Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules
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| Anteprima |
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-evaluated against 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 that only 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 legal rules
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, but it 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.
