a theory of law ascertainment, as a means of distinguishing between law and non-law. The theory of formalism is re-evaluatedagainst the backdrop of the growing acceptance by ...

Jean d'Aspremont is Associate Professor of International Law and Senior Research Fellow of the Amsterdam Center for International Law at the University of Amsterdam. He is also Professor of International Humanitarian Law at the University of Louvain in Belgium. In addition, he is a Senior Editor of the Leiden Journal of International ...
Format:PaperbackDimensions:340 pages, 9.21 × 6.14 × 0.01 inPublished:June 23, 2013Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0199682267

ISBN - 13:9780199682263

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Table of Contents

1. Introduction2. The concept and the rationale of formalism in international law3. The emergence of formal law-ascertainment in the theory of the sources of international law4. The critiques of formal law-ascertainment in the theory of the sources of international law5. Deformalization of law-ascertainment in contemporary theory of the sources of international law6. Lessons from the discontent with formalism7. The configuration of formal ascertainment of international law: the source thesis8. The foundations of formal ascertainment of international law: the social thesis9. Concluding remarks: Ascertaining international legal rules in the future