Philosophy of International Law

Philosophy of International Law

Philosophy of International Law

Philosophy of International Law

Synopsis

The book is a second edition. It aims to preserve the essential character of the first edition, but also to provide a more comprehensive and also more generally accessible introduction to the intrusion of philosophy into international law. The aim of the first edition was to show that mainstream international law is largely unworkable, and that this is significantly because it is permeated by misunderstood, undigested or outdated philosophical notions or is lacking in such notions where they are in fact needed. The book then offers a variety of philosophical ways out.

Key features of new edition

  • A revised historical introduction, illustrating the significance of late scholastic natural law for the shaping of the beginnings of international law
  • Explains the gradual dominance of legal positivism and pragmatism or professionalism for the contemporary international law scene.
  • Debates International law and its application in legal practice and legal personality, the scope of rightful self-defense and use of force.
  • The book offers various philosophical approaches to international legal order at the moment, such as the analytical school, law and economics, social democratic and Marxist notions of development
  • Resolves all in a newly-combined phenomenological, natural law approach, also in an Asian-Confucian context.

Excerpt

I intend to begin simply by referring to two recent French works, the Dictionnaire encyclopédique de théorie et de sociologie du droit and a colloquium organized by the legal history department of the University of Picardie (Amiens), La Doctrine juridique. The first provides us with an authoritative and vital distinction between legal doctrine and legal dogmatics, while the second explains the problematic of keeping the former alive.

The French dictionary distinguishes doctrine from ‘dogmatique juridique’ (legal dogmatics). The former is defined as ‘opinion, theory or thesis,’ while the latter means the domain of the science of law concerned with the interpretation and systematization of juridical norms. An essential element of doctrine is that it is supposed to have authority. The theory, opinion, etc. must be capable of exercising influence. Coming from the tradition of Roman law and canon law, particularly in French and German legal communities, doctrine has authority not as a source of law as such, but as freely and spontaneously held opinion, which is likely to become accepted. Since the seventeenth century the nature of this authority has become contested. It is seen as rooted in theories of natural right which were increasingly regarded as the ideological apparatus of a dominant bourgeois class.

Legal dogmatics works within the assumptions of legal positivism, particularly with respect to the sources of law. It is concerned with the interpretation of statutes and jurisprudence. There may be, within this framework, theories of interpretation and methods for the systematization of written and customary law. However, this supplementary role for the legal writer, whether an academic or practitioner, is not challenged one way or the other by the controversies surrounding doctrine. Theories of interpretation and systematization do . . .

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